§ 43 — Hearings before commission

[ First paragraph effective until November 20, 2024. For text effective November 20, 2024, see below.]Section 43. If a person aggrieved by a decision of an appointing authority made pursuant to section forty-one shall, within ten days after receiving written notice of such decision, appeal in writing to the commission, he shall be given a hearing before a member of the commission or some disinterested person designated by the chairman of the commission. Said hearing shall be commenced in not less than three nor more than ten days after filing of such appeal and shall be completed within thirty days after such filing unless, in either case, both parties shall otherwise agree in a writing filed with the commission, or unless the member or hearing officer determines, in his discretion, that a continuance is necessary or advisable. If the commission determines that such appeal has been previously resolved or litigated with respect to such person, in accordance with the provisions of section eight of chapter one hundred and fifty E, or is presently being resolved in accordance with such section, the commission shall forthwith dismiss such appeal. If the decision of the appointing authority is based on a performance evaluation conducted in accordance with the provisions of section six A and all rights to appeal such evaluation pursuant to section six C have been exhausted or have expired, the substantive matter involved in the evaluation shall not be open to redetermination by the commission. Upon completion of the hearing, the member or hearing officer shall file forthwith a report of his findings with the commission. Within thirty days after the filing of such report, the commission shall render a written decision and send notice thereof to all parties concerned.[ First paragraph as amended by 2024, 238, Sec. 136 effective November 20, 2024. For text effective until November 20, 2024, see above.]If a person aggrieved by a decision of an appointing authority made pursuant to section 41 shall, within 10 days after receiving written notice of such decision, appeal in writing to the commission, they shall be given a preliminary hearing before a member of the commission or some other disinterested person designated by the chair of the commission. The preliminary hearing shall occur within 60 days after docketing the appeal and, if required, a full evidentiary hearing shall commence within 180 days after docketing the appeal, unless the parties otherwise agree or a member of the commission determines, as a matter of discretion, that a continuance is necessary. If the commission determines that such appeal has been previously resolved or litigated with respect to such person, in accordance with the provisions of section eight of chapter one hundred and fifty E, or is presently being resolved in accordance with such section, the commission shall forthwith dismiss such appeal. If the decision of the appointing authority is based on a performance evaluation conducted in accordance with the provisions of section six A and all rights to appeal such evaluation pursuant to section six C have been exhausted or have expired, the substantive matter involved in the evaluation shall not be open to redetermination by the commission. Upon completion of the hearing, the member or hearing officer shall file forthwith a report of his findings with the commission. Within thirty days after the filing of such report, the commission shall render a written decision and send notice thereof to all parties concerned.[ Second paragraph effective until November 20, 2024. For text effective November 20, 2024, see below.]If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee, by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority's procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority.[ Second paragraph as amended by 2024, 238, Sec. 137 effective November 20, 2024. For text effective until November 20, 2024, see above.]If the commission determines, by a preponderance of the evidence, that there was just cause for an action taken against such person, it shall affirm the action of the appointing authority and deny the appeal; provided, however, that if the commission does not so determine, it shall reverse the action and allow the appeal, in whole or in part, and the person concerned may be returned to their position with or without loss of compensation or other benefits and subject to such other orders as the commission may deem appropriate to restore and protect the rights provided to such person under this chapter; provided, further, that if the preponderance of the evidence establishes that the action was based upon harmful error in the application of the appointing authority's procedure, an error of law or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in the position, the commission shall allow the appeal, in whole or in part, and the person concerned may be returned to their position with or without loss of compensation or other benefits. The commission may also modify any penalty imposed by the appointing authority.Any hearing pursuant to this section shall be public if either party so requests in writing. The person who requested the hearing shall be allowed to answer, personally or by counsel, any of the charges which have been made against him.The decision of the commission made pursuant to this section shall be subject to judicial review as provided in section forty-four.Saturdays, Sundays and legal holidays shall not be counted in the computation of any period of time specified in this section.This section shall not apply to a person who is the subject of disciplinary action or employment-related consequences by an appointing agency, as defined in section 1 of chapter 6E, that results from decertification under section 10 of said chapter 6E.