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SR-603-013 (4) / ~ . ~C3-&;/3 . IO;-;~ PB:lbc:lbcS42/hpw City Council Meeting 9/27/88 Santa Monica, California STAFF REPORT TO: Mayor and City Council FROM: The Personnel Board SUBJECT: using a Hearing Officer In Employee Disciplinary Hearings INTRODUCTION This Staff Report recommends that the city Council adopt an ./ ordinance which would allmv the use of a hearing officer in employee disciplinary hearings. It includes: (1) the rationale behind that recommendation, (2) a copy of the Model for Discussion used at the June 30th public hearing, and (3) suggested modifications submitted by bargaining groups at the public hearing. BACKGROUND City Charter Section 1012(d) states that: The Personnel Board shall have the power and be required to: (d) Hear appeals of any officer or employee in the classified service who is suspended, demoted or removed, and report in writing to the appointing authority, city Manager, and - 1 - \o-b SEP 2 7 1988 . . City council, its findings, conclusions, and recommendations. Use of a hearing officer would not change these duties or powers. The hearing officer would hear the case, write a report and make recommendations to the Board. Under the Model, the Board would consider written objections to that report as well as brief oral arguments from both parties. The Board would make the final decision, adopting, modifying or completely rejecting the recommendation of the hearing officer. Employees could choose to use this systeln or the current system where the Board hears the entire case. Some of the advantages of using a hearing officer would be: (1) less time lag between discipline and appeal, (2) resultant decrease in damages (back pay) if a termination is overturned, (3) ease of scheduling one hearing officer instead of five Commissioners, (4) daytime hearings mean less fatigue and less overtime pay for everyone involved, and (5) greater continuity of testimony in full day hearings rather than a series of shorter night hearings. The Personnel Board has formally agendized and discussed the use of a hearing officer in employee disciplinary hearings at almost every monthly meeting for the past year. During this time the various views of the Board members and staff have been thoroughly discussed and rediscussed. A telephone survey of employee hearing procedures in Pasadena , Culver city, Burbank, Torrance, Glendale, Long Beach, and Los Angeles was conducted in September 1987. (See Attachment A.) The Board I s evaluation process culminated in a public hearing (in compliance with Santa Monica Municipal Code ~2100 and Charter ~1012 regarding any - 2 - . . changes in the civil Service System) on June 30, 1988, in the City council Chambers. Various City bargaining units attended and presented their views and suggested modifications to the Model for Discussion. (See Attachment B.) Their concerns were, for the most part, consistent with those of the Personnel Board. (See Attachments C and D.) BUDGET/FINANCIAL IMPACT Although a hearing officer necessitates a fee of approximately $250 per day, we feel that the City would recoup in excess of that amount in overtime currently paid to staff and witnesses for night hearings. If the employees do not choose to use this alternative procedure, then there is no financial impact. RECOMMENDATION The majority of the Personnel Board members recommend that the City Council direct the City Attorney to prepare an ordinance based upon the Model for Discussion and employee suggestions submitted at the June 30th public hearing. Prepared by: Karen Bancroft, Dlr~ctor Of PerSG_nnel Ibcs42/hpw Enclosures: Attachment A - 9121/87 Memorandum (telephone survey) Attachment B - Model for Discussion Attachment C - Proposed Addition and Clarification from SMPOA and STA Attachment D - 6/22/88 Memorandum from MEA - 3 - . . ATTACHMENT A 9/21/87 Memorandum (Telephone Survey) . . MEMORANDUM DATE: TO: FROM: SUBJECT: September 21, 1987 Members of the Personnel Board Lyn Beckett Cacciatore, Deputy City Attorney Disciplinary Appeal Procedures in various Cities The following information was gathered over the past two months by telephone conversations