SEAC Appeals Guide

March 31, 2012

I. Introduction

The Civil Service System, IC 4-15-2.2, became effective July 1, 2011, and contains both timeliness and subject matter requirements for Civil Service complaints. The following information is intended to help you become familiar with the administrative appeals process for Step III Civil Service Complaints before the State Employees’ Appeals Commission (SEAC) under the Civil Service System. See, IC 4-15-2.2-42. All SEAC adjudicative proceedings are also covered by the Administrative Orders and Procedures Act (AOPA), IC 4-21.5-3.

Some additional guidance is also provided below as to the earlier civil service complaint steps including, Step I (Appointing Authority – The Agency That You Work(ed) For) and Step II (State Personnel Department (SPD)).

This is merely a general guide, and not intended to substitute for an attorney’s advice; nor is it intended to cover every situation. SEAC cannot give legal advice. Persons (called Petitioners) filing a Civil Service Complaint may wish to seek legal advice before seeking administrative review.

This Guide does not relate to any specific case, and is not a standing order or rule of the Commission. Any order of the Administrative Law Judge (ALJ) or Commission in your specific case supersedes anything in this guide. HOWEVER, PLEASE BE ADVISED: Failure to follow these general directions may, in specific instances reviewed case by case, result in the denial or dismissal of the petition for administrative review before SEAC.

All requests for civil service administrative review at Step III (SEAC) should be mailed or delivered to:

State Employees’ Appeals Commission
Indiana Government Center North
Room N103
100 N. Senate Ave.
Indianapolis, IN 46204

II. What is SEAC and its Mission?

The SEAC is a state agency that provides a forum for fair and impartial review of non-exempt personnel decisions made by covered state agencies. The SEAC is directed by its five (5) member Commission whose members are appointed by the Governor. The Commission is the ultimate authority. However, a SEAC ALJ will handle all proceedings in cases upon their initial filing through evidentiary hearings, issue non-final orders upon the merits (which may be objected to before the Commission and heard at oral argument), and issue final orders for certain classes of proceedings, including on the merits if no timely objections are made to the Commission or whether the complaint satisfies jurisdictional standards. A SEAC ALJ is the designated finder of fact in cases with evidentiary hearings or other motions on the merits. The Commission hears timely legal objections made under AOPA standards. After the Commission or ALJ enters a final order, a person has thirty (30) days to seek judicial review and such petitions must comply with IC 4-21.5-5.

SEAC is located on the 1st floor of Indiana Government Center North in Room N103. The telephone number is (317) 232-3135. Documents can be faxed to the SEAC at 317-972-3109. However, faxed documents are only file stamped on the day the fax arrives. Mailed (regular or certified) documents are given a file stamp on the date post-marked, which is usually the date sent. SEAC generally recommends that parties file documents by mail or in-person, whether a fax copy is submitted or not.

Civil Service Complaints may be filed by non-exempt state employees and go through different steps. Sections III and IV provide a general overview of all three steps in a Civil Service Complaint proceeding. You may wish to also review information publically available on the SPD website at http://www.in.gov/spd/2399.htm. More detailed information on Step III (SEAC), is then provided in Section V below.

III. General Information on all 3 Steps of a Civil Service Complaint

The complaint procedure is enacted at IC 4-15-2.2-42. Employees in the state civil service, except those exempt or appointed by the governor, may file a complaint concerning the application of a law, rule, or policy to that employee. The complaint must identify the law, rule, or policy allegedly violated, the facts supporting the allegation, and the remedy the employee is requesting.

Complaints about disciplinary actions vary depending upon whether the employee is part of the classified or unclassified service.

Once a classified employee has successfully completed his/her working test period, s/he can file a complaint concerning his/her dismissal, demotion, or suspension from the classified service. The agency must prove the action was taken for just cause.

An unclassified employee is an at-will employee. An at-will, unclassified employee can file a complaint if s/he is dismissed, demoted, disciplined, or transferred in contravention of public policy. The employee must prove that the reason for management’s decision is: (1) that the employee was in a protected class, and unlawfully discriminated or retaliated against under federal or state law;¹ (2) that the employee was exercising a federal or state statutory right (such as filing a worker’s compensation claim, whistle-blowing, or filing a civil service complaint); or (3) fulfilling a federal or state statutory duty (such as reporting for jury duty) or refusing to violate a penal statute.

