HomeMy WebLinkAboutS18-City Administrator
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DESIGNATING AND AUTHORIZING THE CITY ADMINISTRATOR
TO ACT AS A REPRESENTATIVE OF THE CITY TO APPLY FOR DISABILITY
RETIREMENT FOR ANY INJURED OR ILL PUBLIC SAFETY OFFICER,
APPOINTING A COMMISSION TO HEAR AND !1AKE FINDINGS ON MATTERS OF
CONTROVERSY, AND REPEALING RESOLUTIONS NOS. 84-139 AND 87-233.
WHEREAS, Section 21023.6 of the Government Code of the
State of California provides that local safety members under
the Public Employees' Retirement System shall be retired for
disability upon employers' determination of physical and mental
incapacity and for termination of his employment for that
reason; and
,vHEREAS, said Section of the Government Code provides
that reinstatement of said employee is prohibited except upon
employers' determination that the retired member is no longer
incapacitated; and
WHEREAS, it is desired to establish a commission for
hearing matters in controversy concerning such retirements or
reinstatements of said Public Safety Officers in order that
any such findings shall be based upon the evidence and the
facts of the matter; and
WHEREAS, the City council has authorized the City
Administrator to make application for disability retirement
on behalf of local safety members; to determine disability
of such employees as required by Sections 21020 and 21034;
and to apply for reinstatement of such employees who are
retired for disability when appropriate;
and
WHEREAS, a local safety member shall be retired for
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disability only after the City has determined that he or she
is incapacitated physically or mentally for the performance
of the duties of his/her position and incapacity for performance
of duty means disability of permanent duration rendering the
employee unable to perform his or her usual duties as
determined on the basis of competent medical opinion; and
WHEREAS, application for disability may be made by either:
(I) the local safety member or any person acting on his behalf
or (2) the-City Administrator. The person making the
application shall be defined as the "moving party," which
party shall be required to describe the disability and set forth
the basis of the application for disability.
NOW, THEREFORE, be it resolved by the Mayor and Common
Council of the City of San Bernardino as follows:
SECTION ONE: There is hereby created a three (3) member
"Disability and Rehabilitation Commission" authorized and
directed to conduct evidentiary hearings of cases and con-
troversy concerning the retirements or reinstatements of public
safety officers for disability or illness pursuant to the
provisions of the aforesaid Government Code Sections and
Watkins vs. City of Santa Ana (1987), 189 cal.App.3rd;
234 Cal.Rptr.406, and to make findings and decisions resolving
all matters at issue. The findings and decisions of the Com-
mission shall be final and conclusive, unless a written appeal
is filed with the Mayor and Council within ten (10) calendar
days of the mailing of the Notice of Findings and Decisions
to the applicant.
SECTION TWO: Said Commission shall consist of three
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members of the community-at-large commissioned by the Common
Council and the Mayor so to serve for a three-year term or for
a lesser period, at the pleasure of Council and Mayor.
The Mayor shall appoint each of the three Commissioners
to be confirmed by majority vote of the Common Council, so
to be staggered that the First Commissioner shall serve for
a one-year term; the Second Commissioner shall serve for a
two-year term; and the Third Commissioner shall serve for a
three-year term and thereafter each Commissioner shall serve
for a three-year term or for a lesser period, at the pleasure
of Council and Mayor.
SECTION THREE: In the event a Public Safety employee
applies for disability retirement or a retired former public
safety employee applies for reinstatement, the "Disability
and Rehabilitation Commission" shall set the matter for hearing
and shall give the employee or retired employee thirty (30)
days advance written notice of the date, time and place of
the hearing.
SECTION FOUR: At the hearing, the Commission shall
receive and review all relevant medical evidence and then
make its findings and decision for the matter. At the hearing,
the employee shall be entitled to be present with counsel
and shall be entitled to present relevant medical evidence.
The commission shall conduct such hearings in conformance
with the following guidelines:
A. There shall be a hearing for each application for
safety employee disability retirement.
B. The Disability and Rehabilitation Commission will
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conduct hearings.
C. Employees under consideration for disability retire-
ment shall be given the opportunity at such hearing to be heard
in person or by counsel.