with anyone who was not on vacation and had some degree of involvement in the disciplinary appeals process. The initial cities surveyed were Of similar population size and had a civil Service work force of similar size to that of Santa Monica. Every city contacted had both a Police Department and a Fire Department. As it became apparent that cities of similar size did not necessarily generate a similar annual number of hearings, larger cities (Lonq Beach and Los Angeles) were included. Due to the variety of systems and procedures used, the followinq information did not form itself neatly into a handy chart or graph. A brief description of the hearing procedure and comments regarding it are included for the cities of Pasadena, CUlver City, Burbank, Torrance, Glendale, Long Beach, and Los Angeles. - 1 - . . Pasadena Pasadena has approximately 1600 full-time Civil Service employees and holds between two and five hearinqs per year. Demotions, suspensions, terminations, and even written warnings are appealable. Pasadena has no civil Service Commission or Personnel Board. All hearings are conducted by an arbitrator from the American Arbitration Association. The City is represented by the Employee Relations Coordinator if the appellant represents himself or has a non-attorney representing him. If an attorney represents the appellant, then a deputy city attorney or contract attorney represents the city. The arbitrator's decision is only advisory. They city Manager reviews the findings and makes the final decision. He either adopts the arbitrator's decision or overturns it and substitutes his own. The City Manager may also select a Department Head to hear the appeal, but this is a rare instance. All safety officers are included within this system. Pasadena claims to have no backlog of hearings. They consider the current system to be efficient, but it puts a large burden on the city Manager. Glendale Glendale has approximately 1.850 full-time civil Service employees and holds at least one hearing per month. The Glendale City Charter gives the Civil Service Commission the option of - 2 - . . hearing an appeal or appointing a hearing officer. A hearing officer has been appointed. twice during the past twenty years. The final decision is made by the commission. However, the Civil Service Commission meets twice a month and uses only three of the five Commission members to hear an appeal. The hearings have been moved from 7:00 p.m. to 1:00 p.m. to avoid fatigue and paying overtime to staff and witnesses. The City Attorney's office represents the city and outside counsel is hired to advise the Commission. Safety officers are included in this system. Glendale feels that their system works well, but that it requires very active participation on the part of the Commission. CUlver city Culver city has approximately 550 full-time civil service employees and conducts six hearings each year. The civil Service Commission has the option of hearing an appeal or appointing a hearing officer to hear part or all of the case. The hearing officer's decision can be overturned or adopted by the Commission . Fortuitously, two of the Commissioners are arbitrators. They often serve as hearing officers and donate their services to the City. The city uses the expedited AAA hearing rules. Written briefs are submitted in advance and verbal testimony is minimal. The City is represented by either the Department Head or Division Head and the City Attorney's office advises the Board. safety - 3 - . . officers are included in this system. This system works well for Culver City but they rely heavily on the services of the two Commissioners who are also arbitrators. Burbank Burbank has approximately 1200 full-time civil service employees. Everything is appealable in Burbank from terminations on down to examinations and evaluations and yet they have one hearing every two yearsl Yes, they do have a Police Department! Burbank has never felt the need to hire a hearing officer. The five member Personnel Board hears an appeal with the City attorney's office representing the City and advising the Personnel Board. The Board decision is only advisory. The City Manager is required to