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HomeMy WebLinkAbout6236 RESOLUTION NO. 6236 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING PERSONNEL RULES AND REGULATIONS, RULE XIV -EMPLOYEE GRIEVANCE AND APPENDIX A - RULES AND REGULATIONS GOVERNING HUMAN RESOURCES COMMISSION HEARINGS AND PROCESSES WHEREAS, after a review by the City's labor law firm of the City of Arcadia's Personnel Rules and Regulations ("Rules"), the Human Resources Commission did on June 7, 2001 recommend that the City Council amend the Rules as hereafter set forth; and WHEREAS, the best interests of the City of Arcadia and its employees will be served by amending the Rules. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOL VE AS FOLLOWS: SECTION 1. The City Council hereby amends the Personnel Rules and Regulations ofthe City of Arcadia, by adopting the revised and amended Rule XIV, Employee Grievances, and Appendix "A", Human Resources Commission Disciplinary Appeal Procedure, all as attached to this Resolution. 6236 SECTION 2. The City Clerk shall certify to the adoption of this Resolution, Passed, approved and adopted this 19th day of June , 200 I. ATTEST: ~.". ,4 . Clerk- . w/,-,,-R / "', --. APPROVED AS TO FORM: ~'p~ City Attorney 2 6236 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6236 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 19th day of June, 2001 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmember Chandler, Chang, Kovacic, Marshall and Segal NOES: None ABSENT: None ,"'....c...' J 3 6236 HUMAN RESOURCES COMMISSION DISCIPLINARY APPEAL PROCEDURE The appeal procedure described herein shall apply only to cases of disciplinary suspensions, demotions and removal affecting pennanent employees within the classified servIce, I. Request for Hearing Within ten (10) days after final notice of suspension, demotion or removal, the employee or the employee's representative may file an appeal in writing with the City Clerk, If, within the ten (10) day appeal period, the employee does not file said appeal, unless good cause for the failure is shown, the action of the City shall be considered conclusive and shall take effect as prescribed. The appeal shall include the following: a. An admission or denial of each change set forth in the final notice, with an explanation why the change is admitted or denied. b, A statement of any affinnative defenses c. A statement that the employee disagrees with the penalty with an explanation of the employee's position. d, The employee's current address e, A request for a hearing Failure to provide this information may result in the appeal not being processed, 2, Scheduling of Hearing Upon receipt of the request for an appeal, the City Clerk shall, within thirty (30) days, transmit the appeal to the Human Resources Commission. The Commission shall schedule a hearing. The appeal hearing shall be set not less than twenty (20) working days nor more than sixty (60) working days from the date of the filing of the appeal. All interested parties shall be notified in writing of the date, time, and place of the hearing at least ten (10) working days prior to the hearing, H.R. COMMISSION APPEAL 3, Private or Public Hearings All hearings shall be private; provided that the employee may request a hearing open to the public, Any request for an open hearing shall be submitted five (5) working days prior to the hearing date or the hearing will be closed. 4, Pre-Hearing Procedure a. Subpoenas The Human Resources Commission is authorized to issue subpoenas at the request of either party prior to the commencement of the hearing. After the commencement of the hearing, subpoenas shall be issued by the Commission only for good cause, Each party will prepare their own subpoenas and present them to the Human Resources Division of the Administrative Services Department and the other party. The Human Resources Division of the Administrative Services Department will issue the subpoenas, The Human Resources Division of the Administrative Services Department will serve subpoenas for current city employees. It will be the responsibility of the employee or the City to serve subpoenas on individuals who are not currently employed by the city, It will be the responsibility of the employee and the city to submit the written request for subpoenas at least ten (10) working days before the date of the hearing. b. Exhibits and Witness Lists Five (5) working days prior to the date set for the hearing, each party shall serve upon the other party and submit to the Human Resources Division of the Administrative Services Department a list of all witnesses and a list and copy of all exhibits. An original and nine (9) copies of the exhibits shall be presented to the Human Resources Division of the Administrative Services Department in 3 hole notebooks which are tabbed down the side with the exhibit numbers, The employer's exhibits shall be designated by number, The employee's exhibits shall be designated by alphabetical letter. Neither party will be permitted to call during the hearing, a witness