4 Colo. Code Regs. § 801-1-8-A-VI

Current through Register Vol. 47, No. 11, June 10, 2024

Section 4 CCR 801-1-8-A-VI - Rules for Hearings

Board Rule 8-32. Notice of Hearing. An Administrative Law Judge will issue a Notice of Hearing and Prehearing Order upon receipt of an appeal subject to a mandatory hearing, upon the Board granting a discretionary hearing, or when the Board does not adopt the CCRD's opinion as its own. At the discretion of the Administrative Law Judge, the Notice of Hearing may be in the form of a Scheduling Conference.

Board Rule 8-33. Mandatory Disclosures.

A. Within twenty-one (21) days from the date of the certificate of service of the Notice of Hearing or of a Notice of Scheduling Conference, the parties shall provide to each other these mandatory disclosures:

1. Complainant shall produce all documents and recordings in Complainant's possession that are relevant to the factual allegations or claims at issue in the appeal. Complainant shall also produce any witnesses Complainant knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.

If the Complainant is appealing a termination, the Complainant shall also produce all documents relevant to calculation of lost pay and benefits including:

a. Documents relevant to calculation of lost pay and benefits including:

i. Income and benefits of subsequent employment, including the last three (3) months of pay stubs.

(a) Respondent shall not contact a prospective or current employer to discover information about Complainant without providing Complainant ten (10) days notice so Complainant has an opportunity to file a motion for protective order or a motion to quash. If Complainant files such a motion, Respondent shall not initiate contact until the motion is ruled upon.

ii. Unemployment benefit documents that are relevant to any calculation of damages.

b. Any witnesses that the Complainant knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.

2. Respondent shall produce all:

a. Documents in the Complainant's personnel file;

b. The relevant personnel policies and employee handbooks;

c. The materials discussed by the appointing authority during the Rule 6-10 meeting and any of its recordings of the meeting;

d. Documents and recordings relevant to the factual allegations, claims, or defenses at issue in the appeal including;

i. documents or recordings considered or relied upon by the appointing authority in making a disciplinary decision;

ii. documents or recordings among or between the appointing authority, Complainant, Complainant's supervisor, and human resources relevant to the issues in the appeal;

iii. documents or recordings of any investigation related to the factual allegations; and

iv. any witness statements.

e. Documents showing the Complainant's compensation and benefits at the time of the disputed action including Complainant's pay stubs for the three months preceding the disputed action;

f. Unemployment benefit documents that are relevant to any calculation of damages; and g. Any witnesses that the Respondent knows that may have information relevant to the factual allegations or claims, and a brief description of the information believed to be known by that witness.

B. At least thirty (30) days before the close of discovery, the parties shall disclose any expert witnesses a party may call at hearing including:

1. The name, address, email address, telephone number and the qualifications of the expert witness; and

2. A detailed statement as to the opinions or conclusions to which the expert is expected to testify. This requirement may be satisfied by the party incorporating a resume for each expert and a report containing the opinions or conclusions of each expert, along with the basis of each opinion or conclusion.

C. The parties shall not file their disclosures with the Board.

D. The term "documents" in this Board Rule includes writings, drawings, graphs, charts, photographs, emails, notes, or other documents of any kind.

Board Rule 8-34. Discovery. Unless modified by the Administrative Law Judge for good cause, the following procedures govern discovery:

A.Discovery Deadlines. Discovery requests shall be served no later than twenty-eight (28) days from the date of the certificate of service of the Notice of Hearing or of a Notice of Scheduling Conference. Depositions shall be completed at least twenty (20) days prior to the start of an evidentiary hearing. Responses to interrogatories, requests for production of documents, and requests for admissions shall be provided within twenty (20) days from service of the request.

B.Permitted Discovery. Each party may take a combined total of not more than twelve (12) hours of depositions. Each party may serve up to fifteen (15) requests for production of documents. Each party may serve twenty (20) interrogatories consisting of one (1) question each. Each party may serve twenty (20) requests for admission consisting of one (1) admission each.

1. For good cause shown, the Board may modify the limits in this rule.

Board Rule 8-35. Prehearing Statements. At least fifteen (15) days prior to the start of the evidentiary hearing, the parties shall file a Prehearing Statement with the following:

A.Statement of Claims and Defenses. A statement of all claims or defenses asserted by the party filing the Prehearing Statement. Complainant shall also include background information, including the action being appealed and date of the action, the date Complainant was notified of the action, Complainant's job position and time in the position at the time of the action (including date Complainant was certified in the position), Complainant's current position, and the reasons Complainant disagrees with the action;

B.Undisputed Facts. A statement of the facts that the party filing the Prehearing Statement believes are stipulated or undisputed;

C.Disputed Issues of Fact. A statement of the facts that the party filing the Prehearing Statement believes are true but the opposing party disputes;