review the entire transcript and make the final decision. Safety officers are part of this system. Burbank says they have no problems!?! Torrance Torrance has approximately 1300 full time civil Service employees who generate between three and four hearings annually. The full Civil service commission hears these appeals. They have never used a hearing officer. The city is sometimes represented by a Department Head or the Personnel Department. If a case is complex, a contract attorney is hired to represent the City. The Commission is always advised by the city Attorney office. Safety officers are included in this system. Torrance feels that these procedures work well for them. - 4 - . . Long- Beach Long Beach has a Civil service employee popUlation of approximately 5,000. They hold approximately thirty hearings per year. in 1983, after an exhaustive study, Long Beach adopted a hearing officer program. The primary reason for this was to reduce the seven month back log of appeals pending before the civil service Commission. They initiated this process with a one year program of having all suspensions heard by a hearing officer. They currently use a hearing officer for suspensions, demotions and terminations but occasionally hear a termination case themselves. The hearing officer makes findings of fact and submits recomme.ndations to the Commission. The commission may accept, modify, or rescind the recommendation and may even rehear the case if necessary. The City is represented by the Deputy city Prosecutor which is a separate office from the city Attorney's office. (Santa Monica's equivalent is the Chief Criminal Deputy within the City Attorney's office) The Commission is advised by the City Attorney's office. Long Beach's hearing officer list is a result of advertising, screening and interviewing. Fire and Police are included in this system and are only treated differently in that they have a longer probationary period than other employees. Long Beach has found that the Commission supports the findings of the hearing officer 88% of the time. This system has virtually eliminated their case back log, reduced lag time from - 5 - . . discipline to appeal, reduced back pay awards for terminations and reduced City staff over-time costs. A copy of the 1983 Long Beach report is attached. They have also made available the chronology of union negotiations regarding delegation of disciplinary appeals to a hearing officer and have volunteered to share their hearing officer list. Los Angeles Los Angeles employs approximately 50,000 full time Civil Service employees and 10,000 safety officers. The City Charter provides for an investigation or appeal within five days of any termination or suspension of five days or more or suspensions cumulatively exceeding five days within one calendar year. The civil Service Commission has the option of hearing a case or delegating it to a hearing officer who is considered to be an arm of the Commission. For the past ten years, the Commission has delegated all hearings to a hearing examiner to narrow the issues and summarize the case. The City is represented by a Department administrator and the employee either represents himself or has union or legal counsel. The hearing examiner's report is in a standardized format. A one day hearing on the average would result in ten page report which is submitted to the Commission and the parties wi thin thirty days. The Commission meets every Friday. The parties to a hearing come before the Commission and either submit on the hearing examiner · s record or submi t wri tten exceptions to that - 6 - , , . . record. Either party can, at that time present a very brief oral summation of their position to the Commission. The Commission can hear three to four cases in a hour during their regular meeting. The commission either sustains or does not sustain the discipline. If they wish to reduce the discipline they must have the consent of the appointing authority. The civil Service Commission has no jurisdiction over Police and Fire Personnel. Sworn personnel appeal their disciplinary matters to the Board of Rights. The Board of Rights consists of three to five fire or police