You may obtain a complaint form from your agency’s human resource office or the State Personnel Department’s Employee Relations Division, or you could download the form from this link to the SPD website:

Civil Service Complaint Form

Civil service complaints involve a three-step process, and each step must be initiated timely by the employee (called a petitioner):

Step I is the employee’s appointing authority or designee.
Civil service complaints must be initiated at the Step I level (to the employee’s appointing authority or his/her designee) not later than thirty (30) calendar days after the act complained of. Complaints must be in writing, and it is recommended that you use the Civil Service Complaint Form provided by the agency or the State Personnel Department (see above). An employee who does not initiate the complaint procedure within the 30-day period waives the right to file that complaint. That 30-day period also defines the retroactive extent of any remedy. The Appointing Authority/designee will respond not later than fifteen (15) calendar days following receipt of the complaint.

Step II is the State Personnel Director or designee.
If the employee is not satisfied with the Appointing Authority/designee’s decision, s/he may submit the complaint to the State Personnel Director not later than fifteen (15) calendar days after the date of the Appointing Authority/designee's response. The Director/designee will respond not later than thirty (30) calendar days following receipt of the complaint.

Step III is the State Employees’ Appeals Commission (SEAC).
If the employee is not satisfied with the Director/designee’s decision, s/he may submit a written appeal to the SEAC not later than fifteen (15) calendar days after the date the employee receives notice of the action of the Director/designee. After receiving the complaint, the SEAC will then determine whether all previous steps were completed properly and timely and whether the employee and subject matter of the complaint meet jurisdictional requirements. If jurisdiction is lacking, or if the employee fails to timely and properly submit his/her complaint through the complaint process, the SEAC will dismiss the complaint.

IV. Things to Remember When Filing a Step III Complaint with SEAC

Be sure to include your full contact information, including full name, complete address, email address, telephone number, and fax number (if applicable). If you are already represented by an attorney/representative, they should file an appearance for you with SEAC and include their contact information.²
You should identify the state Appointing Authority (the state agency you work or worked for) action you are appealing. You should also identify when this action was taken. If possible, provide your job title at the time of the action and whether you think you are a classified or unclassified employee.
You should include a complete copy of the Appointing Authority’s action, which is often in the form of a letter from the Appointing Authority addressed to you.
You should provide a complete dated copy of the Step I (Appointing Authority) Complaint and the Step II (with the State Personnel Director) Complaint you filed AND the responses you received to Steps I and II. The responses are usually in the forms or letters to you from the Agency and SPD.
You should state how you are affected by the Appointing Authority action. This must be personal to you. You cannot raise issues on behalf of your co-employees, neighbors or the public in general.
An unclassified employee can file a complaint if s/he is dismissed, demoted, disciplined, or transferred in contravention of public policy. If you are an unclassified employee at the time of the complained action, you should identify the law, rule, or policy allegedly violated, the facts supporting the allegation, and the remedy (or changes in the Appointing Agency decision) you are requesting. Most petitions request rescission of the action, correction of employment records and any applicable back-pay.
In sum, you should state why you think the Appointing Authority is wrong in taking this action and point to specific laws, policies or public policy you believe were violated by the state.
Petitioners are encouraged to type their Complaint. Incomplete or illegible appeals may be returned. The timeline will not be suspended for returned appeals.

If your Petition does not contain this information, you may be ordered by a SEAC ALJ to amend your Petition to include the missing information or your Petition may be dismissed.

V. A DETAILED VIEW: THE ADMINISTRATIVE PROCESS BEFORE SEAC (STEP III)

This section provides a more detailed view of the Step III civil service complaint process. Step III is the proceeding before SEAC. The administrative process at Step III (SEAC) can be broken down in turn into various stages. These stages include, but are not limited to: initiation of the appeal, discovery, hearing, and post-hearing. The required contents of the Civil Service Complaint are discussed above. An important element of initiating an appeal is jurisdiction. This means whether a court or agency has the authority to hear a case. SEAC has the authority to hear only timely appeals of non-exempt state employees in the classified or unclassified service. If unclassified, you must allege a violation of public policy by the Appointing Authority’s decision.

