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HomeMy WebLinkAboutS18-City Administrator II 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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 ~~ 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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 -2- C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-37 o o o 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 -3- c 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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. -4- C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o (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. -J- 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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 -6- (> 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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 7 II 0 II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8-13-87 o o o 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 '- -8-