HomeMy WebLinkAbout05.E- Human Resources 5.E
RESOLUTION (ID # 4466) DOC ID: 4466 B
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Personnel
From: Helen Tran M/CC Meeting Date: 06/06/2016
Prepared by: Helen Tran, (909) 384-5161
Dept: Human Resources Ward(s): N/A
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino
Designating and Authorizing the City Manager to Act as a Representative of the City to
Apply for Disability Retirement for Its Members and to Make Determinations of Disability
of Public Safety Members and Repealing Resolutions Nos. 91-314 and 95-385. (#4466)
Current Business Registration Certificate: Not Applicable
Financial Impact:
Not Applicable; Changes in procedures mandated by State Law.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
On July 16, 1991, the Mayor and Common Council adopted Resolution No. 91-314,
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 public safety
officer and to repeal Resolution Nos. 87-285 and 88-100.
On November 7, 1995, the Mayor and Common Council adopted Resolution No. 385
relating to waiving of disability hearings before the City Administrator.
On March 6, 2006, the City Charter amendments became effective and the title of City
Administrator was changed to City Manager.
BACKGROUND/ANALYSIS
Article 5, Division 5, Title 2 of the California Government Code establishes the
conditions under which an employee who is a member of CaIPERS may be granted a
disability retirement. Under the Government Code, a contracting agency must
designate an individual to act as a representative of that agency for purposes of
applying for disability retirements and, in the case of safety members, making the
determination as to whether the public safety member is incapacitated from performing
the usual duties of their position and whether the incapacity is a result of industrial
disability. The proposed Resolution properly designates the City Manager rather than
the City Administrator as the person authorized to carry out the provisions under
CalPERS law regarding disability retirements.
Further, since the adoption of the initial Resolutions setting forth the procedures for
processing disability retirements for safety members, there have been significant
Updated: 5/31/2016 by Jolena E. Grider B I Packet Pg. 113
5.E
4466
changes in the CalPERS laws. This proposed Resolution incorporates these changes
and updates the City's procedures to be compliant with these changes to CalPERS
regulations.
City Attorney Review:
Supporting Documents:
RESOLUTION (DOC)
1991-3141DR (PDF)
1995-385 IDR Hrg Waiver (PDF)
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Updated: 5/31/2016 by Jolena E. Grider B Packet Pg. 114
5.E.a'
1 RESOLUTION NO.
2
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 RETIREMENT
5 FOR ITS MEMBERS AND TO MAKE DETERMINATIONS OF DISABILITY OF PUBLIC
SAFETY MEMBERS AND REPEALING RESOLUTIONS NOS. 91-314 AND 95-385.
6 Q
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WHEREAS, The City of San Bernardino ("City") is a contracting agency of the
California Public Employees' Retirement System ("CaIPERS") with a local safety o
8 member and a miscellaneous employee member plans;
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9 WHEREAS, Article 6 (commencing with section 21150) of Division 5 of Title 2 of
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the California Government Code establishes the circumstances under which an
10 employee who is a member of the CaIPERS may be granted a disability retirement; and
11
WHEREAS, pursuant to Article 6, the City is charged with the duty to determine, N
12 with respect to an application for disability retirement, whether a City employee who is a o
local safety member of CaIPERS, is incapacitated for the performance of duty and
13 whether such incapacity is the result of an industrial disability under the Public y
14 Employees' Retirement Law (PERL);
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15 WHEREAS, Government Code § 21173 authorizes the governing body of a r-
16 CaIPERS 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
17 not limited to local safety employees; a
18 WHEREAS, application for disability may be made to CaIPERS by either a
19 member acting on his or her behalf or an official designated by the governing body of a
CaIPERS agency; and, z
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WHEREAS, a local safety member shall be retired for disability only after a
21 determination that he or she is incapacitated for performance of duties of his or her U)
position as a result of a disability of a permanent or extended and uncertain duration
22 based upon competent medical opinion.
