As used in this Article, the following words shall have these
specific definitions:
Any person, including a city employee, against whom a charge
of sexual harassment is filed.
Any city employee who brings or files a charge of sexual
harassment.
A factual finding by the hearing administrator that a charged
party has committed an offense or offenses rising to the level of
sexual harassment, namely: through severe and pervasive verbal and/or
physical conduct of a patently offensive nature not welcomed by the
complainant, that not only created a work environment that would interfere
with the performance and psychological well-being of a reasonable
person of the same sex but also specifically offended and injured
the complainant, said harassment being considered a type of sexual
harassment.
The person supervising or administering the investigation
regarding a sexual harassment complaint or complaints. Normally, this
shall be the City Administrator, unless circumstances dictate otherwise.
A factual finding by the hearing administrator that a charged
party has committed an offense or offenses rising to the level of
sexual harassment, namely: made unwelcome sexual advances motivated
by sexual desires upon a complainant, where the reaction of the complainant
to the advance affected a tangible aspect of the terms of his/her
employment with the city, said harassment being considered a type
of sexual harassment.
Any act of any city official taken to punish, discourage
or intimidate those persons who have or may either become a complainant
or assist in the investigation of a legitimate sexual harassment complaint.
Includes the following:
Any unwelcome sexual advances, requests for sexual favors and
other verbal or physical conduct of a sexual nature when:
Submission to such conduct is made either explicitly or implicitly
a term or condition of a person's employment;
Submission to or rejection of such conduct by a person is used
as a basis for employment decisions affecting that person;
Such conduct has the purpose or effect of unreasonably interfering
with a person's work performance; or
Such conduct creates an intimidating, unpleasant or offensive
work environment.
Hostile work environment harassment.
Quid pro quo sexual harassment.
A.
Any city employee who feels that they have been the victim of sexual
harassment or who witnessed acts of sexual harassment against a fellow
employee of the city may file a complaint of sexual harassment with
the following persons, but solely in the specific order listed below:
B.
Any filing of a complaint to a person other than the complainant's
direct supervisor must be accompanied by a statement that the persons
to whom the complaint should otherwise be addressed, pursuant to the
list above, cannot, in the mind of the complainant, be objective about
the sexual harassment charge the complainant wishes to file.
A.
The complaint filed must include the following information:
(1)
The name, department and positions or title of the complainant.
(2)
The name, department and position or title of the charged party.
(3)
The nature and circumstances, in detail, of the alleged sexual harassment,
including but not limited to the injuries or consequences suffered
by the complainant, the names of any witnesses to such actions and
the duration of the actions questioned.
(4)
Whether such harassment has been previously reported to a supervisor
or other person and, if so, when and to whom.
B.
Nothing in this section shall prevent the complainant from providing
other information or documents he/she believe are essential to the
fair adjudication of his/her case.
C.
The filing may be made orally or in writing. If same is made orally,
the person receiving the complaint shall reduce the same to a writing,
which shall, if it is deemed accurate, be signed by the complainant.
A complaint of sexual harassment shall be investigated pursuant
to the following regulations:
A.
The City Administrator, or his appointed designee (if the complainant, by his choice of filing pursuant to Section 19-17 or because the claim involves the Administrator, has declared the apparent nonobjectivity of the Administrator), shall be responsible for the prompt and thorough investigation of each claim.
B.
The investigation shall be begun and completed within three business days of the receipt of the complaint by the Administrator or his appointed designee, and the result of the investigation forwarded to the Hearing Board, as defined in Section 19-20, within seven days of the completion of the investigation.
C.
It shall be the duty of the person responsible for the investigation
to:
(1)
Interview the complainant in detail.
(2)
Interview all potential witnesses, including those who may have knowledge
of similar incidents.
(3)
Interview the charged party in detail.
(4)
Review municipal files for similar incidents involving the complainant
and the charged party.
(5)
Assess the presence or absence of corroborative evidence for either
party.
A.
There shall be created for the city a Sexual Harassment Hearing Board
(the "Hearing Board"), which shall consist of three members, one member
to be chosen by the Mayor, one member to be chosen by the City Council
and one member to be chosen by the nonmanagement employees of the
city from among those employees by secret ballot. The Mayor shall
not be permitted to choose him or herself, nor may the Council choose
any person holding a Council seat. The person chosen to serve on the
Hearing Board by the nonmanagement employees shall chair the Hearing
Board and shall organize and lead all meetings of that body.
There shall be an administrative hearing of the complaint, pursuant
to the following rules:
A.
Within 20 days of the completion of the investigation by the City
Administrator or his appointed designee, the chair of the Hearing
Board shall convene that Board to hold a hearing in reference to that
sexual harassment allegation.
B.
The hearing shall be tape-recorded, and upon the written request,
the city shall provide a transcript to any party requesting the same
at a nominal expense to the party requesting said transcript.
C.
The charged party shall be notified, in writing, of the hearing date
at least 10 days before the hearing and provided with a copy of the
complaint filed against them.
D.
The charged party shall be entitled to request and receive one postponement
in order to obtain legal counsel, but in no event shall the hearing
occur more than 35 days after the completion of the investigation
described above.
E.
The hearing shall be deemed a quasi-judicial procedure, and the charged
party shall be entitled to have the complaint against him/her dismissed.
F.
The hearing shall occur only in the presence of the City Attorney,
or other designated legal counsel, who shall participate in such hearings
in order to assure confidentiality, resolve disputes concerning the
introduction of evidence and prepare a complete and accurate record.
