(a)
Intent and Applicability.
(1)
The city council acknowledges that the charter provides all employees serve at the pleasure of the appointing authority. The charter invests in the city manager the power to select most of the city's appointed officers and employees. The provisions of this chapter afford the city manager and others authorization to employ certain procedures with respect to all forms of discipline, so as to act in accordance with court decisions and statutory provisions. Nothing contained in this chapter is intended to create vested rights to employment or to curtail in any way the city manager's authority to discharge an employee with or without cause.
(2)
The procedural safeguards and other provisions of this section shall be available only to permanent employees and officers subject to the city manager's removal power.
(3)
Disciplinary action may be taken against probationary employees and part-time employees without regard to this article.
(4)
In the case of peace officers, the provisions of Government Code Section 3300 et seq. shall be applicable.
(5)
For convenience, the term "employee" as hereinafter used in this section shall refer to those city personnel described in subsection (a)(2) of this section.
(6)
Notwithstanding any other provision in this chapter, employees exempt from treatment under the terms of the Fair Labor Standards Act shall not be suspended except as permitted by said Act.
(b)
Permitted Disciplinary Action. The following disciplinary actions may be taken against an employee for one or more of the causes for discipline hereinafter specified, or for any other just cause:
(c)
Causes for Discipline. Causes for discipline shall include, but shall not be limited to, the following; discipline may be taken for any other just cause, even though it may not appear hereinbelow:
(1)
Incompetent, inept, substandard or untimely performance of assigned work.
(2)
Insubordination to a superior in the course of employment.
(3)
Willful failure or refusal to properly perform assigned work.
(4)
Gross carelessness in the discharge of assigned work.
(5)
Malfeasance in office.
(6)
Conviction of a felony or any crime involving moral turpitude.
(7)
Repeated tardiness.
(8)
Inability to establish proper working relationships with fellow workers.
(9)
Consumption of alcohol or use of drugs on duty, or reporting to work under the influence of alcohol or drugs.
(10)
Gambling while on duty.
(11)
Unauthorized absence.
(12)
Use of city tools or equipment for private or personal purposes.
(13)
Abuse or gross negligence in the care or operation of city tools or equipment.
(14)
Falsely obtaining sick leave or overtime.
(15)
Receiving bribes in connection with performance of city service.
(16)
Participation in political activities while in uniform or on duty.
(17)
Discussion or disclosure of city information known to be confidential with or to unauthorized persons.
(18)
Refusal to report to an emergency call.
(19)
Fraud in securing employment.
(20)
Theft of city property or property received in trust by city.
(21)
Willful giving of false information in the course of duty.
(23)
Violation of any provision of this chapter.
(24)
Willful violation of safety rules, departmental rules, or any other rules applicable to job performance.
(25)
Offensive treatment of the public or fellow employees.
(26)
Falsification of city records.
(d)
Procedural requirements prior to disciplinary action. No employee shall be disciplined hereunder unless prior thereto such employee has received from his or her department manager:
(1)
Notice of the proposed action and of the grounds for such action, described in subsection (e) of this section.
(2)
A written copy of the charges and grounds for such charges, described in subsection (e) of this section.
(3)
An invitation to the employee to make a verbal or written answer to the charges within 10 days (or such longer period as may be allowed per subsection (f) of this section) of the employee's receiving the notice of action and copy of charges.
(4)
A written decision on such answer at the earliest practicable date, not to exceed 20 days following the answer.
No disciplinary action shall be taken against an employee until the time periods provided herein have been exhausted without an answer from the employee, or until the employee has responded to the disciplinary action and written decision has been issued.
(e)
Notice of Proposed Action. An employee against whom disciplinary action is pending is entitled to reasonable advance written notice stating any and all reasons, specifically and in detail, for the proposed action. The material on which the notice is based and which is relied on to support the reasons in that notice including, but not limited to, statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled, copied and delivered to the employee for review. Material which is classified as confidential and as such is not available for review shall not be used to support the reasons in the notice.
(f)
Employee's Answer. An employee is entitled to 10 days, unless the department manager, in his or her discretion, authorizes a longer period, to answer a notice of proposed disciplinary action. In determining the time to be allowed the department manager may consider the facts and circumstances of the case, and the need to afford the employee ample opportunity to review the material relied on by the department manager to support the reasons in the notice and to prepare an answer. If the employee answers within the time allowed, the department manager shall consider the answer in reaching a decision. The employee may answer through a designated representative, or personally, in writing or any combination thereof. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representation which the employee believes might affect the final decision in the case. When the employee requests an opportunity to answer personally, the department manager shall personally hear the answer. The word "answer" shall be deemed to include such statements, affidavits, declarations, or such other evidentiary matter as the employee may wish to submit.
(g)
Status of Employee During Notice Period. Except as otherwise provided, an employee against whom disciplinary action is proposed shall be retained in an active status during the notice period. When circumstances are such that the retention of the employee in active status in the employee's position may result in damage to city property or may otherwise be detrimental to the interests of the city, fellow workers or the public, the department manager in his or her discretion, may temporarily assign the employee to duties in which these conditions do not exist or place the employee on paid leave.
