HomeMy WebLinkAbout1987-233
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RESOLUTION NO. 87-23~
AMENDING RESOLUTION NO. 84-139:
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DESIGNATING AND AUTHORIZING THE CITY ADMINISTRATOR
4 TO ACT AS A REPRESENTATIVE OF THE CITY TO APPLY FOR DISABILITY
RETIREMENT FOR ANY INJURED OR ILL PUBLIC SAFETY OFFICER, APPOINTIN
5 A COMMITTEE TO HEAR AND MAKE FINDINGS ON MATTERS AND CONTROVERSY,
AND REPEALING RESOLUTION NO. 11734.
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7 WHEREAS, Section 21023.6 of the Government Code of the State
8 of California provides that local safety members under the Public
9 Employees' Retirement System shall be retired for disability upon
10 employers' determination of physical and mental incapacity and for
11 termination of h~s employment for that reason; and
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12 WHEREAS, said Section of the Government Code provides that
13 reinstatement of said employee is prohibited except upon employers
14 determination that the retired member is no longer incapacitated;
15 and
16 WHEREAS, it is desired to establish a committee for hearing
17 matters in controversy concerning such retirements or reinstatemen s
18 of said Public Safety Officers in order that any such findings sha 1
19 be based upon the evidence and the facts of the matter.
20 WHEREAS, the City Council in Resolution 84-139 has authorized
21 the City Administrator to make application for disability retire-
22 ment on behalf of local safety members; to determine disability
23 of such employees as required by Sections 21020 and 21034; and to
24 apply for reinstatement of such employees who are retired for dis-
25 ability when appropriate; and
26 WHEREAS, a local safety member shall be retired for disabilit
27 only after the City has determined that he or she is incapacitated
28 physically or mentally for the performance of the duties of his/he
position and incapacity for performance of duty means disability 0
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permanent duration rendering the employee unable to perform his
or her usual duties as determined on the basis of competent medica
opinion; and
WHEREAS application for disability may be made by either:
(1) 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 re-
quired to describe the disability and set forth the basis of the
application for disability.
NOW, THEREFORE, be it resolved by the Mayor and Common Counci
of the City of San Bernardino as follows:
SECTION ONE: There is hereby created a three (3) member
"Disability and Rehabilitation Committee" authorized and directed
to conduct evidentiary hearings of cases and controversy concern in
the retirements or reinstatements of public safety officers for
disability or illness pursuant to the provisions of the aforesaid
Government Code Sections and Watkins v. City of Santa Ana (1987),
234 Cal, Rptr 406, and to make findings and decisions resolving
all matters at issue. The findings and decisions of the Committee
shall be final and conclusive, unless a written appeal is filed
with the Mayor and Council within 10 calendar days.
SECTION TWO: Said Committee shall consist of three members 0
the Community at-large commissioned by the Common Council and the
Mayor so to serve for a four-year commission 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 employ e
applies for reinstatement, the "Disability and Rehabilitation
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1 committee" shall set the matter for hearing and shall give the
2 employee or retired employee thirty (30) days advance written
3 notice of the date, time and place of the hearing.
4 SECTION FOUR: At the hearing, the Committee shall receive
5 and review all relevant medical evidence and then make its finding
6 and decision for the matter. At the hearing, the employee shall
7 be entitled to be present with Counsel and shall be entitled to
8 present relevant medical evidence. The Committee shall conduct
9 such hearings in conformance with the following guidelines:
10 A. There shall be a hearing for each application for safety
11 employee disability retirement.
12 B. The Disability and Rehabilitation Committee will conduct
13 such hearings.
14 C. Employees under consideration for disability retirement
15 shall be given the opportunity at such hearing to be heard in
16 person or by Counsel.
17 D. Risk Management is responsible for preparing the docu-
18 mentation of the City's position on disability retirements.
19 E. Each party shall bear the costs and fees of presenting
20 its respective evidence or testimony, including legal representati n.
21 F. Any subpoenas shall be issued pursuant to City of San
22 Bernardino Charter, Section 34.
23 G. Either party may present whatever witnesses it deems
24 necessary in the presentation of its case. Either party may avail
25 itself of the subpoena process to insure the attendance of any
26 witness.
