Loading...
HomeMy WebLinkAboutCC Res 3535 1985-10-28 WHEREAS, WHEREAS, RESOLUTION NUMBER ~~~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH PROVIDING FOR AN APPEAL TO THE CIVIL SERVICE BOARD REGARDING DETERMINATIONS OF DISABILITY IN ACCORDANCE WITH SECTIONS 21034 and 21028 OF THE GOVERNMENT CODE OF THE STATE OF CALIFORNIA. I the City of Seal Beach is a contracting agency of the Public Employees Retirement System; and the Public Employees' Retirement Law requires that a contracting agency determine whether an employee of such age~cy in employment in which he is classified as a local safety member is disabled for purposes of the Public Employees' Retirement Law and whether such disability is "industrial" within the meaning of such Law; and the City Council has delegated the authority to make such determinations to the City Manager; the City Council now wishes to provide an appeal procedure for such determinations to the Civil Service Board: NOW, THEREFORE, BE IT RESOLVED that the City Council of the I City of Seal Beach does hereby delegate to the Civil Service Board of the City of Seal Beach authority to hear appeals and make determinations under Section 21034 of the Government Code, on behalf of the City, of disability and whether such dis- ability is industrial and to hear appeals and make determina- tions under Section 21028 of the Government Code, on behalf of the City, of requests for reinstatement from disability retire- ment and to certify such determinations and all other necessary information to the Public Employees' Retirement System; and WHEREAS, WHEREAS, BE IT FURTHER RESOLVED that the Disability Retirement Pro- cedures (Safety Officer), attached as Exhibit "A", are adopted. PASSED, APPROVED AND ADOPTED by the City Council of the Cit~Of Seal Be~, _ ~ali1i,ornia, at a meeting thereof held on the...:;) tt day of ~ 6~ , 19 5, by the following vote: AYES: NOES: ABSENT: Councilmen Councilmen councilmen I 851010 sas 0084TRT 3 Resolution Number ~~ STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF SEAL BEACH ) I I, Joanne M. Yeo, City Clerk of the City of Seal Beach, California, do hereby certify that the foregoing resolution is the original copy of Resolution Number ~~~ on file in the office of the City Clerk, passed, approve and adopted by the City Council of the City of Seal Beach at.);. regu1a:r;; meeting thereof held on the Cld!.( day of (gena A "-~ ' 1985. . >): ",,- Oh ( IJ. City erk 7 I I Resolution "umber .J5:4!J DISABILITY RETIREMENT PROCEDURES (SAFETY OFFICER) It is the responsibility of the City to make certain determinations relating to disability retirement applications and requests for reinstatement regarding safety officers. By Resolution Number 2285, the City Council has dele- gated such responsibility to the City Manager, and by Resolution No. , the City Council has provided for an appeal from the City Manager's decision to the Civil Service Board. In order to assist the City Manager and the Civil Service Board, and to provide a fair and impartial review of all evidence relating to this matter, the following procedures have been adopted. 1. Definitions For the purpose of these procedures, the masculine gender includes the feminine gender and certain words have the follow- ing meanings: "Applicant" means the party who files an application for disability retirement or a request for reinstatement; "Disability" and "incapacity for performance of duty" mean disability of permanent or extended and uncertain duration rendering the employee substantially unable to perform the usual duties of a position as deter- mined on the basis of competent medical opinion. . "Request" means a request for reinstatement of an employee who has been retired for disability. 2. Initiating the Procedure A. Application for Disability Retirement Pursuant to the California Government Code Section 21023, application for disability retirement may be made by: (a) the head of the department in which the affected employee is or was last employed; (b) the City Councilor an official designated by the City Council; (c) the affected employee or any person acting on his behalf. I I I Reso 1 uti on Number :;S";JS"" In accordance with the California Government Code Section 21025, a local safety officer shall be retired for disability only upon his employer's determination that he is incapacitated physically or mentally for the performance of the duties of his position. The application shall be filed with the City II Manager. The applicant shall be required to describe the dis- ability and set forth the basis of the application for dis- ability retirement. B. Request For Reinstatement Pursuant to the California Government Code Section 21028, a request for reinstatement from disability retirement may be made by (a) the City Councilor an official designated by the City Councilor (b) the employee who was retired for disability. In accordance with the California Government Code II Section 21028, a local safety officer may be reinstated to the position held when retired for disability, or a position in the same