INITIATION STAGE

SEAC functions similar to a trial court, but under the rules and laws governing administrative proceedings under AOPA. Generally speaking, when a complaint is filed with SEAC the case is reviewed for whether it meets initial jurisdictional standards. Remember that to be timely a Step III complaint must be received by SEAC within fifteen (15) days of when the Petitioner employee received notice of the Step II denial or response. A new SEAC case at Step III is always assigned a cause number and caption in this format:

In the matter of: Petitioner’s name vs. Respondent’s name, SEAC XX-YY-ZZZ. [Where X is the Month, Y is the Year, and Z is the case number in that year.] The top of the caption also reads: Before The State Employees’ Appeals Commission. The SPD number used at Steps I and II is not used at Step III.

The required contents of the Civil Service Complaint are discussed above. An important element of initiating an appeal is jurisdiction. This means whether a court or agency has the authority to hear a case. SEAC has the authority to hear only timely appeals of non-exempt state employees in the classified or unclassified service. If unclassified, you must allege a violation of public policy by the Appointing Authority’s decision.

An unclassified employee is an at-will employee. An at-will, unclassified employee can file a complaint if s/he is dismissed, demoted, disciplined, or transferred in contravention of public policy. The employee must prove that the reason for management’s decision is: (1) that the employee was in a protected class, and unlawfully discriminated or retaliated against under federal or state law³; (2) that the employee was exercising a federal or state statutory right (such as filing a worker’s compensation claim, whistle-blowing, or filing a civil service complaint); or (3) fulfilling a federal or state statutory duty (such as reporting for jury duty) or refusing to violate a penal statute.

Civil Service Complaint Form

Prehearing Conference. If the case meets jurisdictional standards, the ALJ typically enters a Prehearing Conference order that provides more specific instructions relevant to the case and sets a date for the parties (or their attorneys/representatives) to appear before the ALJ to discuss the nature of the case, case deadlines, whether settlement is possible, whether mediation is desirable, discovery, motion practice and a trial date – called an evidentiary hearing date. Prehearing Conferences (and all SEAC proceedings) are conducted under AOPA.

Please note that Prehearing Conferences are not evidentiary hearings and SEAC does not accept tenders of substantive evidence at Prehearing Conferences or with the Complaint. Evidence must be submitted to SEAC by a summary judgment or other appropriate motion or at the evidentiary hearing. Evidence submitted prematurely is returned to party offering it by the ALJ.

The first order the ALJ issues will also remind all parties to serve every other party on any communication with the SEAC/ALJ.

SEAC strives to set a Prehearing Conference promptly, usually within thirty-sixty (30-60) days of the filing of the Complaint. A period of at least thirty days is given to allow all parties to consult with attorneys/representatives, discuss settlement and to help avoid scheduling problems. Cases that do not appear to meet jurisdictional standards are proposed for dismissal, and the party is given an opportunity to respond and explain why jurisdiction may exist.

Case Management Order(s). After a Prehearing Conference, typically a Case Management Order (CMO) is entered by the ALJ. You should read the CMO carefully. The CMO will contain specific deadlines for discovery, motions (including summary judgment), witness and exhibit lists, and an evidentiary hearing date. The evidentiary hearing date is selected based on the specific needs of the case, and is usually set about six-nine (6-9) months after the case was filed with SEAC. The six (6) month track is usually selected for cases in which no motions are expected, and the nine (9) month track is usually selected for cases with expected dispositive motions (including summary judgment motions). Some complex cases or cases with special procedural needs can take longer.

Continuances. The ALJ can dismiss or default any party that does not appear at a prehearing conference or other scheduled meetings, or fails to prosecute the case or abide by SEAC set deadlines. If you need to miss a conference or deadline, or need to continue your hearing date, you must file a written motion with the ALJ showing good cause for the sought extension. This is called a motion for continuance.

DISCOVERY & MOTION STAGE

Discovery is a legal term that refers to the process where the parties can discover other parties’ evidence. This is done through the use of interrogatories (written questions), depositions, requests for production of documents and/or requests for admissions (a request to admit whether a fact is true or not). It is important to know that if you receive such a request, failure to respond can be used against you. It is also important to know that your response must be under oath.

A party generally has thirty (30) days to respond to the discovery request. Discovery should be finished before a discovery cut-off date in your case’s CMO. This may mean you need to plan ahead and watch deadlines to finish discovery or complete other CMO deadlines timely.