D. Risk Management is responsible for preparing the
documentation of the City's position on disability retirements.
E. Each party shall bear the costs and fees of presenting
its respective evidence or testimony, including legal repre-
sentation.
F. Any subpoenas shall be issued pursuant to City of
San Bernardino Charter, Section 34.
G. Either party may present whatever witnesses it
deems necessary in the presentation of its case. Either party
may avail itself of the subpoena process to insure the
attendance of any witness.
H. The scope of the hearing shall be limited to the
basis and facts raised in the petition for hearing, and the
hearing shall be conducted by the Commission which shall
rule on the admission and exclusion of evidence. The
Commission shall present its findings to the City Administrator
regarding the determination of disability. The Commission
shall be authorized to order further medical examinations
and reports. Compliance with such an order of the Commission
shall be a condition precedent to obtaining a disability
retirement.
I. The following evidentiary rules shall apply to the
hearings:
(1) Oral evidence shall be taken under oath.
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(2) Each party shall have the right to call and examine
witnesses, to introduce exhibits, to cross-examine opposing
witnesses on any matter relevant to the issues even though
that matter was not covered in the direct examination, to
impeach any witness regardless of which party called him to
testify, and to rebut evidence. If the employee does not
testify in his own behalf, he may be called and examined as
if under cross-examination.
(3) The hearing need not be conducted according to technical
rules of evidence and witnesses. Any relevant evidence shall
be admitted if it is the sort of evidence on which responsible
persons are accustomed to reply 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. The rules of
privilege shall be effective to the extent that they are
otherwise required by statute to be recognized at the hearing,
and irrelevant and unduly repetitious evidence shall be ex-
cluded.
J. The moving party shall have the burden of proof. The
moving party shall be required to demonstrate by a preponderance
of the evidence that the employee subject to disability
retirement is substantially unable to perform the usual duties
of his or her position in order for a finding of disability to
be sustained. 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.
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The disability must be found to be presently in existence and
not prospective in nature.
SECTION FIVE: The Commission shall give the employee
or retired employee written notice of the findings and decision
of the Commission within ten (10) days after said findings and
decision are made.
SECTION SIX: Upon a final determination of a matter
before the Commission, the findings of fact shall be presented
to the City Administrator who, upon expiration of the ten (10)
day appeals period set forth in Section One, above, shall take
the necessary action consistent with the regulations of the
Public Employees' Retirement System to effecuate the decision
of the Commission. Likewise, in the event of an appeal, the
Administrator shall thereafter take the necessary action
consistent with the regulations of the Public Employees' Retire-
ment System to effecuate the decision of the Mayor and Council.
SECTION SEVEN: All notices required to be given hereunder
shall be mailed to the employee or former employee at the. last
known address as it appears on the City's personnel records.
Service of all such notices shall be effected when deposited
in the United States mail addressed to the employee or retired
former employee with postage prepaid thereon.
SECTION EIGHT: (A) Under Government Code Section 21029
the City has the right to cancel the disability retirement
allowance of any person that is no longer incapacitated from
duty in the position held when the disability retirement was
granted. Government Code Section 21028 gives the City the
authority to require any recipient of a disability retirement
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allowance under the minimum age for voluntary retirement to
undergo a medical examination(s). Failure to submit to an
examination results in a discontinuance of the pension. If
refusal continues for more than one year the disability re-
tirement may be cancelled.
(B) The same procedures as stated above will be followed
for cancelling a disability retirement as for initially
determining eligibility for retirement, i.e., medical examina-
tion(s), notice, conference, hearing and final decision.
However, in the case of a cancellation of retirement benefits
the initial burden of proof shall be on the City. The City
shall be required to demonstrate by a preponderance of the
evidence that the recipient of a disability retirement allowance
is no longer incapacitated, mentally or physically, for duty'
in the position held by him or her when retired.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a meeting thereof, held
on the day of , 1987, by the following
vote, to wit:
AYES: Councilmembers
NAYS:
ABSENT:
City Clerk
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The foregoing resolution is hereby approved this
day of
, 1987.
Mayor of the City of San Bernardino
Approved as to form and legal content:
, ~ (;c.,
~~""-'> ;/ / '''"-'\.
City Attorney
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