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, PC 1 and PC 3 through 6, 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 chose to proceed by expedited arbitration (informal hearing). The distinctions between these two procedures are explained on a separate document entitled "Information on Expedited Arbitration of Classification Appeals". Not all of the information found below applies to arbitration proceedings.
Before the Hearing
Discovery: Commission rules provide at Sec. PC 4.03, 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 Sec. 4.02, 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 Sec. 4.05, 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. In preparing your case for hearing, keep in mind that under the Commission rules (Sec. PC 5.03(5), Wis. Adm. Code), the receipt of hearsay evidence and the weight to be given such evidence, is discretionary with the examiner.
You should be prepared to elicit the information from witnesses that you wish the hearing examiner to consider. This may be done by having the witness 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, however, 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. If the examiner believes the evidence warrants a decision in favor of the appellant on the merits of the dispute, s/he will issue a “preliminary proposed decision” that provides the appellant an opportunity to request reimbursement of certain costs associated with pursuing an appeal, as provided in Sec. 227.485, Stats. After receipt of a request for costs and any response, the examiner will issue a Proposed Decision and Order (PDO) that addresses both the merits of the dispute and the question of whether costs are appropriate. On the other hand, if the examiner believes the merits of the appeal should be resolved in favor of the respondent agency, the examiner will issue a PDO and never reach the topic of costs.
Copies of the PDO will be sent to the parties who then will be given a period of time to submit written objections. The PDO, along with any objections, then goes to the full Commission for review. After considering arguments raised by the parties, the Commission may modify the PDO or adopt it unchanged. In any case, the Commission is to issue the Final Decision and Order within 90 days of the date for submission of the last argument or objection. 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.
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This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is {http://werc.wi.gov/personnel_appeals_instructions_for_unrepresented.htm}. Last modified on 16 MAY 2011. Comments, questions and suggestions.