After the Prehearing Conference, most parties elect to do some discovery. Parties may also file motions. If the case is not otherwise resolved by settlement or a motion, an evidentiary hearing (a trial) is held under AOPA. Summary judgment proceedings are conducted by SEAC under Indiana Trial Rule 56. You may wish to review Ind. T.R. 56 or consult with an attorney if you are unrepresented and served a Rule 56 motion by the other party. A summary judgment motion can, in some matters, resolve the case and effect your legal rights.

HEARING STAGE

This is when you must present your evidence to SEAC. You may present the evidence by testifying, by asking other people to testify or by presenting written documentation. In general, the proceedings in SEAC are informal and the technical rules of evidence will not be applied. However, there are rules that govern how evidence is presented and you should be familiar with them. The rules can be found at IC 4-21.5-3, the Courtroom Handbook on Indiana Evidence and the Indiana Rules of Court. These are available in most county courthouse law libraries. You should become familiar with these procedures so that you can present your evidence in an organized and effective manner. The hearing will be recorded by the SEAC usually by electronic means. A party (or parties), at their own expense, may ask the ALJ to record the hearing by a court reporter paid for by the parties.

All witnesses will be placed under oath. This oath will be similar to this statement - "I swear or affirm under the penalties for perjury that the testimony that I give will be the truth."

During the hearing, you may call witnesses, including yourself, to testify. You will also be given the opportunity to cross-examine (ask questions of) any witness called by the other parties. There are limits to examination of witnesses and you should become familiar with these procedures.

Witness Attendance & Subpoenas. SEAC generally orders the Respondent’s current state employees to attend the evidentiary hearing without a subpoena if timely listed on either party’s witness list. SEAC may issue subpoenas to compel the attendance of witnesses, including persons who are not current state employees. You may request the issuance of subpoenas from the ALJ in your case. If you have a case-specific question about subpoenas you should ask that question to the ALJ (with all parties present for the communication) at the Prehearing Conference.

Typically, if you are an unclassified employee party that initiated the proceeding, you will have the burden of proof, or the responsibility to show that Appointing Authority was incorrect in making its decision by a preponderance of the evidence. If you are a classified employee outside an initial working test period the Appointing Authority shall have the burden of proof to support the employment action by a preponderance of the evidence. Criminal law standards and the criminal law burden of proof (beyond a reasonable doubt) do not apply to SEAC proceedings.

POST-HEARING STAGE: JUDICIAL REVIEW (APPEAL RIGHTS)

If an evidentiary hearing was held, the ALJ will issue a non-final order containing findings of fact and conclusions of law. You will have the right to timely file objections to the non-final order on the merits before the Commission. The ALJ will provide you instructions and a deadline that must be followed, but which is usually fifteen (15) days. The Commission will then provide notice and set the case for oral argument. When a party files objections, the other party is given a period of time by the ALJ to respond and the case is set for Oral Argument before the Commission. The ALJ handles any motions before Oral Argument.

Oral Arguments are in public meetings, and are set for the next available regular Commission meeting after the response deadline unless the parties request additional time. The Commission then hears the case and may Affirm the Non-Final Order, Modify/Amend the Non-Final Order or Remand the case to the ALJ with instructions under AOPA. The Commission hears legal objections made under AOPA standards. The Commission’s decision, unless on remand, is a Final Order.

In all other types of proceedings, the ALJ’s order will also be a final order.

Should you be unsatisfied with a final order of SEAC you can seek judicial review with a trial court. A person who wishes to seek judicial review must file a petition in an appropriate court within thirty (30) days of a final order and must otherwise comply with IC 4-21.5-5 (judicial review).

STAYS FOLLOWING A FINAL ORDER

All of SEAC’s actions become effective if a judicial review/appeal is not filed within a certain amount of time. Even if an appeal is filed, the action will become effective if a stay is not requested. If you do not want the SEAC action to become effective, you must ask for the stay and prove that a stay is necessary. SEAC disfavors stays except when they are specific in need, and promote settlement or the resolution of important questions of law on appeal. If you request a stay, the ALJ will set a hearing date at which you may present your evidence on why SEAC’s action should not take effect. You have the burden of proof at this hearing and must present enough evidence to show all of the following things:

You will be irreparably harmed if the stay is not granted; and
You are likely to win on the merits of the case; and
The threatened injury that you will suffer if the stay is not granted is greater than the injury that the other party will suffer if the stay is granted; and
The public interest will be served by the granting of the stay.