classification, or another position for which there has been an application for reinstatement, only upon his employer's determination that he is no longer incapacitated physically or mentally for the performance of the duties of that position. The request for reinstatement shall be filed with the" City Manager. The applicant shall be required to describe the dis- ability for which the employee was retired and set forth the basis of the request for reinstatement, including the change in disability or incapacity for performance of duty, and the position to which reinstatement is requested. II 3. City Manager's Decision If the application for disability retirement or request for reinstatement is made by someone other than the affected employee, the City Manager shall give written notice to the affected employee that an application for disability retirement or request for reinstatement has been made and the reasons for which it was made. Upon request, the affected employee shall be given a copy of the documents upon which the City Manager intends to base his decision. The affected Resolution Number ~~~ employee shall have an opportunity to present his position on the matter orally or in writing, to the City Manager before the City Manager makes a decision. The City Manager shall make a thorough review of any medical reports and other pertinent information presented to the City Manager. The City Manager may require additional medical examination and opinions as he deems necessary. The City Manager shall approve the application for disability retirement or request for rein- statement only if the City Manager makes the appropriate determinations required by Section 11(H). The City Manager's decision shall be final unless it is appealed to the Civil Service Board. 4. Notice of Decision The City Manager shall provide the affected employee and applicant with written notice of the decision. The City Manager also shall notify the employee that the decision is final unless the employee appeals it to the Civil Service Board within fifteen (15) days following the date such notice is given. 5. Notice of Appeal A. The affected employee or applicant may appeal the City Manager's decision to the Civil Service Board. B. If the City Manager's decision is regarding an appli- cation for disability retirement, the notice of appeal shall (a) be in writing1 (b) detail the basis and facts upon which the appeal is made1 and (c) state if the disability is industrial or non-industrial. C. If the City Manager's decision is regarding a request for reinstatement, the notice of appeal shall (a) be in writ- ing1 (b) detail the basis and facts upon which the appeal is made 1 and (c) state the position to which reinstatement is requested. D. The notice of appeal shall be served upon the City Manager, City of Seal Beach, 211 Eighth Street, Seal Beach, CA 90740, within fifteen (15) days from the date the notice of decision is given. I I I Resolution Number f3~ ..... . I &. Notice of Hearing Upon receipt of the notice of appeal, the Civil Service Board shall schedule a hearing. Written notice of the scheduled hearing shall be given to all parties personally or by certified mail at least thirty (30) days prior to the hear- ing date. Notice shall be deemed complete upon personal delivery or when said notice is deposited in the United States mail, whichever occurs first. 7. Representation at Hearing The parties shall be given the opportunity at such hearing to be heard in person or through legal counsel. 8. Authority of Civil Service Board A. The scope of the hearing conducted by the Civil Service Board shall be limited to the facts and issues raised in the application for retirement or request for reinstatement, the City Manager's decision, and the notice of appeal. B. The Civil Service Board shall be authorized to order further medical examinations and reports. The sanction for failure to comply with the order of the Civil Service Board shall be a negative inference against the party who fails to comply with the order and/or the suspension of the hearing until there is compliance or the order is withdrawn. C. Each party may be requested by the Civil Service Board to state the number of potential witnesses to be presented and to give an estimate of the time necessary to present their case. The parties shall have until twenty (20) days before the hearing date to file with the City Manager and serve on all parties any and all medical reports and records to be pre- sented. Should a party fail to file such medical reports and records, that party may present medical reports and records only based upon a finding by the Civil Service Board that good cause existed for such failure. The parties may present oral medical testimony at the hearing. 9. Hearing Continuances ~ The hearing may be continued at the discretion of the Civil Service Board. 