HomeMy WebLinkAbout29- City Attorney CITY OF SAN BERN,& "INO - REQUEST FOP COUNCIL ACTION
From: James F. Penman, City AttorneySubject: Resolution Adding Subsection (e)
To Section 5 % of Resolution 6413
Dept: City Attorney Relating to Performance Evaluations
For Management & Confidential
Date: December 8, 1995 Employees of the City.
Synopsis of Previous Council Action:
Resolution 94-392, 12-19-94
Recommended Motion:
Adopt Resolution.
Signature
Dennis A. Barlow 5255
Contact Person: Phone:
Supporting Data Attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
17D�
Agenda Item No. �(7
SDE\dm'actform
STAFF REPORT
Recent cases have raised serious questions about how "at will" employees in public
employment should be treated.
In the case of Walker v. Northern San Diego County Hospital District (1982) 135
Cal.App.3d 896, the court considered the case of a head nurse who was fired as an "at will"
employee from a public hospital. The Court stated that in determining whether a public employee
has a property interest in his or her employment subject to due process rights review must be
made of the employment "documents themselves, the provisions regarding the grievance
processes, the personnel practices or policies of the employer, the employee's length of service,
as well as the practice of the industry in which the employee is engaged." (at pg. 905; emphasis
added) These are procedural protections previously granted only to employees with Civil Service-
type rights.
In 1988, the Court of Appeals considered the case of an associate professor at the
University of California at Berkeley. Mr. Apte was a non-tenured employee of the university in
a federally funded program. The university canceled the program and thereupon terminated Mr.
Apte. The Court held that in such cases the employer had to take into consideration an
employee's length of service and organizational rank as well as the employer's own personnel
practices. The Court held that the fact that "Apte had worked 13 years for the university with no
adverse record, attained the rank of associate professor, and was supported by a multi-year grant.
" (emphasis added) supported the determination that the university had acted arbitrarily,
capriciously and unreasonably in the termination and had been under an obligation to find
alternative employment. (Apte v. Regents of University of California (1988) 198 Cal.App.3d
1084, 1094)
Then with this background of the courts granting "at will" employees more and more
rights in public employment, comes the case of Santa Clara County Counsel Attorneys Association
v. Woodside (1994) 7 Cal.4th 1994, where the State Supreme Court determined that public
attorneys could bring legal actions against the public entities that employ them, essentially their
clients, to enforce statutory employment rights.
These cases taken together reflect a trend by the courts to provide more and more legal
protections to public employees, even those that have been historically viewed as "at will"
employees.
Therefore, since written performance evaluations would no doubt be used in court to
challenge a termination of an "at will" employee, showing that the employee had always
performed adequately, it is recommended that the attached resolution be approved making it
optional for elected officials and those who supervise "at will" employees in the City to do written
performance evaluations on their employees.
DAB/tbm [AtWill.Rpt] December 7, 1995
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADDING SUBSECTION (e) TO SECTION FIVE AND ONE-HALF
3 OF RESOLUTION NO. 6413, AS AMENDED, RELATING TO PERFORMANCE
EVALUATIONS FOR MANAGEMENT AND CONFIDENTIAL EMPLOYEES OF THE
4 CITY
5 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
6 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1: Subsection (e) is hereby added to Section Five and One-half of
8 Resolution No. 6413, as added by by Resolution No. 94-392, to read as follows:
9 "(e) Notwithstanding anything in this resolution to the contrary, written
10 performance evaluations shall be optional for management or confidential employees in the
11 offices of elected officials or for those management or confidential employees who serve at the
I 12 will of their appointing authority."
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DAB/tbm [AtWill.Res] 1 December 7, 1995
1
RESOLUTION . . . ADDING SUBSECTION (e) TO SECTION FIVE AND ONE-HALF OF
2 RESOLUTION NO. 6413, AS AMENDED, RELATING TO PERFORMANCE
EVALUATIONS FOR MANAGEMENT AND CONFIDENTIAL EMPLOYEES OF THE
3 CITY
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a meeting thereof, held on the
7 day of , 1995, by the following vote, to-wit:
8
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 NEGRETE
11 CURLIN
12 HERNANDEZ
13 OBERHELMAN
14 DEVLIN
15 POPE-LUDLAM
16 MILLER
17
� 18
City Clerk
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21 The foregoing Resolution is hereby approved this day of ,
1995.
� 22
I
23 Tom Minor, Mayor
24 City of San Bernardino
Approved as to form and
25 legal content:
26 James F. Penman,
City Attorney
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28 By: �
/tbm [AtWill.Res] 2 December 7, 1995