captains. Los Angeles feels that the requirements of the sworn post tions and the uniqueness of the duties can't readily be understood by a citizen hoard. Los Angeles is extremely pleased with this system. They feel it has cut costs and saved Commissioners, staff, appellants and attorneys many hours. They offered to share their procedure manual and hearing officer list. General Impressions Some of the problems associated with full Commission hearinqs were: (1) backlog of cases~ (2) time lag between discipline and appeal~ (3) scheduling 5-7 Commissioners; (4) back pay if a termination was over turned; (5) overtime pay for staff in night hearings; (6) overtime pay for witnesses in night hearings; and (7) fatigue of everyone involved in night hearings. Some cities resolved these problems by switching to daytime hearings which require commissioners taking time from their employment. other cities use less than a full board to hear an - 7 - . . appeal. Others found that more frequent meetings ranging from twice a month to weekly help solve the work crunch. Use of a hearing officer appeared to be the most common solution. The 1983 costs of the hearing officers and report and the sources for them can be found in Attachment A of the Long Beach report. Keep in mind that a single experienced hearing officer proceeds more quickly than a five member board. Any of those fees listed from $70-$400 per day are a small fraction of current staff overtime costs for ni9ht hearings. All of the cities using hearing officers were unanimously pleased with the procedure. None of them felt that they had lost any real control in that all Commissions retained the power of review of the hearing proceedings and control over the final decision. The hearing officer simply served as a means to render an overburdened system more efficient. attachment lbcm18/hpw - 8 - . . . , ~c". "e \l~\\~1 ~ 1\1 ~ t.~ ., .2.8) ..0...... In response to your request, 11 IS . pleasure to send the enclosed information LONe; .EACH CIVh. ..-'lICE CO.......ION CAROL E MOSS DECUTIVll DIIIECTOIl ua W O!;:pN a&.YD - 7TH PLDDII .UCH, CALII'. "*Olll M~ORANDUM . J '. _ _ ~ .....,;.__ 4:~ y ~ ~~J.\- dateOctol:er 26, 1983 to Civil service CiAllldssioo. from ("~rol E. Moss, Executlw Director 5ubjectCulkhisSion Hearing Backlog- - ~port 12 On August 10, 1983, the C...I.l.ulssion rece~ved a report which projected the YLuwth of the hearing backlog should current practices in Long Beach contlnue. presented a survey of hearlng nethods in use in cuTlpCirable California jurisdJ.ctions, and reCYla1~nded that hearing officers be used on a one year trial baSls for suspension hearings only. Of the four :rrr:xiels of hearing officers presented in the report, the arbitrator nodel was found to t:e too expensive, wtnle the Administratlve Law Judge nodel incurred substantial delays where used. '!he rerraining alternatives were the the local attorney and indivldual Carmissioner nodels. Although approvlng the concept of the use of Hearing Officers, the CUI.llission postponed a declsion on wtnch fom of hearing offlcer to use. CUill..lssion actions on August 10, 1983 were to request staff to, a) draft a pLuposed Civil Service Rule whlCh WaJ.ld allow for the implem:~ntation of a hearlng officer program and, b) request a City Attorney's opinion regarding the legal author1ty of the Cuullllssion to delegate hear1ngs to hearing offlcers. At its neetmg of October 5, the CUlIllLission was presented with the City Attorney's response, which indicated that 1) the use of hearing officers by the Culu\a.ssion is allowed by the City Charter, and 2) the Rule as drafted by staff would allow for the i.nplenentation of such a program. It was at this neeting that the Cuumission dlrected staff to reView p::>ssible hearing officer nethods and report tack to the c...uu.l.ssion. IWlIa-J OF VARIOOS HEARING OFFICER folt.atfOOO AVAIIABLE As nentioned above, the arbitrator and Administrative Law Judge nethods are not reC:u.ull.::nded, due to substantial problems found wlth each. '!he arbitrator rrethod would cost approxizrate1y $12,800 to hear suspension hearings only over a one year penod, based on the number of suspensions projected at $400 per day and $400 per report. The Administrative law Judge nodel, although less costly, incuiTt:'d delays of up to four m::mths in the City of Sacranento, which negates the najor advantage of using a hearing officer appra3.ch. Relevant factors to consider regarding local attomeys or individual Coomissioners as hearing officers ate discussed below. CDST FAC'lORS The use of local attorneys, as shown in the report of August 10, shows a higher cost than does the independent Catmissioner nodel. However, that trg teo:h <D s~-.f\ C .,....,t Ccmni.SS1OO Hearing .log October 26, 1983 Page 2 . analysis of costs dealt only with direct costs to the Clvil Servlce Depatbu::nt. Further analysis sh:7tls that when indirect costs are accounted for, the cost of the local attorney nethod is substantially less to the City as a whole. The City Attorney's office provides counsel and adV1.ce to the CiVIl servlce I:epartm:mt at no charge. HCMever, the costs of the servIces they provide to the Cl.alUlIisSIon are substantial costs to the City. It is estinated that, for 1983-84, w1th the increased number of hearings possible th.roJgh the hearing officer program, the City Attorney's office will provide 819 hours of service to the Cuu.uission. At $105.72 per hc:ur {CCfIlf)Uted by Financial Managezrent as the cost for City Attorney services for 1983-84, including all prorated overhead costs), the total cost to the City will be approxinately $86,500. Of this, it is further estiIrated that 113 hours of time will be used by Deputy City Attorneys to attend suspension hearings to provide advice to the CUII1ci.ssion. The cost of this advice during suspension hearings would therefore be 113 x $IOS.72 ... $11,946. In that Cullllussioners under the independent CUlIllci.ssioner nodel are rarely attorneys, Coifllllssioners functioning as hearing officers would stIll requlre the services of Deputy Clty Attorneys when conducting suspension hearings. 'lherefore, the total costs involved under this node1 woold include the $11,946 for attorney services discussed arow. When the costs of the heanng officers themselves is added to this figure ($1,730, as shcMn in the report of August 10), the full cost for the independent C:aIlulssioner Irodel would be $11,946 + Sl,730 : S13,676. Moreover, staff has foond that such legal costs are only rarely associated with the local attorney nethod of hearing officer. In a recent survey of the practices of the City of Los Angeles, the County of IDs Angeles, and the City and County of San Francisco, (all use the local attorney method) It was discovered that only rarely was the counsel of Deputy City Attorneys or County Counsel required. Use of such advice was warranted only by cases of extrene ccrnplexi ty or controversy. The general practice in all thJ:ee jurisdictions is not to provide legal counsel to hearing officers, except in the nest unusual of situatJ.OI1s. 'n1e cost of the local attorney m:rlel of hearing officer (as described in the retx'rt of August 10) to hear SUSpenslons was estiItated at $8,028. '1herefore, provided that the Clty of lDng Beach adopts the local attorney node1, the total savings to the Clty would be appro~te1y $13,676 $8,028 ... $5,648. Camission Hearing .1og- October 26, 1983 Page 3 . CCMPARISON OF HEARING OFFICER CDSTS Duect IndIrect Act.ua 1 Type of Cost to Costs to Costs to HearIng OffIcer Civil ServIce City City Independent CuumlSsIoner $1,730 $11,946 $13,676 IDeal Attorney $8,028 0 $8,028 Net Savings $5,648 REPORTS Another p::>tential problem of the independant cu.uLlIissioner rrethod IS the need for hearing officer reports that meet the quality required for a court of law. In the case of Topanga AssociatIon for a Scenic Canmurll ty vs. County of Uos Angeles (1974), the California Suprerre Court ruled that decisions nade in an adm1nIstratIw hearing mJst l:e S\..l,ua'larized in a report, which ItJJS t show three thIngs: 1) it must outline the eVIdence presented: 2) it must show the findings of fact lIBOO by the Board or CcmniSSIon, and specifically state how these findings are related to the evidence presented: 3) it IIUst show the decIsion of the Board or CULlUll.ssion, and specifically descrIbe heM the decision is related to the findings of fact. Lawyers, arbitrators and Administrative Law Judges are all familiar with such organizatIon, since this is the basic organizatIonal style and logic typIcally required in a legal brief, an arbItratorls ruling, or in a legal JudyclI:~nt. Ha..oever, this type of organizational fornat is not necessarily fanu.liar to the citIzenry of the City at large, fi:"ull whICh the nembers of the CAla-,1i.ssion are selected. 