10. Subpoenas Any subpoenas shall be issued by the City Council. I I Resolution Number ~~~~ - ~ . - 11. Hearing A. The hearing shall be open to the public in accordance with Government Code Section 54953. B. All proceedings at the "hearing shall be recorded by a certified court reporter. C. The Civil Service Board will consider the appeal based upon written documentation to be taken into evidence and oral testimony presented at the time of the hearing. D. Each party shall have the full rights to examine and cross-examine witnesses, make objections, introduce exhibits, and argue the merits of all such evidence. If the affected employee does not testify in his own behalf, the affected employee may be called and examined as if under cross- examination. E. The parties or their legal counsel may make opening statements and closing arguments. F. The Chairperson of the Civil Service Board, or Vice- Chairperson, or other designated Board Member in the Chair- person's absence, shall preside at the hearing and rule on the admission and exclusion of evidence. The formal rules of evidence shall not apply to the hearing. Any relevant evidence shall be admitted if it is the kind of evidence upon which responsible persons are accustomed to rely 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 over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall apply to the extent that they are otherwise required by statute to be recognized at the hearing. Irrelevant and unduly repetitious evidence may be excluded. G. The person filing the application for retirement or request for reinstatement shall have the burden of proof and shall be required to demonstrate by a preponderance of the I I I Resolution Number :J!i.9S- -.... ... evidence all facts necessary for a decision in his favor. The employee shall not be found disabled on the basis of Workers' Compensation disability ratings or on the basis of medical restrictions which preclude the employee from performing activities that are not common occurrences. The disability must be found to be presently in existence and not prospective I in nature. H. (1) The only issues to be decided by the Civil Service Board regarding an application for disability retirement shall be: a. Whether the affected employee is sub- stantially incapacitated to perform the duties of the job position last held and whether such incapacity is permanent or of an uncertain and extended duration. b. Whether the disability is industrial. c. Whether the affected employee should be recommended to P.E.R.S. for: (i) service-connected disability I retirement, (ii) non-service-connected disability retirement, or (iii) regular service retirement. d. Whether the affected employee is not entitled to any retirement benefits at the time of the hearing. e. The effective date of any retirement. f. Whether a rehabilitation program has been offered to the affected employee and, if so, the status of such program. I g. Whether there is any third party liability related to the injury which caused the disability. h. If the affected employee is found to be disabled due to a mental disorder, whether he is competent to act on his own behalf in legally binding retirement matters. i. Whether there is a vacancy in another position for which the affected employee is qualified and for which he is not disabled. ------- -- (2) The only issues to be decided by the Civil Service Board regarding a request for reinstatement shall be: Resolution Number ~~~ a. Whether the affected employee is substantially incapacitated to perform the duties of the position held at the time of disability retirement, or a position in the same classification, or another position for which a request for reinstatement has been made. b. Whether there is a vacancy in the affected employee's position held at the time of disability retirement, II or a position in the same classification, or another position for which a request for reinstatement has been made, and if so, whether the employee is qualified for that position. c. Whether the affected employee should be recommended to P.E.R.S. for: (i) a change in retirement status: or (ii) reinstatement. d. Whether the employee's age at the time of the request for reinstatement is at least six months less than the age of compulsory retirement for service applicable to the members of the class or category in which it is proposed to reinstate him. e. The effective date and position of any I reinstatement. f. Whether a rehabilitation program has been offered to the affected employee and, if so, the status of such program. g. Whether there is any third party liability related to the injury which caused the disability. I. The hearing shall continue from day to day until the proceedings are concluded or continued to a date certain upon the discretion of the Civil Service Board. J. The Civil Service Board shall render a decision and make findings on all issues within thirty (30) days after the hearing is closed. K. The findings and decision of the Civil Service Board shall be final. P.E.R.S. and the parties shall be notified of the decision in writing within ten (10) working days. 12. Transcripts Transcripts of the hearing shall be furnished to any person upon the payment of the cost of preparing such tran- scripts. I