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NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
24 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: w
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SECTION 1. Pursuant to Government Code § 21173, the Mayor and Common
26
Council hereby delegate to the City Manage,or his or her designee, the authority to act
27
28 on behalf of the City of San Bernardino ("City") to carry out any and all authority under
Packet Pg. 115
5.E.a
1 Article 6 (commencing with section 21150 of the California Government Code),
2 including, without limitation, 1) filing an application for disability retirement on behalf of a
3
member or employee of the City; 2) making determinations of disability based upon
4
competent medical evidence and whether such disability is industrial; 3) certifying, upon
5
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6 request, such determinations and all other necessary information to CaIPERS; and 4) CD
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7 when appropriate, apply for reinstatement of such employees who are retired for
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8 disability. The City Manager may designate, in writing, the authority to act on behalf of
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the 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
11
12 otherwise eligible to retire for disability but will apply for disability retirement for any
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13 member believed to be disabled. Under certain circumstances, a member may waive
14 the right to retire for disability in accordance with Government Code § 21153. o
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SECTION 3. The Mayor and Common Council hereby adopt the following 0
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procedures for the consideration and determination of applications for disability Q
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18 retirement of City employees who are local safety members of CaIPERS:
19 1. If the City determines that: 1) the member is incapacitated for the
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20 performance of the duties of his or her position in the City and in other California public
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21 agencies in CaIPERS; 2) that the incapacity is the result of an industrial disability, or, if o
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the incapacity is not the result of an industrial disability (non-industrial disability); and, 3)
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24 if the member has five or more years of service, the City Manager or his or her
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25 designee shall certify this determination to CaIPERS on forms prescribed by CalPERS.
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Packet Pg. 116
1 2. In the event that a local safety member files an application for disability 5.E.a
2 retirement with CaIPERS, CalPERS shall notify the City and request that the City
3
determine whether the member is: 1) incapacitated physically or mentally for the
4
performance of duties and is eligible to retire for disability; and 2) whether such
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6 incapacity is the result of an industrial disability. Unless otherwise waived in writing by W
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7 the member, the City shall make its determination within six months of the date of
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8 receiving the Board's request.
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3. If the City determines that the member is substantially incapacitated for 0
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the performance of his or her usual duties but not substantially incapacitated for other
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12 California public agencies in CaIPERS, the City Manager or his or her designee shall N
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13 indicate in the findings supporting the determination to CalPERS whether similar 0
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14 positions with reasonably comparable pay, benefits, and promotional opportunities are aL
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15 or are not available to the member. _
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4. The City shall notify the member by certified mail (return receipt a
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18 requested) or by personal service, or email transmission of its intent to certify to
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19 CalPERS its determination as to whether the member is incapacitated for the
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20 performance of duty in the City and in other California Public Agencies in CalPERS and
21 whether the disability is industrial or non-industrial. This communication shall be w
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referred to as "Notice of Intended Disability Determination". The Notice of Intended
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Disability Determination shall include a statement of findings of fact supporting the
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25 determination that addresses the parameters set forth in #2 and #3 above. a
26 a. Appeal of Incapacity Determination. In the Notice of Intended
27 Disability Determination, the City shall advise the member that he or she has ten
28
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Packet Pg. 117
5.E.a
1 (10) calendar days from the date indicated on the notification letter to file a
2 written appeal of the City's determination in accordance with Government Code
3
§ 21156 (b)(2). The written appeal must be received by the City Manager of his
4
or her designee by 5:00 pm on the tenth (10th) day after the receipt of the Notice
5
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6 of Intended Disability Determination letter and must set forth the facts supporting
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7 the appeal of the City's determination of incapacity. If the member files an 2
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8 appeal, the appeal hearing shall be conducted by an administrative law judge of i=
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the Office of Administrative Hearing held in conformity with the Administrative L
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Procedures Act ("APA"), Chapter 5 (commencing with Section 11500) of Part 1
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12 of Division 3 of this title. An administrative record shall be generated at the N
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13 hearing pursuant to the APA and a certified shorthand reporter shall record all °
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14 testimony. O
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b. Following the hearing, the City Manager or his or her designee o
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shall make a decision and findings of fact regarding the issue of whether the a
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18 member is incapacitated for the performance of duty. The City shall serve the
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19 decision and findings on the member by certified mail or personal service. The S
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20 City shall also certify its determination to CalPERS. The City's decision and o
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21 findings shall also advise the member of the right to seek judicial review of the w
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decision pursuant to the APA.
