Loading...
HomeMy WebLinkAbout0808R . ,, ORDINANCE NO. 808 (1979 Series) AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO AMENDING ARTICLE II, CHAPTER 7 OF THE MUNICIPAL CODE AMENDING CERTAIN PROVISIONS CONCERNING PROCEDURES FOR DISCI PLINARY ACTIONS AND GRIEVANCES,- ESTABLISHING A PERSONNEL BOARD, AND RESCINDING RESOLUTION NO. 3455. BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: V S&Av/_ SECTION 1. Municipal Code Article II, Chapter 7, Sections 2706 through 2706.4 are hereby amended to read as set forth in the attached Exhibit "A ". SECTION 2. Municipal Code Article II, Chapter 7, Section 2707 is hereby amended to read as set forth in the attached Exhibit "B ". SECTION 3. Municipal Code Article II, Chapter 7, Section 2711, is hereby added to read as set forth in the attached Exhibit "C". SECTION 4. Resolution No. 3455 (1977 Series), a resolution adopting rules of procedure for conduct of hearings on appeals from disciplinary actions is hereby rescinded. SECTION 5. This ordinance, together with the ayes and noes, shall be published once in full, at least three days prior to its final passage, in the Telegram- Tribune, a newspaper published and circulated in said City, and the same shall go into effect at the expiration of thirty days after its said final passage. INTRODUCED AND PASSED TO PRINT this 5th dayoof June , 1979 on motion of Councilman Dunin and on the following roll call vote: seconded by Councilman Jorgensen , AYES: Councilmembers:Billig, Bond, Dunin, Jorgensen and Mayor Cooper NOES: None ABSENT: None ATTEST: jewgm�;:;o C er J.H. Fitzpatrick I I :1: i s r v Ordinance No. 808 Approved as to form: City Attorney (1979 Series) Approved as to content: (I il City Administrative Officer '/lL. a4--- Personnel Director SECTION 2706. DISCIPLINARY ACTION. Each appointing authority shall have the right to discipline any employee subject to his /her jurisdiction for misconduct, incompetency, inefficiency, insubordination, failure to perform duties, falsifying an oath, failure to observe the personnel rules or the rules of the individual department or a related serious offense. Such discipline may include but not be limited to reprimand; demotion, removal, reduction in compensation, or suspension with- out pay for up to thirty (30) calendar days in any fiscal year. The appoint- ing authority shall consult with the Personnel Director before suspending for more than five (5) days, demoting or removing a regular employee in the classified service, and, prior to imposition thereof, the City Administrative Officer shall act to affirm, modify or disallow such actions. Suspensions of five (5) days of less shall be approved by the department head and Personnel Director prior to their imposition. The provisions of this chapter shall not apply to reductions in pay which are a part of a fiscal emergency calling for a reduction in salaries, wages, hours of work, or positions. SECTION 2706.1. CHARGES; RESPONSE; FINAL ACTION. A. Removal, demotion, reduction in compensation, suspension of more than five (5) days. In any disciplinary matter wherein it is proposed that a regular employee in the classified service shall be removed, reduced in compensation, demoted, or suspended for more than five (5) days or the shift equivalent, the pro- cedures for notification, response and final action shall be as follows: 1. Charges. The employee against whom the disciplinary action is proposed shall be provided with written notice stating any and all reasons, specifically and in detail, for the proposed action prior to the effective date thereof. The material on which the notice is based, including, but not limited to, statements of witnesses, documents, and inves- tigative reports or extracts therefrom, shall be assembled and either provided to the employee or made available to the employee for review. Any materials not so provided or made available shall not be used to support the reasons in the notice. 2. Response Period. The employee may respond -to the notice of proposed disciplinary action within five (5) business days, unless the appointing authority authorizes a longer time, following delivery of the notice to the employee. The employee may respond through a designated representative, personally, in writing or any combination thereof. The right to answer personally includes the right to answer orally in person by being given an opportunity to make any representa- tions which the employee believes are pertinent to the matter. When the employee requests an opportunity to answer personally, the appointing authority shall personally hear the answer. Irrespective of the manner of response, the employee may sub - mit any material or evidence which is pertinent to the matter. The appointing authority shall consider any representations, EXHIBIT "A" statements, materials, or any other evidence submitted by the employee with or as his /her response. 3. Employee Status After Notice. The employee shall be retained in active status during the response period. Provided, however, when in the opinion of the appointing authority, circumstances are such that the retention of the employee in an active status during the response period may result in damage to City property, may be detrimental to the interests of the City, or may be in- jurious to the employee, fellow workers, or the public, the appointing authority may temporarily assign the employee to duties in which these conditions do not exist, or may place the employee on paid suspension during the response period. 