INSTRUCTIONS FOR UNREPRESENTED PARTIES TO STATE

CIVIL SERVICE APPEALS (PA CASES)

It is not uncommon for appellants to represent their own interests in State civil service cases filed with the Wisconsin Employment Relations Commission. The following information is provided to assist you in that regard. Additional information is found in the relevant administrative rules, ERC 91-95, Wis. Adm. Code. The rules may be accessed via the Commission’s website.

While most appeals follow a course that may end up with a contested case hearing (formal hearing), the appellant in some types of appeals may choose to proceed by expedited arbitration (informal hearing). The distinctions between these two procedures are explained on a separate document entitled "Expedited Arbitration of State Civil Service Classification Appeals". Not all the information found below applies to arbitration proceedings.

Before the Hearing

Discovery: Commission rules provide at ERC 93.03, Wis. Adm. Code, that parties have the right to conduct prehearing discovery in the same manner as in judicial proceedings. This means, for example, that the respondent agency could take your deposition (a proceeding where you may be questioned about the case under oath while your testimony is being recorded by a court reporter), or could send you questions (interrogatories) to be answered in writing. Specific discovery procedures are established in Ch. 804, Stats. 

You also have the right to use discovery to obtain copies of relevant documents. For example, in a classification case, the appellant might request copies of comparison position descriptions that respondent relied upon when deciding how to classify your position. Parties are also free to voluntarily exchange such information without filing formal discovery requests.

Discovery should be conducted well in advance of the hearing. A party receiving interrogatories or a request to produce documents has a period of 30 days to reply to the request.

Exchange of witness lists and exhibits. Both parties are required to exchange witness lists and exhibits at least 3 working days prior to the hearing. This is a deadline you do not want to miss because failure to comply could result in exclusion of testimony from your witnesses and/or exclusion of your exhibits. More information on this topic will be included in the prehearing conference memorandum issued by the hearing examiner after a hearing has been scheduled. See ERC 93.02, Wis. Adm. Code.

Witness attendance. Each party is responsible for seeing that their own witnesses are present for the hearing. More information on this topic will also be included in the prehearing conference memorandum. See ERC 93.05, Wis. Adm. Code.

At the Hearing

The hearing is not an informal discussion of your appeal. It is an orderly proceeding in which you have an opportunity to present evidence that is relevant to the issues in your case. The hearing serves as the basis on which the Commission will make findings and issue a decision.

Except for appeals from disciplinary actions (including layoffs), the burden of proof in civil service cases is on the appellant. If you have the burden of proof, you will call your witnesses before the agency puts on its witnesses. It is up to you to establish to a reasonable certainty, by a preponderance of the evidence, the facts necessary for your case.

You should be prepared to present the evidence that you want the hearing examiner to consider. This may be done through written exhibits and by having witnesses respond to specific questions or by having the witness present information in the form of a narrative statement. Be aware that exhibits become part of the record only if offered into evidence and are subject to objection by the opposing party and ruling by the examiner. When you testify on your own behalf you may do so in either a question-and-answer or narrative format. All witnesses will be sworn to tell the truth by the examiner.

Following your direct examination of a witness, the representative for the respondent will be given an opportunity to cross-examine each witness. When this is concluded, you may ask further questions on redirect examination before calling the next witness. When you have finished your case, respondent's representative will present the agency's case. You will have the opportunity to cross-examine respondent's witnesses.

Following the presentation of respondent's case, you will be allowed to offer rebuttal evidence if you wish. Rebuttal evidence is evidence designed to rebut the other party's evidence. Generally speaking, it is admissible only when new information has been developed during the other party’s presentation of evidence and you could not reasonably have anticipated the information before the hearing. In other words, rebuttal is not a catch-all for material that should have been part of your main case.

At the conclusion of the hearing, both sides will be permitted to make final arguments to the examiner, either orally at the close of hearing or in writing pursuant to an established timetable.

Following the Hearing

Following the conclusion of the hearing and after the receipt of any briefs, the hearing examiner will analyze the evidence and arguments. And issue a “proposed decision”.

Copies of the proposed decision will be sent to the parties who then will be given a period of time to submit written objections. The proposed decision, along with any objections, then goes to the Commission for review. After considering arguments raised by the parties, the Commission may modify the proposed decision or adopt it unchanged. In any case, the Commission issues the final decision and order. The final decision is reviewable in circuit court. Instructions on filing a petition for judicial review, or for rehearing before the Commission, are included with the copy of the final decision.