38-1136. Appeal of disciplinary action; change of hearing officer; burden of proof

A. In any appeal of a disciplinary action by a probation officer, the parties shall exchange copies of all relevant documents and a list of all witnesses pursuant to the following time periods and requirements:

1. Within fourteen calendar days after the employer's receipt of a written request from the probation officer for a copy of the investigative file that is accompanied by a copy of the filed notice of appeal, the employer shall provide a complete copy of the investigative file as well as the names and contact information for all persons interviewed during the course of the investigation.

2. No later than fourteen calendar days before the appeal hearing, the parties shall produce and serve on every party the following information:

(a) The name of each witness whom the disclosing party expects to call at the appeal hearing, with a designation of the subject matter on which each witness might be called to testify. A witness may consent to a prehearing interview. The parties shall not interfere with any decision of a witness regarding whether to be interviewed. An employer shall not discipline, retaliate against or threaten to retaliate against any witness for agreeing to be interviewed or for testifying or providing evidence in the appeal.

(b) The name and contact information of each person who has given statements, whether written or recorded or signed or unsigned, regarding matters relevant to the notice of discipline and the custodian of the copies of those statements.

(c) Copies of any documents that may be introduced at the hearing and that have not previously been disclosed.

B. It is unlawful for a person to disseminate information that is disclosed pursuant to subsection A of this section to any person other than the parties to the appeal and their lawful representatives for purposes of the appeal of the disciplinary action. This subsection does not prohibit the use of the information in the hearing or disclosure pursuant to title 39, chapter 1, article 2.

C. Failure to comply with the requirements of subsection A or B of this section shall result in the exclusion of the witness, evidence or testimony, unless the failure to comply is because of excusable neglect.

D. The employer or the probation officer may seek a determination by the hearing officer or appeals board hearing the appeal regarding any evidence that the employer or the probation officer believes should not be disclosed pursuant to subsection A of this section because the risk of harm involved in disclosure outweighs any usefulness of the disclosure in the hearing. In determining whether evidence will be disclosed, the hearing officer or appeals board may perform an in camera review of the evidence and may disclose the material subject to any restriction on the disclosure, including the closing of the hearing or the sealing of the records, that the hearing officer or appeals board finds necessary under the circumstances.

E. In any appeal of a disciplinary action by a probation officer in which a single hearing officer has been appointed to conduct the appeal hearing, the probation officer or the employer, within ten calendar days after the appointment of the hearing officer, may request a change of hearing officer. If the employer is a county, city or town, on the first request of a party, the request shall be granted. A city or town with a population of less than sixty-five thousand persons or a county with a population of less than two hundred fifty thousand persons must provide, if necessary to comply with this subsection, for an alternate hearing officer by means of an interagency agreement with another city, town or county. If the probation officer is the party who requested the alternate hearing officer, the probation officer shall reimburse the city, town or county for one-half of any additional expenses incurred by the city, town or county in procuring the alternate hearing officer under the interagency agreement. Any subsequent requests may be granted only on a showing that a fair and impartial hearing cannot be obtained due to the prejudice of the assigned hearing officer. The supervisor or supervising body of the hearing officer shall decide whether a showing of prejudice has been made.

F. The employer has the burden of proof by a preponderance of the evidence in an appeal of a disciplinary action by a probation officer.

G. Except where a statute, rule or ordinance makes the administrative evidentiary hearing the final administrative determination and after a hearing where the probation officer and the employer have been equally allowed to call and examine witnesses, cross-examine witnesses, provide documentary evidence and otherwise fully participate in the hearing, an employer or a person acting on behalf of an employer may amend, modify, reject or reverse the portion of a decision made by a hearing officer or appeals board that was arbitrary or without reasonable justification. The employer or person acting on behalf of the employer shall state the reason for the amendment, modification, rejection or reversal.

H. If a transcript is required in an administrative hearing, the employer shall obtain the transcript and provide a copy to the probation officer within ten calendar days after the employer's receipt of the transcript.

I. A probation officer who prevails in an appeal where a termination has been reversed may be awarded retroactive compensation from the date of the officer's separation to the date of reinstatement. The employer may exclude any penalties deemed appropriate by the reviewing authority from the retroactive payment.