4. Final Action. a. Within three (3) business days following the response of the employee to the notice of the proposed disciplinary action or, if no response is received, within three (3) business days following the expiration of the response period, the appointing authority shall deliver a notice of final decision to the employee. If discipline is imposed, a notice of decision shall be delivered to the employee personally or by mail to the address of record in the employee's personnel file. The notice shall be dated and shall inform the em- ployee of his /her right to appeal the notice of decision pursuant to the provisions of Section 2706.2 of the Code. Disciplinary action shall be effective upon the personal delivery or mailing of the notice. b. If no discipline is to be imposed, the notice of decision shall so indicate and the Personnel Director shall be directed to delete from the employee's personnel file all references to the matter. B. Suspension 6f five (5) days of less. In any disciplinary action wherein it is proposed that a regular employee in the classified service be suspended for five (5) days of less, the pro- cedures shall be as provided under subsection A, above. Provided, however, that in the alternative the appointing authority may impose immediate final discipline without prior notice and right to respond in which event the procedures subsequent to imposition of discipline shall be as follows: 1. Materials. Within five (5) business days following the imposition of discipline a written notice stating any and all reasons, specifically and in detail for the proposed action, materials on which the disciplinary action is based, and investigative reports or extracts therefrom, shall be assembled and either provided to the employee -or made available to the employee for review. 2. Response. The employee may respond to the appointing authority concerning the imposed disciplinary action and the materials in support thereof within five (5) business days of receipt of the materials. The employee may respond through a designated repre- sentative, or personally, or in writing or any combination thereof. EXHIBIT "A" The right to answer personally includes the right to answer orally in person by being given an opportunity to make any representations which the employee believes are pertinent to the matter. When the employee requests an opportunity to answer personally, the appointing authority shall personally hear the answer. Irrespective of the manner of response, the employee may sub- mit any material or evidence which is pertinent to the matter. The appointing authority shall consider any representations, statements, materials, or any other evidence submitted by the employee with or as his /her response. 3. Appointing Authority Action. Within three (3) business days following the response, if any, of the employee the appointing authority shall either confirm or rescind the imposed disci- plinary action, and shall give written notice to the employee of the decision to confirm or rescind. If the discipline is rescinded, appropriate action, including credit for back pay in the case of suspension, shall betaken and the Personnel Director shall be directed to delete from the employee's per- sonnel file all references to the matter. If the discipline is confirmed, the notice to confirm shall inform the employee of his /her right to appeal; the effective date of the dis- ciplinary action for the purpose of appeal shall be the date of delivery or mailing of the notice to confirm. C. Reprimands. In any disciplinary action wherein it is proposed that a regular employee in the classified service receive a written reprimand, the procedures shall be as provided in the alternate method in subsection B, above, with the following exceptions: 1. A reprimand need not include statements of witnesses or other supporting documents, but shall set forth the circumstances in sufficient detail to permit the employee to understand the nature and basis of the action. 2. Reprimands shall not be placed in the employee's personnel file unless approved by the appointing authority. In such cases, the employee shall have the right to submit a written response to the reprimand and such response shall be placed in the employee's personnel file. SECTION 2706.2. RIGHT OF APPEAL. A. Any employee demoted, suspended for more than five (5) days or the shift equivalent, reduced in pay, or 'removed under the provisions of Section 2706.1 of this code shall have�the right to appeal such disciplinary action to the Personnel Board. The appeal shall be in writing and shall be filed with the Personnel Director within fifteen (15) business days following the effective date of the notice of decision on disciplinary action. B. Any employee suspended for five (5) days or less under the provisions of Section 2706.1 of this code shall have the right to appeal such disciplinary action to the City Administrative Officer. The appeal shall -'be in writing and EXHIBIT "A" shall be filed with the City Administrative Officer within fifteen (15) business days following the effective date of the notice of decision on disciplinary action. The City Administrative Officer shall meet with the disciplined employee if requested by said employee and conduct such in- vestigations he deems necessary. His written decision shall be final and shall be delivered or mailed to the employee within twenty (20) business days of the filing of the appeal. , C. There shall be no right for any employee to appeal a reprimand or for a probationary employee to appeal any disciplinary action. SECTION 2706.3. HEARINGS. A. Date. Within five (5) business days of receipt of an employee appeal under Section 2706.2 A, the Personnel Director, following consultation with the chairperson of the Personnel Board, shall set a date and time for a hearing before the Personnel Board. B. Notification. When a hearing on any disciplinary action is to be heard, the Personnel Director shall notify the employee requesting the hearing and the appointing authority from whose action the appeal is being taken, of the date, time and place of the hearing. C. Public or Closed Hearing. The hearing may be public or closed, at the employee's option. D. Appearance; representation; witnesses; conduct of hearing. 