(h)
Notice of Decision. Any employee against whom disciplinary action is pending is entitled to notice of the department manager's decision at the earliest practicable date, not to exceed 20 days following the employee's answer. The department manager shall cause to deliver the notice of decision to the employee no less than five days prior to the effective date of the action. If discipline is to be finally imposed, the notice shall be in writing, shall be dated and shall inform the employee of the following:
(1)
Which of the reasons in the notice of proposed disciplinary action have been sustained and which have not been sustained.
(2)
Of the right to appeal the notice of decision, as provided in this section.
(3)
Of the five-day time limit for such appeal, and that such appeal shall be in writing and submitted to the city manager.
If, after notice and answer, the department manager decides not to discipline the employee, the employee shall be so notified within 20 days following the answer. A decision not to discipline shall be accompanied by a directive to delete all references to the pending action from the employee's personnel file.
(i)
Appeal of Disciplinary Action. If, pursuant to subsection (h) of this section, an employee appeals the notice of decision, the city manager shall hear the matter.
(j)
Procedures on Appeal.
(1)
An appeal filed with the city manager shall be forwarded to the city attorney.
(2)
The city attorney and the city manager shall set a date for the hearing. A hearing on appeal should be set to commence within 45 days following the filing of the appeal, provided the appealing employee may waive said setting restriction, and the city manager may set the hearing beyond said period for good cause.
(3)
The city manager may grant continuances, in the exercise of his or her sole discretion, for good cause.
(4)
The city and the appealing employee (sometimes hereafter referred to as "parties") may each be represented by legal counsel or other representative. The city manager may also be provided advisory legal counsel. The city shall not be responsible for legal or other costs of the appealing employee.
(5)
Each party shall have the following rights: to make opening remarks; to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the appeal even though that matter may not be covered in direct examination; to impeach any witness regardless of which party first called the witness; to rebut evidence introduced against a party; and to make final arguments. No party shall have the right not to be called as a witness. A party called by the opposing party may be examined as if under cross-examination.
(6)
Oral evidence shall be taken on oath administered by the city manager.
(7)
Witnesses to be called by either party shall be excluded from the hearing room unless both parties agree otherwise. In addition to legal counsel, each party shall be entitled to have an investigator or other representative remain throughout the hearing, even if such person is also a witness. The appealing employee has the right to remain throughout.
(8)
The city shall proceed first with its evidence, the appealing employee to follow. Rebuttal and surrebuttal shall be allowed by the city manager upon a finding that same is not repetitive and is offered to rebut evidence not previously rebutted.
(9)
Technical rules of evidence need not guide the city manager. Any relevant evidence shall be admitted if it is the sort 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 rule which might make evidence admissible over objection in a court of law in California. 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 a court of law in California. Rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing on appeal. Irrelevant and unduly repetitious evidence shall be excluded.
(10)
The city manager shall determine whether, based on all the evidence, the city has demonstrated by a preponderance of the evidence the truth of the facts upon which the discipline is based. Findings shall be made as to such determination. If the city manager determines that the city has so demonstrated, the city manager shall then decide whether those facts support discipline and, if so, the nature of the discipline which should be imposed. If the city manager determines that the city has not so demonstrated, the hearing shall terminate at such point. The factual findings, determinations, decisions and other recommendations shall be prepared in writing.
(11)
Either party may provide for the presence of a court reporter to report the proceedings of the hearing on appeal. Cost of the reporter shall be borne entirely by the party so providing. If no reporter is present, the proceeding will be tape recorded.
(12)
The appealing employee shall have the right to determine whether the hearing shall be open to the public or closed. That determination, once made, shall be irrevocable, except for (A) the protection of any witness or any information as provided by law, and (B) when a change in such determination is made in a timely manner so as reasonably to allow required posting and notice without the need to modify hearing dates.
(13)
Copies of all records, recorded testimony, other documents, findings, determinations, decisions and recommendations made during the open session of an open hearing shall, without exception, be available to the public under the terms of the California Public Records Act. Requests for copies of such items submitted and made at a closed hearing shall be considered under the terms of the California Public Records Act and other applicable law.
(k)
Action Following Hearing.
(1)
In cases where the city manager has determined that the city has not demonstrated the truth of the facts upon which discipline is based, the city manager shall immediately rescind the disciplinary action in the notice of discipline, and steps necessary to adjust the employee's records to reflect such rescission shall be taken.
(2)
In cases where the city manager has determined that the city has demonstrated the truth of the facts upon which the discipline is based, the employee shall be so notified in writing. Nothing herein shall be construed to preclude the city manager from imposing a less severe disciplinary action following review. For this purpose, the order of severity, from most severe to least, shall be as listed in subsections (b)(1) through (4) of this section.
(3)
A report of the action of the city manager shall be submitted in writing to the council, for information only, unless the appealing employee requests such report not be made. In any event, the city manager's action shall be final.
(Ord. 00-20 § 2 (Exh. A), 2000; Ord. 08-021 § 2, 2008; Ord. 10-005 § 8, 2010)