not identified pursuant to this section nor use any. exhibit not provided pursuant to this section unless that party can show that they could not reasonably have anticipated the prior need for such witness or such exhibit. c, Statement ofIssues Five (5) working days prior to the date set for the hearing, each party shall submit to the Human Resources Division of the Administrative Services Department a Statement of Issues. H.R. COMMISSlQN APPEAL 2 5. Submission to the Human Resources Commission Five (5) working days prior to the date set for the hearing, the Human Resources Division of the Administrative Services Department shall present each member of the Human Resources Commission with a copy of the jurisdictional documents. Those documents include the notice of intent to take disciplinary action, the final notice of disciplinary action and any response from the employee to these documents as well as the statement of issues submitted by both parties, The Commission shall not be provided with copies of the exhibits, 6. Record of Proceedings and Costs a. Court Reporter All disciplinary appeal hearings may, at the discretion of either party or the Commission, be recorded by a court reporter, Any hearing which does not utilize a court reporter, shall be recorded by audio tapes, If a court reporter is requested by either party, that party shall pay the cost of the court reporter. Ifboth parties request a court reporter the cost will be split equally. If the Commission requests the court reporter, the City shall pay the cost of the reporter, b. Payment of Emplovee Witnesses Employees of the City who are subpoenaed to testify during working hours will be released with pay to appear at the hearing. The Commission may direct that these employees remain on call until called to testify, Employees who are subpoenaed to testify during non- working hours will be compensated for the time they actually testify, unless the City agrees to a different arrangement. 7. Conduct of the Hearing a, The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses but hearings shall be conducted in a manner most conducive to determination of the truth, b, Any relevant evidence may be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rules which might make improper the admission of such evidence over objection in civil actions, c. Hearsay evidence may be used for the purpose of supplementing or eXplaining any direct evidence that shall not be sufficient in itself to support a finding unless it would admissible over objection in civil actions. d. The rules dealing with privileges shall be effective to the same extent that they are now or hereafter may be recognized in civil actions. H.R. COMMIS$tQN APPEAL 3 /J e, Irrelevant and unduly repetitious evidence may be excluded. f. The Human Resources Commission shall detennine relevancy, weight and credibility of testimony and evidence. Decisions made by the Commission shall not be invalidated by any infonnality in the proceedings. g, During examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing upon motion of either party, h, The Human Resources Commission may conduct the hearing or delegate evidentiary and/or procedural rulings to its legal counsel. 8, Burden of Proof In a disciplinary appeal the employer has the burden of proof by preponderance of the evidence. 9, Proceed with Hearing or Request for Continuance Each side should be asked if it is ready to proceed, If either side is not ready and wishes a continuance, good cause must be stated, Any request for a continuance must be made in writing and submitted prior to the hearing to all parties. Before requesting a continuance, the moving party shall contact all parties to detennine if there is any opposition to the continuance and shall state in its request if there is opposition, 10, Testimonv under Oath All witnesses shall be sworn in for the record prior to offering testimony at the hearing, The chairperson will request the witnesses to raise their right hand and respond to the following: "Do you swear that the testimony you are about to give at this hearing is the truth, the whole truth and nothing but the truth?" II, Presentation of the Case The hearing shall proceed in the following order unless the Human Resources Commission for special reason, directs otherwise: a, The Chair shall announce the issues after a review of the statement of issues presented by each party. b. The party imposing discipline (department) shall be pennitted to make an H.R. COMMISSION APPEAL 4 opening statement. c, The appealing party (employee) shall be pennitted to make an opening statement, or reserve an opening statement until presentation of their case. d. The party imposing disciplinary action (department) shall produce their evidence, e. The party appealing from such disciplinary action (employee) may then offer their evidence, f. The party imposing discipline (department) followed by the appealing party (employee) may offer rebutting evidence. g. Closing arguments shall be pennitted at the discretion of the Human Resources Commission, The party with the burden of proof, shall have the right to go first and to close the hearing by making the last argument. The Commission may place a time limit on closing arguments, The Commission or the parties may request the submission of written briefs, After the request for submittal of written briefs, the Commission will detennine whether to allow the parties to submit written briefs and detennine the number of pages of said briefs. 