Disciplinary Appeals: Can you handle it on your own?

TSEA September 24, 2014 Comments Off on Disciplinary Appeals: Can you handle it on your own?
Disciplinary Appeals: Can you handle it on your own?

Abraham Lincoln gets the credit for the old chestnut, “he who represents himself has a fool for a client.” Famously ascribed to him over 150 years ago, the maxim was as true then as it is today. Why is that? A simple answer with a question: If you had a tooth ache, would you pick up some pliers and attempt to extract your own tooth? Hopefully, your answer is no. Furthermore, you would go to a trained and licensed dentist to take care of the problem. In other words, when you need help with a serious problem, you seek out a professional trained to handle such problems.

Court rules allow an employee to represent themselves in an appeal of their disciplinary action in a Step 3 hearing before the Board of Appeals. However, why would you think that you can negotiate the treacherous landscape of the court room without any education or training as a lawyer? In your appeal, you will be faced with a complex judicial process. You will be pitted against a seasoned state attorney who has a law degree and years of experience as a litigator. Also, the hearing judge will hold you to the same legal standards as the seasoned attorney.

A Step 3 hearing is not a friendly game of checkers. It is a battle with winners and losers. Did you know that even lawyers hire other lawyers to represent them when they are a party in litigation?

Prior to your Step 3 hearing, the judge will send the parties an order about many legal issues in the case. One of the issues is whether the complainant/employee will be hiring an attorney to represent them in the hearing. Consider the judge’s warning to the employee on the issue of legal representation in a typical order:

The Complainant/employee is cautioned that the hearing will be a formal contested case hearing (a trial) at which the Rules of Evidence and other procedural rules and statutes will apply. The Complainant is further cautioned that he may be at a distinct disadvantage at hearing if he is not represented by counsel. Complainant is encouraged to obtain counsel, if possible.

These are not the words of a distant historical figure waxing philosophical about the law. Rather, it is a stern warning from the judge that will be hearing your case.

So what’s so difficult, you may ask, about representing yourself in an appeal of your disciplinary action in a Step 3 hearing before the Board of Appeals? Ok, let’s start with a simple test: what are interrogatories and what objections are permissible pursuant to the rules of civil procedure; how must you respond to a motion for summary judgment to avoid having your appeal dismissed; how do you quash a subpoena; and, finally, what’s a Daubert objection. If you can answer these queries correctly, great! It’s time to move on to the hard questions. If not, see honest Abe’s admonition above. After all, nothing’s at stake except your job.

By this time, you have hopefully realized that you need to be represented by an attorney if you receive a disciplinary action and appeal it to a Step 3 hearing before the Board of Appeals. Good decision, but bad timing. If you choose to hire a private attorney to represent you, the attorney’s legal fee will be based upon the attorney’s hourly rate plus out of pocket expenses incurred by the attorney. The hourly rate for an attorney handling a hearing before the Board of Appeals typically begins at $200.00/hour and can be considerably more depending on multiple factors. The attorney will probably require a retainer of several thousand dollars to be paid in full before the attorney does any work on your case. You should plan to have at least $10,000 on hand at the time you hire your private attorney to pay your legal bill.

TSEA members already know the advantages of membership such as the opportunity to have its staff attorney represent them at no additional expense. TSEA members now need to spread the word about this service to their co-workers and colleagues who have not joined TSEA.

TSEA members should give their state employee friends this article and let them know that: If you were a TSEA member when you received your disciplinary action, you could be represented by a seasoned attorney at no additional charge to you. Needless to say, the price of even a full year of membership dues would not begin to cover your private attorney’s fees and costs to represent you at a Step 3 hearing before the Board of Appeals.

For further information or to discuss joining TSEA contact the office at 615-256-4533, or Toll-FREE 1-800-251-TSEA (8732).