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CITY OF SAN BERNODINO - REQUEST FC)R COUNCIL ACTION
From: James F. Penman
Subject:
Reso1ution...designating and
authorizing the City Administrator
or his or her designee to act as a
representative of the City to apply
for disability retirement for any
injured or ill public safety officer
and to make t~nd~ngs on matters ot
controversy, and repealing
Resolutions Nos. 87-285 and 88-100.
Dept: City Attorney
Date: July 3, 1991
Synopsis of Previous Council action:
None.
Recommended motion:
Adopt Resolution.
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../ Signature
Contact person: Dennis A. Barlow
Phone:
384-5355
Supporting data attached:
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.!
(Acct. DescriDtion)
Finance:
Council Notes:
75.0262
Agenda Item NoJ 5
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CITY OF SAN BERN~DINO - REQUEST lOR COUNCIL ACTION
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STAFF REPORT
Disability retirements are determined pursuant to Government
Code S2l020 et seq. Section 21025 provides that in the case of a
local safety member the City Council is to determine the
disabili ty, however S2l034 allows the Council to delegate that
authority to a subordinate officer. Since the determination is a
part of the Public Employees Retirement System (PERS), the process
is subject to the State Administrative Procedures Act (Government
Code Sl1500 - See Watkins v City of Santa Ana (1987) 189 CA 3d 393,
397; Garner v City of Riverside (1985) 170 CA 3d 510 and Ragan v
City of Hawthorne (1989) 212 CA 3d 1361). The Act allows a hearing
by the City Council (or its designee), by an Administrative Law
Judge or by an Administrative Law Judge and the Council jointly.
(e.g. Government Code Sl1512).
By Resolution No. 87-225, as amended by Resolution No. 88-100,
the Council established the Disability and Retirement Commission
and delegated the hearings to this Commission. The Commission has
conducted numerous hearings since its creation despite the
difficulties in getting the Commission together. All of the terms
for the members of the Commission have expired and, in addition,
one member has resigned due to family health problems. It is
therefore recommended that the Commission be replaced with a
hearing before the City Administrator or her designee to allow
quicker hearings and to not have to face the necessity of
continuances when a quorum is not available. As currently, the
decision of the hearing officer can be appealed to an
Administrative Law Judge as required by the State Administrative
Procedures Act.
It is recommended that the resolution be adopted.
75.0264
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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
OR HIS OR HER DESIGNEE TO ACT AS A REPRESENTATIVE OF THE CITY TO
APPLY FOR DISABILITY RETIREMENT FOR ANY INJURED OR ILL PUBLIC
SAFETY OFFICER, AND TO MAKE FINDINGS ON MATTERS OF CONTROVERSY,
AND REPEALING RESOLUTIONS NOS. 87-285 AND 88-100.
WHEREAS, Section 21025 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
WHEREAS, Sections 21024, 21032 and 21033 of the Government
Code provide 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 provide for hearings of matters in
controversy concerning such retirements or reinstatements of said
Public Safety Officers in order that decisions and subsequent
findings relating to said matters shall be based upon the evidence
and the facts of the matter; and
WHEREAS, the Mayor and Common Council have 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
disability only after the City has determined that he or she is
incapacitated physically or mentally for the performance of the
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July 3, 1991
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duties of his or 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:
(1) the local safety member or any person acting on his behalf or
(2) the department head. 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 1. The City Administrator is hereby authorized and
directed to conduct evidentiary hearings of cases and controversy
concerning the retirements or reinstatements of public safety
officers for disability or illness pursuant to the provisions of
the aforesaid Government Code Sections and the cases of Garner vs.
City of Riverside (1985) 170 CA 3d 510, Watkins vs. City of Santa
Ana (1987) 189 CA 3d 393, and Ragan vs. City of Hawthorne (1989)
212 CA 3d l36l,and to make findings and decisions resolving all
matters at issue. The findings and decisions of the City
Administrator shall be final and conclusive. The City
Administrator is hereby authorized to adopt any procedures
necessary to conduct such hearings, where such procedures are not
covered by the Administrative Procedures Act or this Resolution.
As used herein "City Administrator" shall include his or her
designee.
III
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July 3, 1991
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SECTION 2. In the event a public safety employee applies
for disability retirement or a retired former public safety
employee applies for reinstatement, the City Administrator 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 3. At the hearing, the City Administrator shall
receive and review all relevant medical evidence and then make his
or her findings and decision on 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 City
Administrator 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 City Administrator will conduct the hearings.
C. Employees under consideration for disability retirement
shall be given the opportunity at such hearing to be heard in
person or by counsel.
D. The Risk Management Department 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
representation.
F. Any subpoenas shall be issued pursuant to City of San
Bernardino Charter, Section 34.
II
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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 City Administrator who shall rule on the
admission and exclusion of evidence. The City Administrator shall
be authorized to order further medical examinations and reports.
Compliance with such an order of the City Administrator 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.
(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
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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 excluded.
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. The disability must
be found to be presently in existence and not prospective in
nature.
SECTION 4. The City Administrator shall give the employee
or retired employee written notice of the findings and decision
within ten (10) days after said findings and decision are made.
SECTION 5. Upon a final determination of a matter, the City
Administrator, after expiration of the ten (10) day appeals periOd
set forth in Section 1, above, shall take the necessary action
consistent with the regulations of the Public Employees'
Retirement System to effectuate the decision. Likewise, in the
event of an appeal, the City Administrator shall thereafter take
the necessary action consistent with the regulations of the Public
Employees' Retirement System to effectuate the decision of the
Administrative Law Judge.
III
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SECTION 6. 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 7. (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 allowance under the minimum
age for voluntary retirement to undergo 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 retirement 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
examination(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.
SECTION 8. Resolutions Nos. 87-285 and 88-100 are hereby
repealed.
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July 3, 1991
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RESOLUTION...DESIGNATING AND AUTHORIZING THE CITY
ADMINISTRATOR OR HIS OR HER DESIGNEE TO ACT AS A REPRESENTATIVE OF
THE CITY TO APPLY FOR DISABILITY RETIREMENT FOR ANY INJURED OR ILL
PUBLIC SAFETY OFFICER...
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
, 1991, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
City Clerk
of
The foregoing resolution is hereby approved this
, 1991.
day
Approved as to
form and legal content:
w. R. Holcomb, Mayor
City of San Bernardino
JAMES F. PENMAN,
City Attorney
DAB/Ses/Disabili.res
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July 3, 1991