12. Procedure for the Parties The party representing the department and the party representing the employee will address their remarks, including objections, to the Chair of the Human Resources Commission, Objections may be ruled upon summarily or argument may be pennitted. The Chair reserves the right to tenninate argument at any time and issue a ruling regarding an objection or any other matter, and thereafter the representative shall continue with the presentation of their case, 13, Right to Control Proceedings While the parties are generally free to present their case in the order that they prefer, the Chair reserves the right to control the proceedings, including, but not limited to, altering the order of witnesses, limiting redundant or irrelevant testimony, or by the direct questioning of witnesses. 14. Hearing Demeanor and Behavior All parties and their attorneys or representatives shall not, by written submission or oral presentation, disparage the intelligence, ethics, morals, integrity or personal behavior of their adversaries or members 'of the Board H.R. COMMISSION APPEAL 5 15, Deliberation Upon the Case The Human Resources Commission may chose to either deliberate the case in public or adjourn to closed session to deliberate. The Commission will consider all oral and documentary evidence, the credibility of witnesses, and other appropriate factors in reaching their decision, The Commission may deliberate at the close of the hearing or at a later fixed date and time, 16, Written Findings and Recommended Decision The Human Resources Commission shall render their findings and recommendations as soon after the conclusion of the hearing as possible, and no event, later than ten (10) working days after concluding the hearing, unless otherwise stipulated to by the parties, A finding must be made by the Commission on each charge, The Human Resources Commission may recommend the sustaining or rejecting of any or all of the charges filed against the employee, The Commission may recommend sustaining, rejecting or modifying the disciplinary action invoked against the employee, If the Commission recommends reinstatement of the tenninated employee, the employee is only entitled to back pay minus the sum the employee has earned during the period of absence. The Human Resources Commission shall not be polled as to their decision by the grievant or the grievants counsel. 17. Recommendation to the City Manager The decision of the Human Resources Commission is advisory to the City Manager. The proposed decision shall be filed with the charged employee, the department head and the City Manager, and shall set forth all findings and conclusions, If a dismissal is not sustained, the proposed decision shall set forth a recommended effective date the employee is to be reinstated. Either the employee or the department may file a written appeal to the proposed decision, findings and conclusions of the Commission within ten (10) working days of the decision by filing exceptions thereto with the Human Resources Manager. The party desiring to contest the recommended decision of the Commission request a transcript for review by the City Manager within ten (10) working days of the Commission's decision. If the appealing party requests a transcript, that party shall pay the cost of the transcript. 18, Final Action bv Citv Manager Within ten (10) working days of the filing of exceptions, the City Manager shall review the decision of the Commission, any exceptions filed, and a record, if one is requested, The City Manager may ratify, modify, or reverse the proposed decision of the Commission, If the City H.R. COMMISSION APPEAL 6 Manager seeks to modify or reverse the decision of the Commission, the City Manager shall review the transcript. The decision of the City Manager shall be final. The decision shall be transmitted to the employee appealing disciplinary action and to the department head, 19. Judicial Review a. Petition for Writ of Mandate Judicial review of any decision of the City Manager may be had pursuant to Section 1094.5 of the California Code of Civil Procedure only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section, b, 90 Dav from Final Decision. Pursuant to Code of Civil Procedure 1094,6 any such petition shall be filed not later than the ninetieth (90th) day following the date on which the City Manager gives written notice of the final decision, H.R. COMMISSION APPEAL 7 RULE XIV EMPLOYEE GRIEVANCES Section I. DEFINITIONS a, Grievance A grievance is an allegation by an employee(s) of a misinterpretation or misapplication of any express provision of the applicable Memorandum of , Understanding or Personnel Rules and Regulations where there is no other specific method of review provided by City law, b. Grievant An employee or group of employees in the classified service adversely affected by an act or omission by the City allegedly in violation of an express provision of the Memorandum of Understanding or Personnel Rules and Regulations, c, Department Administrator The department head or designee, d. Work day A work day is any day the City offices are regularly open for business, e, Exclusions from the Grievance Procedure I. The procedure is not to be used for the purpose of changing wages, hours and working conditions. . 