HomeMy WebLinkAbout25- City Attorney CITY OF SAN BERNA''IINO - REQUEST FOR -OUNCIL ACTION
From: James F. Penman, City Attorney Subject: Resolution Adding Section 3 . 5 to
Reso. #91-314 Relating to Waiving
Dept: City Attorney of Disability Hearings before the
Date: October 11, 1995 City Administrator.
Synopsis of Previous Council Action:
Resolution 91-314 adopted on July 15, 1991 .
Recommended Motion:
Adopt Resolution.
ignature
Contact Person: A gar l ow Phone: 5255
Supporting Data Attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
Agenda Item No. 6�5
SDE\dm\actform
STAFF REPORT
State law requires that the local agency make the determination as to the disability
retirement of police or fire employees [Government Code §§ 21025, 11500(a) and 21034] in
accordance with the statutory provisions outlined in the Public Employees' Retirement Law
[Government Code § 20000 et seq.], and due process under the United States Constitution requires
that in making such determination that the employee be afforded the right to notice and hearing
[Garner v. City of Riverside (1985) 170 Cal.App.3d 510; Watkins v. City of Santa Ana (1987) 189
Cal.App.3d 393; Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361].
Since our hearing officer process was established in 1991, hearings have been held in
virtually all cases. Generally the hearings have been uncontested; the doctors' reports clearly
support the claim and the employee is retired. In such situations and in others where the
employee does not desire a formal hearing, it is recommended that the employee be able to waive
the hearing in writing. The law does not require that a hearing be held, but it does require that
a rip.Lt to a hearing be afforded. It seems to be a waste of City resources to have all the necessary
parties and City employees present at a hearing where everyone is in agreement with the
application. In this proposal, if an employee waived the hearing the hearing officer could still
require a hearing if he or she felt it was necessary to collect all the facts. However, if the
employee desires a hearing to be held it will be held, and it would not be held oy if the right is
waived in writing. In any event, the hearing officer would still be required to review the doctors'
reports and make the necessary findings.
It is recommended that the resolution be adopted.
I
DAB/tbm [Disabili.res] October 11, 1995