1herefore, the use of the independent CUIIl-llissioner rrodel woold ~U'e considerable training of the hearing officers not required of the other models. Ccmnlssion Hearing .log October 26, 1983 Page 4 . TIME FAC'IOR One of the nest democratic aspects of, local goveLTlITl::ot is its use of lts cltizenry in cvuuJ.SS1onS,. boards and ~lai-..ittees to asslSt in the direction of local g:>vei-L-.Il11::nt. 8::::Mever, in that involved citizens alnost always have nany other dEmands on their ti.rre, it is vital that govenment use thlS inportant resource only in the IlDst efficient and effective nanner. If the local attorney plan were adopted, the tine spent by Camlissioners hearulg Suspensl00s wc:uld be freed for dismissal and disability retlrerrent hearings and reviewing the hearing officer's reports of suspensions. H<:::f,/Ilever, the independent CUlllussioner plan waJld require the use of Ccmni.ssioners in conducting hearings and in writing detailed and exacting rep:>rts. 1hu.s it would appear that the best use of the Cuumission's ti1re could be achieved through the use of the local attorney nodel of hearing officer. ~CNS o The local attorney nodel of hearing officer is substantially less costly to the City than the independent Comnissioner m::>del: o Local attornies are nore familiar WIth the legal requirezrents for written reports for administrative hearinJs than would be hearing officers under the independent CCmnissioner nodel, and; o '!he use of the local attorney nodel could save a considerable arrount of tim3 which the C":ul[ui.ssloo WClJld otherwise invest in c-ufLducting hearings and writing reports. In view of these pertinent facts, staff reculi'Ll::ods that the Cu~lLiSSlon 1) approve the use of the local attorney IOOdel of hearlng officer on a one year basis for suspension hearings only, and 2) authorize staff to neet and confer with errployee organizations and with nanagenent regarding the pr(p)Sed Rule and hearing officer pragTarn. ~2:~_. CAROL E. M:lSS Exeo.Jtive Director CEM:KS: jw( 56) . . ATTACHMENT A \ SURvEt OF THE HE~RINe FR~C:ICES OF ~AL:FQRNIA'S LAR6E:T FuSLIC JURIEtICTIQ,S TYFES OF fttTHlID OF TYPE OF SOURCE HEARINGS RECORDING ASENCY POFULATiON HEARIN6 OFFICER OF LIST DELEGATED HEARING OFFICER COST HEARHi6S iiACKLD5? ---.-------------------------- CITIES HEAR!N6 RE=ORi 1. LOS ANGELES . 2,96i,OOO . LAWYERS . CO!lIHSSIDN . ALL f $7511)Ai' . Si5iREruRT f COuRT . fin . . I t . , , t t PEPCRiE=l , t 2. SAN DIEGO f 676,000 f INIHVI!lUAL f CGP'lrUS5 W/i f ALl. f to , fO f caURi . Ii~ f <I . t COI'Il'US5IONERS . f f . . REFORTER . . 3. SPit FRANCISCO . 679,000 . LAIu'ERS . COM~ISSIuN . TERMlkH7I~NS t t200/D4Y . 52COiDAY . CuURT . liD . . t . . ONLY 1 . . REFORTEP. . t .. SAN JOSE I 637,000 . ARBITRATilRS t AIlERleAN . IIIlED 2 . t400/liA'T . t.400lDAY . TAFE t N~ .<1 . t t ARE Ii ASEN . . . . F.ECORDINB t . s. LONG BEACH I 373,000 t FuLL I ---- t ----- , - . ----------- I TAFE t Y~~ I ~: , I COIf1fIS5 HJN I I , , t RECDF.DINS t t G. uKK;'A~D I 339,00u t FuLL t ------ . --------- . -- . ------- , iArE . YES t . t COMMISSION , t . . t REC1iRD I N6 t , i. SHCRA1\~NHj t 2i6,OvO t ~D~INiSjRA7I~E t OFFICE OF , ALL . SilO/HOUR . fOO/HOuR , iAPE t hS I I t l;'w J~D6ES t Alif.IN lAW . t . . ~ECQ~D!N6 t . 8. ANHH:I:1 I 222,000 . ARBITRATORS . AF.ERICAN . GRIEvANCt5 3 , S40Q/DAY . S4uOfu~Y . !tOTES Of , NJ t .. I t Aii:BIi ASSf, t . t t A~PIiRHT:HI t , r. FRESND . 218,000 , FULL , ---- . n .------u -- . ---- . ---- . vARIES t YE: I . t CCl'!!'llSSION 1 t . t t t , , 10. SA~iH ANli I 204,000 t FULL t ----- , ------- . -- t ----- , LLh,Pii t YES . t . CDI'MIS5IGN t . , t , RErQRi.E~ t t .. .. F:;,HES . l . . t l . t . 1. LOS ANGELES . 