2. The procedure is not intended to be used to challenge the content of employee evaluations or performance reviews, 3, The procedure is not intended to be used to challenge a reclassification, layoff, transfer, denial of reinstatement, or denial of a step or merit increase, 4, The procedure is not intended to be used in cases of oral or written reprimand, demotion, suspension or removal. 5. The procedure is not to be used to challenge violation oflaw or past practice unless the rules or MOU expressly refer to same, 6. The procedure is not to be used to challenge examinations or appointment to positions. RULE XIV EMPLOYEE GRIEVANCES Section 2, TIMELINESS The grievance must be filed by the employee within the timelines set forth herein, Failure of the employee to file the initial grievance or process the grievance from one level to another in a timely manner is a forfeiture of the grievance and the grievance will not be processed further. If the City fails to respond in a timely manner, the employee may proceed to the next level. Section 3. EMPLOYEE REPRESENT AnON The employee may be represented by a person of his or her choice to prepare and present the grievance, The employee may use a reasonable amount of released time to process the grievance, The release time must be approved by the Department Head, Section 4, INFORMAL GRIEVANCE PROCEDURE Within fifteen (15) working days following the event, or within fifteen (15) working days after the employee should reasonably have known of the event, the employee should attempt to resolve the grievance on an informal basis by discussion with his or her immediate supervisor. Section 5. FORMAL GRIEVANCE PROCEDURE a. First Level of Review: Next Level Supervisor If the employee is not able to resolve the grievance after discussion with his or her immediate supervisor, within ten (10) working days after the informal discussion with the immediate supervisor, the employee shall present the grievance in writing to the next level supervisor on the official City grievance form setting forth the following information: I. The specific section of the rules or MOU allegedly violated, 2, The specific act or omission which gave rise to the alleged violation, 3, The date or dates on which the violation occurred, 4. Documents, witnesses or evidence in support of the grievance, 5, The resolution of the grievance at the inforinal stage. 6. The remedy requested. RULE XIV EMPLOYEE GRIEVANCES 2 A copy of the grievance shall be provided to the Human Resources Division of the Administrative Services Department concurrently with presentation to the immediate supervisor. The next level supervisor shall render a decision in writing, on the grievance form, within ten (10) working days after receiving the grievance, b, Department Head Review If the employee does not agree with the decision of the next level supervisor, within ten (10) working days after receiving the next level supervisor's decision or twenty (20) days from the date the next level supervisor received the grievance but failed to issue a decision, the employee shall present the grievance in writing, on the grievance form, to the department head. The department head may require the employee and the immediate supervisor to attend a grievance meeting. The department head shall communicate a decision in writing within ten (10) working days of receiving the grievance or within ten (10) working days of holding a grievance meeting whichever is longer. c, Human Resources Manager If the employee is not in agreement with the decision reached by the department head, within ten (10) working days after receiving the department head's decision or twenty (20) days from the date the department administrator received the grievance but failed to issue a decision, the employee shall present the grievance in writing to the Human Resources Manager on the official City grievance form. The Human Resources Manager may require the employee and the immediate supervisor to attend a grievance meeting. The Human Resources Manager shall communicate a decision in writing within ten (10) working days of receiving the grievance or the holding of a grievance meeting whichever is longer. . d, Human Resources Commission If the employee is not in agreement with the decision of the Human Resources Manager or if the Human Resources Manager has failed to respond, the employee shall