HomeMy WebLinkAbout2016-103 1 RESOLUTION NO. 2016-103
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3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DESIGNATING AND AUTHORIZING THE CITY MANAGER TO ACT
4 AS A REPRESENTATIVE OF THE CITY TO APPLY FOR DISABILITY
5 RETIREMENT FOR ITS MEMBERS AND TO MAKE DETERMINATIONS OF
DISABILITY OF PUBLIC SAFETY MEMBERS AND REPEALING RESOLUTIONS
6 NOS. 91-314 AND 95-385.
WHEREAS, The City of San Bernardino ("City") is a contracting agency of the
8 California Public Employees' Retirement System ("CalPERS") with a local safety member and a
miscellaneous employee member plans;
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10 WHEREAS, Article 6 (commencing with section 21150) of Division 5 of Title 2 of the
California Government Code establishes the circumstances under which an employee who is a
11 member of the CalPERS may be granted a disability retirement; and
12 WHEREAS, pursuant to Article 6, the City is charged with the duty to determine, with
13 respect to an application for disability retirement, whether a City employee who is a local safety
member of CalPERS, is incapacitated for the performance of duty and whether such incapacity is
14 the result of an industrial disability under the Public Employees' Retirement Law(PERL);
15 WHEREAS, Government Code § 21173 authorizes the governing body of a CalPERS
16 contracting agency to delegate to a subordinate officer the authority to act on behalf of the City
with respect to disability retirements of City employees, including, but not limited to local safety
17 employees;
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WHEREAS, application for disability may be made to CalPERS by either a member
19 acting on his or her behalf or an official designated by the governing body of a CalPERS agency;
and,
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21 WHEREAS, a local safety member shall be retired for disability only after a
determination that he or she is incapacitated for performance of duties of his or her position as a
22 result of a disability of a permanent or extended and uncertain duration based upon competent
23 medical opinion.
24 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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26 SECTION 1. Pursuant to Government Code § 21173, the Mayor and Common Council
27 hereby delegate to the City Manage,or his or her designee, the authority to act on behalf of the
28 City of San Bernardino ("City") to carry out any and all authority under Article 6 (commencing
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1 with section 21150 of the California Government Code), including, without limitation, 1) filing
2 an application for disability retirement on behalf of a member or employee of the City; 2) making
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determinations of disability based upon competent medical evidence and whether such disability
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5 is industrial; 3) certifying, upon request, such determinations and all other necessary information
6 to Ca1PERS; and 4) when appropriate, apply for reinstatement of such employees who are retired
7 for disability. The City Manager may designate, in writing, the authority to act on behalf of the
8 City in carrying out the responsibilities defined herein.
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SECTION 2. The City may not separate because of disability a member who is
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11 otherwise eligible to retire for disability but will apply for disability retirement for any member
12 believed to be disabled. Under certain circumstances, a member may waive the right to retire for
13 disability in accordance with Government Code § 21153.
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SECTION 3. The Mayor and Common Council hereby adopt the following procedures
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16 for the consideration and determination of applications for disability retirement of City
17 employees who are local safety members of Ca1PERS:
18 1. If the City determines that: 1) the member is incapacitated for the performance of
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the duties of his or her position in the City and in other California public agencies in Ca1PERS;
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2) that the incapacity is the result of an industrial disability, or, if the incapacity is not the result
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22 of an industrial disability (non-industrial disability); and, 3) if the member has five or more years
23 of service, the City Manager or his or her designee shall certify this determination to CaIPERS on
24 forms prescribed by Ca1PERS.
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27 2. In the event that a local safety member files an application for disability retirement
28 with CalPERS, Ca1PERS shall notify the City and request that the City determine whether the
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1 member is: 1) incapacitated physically or mentally for the performance of duties and is eligible to
2 retire for disability; and 2) whether such incapacity is the result of an industrial disability. Unless
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otherwise waived in writing by the member, the City shall make its determination within six
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5 months of the date of receiving the Board's request.