G.
The Hearing Board shall determine and so declare in writing, within
five business days, the guilt or innocence of the charged party, and
if it finds the charged party guilty of the offense of sexual harassment,
it shall recommend an appropriate remedial action to be imposed upon
the charged party.
H.
Where the charged party is cleared of the charges alleged against
him/her or the evidence presented is inconclusive as to whether acts
of sexual harassment occurred, the Hearing Board shall notify all
parties that it has reached such a decision.
I.
The Hearing Board shall maintain a complete file of all documents
received in reference to any complaint for a period of not less than
five years from the date of its final decision.
The Hearing Board shall determine that a charged party is not
guilty of the offense of sexual harassment unless it finds, based
upon the testimony provided to it by the investigation and hearing,
that substantial, credible evidence supports the conclusion that:
A.
A complainant or charged party who desires to appeal the decision
of the Hearing Board may appeal to the City Council. The appealing
party must appeal in writing to the City Administrator within 10 days
of the date of the written decision of the Hearing Board, informing
the Administrator of his/her desire to appeal and stating why the
decision of the Hearing Board should be overturned.
B.
The party not appealing shall also have the option of submitting,
within 20 days subsequent to the written decision of the Hearing Board,
a writing stating why the Hearing Board decision should be affirmed.
C.
The appealing party shall provide, at his/her own expense, a copy
of the transcript prepared from the tape recording of the hearing
before the Hearing Board for each member of the Council.
D.
The Council will not hear witnesses, take testimony or accept additional
documentation in reference to the appeal.
E.
The Council must issue a written decision affirming or rejecting
the decision of the Hearing Board not less than 25 days after the
City Administrator receives notice of the appeal.
A.
The City Administrator, or such other person as is authorized by the city to make so-called "personnel" decisions, shall be permitted, pursuant to the written recommendation of the Hearing Board required by Section 19-21G, to impose the following penalties or conditions of employment upon a city employee found to have committed the offense of sexual harassment. These remedies listed are not to be considered cumulative in any manner:
(1)
Discharge or demote the guilty employee.
(2)
Issue a written reprimand which shall become part of the guilty employee's
permanent employment file.
(3)
Transfer either of the parties involved so as to minimize contact
between them.
(4)
Require the guilty employee to undergo psychological therapy at his/her
own expenses.
(5)
Reissue to the guilty employee the statement of the city against
sexual harassment.
B.
The city hereby makes it its official policy to encourage all of
its employees to use the procedures detailed herein when they witness
conduct against other city employees which might constitute the offense
of sexual harassment.
To the extent permitted by law, the city will not be liable in damages obtained against it as a result of a decision of a nonlocal agency or court of superior jurisdiction unless the complainant has exhausted all local administrative remedies described herein in Section 19-17 et seq.
The City Administrator shall be obligated to undertake the following
steps:
A.
Post in at least two or more prominent locations within the municipal
building the one-page document entitled "Sexual Harassment Policy
for the City of South Amboy."
B.
Provide to all current employees of the city a true and complete
copy of this Article within 30 days of its effective date.
C.
Provide to all persons hired as employees of the city subsequent
to the effective date of this Article a true and complete copy of
this Article within 30 days of their hire date.
D.
Issue a memorandum to all city employees on or about October 1, 1994,
and each October 1 thereafter concerning the policy of this city against
sexual harassment.
E.
Discuss the policy against sexual harassment during any new employee
orientation meetings, seminars or training sessions held subsequent
to the effective date of this Article.
A.
All management and supervisory employees of the city as well, as
all elected officials of the city, shall undergo training, in one
or more sessions, with a person trained to lead or implement such
training, said training to include a detailed discussion of the following:
(1)
The procedures for the filing of sexual harassment charges as outlined
in this Article.
(2)
The specifics of quid pro quo harassment and hostile environment
harassment and the differences between the two types.
(3)
What constitutes unwelcome conduct.
(4)
The manner of investigation which assures complete and prompt investigations.
(5)
Management's obligations regarding harassment of which it is aware
or, alternatively, should be aware.
(6)
Procedures to be installed to ensure the confidential nature of information
gathered during an investigation.
(7)
The manner in which the interests of both the charged party and the
complainant can be balanced.
(8)
Recordkeeping requirements.
B.
The above-described personnel shall be required to undergo this training
on or before October 1, 1994, and every three years thereafter.
C.
All other employees of the city shall undergo training, led by a
person trained to lead such sessions, to raise their awareness and
understanding of the consequences of their behavior and to reduce
confusion about which actions or conduct is acceptable and which is
not. These employees shall be required to undergo this training on
or before October 1, 1994, and every two years thereafter.
Nonemployees of the city, including but not limited to those
interacting with city employees as vendors of goods and services,
independent contractors, substitute or temporary workers or fill-ins,
shall also be subject to each and every term of this Article should
it be alleged by a complainant that they committed an act or conducted
themselves in such a way as to commit an offense of sexual harassment.
The city shall not take any retaliation against any employee
who files a complaint or assists in the investigations of such a complaint.
A.
Since a charge of sexual harassment is a grave and serious one, false
accusations of sexual harassment are and will be treated as a disciplinary
offense and will result in a level of punishment appropriate for a
person actually engaging in such behavior.
B.
A person who knowingly and/or recklessly fails to give truthful testimony
to the investigator or the Hearing Board, as the same is established
by this Article, shall also be guilty of having made false accusations.
