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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