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5. Appeal of Industrial Causation. If the City and the member are not in
24 .,
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25 agreement as to whether the disability is industrial, either the member or the City may
26 petition the Workers' Compensation Appeals Board ("WCAB") to request a findings of
27 fact determination of whether or not the disability is industrial. If the WCAB determines
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Packet Pg. 118
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1 that the disability is industrial, the City shall certify to CalPERS that the member is
2 incapacitated for the performance of duty in the City. The jurisdiction of the WCAB
3
shall be limited solely to the issue of industrial causation. This section shall also apply
4
to determinations by CalPERS Board as to whether the disability is industrial or non-
5
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6 industrial where a member disputes the determination of industrial causation.
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7 SECTION 4. The City Manager and his or her designee will take all necessary
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8 and appropriate steps in carrying out the procedures set forth herein to preserve the
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confidentiality of medical and personnel records in order to protect against unauthorized w
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use and disclosure. w
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12 SECTION 5. Resolutions No. 91-314, adopted July 16, 1991, and Resolution N
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13 95-385, Adopted November 7, 1995, are hereby repealed. o
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Packet Pg. 119
5.E.a
101,
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 RETIREMENT
3 FOR ITS MEMBERS AND TO MAKE DETERMINATIONS OF DISABILITY OF PUBLIC
SAFETY MEMBERS AND REPEALING RESOLUTIONS NOS. 91-314 AND 95-385.
4
5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the L
6
Mayor and Common Council of the City of San Bernardino at a meeting E
7
thereof, held on the day of , 2016, by the following vote, 0
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9 to wit: E
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to Council Members: AYES NAYS ABSTAIN ABSENT
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11 MARQUEZ
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BARRIOS L
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13 W
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VALDIVIA a
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15 SHORETT a
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16 NICKEL
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17 RICHARD Q
18 MULVIHILL
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20 Georgeann Hanna, City Clerk
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21 The foregoing Resolution is hereby approved this day of w
22 2016.
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24 R. Carey Davis, Mayor a
25 City of San Bernardino
Approved as to form:
26 Gary D. Saenz, City Attorney
27 By:
28
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Packet Pg.120`
1 RESOLUTION NO. 91-314
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO DESIGNATING AND AUTHORIZING THE CITY ADMINISTRATOR
OR HIS OR HER DESIGNEE TO ACT AS A REPRESENTATIVE OF THE CITY TO
4 APPLY FOR DISABILITY RETIREMENT FOR ANY INJURED OR ILL PUBLIC
SAFETY OFFICER, AND TO MAKE FINDINGS ON MATTERS OF CONTROVERSY,
5 AND REPEALING RESOLUTIONS NOS. 87-285 AND 88-100.
& WHEREAS, Section 21025 of the Government Code of the State L
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7 of California provides that local safety members under the Public m
8 Employees' Retirement System shall be retired for disability upon
9 employers' determination of physical and mental incapacity and for
10 termination of his employment for that reason; and
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WHEREAS, Sections 21024, 21032 and 21033 of the Government
11 -
12 Code provide that reinstatement of said employee is prohibited N
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13 except upon employers' determination that the retired member is no °
longer incapacitated; and
14
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15 WHEREAS, it is desired to provide for hearings of matters in a
controversy concerning such retirements or reinstatements of said
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Public Safety Officers in order that decisions and subsequent Q
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findings relating to said matters shall be based upon the evidence co
18
and the facts of the matter; and
19
WHEREAS, the Mayor and Common Council have authorized the 2
24
City Administrator to make application for disability retirement
21
on behalf of local safety members; to determine disability of such r
22
employees as required by Sections 21020 and 21034; and to apply E
23
for reinstatement of such employees who are retired for disability Q
24
when appropriate; and
25
26 WHEREAS, a local safety member shall be retired for
27 disability only after the City has determined that he or she is
28 incapacitated physically or mentally for the performance of the
DAB/ses/Disabili.res 1 July 3, 1991
Packet Pg. 121
i
1 duties of his or her position and incapacity for performance of
2 duty means disability of permanent duration rendering the employee
3 unable to perform his or her usual duties as determined on the
4 basis of competent medical opinion; and
5 WHEREAS, application for disability may be made by either:
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6 ( 1 ) the local safety member or any person acting on his behalf or Q
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(2) the department head. The person making the application shall 20
8 be defined as the "movin g p art y, which party shall be required to
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9 describe the disability and set forth the basis of the application
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10 for disability.
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11 NOW, THEREFORE, be it resolved by the Mayor and Common
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Council of the City of San Bernardino as follows: o
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13 SECTION 1. The City Administrator is hereby authorized and N
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14 directed to conduct evidentiary hearings of cases and controversy o
15 concerning the retirements or reinstatements of public safety o
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16 officers for disability or illness pursuant to the provisions of .02
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17 the aforesaid Government Code Sections and the cases of Garner vs. a a
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18 City of Riverside (1985 ) 170 CA 3d 510, Watkins vs. City of Santa v
19 Ana ( 1987 ) 189 CA 3d 393, and Ragan vs. City of Hawthorne (1989) LX
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20 212 CA 3d 1361, and to make findings and decisions resolving all M
21 matters at issue. The findings and decisions of the City
22 Administrator shall be final and conclusive. The City
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23 Administrator is hereby authorized to adopt any procedures o
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24 necessary to conduct such hearings, where such procedures are not `L
25 covered by the Administrative Procedures Act or this Resolution.
26 As used herein "City Administrator" shall include his or her
27 designee.
28 ///
DAB/ses/Disabili.res 2 July 3, 1991
Packet..Pg.122
(W 1 SECTION 2. In the event a public safety employee applies
2 for disability retirement or a retired former public safety
3 employee applies for reinstatement, the City Administrator shall
4 set the matter for hearing and shall give the employee or retired
5 employee thirty (30) days advance written notice of the date, time
6 and place of the hearing.
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7 SECTION 3. At the hearing, the City Administrator shall 51
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receive and review all relevant medical evidence and then make his
9 or her findings and decision on the matter. At the hearing, the
10
employee shall be entitled to be present with counsel and shall be
11 entitled to present relevant medical evidence. The City m
12 Administrator shall conduct such hearings in conformance with the
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13
following guidelines: �
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14 A. There shall be a hearing for each application for o
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15 safety employee disability retirement.
2
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B. The City Administrator will conduct the hearings.
17
C. Employees under consideration for disability retirement
18 shall be given the opportunity at such hearing to be heard in
19 person or by counsel.
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20 D. The Risk Management Department is responsible for M
21 preparing the documentation of the City' s position on disability
22 retirements.
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E. Each party shall bear the costs and fees of presenting Q
24 its respective evidence or testimony,
y including legal
25 representation.
26 F. Any subpoenas shall be issued pursuant to City of San
"� 27 Bernardino Charter, Section 34.
28
DAB/ses/Disabili. res 3 July 3, 1991
Packet Pg. 123
1 G. Either party may present whatever witnesses it deems
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necessary in the presentation of its case. Either party may avail
3 itself of the subpoena process to insure the attendance of any
4 witness.