1. The employee requesting the hearing shall not be required to appear at the hearing; provided, however, that the City shall have the right to call as a witness and examine the employee requesting the hearing as if under cross - examination. 2. The employee may be represented by any person, including a representative of a recognized employee association. 3. Unless otherwise mutually agreed upon by the employee and the City's representative, during the hearing any witnesses to be called by either the employee or the City shall be excluded from the hearing room unless actually testifying. Provided, that the employee and City each may designate a person, who shall not be subject to exclusion who has investigated the matter at issue in the hearing and whose assistance during the hearing is necessary to the efficient conduct of the hearing. 4. The hearing shall be presided over by the chairperson of the Personnel Board of the chairperson's designated representative on the Board. 5. The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses, but the hearing shall be conducted in a manner most conducive to determination of the EXHIBIT "A" truth. Any relevant evidence shall be admitted if it is the sort of evidence which responsible persons are accustomed to rely on in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible in civil actions. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions, and irrelevant and unduly repeti- tious evidence shall be excluded. Decisions made by the Personnel Board shall not be invalidated by any informality in the proceedings, and the Personnel Board shall not be bound by technical rules of evidence. 6. The Personnel Board shall rule on the admission or exclusion of evidence and the application of other rules of law with the assistance of its legal advisor. 7. The hearing shall proceed in the following order unless the Personnel Board otherwise directs: a. City's representative and the employee may make opening statements. b. City's representative shall present evidence in support of City's position; employee may cross - examine City's witnesses. c. The employee may present evidence in his /her own behalf; City's representative may cross- examine the employee's witnesses. d. Both the City's representative and the employee may then present rebuttal evidence, unless the Personnel Board for good reason permits additional evidence upon the original cases. e. City's representative and the employee may make closing arguments. 8. Each party may -'impeach any witness regardless of which party first called the witness. 9. No still or moving photography or pictures of any kind shall be taken in the hearing room during the hearing. 10. Prior to or,.during a hearing the Personnel Board may grant a continuance for any reason it believes to be important to its reaching a fair and proper decision. 11. Upon conclusion of the hearing the Personnel Board may deliber- ate its decision in executive session. No persons other than members of the Personnel Board shall participate in the deliberations; provided, that the Board may request the atten- dance of its legal advisor for the sole purpose of rendering legal advice. - - — - - - EXHIBIT "A" E. Personnel Board Action. 1. No later than twenty (20) calendar days following conclusion of the hearing, the Personnel Board shall prepare findings and recommendations for submission to the City Council. 2. At a minimum, the Personnel Board shall find whether the City has substantiated the charges in support of the disciplinary action. It shall base its findings on the preponderance of the evidence. Findings shall be made as to each charge. If the Personnel Board finds that none of the charges are supported by the evidence pr.esented,'the recommendation shall be that no disciplinary action be taken. If the Personnel Board finds that any or all of the charges are supported, it shall either: a. Recommend that the imposed disciplinary action be carried out; b. Recommend such other disciplinary action it deems appro- priate under the circumstances; or c. Recommend that no disciplinary action be taken. 3. The Personnel Board findings and recommendations shall be filed as a permanent record with the Personnel Director. The Personnel Director shall deliver a copy of the findings and recommendations to the City Council, the employee, the City Clerk, the City Administrative Officer, and to the appointing authority from whose action the appeal was taken. F. City Council Action. 1. The City Council shall review the findings and recommendations and the record of the hearing. The council shall then determine whether the disciplinary action imposed by the appointing author- ity is proper, and shall make appropriate findings. If it is determined by the council that the action of the appointing authority is proper or that other action is proper, the employee shall be notified in writing of the findings and order, and no further action shall be necessary. If it is determined that no discipline shall be imposed the action shall be rescinded and the employee's records and pay shall be appropriately adjusted. 2. The council's findings and order shall be filed with the City Clerk. 