present the grievance to the Human Resources Commission within ten (10) working days from the date of receipt of the Human Resources Manager's decision or twenty (20) days from the date the Human Resources Manager received the grievance but failed to issue a decision. RVLE XIV EMPLOYEE GRIEVANCES 3 Section 6, APPEAL TO HUMAN RESOURCES COMMISSION a. Scheduling of Hearing Upon receipt of the request for an appeal, the City shall, within thirty (30) days, transmit the appeal to the Human Resources Commission. The Commission shall schedule a hearing, The appeal hearing shall be set not less than twenty (20) working days nor more than sixty (60) working days from the date of the filing of the appeal. All interested parties shall be notified in writing of the date, time, and place of the hearing at least ten (10) working days prior to the hearing, b. Public Hearings All hearings shall be open to the public. c, Pre-Hearing Procedure 1. Subpoenas The Human Resources Commission is authorized to issue subpoenas at the request of either party prior to the commencement of the hearing. After the commencement of the hearing, subpoenas shall be issued by the Commission only for good cause, Each party will prepare their own subpoenas and present them to the Human Resources Division of the Administrative Services Department and the other party. The Human Resources Division ofthe Administrative Services Department will issue the subpoenas. The Human Resources Division of the Administrative Services Department will serve subpoenas for current City employees. It will be the responsibility of the employee or the City to serve subpoenas on individuals who are not currently employed by the City, It will be the responsibility of the employee and the City to submit the written request for subpoenas at least ten (10) working days before the date of the hearing. 2. Exhibits and Witness Lists Five (5) working days prior to the date set for the hearing, each party shall serve upon the other party and submit to the Human Resources Division of the Administrative Services Department a list of all witnesses and a list and copy of all exhibits, An original and nine (9) copies of the exhibits shall be presented to the Human Resources Division of the Administrative Services Department in 3 hole notebooks which are tabbed down the side with the exhibit numbers, The employer's exhibits shall be designated by number, The employee's exhibits shall be designated by alphabetical letter. Neither party will be permitted to call during the hearing, a witness not identified pursuant to this section nor use any exhibit not provided pursuant to this section unless that party can show that they could not reasonably have anticipated the prior need for such witness or such exhibit. RULE XlV EMPLOYEE GRIEVANCES 4 3, Statement ofIssues Five (5) working days prior to the date set for the hearing, each party shall submit to the Human Resources Division of the Administrative Services Department a Statement of Issues, d, Submission to the Human Resources Commission Five (5) working days prior to the date set for the hearing, the Human Resources Division of the Administrative Services Department shall present each member of the Human Resources Commission with a copy of the jurisdictional documents. Those documents include the grievance documents at each level and the responses to the grievance. e, Pavment ofEmplovee Witnesses Employees of the City who are subpoenaed to testify during working hours will be released with pay to appear at the hearing. The Commission may direct that these employees remain on call until called to testify. Employees who are subpoenaed to testify during non- working hours will be compensated for the time they actually testify, unless the City agrees to a different arrangement. f, Conduct of the Hearing I. The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses but hearings shall be conducted in a manner most conducive to detennination of the truth. 2. Any relevant evidence may be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rules which might make improper the admission of such evidence over objection in civil actions. 3, Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence that shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. 4. The rules dealing with privileges shall be effective to the same extent that they are now or hereafter may be recognized in civil actions, 5, Irrelevant and unduly repetitious evidence may be excluded, 6, The Human Resources Commission shall detennine relevancy, weight and credibility of testimony and evidence, Decisions made by the Commission shall not be invalidated by any infonnality in the proceedings, R.ULE XIV EMPLOYEE GRIEVANCES 5 7. During examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing upon motion of either party. 