5 H. The scope of the hearing shall be limited to the basis
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and facts raised in the petition for hearing, and the hearing �
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shall be conducted by the City Administrator who shall rule on the
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admission and exclusion of evidence. The City Administrator shall
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9 be authorized to order further medical examinations and reports. aEi
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10 Compliance with such an order of the City Administrator shall be W
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11 a condition precedent to obtaining a disability retirement.
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12 1. The following evidentiary rules shall apply to the o
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13 hearings: N
14 ( 1 ) Oral evidence shall be taken under oath. o
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( 2) Each party shall have the right to call and a
16 examine witnesses, to introduce exhibits, to cross-examine mo
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17 opposing witnesses on any matter relevant to the issues even a a
18 though that matter was not covered in the direct examination, to lq
19 impeach any witness regardless of which party called him to 0
20 testify, and to rebut evidence. If the employee does not testify M
21 in his own behalf, he may be called and examined as if under a
22 cross-examination.
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23 (3) The hearing need not be conducted according to mu
I24 technical rules of evidence and witnesses. Any relevant evidence `t
25 shall be admitted if it is the sort of evidence on which
1
26 responsible persons are accustomed to reply in the conduct of
27 serious affairs, regardless of the existence of any common law or
28 statutory rule which might make improper the admission of such
DAB/ses/Disabili.res 4 July 3, 1991
FPacket Pg.124
I evidence over objection in civil actions. The rules of privilege
2 shall be effective to the extent that they are otherwise required
3 by statute to be recognized at the hearing, and irrelevant and
4 unduly repetitious evidence shall be excluded.
5
J. The moving party shall have the burden of proof. The
6 moving party shall be required to demonstrate by a preponderance .00
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7 of the evidence that the employee subject to disability retirement 20
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8 is substantially unable to perform the usual duties of his or her
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9 position in order for a finding of disability to be sustained. m
10 The employee shall not be found disabled on the basis of Workers' M
11 Compensation disability ratings or on the basis of medical :a
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i 12 restrictions which preclude the employee from performing
13 activities that are not common occurrences. The disability must N
14 be found to be presently in existence and not prospective in o
15 nature. _
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16 SECTION 4. The City Administrator shall give the employee -2
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17 or retired employee written notice of the findings and decision
18 within ten (10) days after said findings and decision are made. �
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19 SECTION 5. Upon a final determination of a matter, the City o
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20 Administrator, after expiration of the ten ( 10) day appeals period C?
21 set forth in Section 1, above, shall take the necessary action
22 consistent with the regulations of the Public Employees'
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Retirement System to effectuate the decision. Likewise, in the
24 event of an appeal, the City Administrator shall thereafter take a
25 the necessary action consistent with the regulations of the Public
26 Employees ' Retirement System to effectuate the decision of the
27 Administrative Law Judge.
28 ///
DAB/ses/Disabili.res 5 July 3, 1991
FPacket Pg. 125
1 SECTION 6. All notices required to be given hereunder shall
2 be mailed to the employee or former employee at the last known
3 address as it appears on the City' s personnel records. Service of
4 all such notices shall be effected when deposited in the United
5 States mail addressed to the employee or retired former employee
6 with postage prepaid thereon.
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SECTION 7. (A) Under Government Code Section 21029 the City 52
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has the right to cancel the disability retirement allowance of any .,.
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9 person that is no longer incapacitated from duty in the position aEi
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held when the disability retirement was granted. Government Code M
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11 Section 21028 gives the City the authority to require any
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recipient of a disability retirement allowance under the minimum o
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age for voluntary retirement to undergo medical examination(s) . N
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14 Failure to submit to an examination results in a discontinuance of o
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the pension. If refusal continues for more than one year the c
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16 disability retirement may be cancelled. U
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17 (B) The same procedures as stated above will be followed Q
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18 for cancelling a disability retirement as for initially '90t
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19 determining eligibility for retirement; i.e. , medical o
20 examination(s), notice, conference, hearing and final decision. M
21 However, in the case of a cancellation of retirement benefits the rn
22 initial burden of proof shall be on the City. The City shall be
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23 required to demonstrate by a preponderance of the evidence that
24 the recipient of a disability retirement allowance is no longer Q
25 incapacitated, mentally or physically, for duty in the position
26 held by him or her when retired.