7,476,000 t LAiiYERS . CiifllHSSrOh I ALL t $85 1/2 DAY t SliOiREFCRi . COuRT . I.l~ t .,ll I t t I t 117G/DAY I I RE?ORTE~ , 1 2. DF.r1NSE . 1,73;,D~D , ARBliRHiDRS . it/fEiutP'l . SRIErHNCES 3 . 5400iDAY J S;OO/DAY , NDiES Dr J ND J t . . AREn ASSIt . t . . fiRPITRATDR , t 3. SAN DIESO I I, eo:, 0(,0 * INEiVIDUAL . C(j~!H 5S WN I ALL . 540 1/~ D~Y J 540 1/2 DAY I iHr~ t HC , . . COl'lf'!!SsrC::'fEFS . t . S7Ofa~v t I RECuR!. ;~e t . FOOTNOTES: 1. ALTHuJ6H FRESNO USES A lI"ITED ARBITRAiION PROERA", IT IS NOT COUNTED AS A HEAijIN6 OFfiCER FROuRAIl HERE, BECAuSE iH: CDHI'IISSION HAS ND CONTROL OvER ITS USE. SEE HOTE IN BDD, DF RE?ORT. 2. IN SAN JOSE, THE HEARING OFFICER PROGRAll IS NOT ALWAYS USED FOR Al.L CASES. IN TWmt'lTION CASES, THE El'fPLOYEE IfAY INSIST DN A HEARING iY THE FuLL CD~~ISSiilN. 3. ANHH~ AND ORANGE C(j~NTT BDTh USE A NE60l1ATEu 6RIEVANCE PROCEDURE INSTEAD OF A CIViL SERVICE CD~"ISSION. IN THEIR PR06RAMS, ARBITRATION IS USED ONLY AS THE FINAL STEP OF THE GRIEYANCE PROCESS. . ATTACHMENT B Model for D1SCUSSlon . . . Use of Bearing Officer in Employee Disciplinary Hearing Model for Discussion A. Selection of a Hearing Officer 1. The Personnel Board may delegate the initial review of employee suspensions, demotions and termination to a hearing officer. Conversely, an employee or his or her representative may request that a hearing officer conduct the initial review of the employee's case. This request should be submitted in writing with the Answer to the Statement of Charges. 2. The City Attorney shall select three names of qualified hearing officers from the hearing officer panel list. These names shall be submitted to the appellant or his or her designated representative and to the City'S representative. - 1 . . 3. Either party has the option to delete one name from the list and to notify the city Attorney of such action, in writing, within five business days from the date the list was delivered. 4. If only one name remains on the list after the prescribed five day period, that hearing officer shall be assigned to hear the appeal. If more than one name remains on the list, the city Attorney shall make the selection of the hearing officer to be assigned from the names remaining on the list. B. Duties of a Hearing Officer 1. The hearing officer will hold a hearing not later than thirty (30) days following the receipt of the request by the Personnel Department unless an extension of time is granted by the hearing officer. The parties will be given no less than five (5) days notice of the time and place of the hearing. 2. The hearing will be conducted under rules set out in the Santa Monica Municipal Code and the Personnel Board's procedural rules. In the absence of such rules, the hearing officer shall be governed by those rules generally applicable to administrative proceedings conducted under the Administrative Procedures Act of the state of California. - 2 - 3. The he~ng officer will write thetllport in a format specified by the Personnel Board and make factual findings and recommendation for consideration by the Personnel Board. c. Report of Hearing Officer. 1. A copy of the hearing officer's report will be sent to the appellant or his/her representative, and to the City's representative within 30 days of completion of hearing. Both parties shall be notified as to when the Board is scheduled to consider the hearing officer's report as soon / as a date is determined. 2. Parties to the hearing may submit objections to the hearing officer's report. Written objections must be received by the Personnel Department at least three (3) business days prior to the date the Personnel Board is scheduled to consider the hearing officer's report. All information necessary for the Board to make its decision concerning the objection should be included in the written objections. D. consideration of Report by Personnel Board. 1. The Personnel Board has the power to adopt, modify or reject the recommendation of the hearing officer. 2. Previously submitted written objections to the report will be considered as well as a brief (10-15 minute) oral summation. - 3 - , ~ . . 