8. The Human Resources Commission may conduct the hearing or delegate evidentiary and/or procedural rulings to its legal counsel. g. Burden of Proof In a grievance appeal the grievant has the burden of proof by preponderance of the evidence. h. Proceed with Hearing or Request for Continuance Each side should be asked ifit is ready to proceed, If either side is not ready and wishes a continuance, good cause must be stated, Any request for a continuance must be made in writing and submitted prior to the hearing to all parties. Before requesting a continuance, the moving party shall contact all parties to determine if there is any opposition to the continuance and shall state in its request if there is opposition, I. Testimony under Oath All witnesses shall be sworn In for the record prior to offering testimony at the hearing, The chairperson will request the witnesses to raise their right hand and respond to the following: "Do you swear that the testimony you are about to give at this hearing is the truth, the whole truth and nothing but the truth?" J. Presentation of the Case The hearing shall proceed in the following order unless the Human Resources Commission for special reason, directs otherwise: 1. The Human Resources Chair shall announce the issues after a review of the statement of issues presented by each party, 2, The grievant (employee) shall be permitted to make an opening statement. 3. The respondent (City) shall be permitted to make an opening statement, or reserve an opening statement until presentation of its case, 4. The grievant shall produce his/her evidence. RULE XIV EMPLOYEE GRIEVANCES 6 5, The respondent may then offer its evidence, 6. The grievant followed by the respondent may offer rebutting evidence. 7. Closing arguments shall be pennitted at the discretion of the Human Resources Commission, The party with the burden of proof, shall have the right to go first and to close the hearing by making the last argument, The Commission may place a time limit on closing arguments, The Commission or the parties may request the submission of written briefs, After the request for submittal of written briefs, the Commission will detennine whether to allow the parties to submit written briefs and detennine the number of pages of said briefs, k, Procedure for the Parties The party representing the department and the party representing the employee will address their remarks, including objections, to the Chair of the Human Resources Commission. Objections may be ruled upon summarily or argument may be pennitted. The Chair reserves the right to tenninate argument at any time and issue a ruling regarding an objection or any other matter, and thereafter the representatives shall continue with the presentation of their case. 1. Right to Control Proceedings While the parties are generally free to present their case in the order that they prefer, the Chair reserves the right to control the proceedings, including, but not limited to, altering the order of witnesses, limiting redundant or irrelevant testimony, or by the direct questioning of witnesses, m. Hearing Demeanor and Behavior All parties and their attorneys or representatives shall not, by written submission or oral presentation, disparage the intelligence, ethics, morals, integrity or personal behavior of their adversaries or members of the Commission, n. Deliberation UDon the Case The Commission will consider all oral and documentary evidence, the credibility of witnesses, and other appropriate factors in reaching their decision. The Commission may deliberate at the close of the hearing in closed session or at a later fixed date and time not to exceed ten (10) working days, 0, Recommended Decision The Human Resources Commission shall render it's recommendations as soon after the conclusion of the hearing as possible, and no event, later than ten (10) working days after concluding the hearing, unless otherwise stipulated to by the parties. The recommended decision shall include an explanation of the basis for the decision. The Human Resources Commission shall not be polled as to their decision by the grievant or the grievants counsel. RULE XIV EMPLOYEE GRlEV ANCES 7 p, Recommendation to the City Manager The decision of the Human Resources Commission is advisory to the City Manager. The proposed decision shall bc provided to the grievant and the City Manager. Either the employee or the department may file a written appeal to the proposed decision, by filing exceptions thereto with the Human Resources Manager within ten (10) days of receipt of the Commission's recommended decision, The party desiring to contest the recommended decision of the Commission may also request a transcript for review by the City Manager within ten (10) working days of the Commission's decision, If the appealing party requests a transcript, that party shall pay the cost of the transcript. q, Final Action by City Manager Within ten (10) working days of the filing of exceptions, or within ten (10) days of receipt of the transcript, the City Manager shall review the decision of the Commission, any exceptions filed, and a record, if one is requested, The decision of the City Manager shall be final. The decision shall be transmitted to the employee and to the depart[l1ent head. RULE XIV EMPLOYEE GRlEV ANCES 8