6 3. If the City determines that the member is substantially incapacitated for the
7 performance of his or her usual duties but not substantially incapacitated for other California
8 public agencies in Ca1PERS, the City Manager or his or her designee shall indicate in the
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findings supporting the determination to Ca1PERS whether similar positions with reasonably
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11 comparable pay, benefits, and promotional opportunities are or are not available to the member.
12 4. The City shall notify the member by certified mail (return receipt requested) or by
13 personal service, or email transmission of its intent to certify to Ca1PERS its determination as to
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whether the member is incapacitated for the performance of duty in the City and in other
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16 California Public Agencies in Ca1PERS and whether the disability is industrial or non-industrial.
17 This communication shall be referred to as "Notice of Intended Disability Determination". The
18 Notice of Intended Disability Determination shall include a statement of findings of fact
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supporting the determination that addresses the parameters set forth in#2 and#3 above.
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a. Appeal of Incapacity Determination. In the Notice of Intended
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22 Disability Determination, the City shall advise the member that he or she has ten (10)
23 calendar days from the date indicated on the notification letter to file a written appeal of
24 the City's determination in accordance with Government Code § 21156 (b)(2). The
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written appeal must be received by the City Manager of his or her designee by 5:00 pm on
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27 the tenth (10th) day after the receipt of the Notice of Intended Disability Determination
28 letter and must set forth the facts supporting the appeal of the City's determination of
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1 incapacity. If the member files an appeal, the appeal hearing shall be conducted by an
2 administrative law judge of the Office of Administrative Hearing held in conformity with
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the Administrative Procedures Act ("APA"), Chapter 5 (commencing with Section
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5 115 00) of Part 1 of Division 3 of this title. An administrative record shall be generated at
6 the hearing pursuant to the APA and a certified shorthand reporter shall record all
7 testimony.
8 b. Following the hearing, the City Manager or his or her designee shall make
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a decision and findings of fact regarding the issue of whether the member is incapacitated
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11 for the performance of duty. The City shall serve the decision and findings on the
12 member by certified mail or personal service. The City shall also certify its determination
13 to Ca1PERS. The City's decision and findings shall also advise the member of the right
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to seek judicial review of the decision pursuant to the APA.
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16 5. Appeal of Industrial Causation. If the City and the member are not in
17 agreement as to whether the disability is industrial, either the member or the City may petition
18 the Workers' Compensation Appeals Board ("WCAB") to request a findings of fact
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determination of whether or not the disability is industrial. If the WCAB determines that the
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disability is industrial, the City shall certify to Ca1PERS that the member is incapacitated for the
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22 performance of duty in the City. The jurisdiction of the WCAB shall be limited solely to the
23 issue of industrial causation. This section shall also apply to determinations by Ca1PERS Board
24 as to whether the disability is industrial or non-industrial where a member disputes the
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determination of industrial causation.
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1 SECTION 4. The City Manager and his or her designee will take all necessary and
2 appropriate steps in carrying out the procedures set forth herein to preserve the confidentiality of
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medical and personnel records in order to protect against unauthorized use and disclosure.
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SECTION 5. Resolutions No. 91-314, adopted July 16, 1991, and Resolution 95-385,
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6 Adopted November 7, 1995, are hereby repealed.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DESIGNATING AND AUTHORIZING THE CITY MANAGER TO ACT
2 AS A REPRESENTATIVE OF THE CITY TO APPLY FOR DISABILITY
3 RETIREMENT FOR ITS MEMBERS AND TO MAKE DETERMINATIONS OF
DISABILITY OF PUBLIC SAFETY MEMBERS AND REPEALING RESOLUTIONS
4 NOS. 91-314 AND 95-385.
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6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 6th
8 day of June, 2016, by the following vote, to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT
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11 MARQUEZ X
12 BARRIOS X
13 VALDIVIA X
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SHORETT X
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NICKEL X
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17 RICHARD X-
18 MULVIHILL X
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21 George Hanna, Cik, City Clerk
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The foregoing Resolution is hereby approved this day of June, 16.
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25 R. Carey D is, Mayor
City of Sa Bernardino
26 Approved as to form:
27 Gary D. Saenz, City Attorney
28 By: CK..
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