"** 27 SECTION 8. Resolutions Nos. 87-285 and 88-100 are hereby
I28 repealed.
DAB/ses/Disabili.res 6 July 3, 1991
FPacket Pg. 126
F
CW 1 RESOLUTION. . .DESIGNATING AND AUTHORIZING THE CITY
2 ADMINISTRATOR OR HIS OR HER DESIGNEE TO ACT AS A REPRESENTATIVE OF
THE CITY TO APPLY FOR DISABILITY RETIREMENT FOR ANY INJURED OR ILL
3 PUBLIC SAFETY OFFICER. . .
4
5 I HEREBY CERTIFY that the foregoing resolution was duly
6 adopted by the Mayor and Common Council of the City of San
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7 Bernardino at a regular meeting thereof, held on the 15th E
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8 day of July 1991, by the following vote, to wit: o
9 Council Members: AYES NAYS ABSTAIN
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ESTRADA X
10
REILLY X
11 -
HERNANDEZ x
12
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MAUDSLEY X o
13 N
MINOR X aNi
14 V
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POPE-LUDLAM X '-
15
MILLER X o
16
17 a
City Clerk cc
18
The foregoing resolution is hereby appro this 16th day
19 of July 1991.
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. H lco b, Ma r
21 City o San ernardino
Approved as to r
22 form and legal content:
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23 JAMES F. PENMAN, U
City Attorney w
24 a
25 By:
26
27
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DAB/ses/Disabili.res 7 July 3, 1991
Packet Pg. 127
1 RESOLUTION NO. 95-385
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADDING SECTION 3.5 TO RESOLUTION NO. 91-314 RELATING
3 TO WAIVING OF DISABILITY HEARINGS BEFORE THE CITY ADMINISTRATOR
4 WHEREAS, Resolution No. 91-314 established a procedure whereby disability hearings
5 for Safety employees are held before the City Administrator or his or her designee, and
6 WHEREAS, many of these hearings are uncontested or there are other reasons why a
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7 formal hearing may be unnecessary, and
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8 WHEREAS, it is proposed to retain the right to a hearing but to not require a hearing
9 if it is not desired by the participants and the hearing officer,
10 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
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11 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: °
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12 SECTION 1. Section 3.5 is hereby added to Resolution No. 91-314 to read as follows: N
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14 "SECTION 3.5. The employee may waive the formal hearing in writing o
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15 and may submit the issue to the City Administrator on the written
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16 record. However the City Administrator may require a formal hearing
17 despite a written waiver, in his or her complete discretion. All other
18 provisions of this resolution shall continue to apply to a decision made
19 without a formal hearing."
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DAB/tbm [DisHearing.res] 1
FPacket Pg. 128
1 RESOLUTION . . . ADDING SECTION 3.5 TO RESOLUTION NO. 91-314 RELATING TO
WAIVING OF DISABILITY HEARINGS BEFORE THE CITY ADMINISTRATOR
2
3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
4 and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
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5 6th day of Novembej995, by the following vote, to-wit:
6
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7 Council Members: AYES NAYS ABSTAIN ABSENT =
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8 NEGRETE x
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9 CURLIN x
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lo HERNANDEZ x
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11 OBERHELMAN g °
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12 DEVLIN x
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13 POPE-LUDLAM x o
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14 MILLER g.� r g
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City lerk to
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18 The foregoing Resolution is hereby approved this l day of November
19 rn
1995. _
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21 00
Tom Minor, Mayor
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22 City of San Bernardino
23 Approved as to form and =
legal content: E
24
James F. Penman, r
25 City Attorney a
26
By:
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DAB/tbm [DisHearing.res] 2
Packet Pg.129