D.Pending Motions. A list of all outstanding motions that the Administrative Law Judge has not yet decided;

E.Points of Law. The legal arguments and authorities that support the party's claims or defenses, including statutes, case law, Board Rules, and Board decisions;

F.Witnesses. The name, address, email address, and telephone number of any witness who the party may call at hearing, with a description of the person's testimony;

G.Experts. The name, address, email address, telephone number and the qualifications of any expert witness a party may call at hearing, together with a detailed statement as to the opinions or conclusions to which the expert is expected to testify. This requirement may be satisfied by the party incorporating a resume for each expert and a report containing the opinions or conclusions of each expert, along with the basis of each opinion or conclusion;

H.Exhibits. A list of any exhibits the party intends to offer as evidence at the hearing;

I.Redactions to Exhibits. Both sides shall carefully review all exhibits and redact any personal identifying information. Redactions shall include mailing and physical addresses, email address(es), telephone number(s), dates of birth, social security numbers, driver license numbers, passport numbers, employee identification numbers, military identification numbers, student identification numbers, health insurance identification numbers, biometric data, and any other personal identifying information;

J.Stipulations. A listing of all stipulations of fact or law, or admissibility of evidence (including exhibits), as well as any other stipulations reached by the parties; and

K.Remedy. List the remedies and/or relief the party is requesting. If the party is requesting the Board to order the opposing party to do something, the party shall specify what it wants the Board to order. If Complainant is requesting money damages, Complainant shall list the precise amount and the basis for requesting that amount. If a party is requesting another type of remedy, the party shall specify the nature of the request.

Board Rule 8-36. Subpoenas to Provide Testimony.

A. Respondents shall make the appointing authority and other employees with relevant information available to furnish testimony at a deposition or an evidentiary hearing even without a subpoena.

B. For non-state employees, parties may issue and serve subpoenas in conformance with the Colorado Rules of Civil Procedure for those individuals to appear at a deposition or an evidentiary hearing.

C. For appeals under this Chapter 8, Resolution of Appeals and Disputes, state employees who serve as witnesses may count any time spent at a deposition or hearing as work time.

BOARD RULE 8-37.Evidentiary Hearings.

A. Any stipulated exhibits and facts will be admitted into evidence.

B. The party with the burden of proof proceeds first and may call witnesses and seek the admission of evidence. The opposing party proceeds second and may call witnesses and seek the admission of additional evidence. In cases with mixed burdens of proof, the Administrative Law Judge shall determine the order of presentation on a case-by-case basis. Regardless of who has the burden, witnesses may be called out of order at the discretion of the Administrative Law Judge.

C. At the sole discretion of the Administrative Law Judge, a party may present rebuttal evidence.

D. Each party is responsible for deciding the witnesses to call at the hearing. Testimony is given under oath or affirmation. Each party may cross-examine the other party's witnesses.

E. Each party is responsible for deciding the exhibits to use and to offer for admission into evidence.

F. The Administrative Law Judge may call a witness and may also examine any witness called by a party.

G. The Administrative Law Judge will record the proceedings by an electronic recording device.

H. The Administrative Law Judge may issue orders to promote expeditious and efficient hearings, including limiting the time each side has to present its evidence.

Board Rule 8-38. Conduct and Decorum. To ensure proper conduct and decorum, an Administrative Law Judge may:

A. Exclude any person from the hearing;

B. Restrict media access as provided by the Colorado Code of Judicial Conduct and the Rules of Civil Procedure; and

C. Enter other orders that are reasonable to maintain the order and decorum of the proceedings.

Board Rule 8-39. Initial Decision. The Administrative Law Judge shall issue the Initial Decision no later than forty-five (45) days after the close of the hearing. The Initial Decision shall include findings of fact and conclusions of law affirming, modifying, or reversing the action of the appointing authority.

4 CCR 801-1-8-A-VI

37 CR 22, November 25, 2014, effective 1/1/2015

37 CR 24, December 25, 2014, effective 1/14/2015

40 CR 02, January 25, 2017, effective 2/14/2017

40 CR 23, December 10, 2017, effective 1/1/2018

40 CR 24, December 25, 2017, effective 1/14/2018

42 CR 19, October 10, 2019, effective 11/1/2019

43 CR 05, March 10, 2020, effective 4/1/2020

43 CR 13, July 10, 2020, effective 8/1/2020

43 CR 24, December 25, 2020, effective 2/1/2021

44 CR 05, March 10, 2021, effective 4/1/2021

44 CR 07, April 10, 2021, effective 5/1/2021

44 CR 10, May 25, 2021, effective 7/1/2021

44 CR 12, June 25, 2021, effective 9/1/2021

45 CR 11, June 10, 2022, effective 7/1/2022

45 CR 14, July 25, 2022, effective 9/1/2022

46 CR 08, April 25, 2023, effective 7/1/2023

47 CR 06, March 25, 2024, effective 5/1/2024