27 H. The scope of the hearing shall be limited to the basis an
28 facts raised in the petition for hearing, and the hearing shall be
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1 conducted by the Committee which shall rule on the admission and
2 exclusion of evidence. The Committee shall make findings and
3 recommendations to the City Administrator regarding the determina-
4 tion of disability. The Committee shall be authorized to order
5 further medical examinations and reports. Compliance with such an
6 order of the Committee shall be a condition precedent to obtaining
7 a disability retirement.
8 I. The following evidentiary rules shall apply to the hearin s:
9 (1) Oral evidence shall be taken under oath.
10 (2) Each party shall have the right to call and examine wit-
11 nesses, to introduce exhibits, to cross-examine opposing witnesses
12 on any matter relevant to the issues even though that matter was
13 not covered in the direct examination, to impeach any witness re-
14 gardless of which party called him to testify, and to rebut eviden e.
15 If the employee does not testify in his own behalf, he may be call d
16 and examined as if under cross-examination.
17 (3) The hearing need not be conducted according to technical
18 rules of evidence and witnesses. Any relevant evidence shall be
19 admitted if it is the sort of evidence on which responsible person
20 are accustomed to rely in the conduct of serious affairs, regardle s
21 of the existence of any common law or statutory rule which might
22 make improper the admission of such evidence over objection in
23 civil actions. The rules of privilege shall be effective to the
24 extent that they are otherwise required by statute to be recognize
25 at the hearing, and irrelevant and unduly repetitious evidence sha I
26 be excluded.
27 J. The moving party shall have the burden of proof. The
28 moving party shall be required to demonstrate by a preponderance 0
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1 the evidence that the employee subject to disability retirement is
2 substantially unable to perform the usual duties of his or her
3 position in order for a finding of disability to be sustained. Th
4 employee shall not be found disabled on the basis of Workers' Com-
5 pensation disability ratings or on the basis of medical restrictio s
6 which preclude the employee from performing activities that are no
7 common occurrences. The disability must be found to be presently
8 in existence and not prospective in nature.
9 SECTION FIVE: The Committee shall give the employee or retir d
10 employee written notice of the findings and decision of the
11 Committee within ten (10) days after said findings and decision
12 are made.
13 SECTION SIX: Upon a final determination of a matter before
14 the Committee, the findings of fact shall be presented to the
15 City Administrator who shall take the necessary action consistent
16 with the regulations of the Public Employees' Retirement System to
17 effectuate the decision of the Committee.
18 SECTION SEVEN: All notices required to be given hereunder
19 shall be mailed to the employee or former employee at the last
20 known address as it appears on the City's personnel records. Ser-
21 vice of all such notices shall be effected when deposited in the
22 united States mail addressed to the employee or retired former
23 employee with postage prepaid thereon.
24 SECTION EIGHT: (A) Under Government Code Section 21029 the
25 City has the right to cancel the disability retirement allowance
26 of any person that is no longer incapacitated from duly in the
27 position held when the disability retirement was granted. Govern-
28 ment Code Section 21028 gives the City the authority to require
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1 any recipient of a disability retirement allowance under the mini-
2 mum age for voluntary retirement to undergo a medical examination( ).
3 Failure to submit to an examination results in a discontinuance of
4 the pension. If refusal continues for more than one year the
5 disability retirement may be cancelled.
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(B) The same procedures as stated above will be followed for
7 cancelling a disability retirement as for initially determining
8 eligibility for retirement; i.e. medical exarnination(s), notice,
9 conference, hearing and final decision. However, in the case of a
10 cancellation of retirement benefits the initial burden of proof
11 shall be on the City. The City shall be required to demonstrate
12 by a preponderance of the evidence that the recipient of a dis-
13 ability retirement allowance is no longer incapacitated, mentally
14 or physically, for duty in the position held by him or her when
15 retired ·
16 I HEREBY CERTIFY that the foregoing resolution was duly
17 adopted by the Mayor and Common Council of the City of San Bernar-
18 dino at ar)'
19 the 6th
20 wi t :
regular
meeting thereof, held on
day of
July
, 1987, by the following vote, to
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AYES: Councilmembers
Reilly, Flores, Maudsley, Minor,
Pope-Ludlam, Miller
NAYS:
None
ABSENT:
Council Member Estrada
The foregoing resolution is her~?y approved this ",..(~--(/:...
day of
July
, 1987.
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27 'Ma~~>';i Ithe "Ci ~~ ~r~an Bernard' no
28 Approved as to form and legal content:
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)f:t..~7 /~~
Gk'ty Attorney
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