3. The action of the council shall be final. EXHIBIT "A" SECTION 2707. GRIEVANCE PROCEDURE. A grievance is defined as an alleged violation, misinterpretation or misapplication of the personnel rules and regulations or of any Memorandum of Understanding, excluding disciplinary matters, or other matters as fall within the scope of representation. Each grievance shall be handled in the following manner: A. The employee who is dissatisfied with the response of the immediate supervisor shall discuss the grievance with the supervisor's immediate superior. The employee shall have the right to choose a representative to accompany him /her at each step of the process. If the matter can be resolved at that level to the satisfaction of the employee, the grievance shall be considered terminated. B. If still dissatisfied, the employee may immediately submit the grievance in writing to the department head for consideration, stating the facts on which it was based, including the provision of the rules, regula- tions, or agreement said to be violated, and the proposed remedy. This action must take place within fifteen (15) business days of the occurrence of the grievance. The department head shall promptly consider the grievance and render a decision in writing within fifteen (15) business days of receiv- ing the written grievance. If the employee accepts the department head's{ decision, the grievance shall be considered terminated. C. If the employee is dissatisfied with the department head's decision, the employee may immediately submit the grievance in writing to the Personnel Director within five (5) business days of receiving the department head's decision. The Personnel Director shall confer with the employee and the department head and any other interested parties, and shall conduct such other investigations as may be advisable. D. The results of findings of such conferences and investigations shall be submitted to the City Administrative Officer in writing within fifteen (15) business days of receiving the employee's written request. The City Admin- istrative Officer will meet with the employee if the employee so desires before rendering a decision with respect to the complaint. The City Admin- istrative Officer's decision shall be in writing and given the employee within fifteen (15) business days of receiving the Personnel Director's results and findings. Such decision shall be final unless employee desires the Personnel Board to review the decision. If such is the case, the em ployee will have five (5) business days following receipt of the City Admin- istrative Officer's decision to submit a written request to the Personnel Board through the Personnel Director for a review of the decision. The Per- sonnel Board within thirty (30) business days shall review the record and either (1) issue an advisory opinion to the City Administrative Officer; or (2) conduct a hearing on the matter. If a hearing is held, an advisory opinion shall be rendered by the Board within ten (10) business days of the close of such hearing. If an opinion signed by at least three (3) members of the Personnel Board recommends overruling or modifying the City Adminis- trative Officer's decision, the City Administrative Officer shall comply or appeal this recommendation to the City Council. Such appeal shall be filed with the City Clerk with in three (3) business days of the Board's action. If appealed, the City Council shall review the case on the record and render a final decision within fifteen (15) business days of submittal. EXHIBIT "B" SECTION 2711. PERSONNEL BOARD. A. Established. 1. There is hereby established pursuant to Section 1102 of the City Charter a Personnel Board. The Personnel Board shall have five members who shall be qualified to serve under the terms of Section 1202 of the City Charter. 2. Term of Office. Members of the Personnel Board shall be appointed for terms of four years and shall serve at the pleasure of the council; provided, that initial appointment shall be as follows: a. The terms of two members shall expire June 30, 1981. b. The terms of three members shall expire June 30, 1983. 3. Three members of the Personnel Board shall constitute a quorum for the transaction of business; provided, however, that for the purposes of a hearing on appeal of a disciplinary action, no Board member may vote on a decision if absent from part of a hearing, unless such member certifies that he /she has listened to a recording of or read the transcript of the entire hearing. 4. Filling Vacancies on Personnel Board. Any vacancy shall be filled for the unexpired term of the person replaced. B. Functions. 1. The duties of the Personnel Board shall be advisory only. 2. The Personnel Board shall hear employee appeals from disciplinary actions taken pursuant to Section 2706.2 of the Code. 3. The Personnel Board shall review grievances pursuant to Section 2707 of the Code. 4. In connection with such hearings, the Personnel Board shall administer oaths to all witnesses appearing before it. Any regular officer or employee of the City who fails to take the oath or fails to testify truthfully under oath at a hearing shall be subject to disciplinary action. 5. In connection with such hearings, the Personnel Board shall have the authority to subpoena witnesses and to require the production of books, papers and any other materials pertinent to the investi- gation or hearing. It shall be unlawful for any person to disobey such a subpoena or order to produce. Subpoenas shall be issued at the request of either party prior to the commencement of such hearing, and after the commencement of such hearings only in the discretion of the Personnel Board. 6. The Personnel Board shall perform such other duties as the council may require pertaining to personnel administration. EXHIBIT "C" ORDINANCE NO. 808 (1979 Series) FINALLY PASSED this 19th day of June 1979, on motion of Councilman Jorgensen seconded by Councilman Bond , and on the following roll call vote: AYES: Councilmembers Billig, Bond, Dunin, Jorgensen and Mayor Cooper NOES: None ABSENT: None ATTEST: y erc J.H. Fitzpatrick