VI. Additional Information

OTHER HELPFUL INFORMATION

It is also important to remember that if you send SEAC a document of any kind, for example: a letter, a copy of any document, a status report, or any supplemental information, you must send a copy to all of the other parties. The ALJ may ignore any document submitted to SEAC that is not also sent to the other parties. The names and addresses of the other parties are listed on all court orders on the copied list (also called a distribution list), which is after the ALJ’s signature block.

You do not need to be represented by a lawyer/representative, but you will be required to know the law and how to present your case. If you are representing yourself and you are not a lawyer, you can place yourself at a serious disadvantage by not having the training and experience to know the law, how to present your case, and how to focus primarily on these tasks, because you also might have very strong personal concerns about the case and other demands on your time which limit you from doing all that is required. If you choose to represent yourself, it is called pro se. By law, no one at SEAC will be able to assist you in preparing your case, nor can SEAC help any other party. It is usually a good idea to hire an attorney.

It has been emphasized that you must attend any conference or hearing scheduled by the presiding ALJ. However, if you cannot attend these meetings, you can ask the ALJ for a continuance, or postponement of the meeting. Such requests should be in writing and should be filed with the ALJ at least five (5) days prior to the meeting. You should also contact the other parties before you send your written request to find out whether they object to the continuance. The ALJ can grant a request for a continuance even if the other parties object, but you still have to report whether they agree or object.

WHERE DO I FIND RELEVANT LAWS TO READ?

The laws governing this process can be found in the Administrative Orders and Procedures Act (AOPA) in the Indiana Code, IC 4-21.5-3. In the event that any information in this guide conflicts with the laws, case precedent or regulations, the laws, case precedent or regulations will control. The Civil Service System is found at IC 4-15-2.2.

A variety of places may have additional legal research or other resources helpful to you. The Indiana Appellate courts and Local county courthouses have a law library and the laws, cases and regulations should be available there. Also, you can find them on the Internet. There are links to the Indiana Code (the laws), Indiana Administrative Code (the rules), SPD’s webpage, and SEAC’s web page at www.in.gov/seac. You can find previous decisions made by the ALJs on the SEAC’s web page by clicking on the Decisions. [This feature is still being implemented and tested – the webpage will state whether it works or not.] You also can find the laws and rules on the Indiana General Assembly’s web page at www.in.gov/legislative/ic_iac/.

The information sources and laws listed are merely for reference. They are not intended to be either legal advice or an exhaustive reference. You may wish to consult with your own attorney.

GENERAL THINGS TO REMEMBER

No party is allowed to talk or otherwise communicate to the ALJ without all of the other parties present.
A party must send copies of all documents to all other parties.
You must personally sign all documents submitted to the SEAC. It is helpful if you also print your name so that the SEAC can read it.
You must appear at all conferences, hearings or any other meetings ordered by the SEAC unless you obtain a continuance.
At a hearing, you must provide a copy of all documents to each party, including yourself and the court reporter. For example, if there are three (3) parties in your case, you should have the original (which is given to the presiding ALJ) and four (4) copies (one for yourself, two for the other parties and one for the court reporter.)
Use the cause number on all correspondence or other documents filed with the SEAC.
Your Agency, SPD and SEAC are all separate agencies. It is important to note that information that may be available to SPD or Your Agency may not have been made available to the SEAC.

*End of this Guide*

¹Non-comprehensive examples include illegal discrimination on the basis of race, national origin, sex, age, disability, veteran status, religion, free speech, political affiliation or retaliation for filing a discrimination complaint.

²Attorneys not admitted to the Indiana bar, seeking to appear in an administrative proceeding, must comply with the requirements of Rules of Admission to the Bar and the Discipline of Attorneys, Rule 3, Section 2, effective January 1, 2012. This rule requires that the attorney seeking admission petition the Supreme Court of Indiana for temporary admission. The rule specifies the information the petition must contain.

³ Non-comprehensive examples include illegal discrimination on the basis of race, national origin, sex, age, disability, veteran status, religion, free speech, political affiliation or retaliation for filing a discrimination complaint.