3. The Personnel Board will render its findings and conclusions in writing not more than ten (10) days from the date of the consideration of the hearing officer's report. A copy will be sent to both parties. E. Review of Personnel Board Decisions. The decision of the Personnel Board shall be reviewable by petition filed pursuant to Code of Civil Procedure Section 1094.5, provided such review is sought not later than the ninetieth (90th) day following the date on which the decision becomes final in accordance wi~h provisions of Section 1400 of this Code and Code of Civil Procedure section 1094.6. - 4 - . . ATTACHMENT C Proposed Addltion and Clarification from SMPOA and STA , .... . . Proposed additions and clarifications of the Hearing Officer proposal. Santa Monica Peace Officers Association Santa Monica Supervisory Team Association The Association recommends that the Alternative Disciplinary Hearing process be approved by the Personnel Board. The Association believes that the oprional use of a hearing officer is of benefit to the city, the employee and the Commission and that it will enable the parties to better represent the interests of the employee and the City. The adoption of a Hearing Officer option would accomplish the following: Reduce the cost to the city by reducing the number of witnesses and participants who must be paid overti~e to appear during the evening hours. Provide for greater contlnui ty of testimony in the hearing by reducing the number of days which must be used to present testl~ony. For example a one day hearing requires at a minimum, two nights of hearing. Further, there wlll be fewer problems choosing hearing dates, since there are fewer calendars to coordinate. Provide for a hearing official with substantial experience in handling disciplinary actions, who can rule on evidentiary obj ections without the aid of a legal advisor. Numerous Arbitrators are available who have extensive experience in both the law and practice of disciplinary matters. Provide for a detailed hearing officer's report, detalling the applicable facts and law, upon which the Board may base its deC1Slon. Allow the parties and their representatives to handle hearings during the work day, rather than after a full day's workl resulting J.n more effectl ve advocacy for both parties. Reduce the number of meetlng evenings whJ.ch the Board are required to attend. The Association has so~e concerns regulations which must be addressedl rights of the employees and ensure procedure. The Assoclation hereby changes: with the draft rules and in order to protect the an efficiemt, effective proposes the following . . Santa Monica Personnel Board June 30, 1988 Page 2 The rules adopted should clearly state that the city pays for the cost of the Hearing Officer. The appellant should have the optlon of choosing a Hearing OffJ.cer or the Personnel Board as a whole to hear testimony on hislher case. The appellant should notify the board in writing of their decision. The panel list should consist of ten to twenty qualified ArbitratorslHearing Officers mutually agreed to by all of the employee organizations and management. These individuals should submit resumes for consideration, should be an Arbitrator recognized by the American Arbitration Association and should possess a Law degree or be a MeMber of the California Bar. The City Attorney should provide a list of seven Arbitrators/Hearing Officers at random from the approved panel. 'The parties should meet or hold a telephone conversation where they should strike off one arbitrator at a time until only one arbitrator remains. The City should strike off the first name. If the Hearing Officer so selected cannot give the parties available hearing dates within 60 days of their selectlon, the process will be repeated until acceptable hearing dates are available. Hearing dates should be set by mutual agreement. The hearing should be held during normal working hours. The general procedures for hearings should be applied, except that there will be no Illegal advisorll, as the Hearing Officer should make rulings on all motions, evidance and objections. The Hearing should be recorded by a court reporter and a trancscrlpt should be provided to the Personnal Board for its conslderatlon along with the recoMmendation of the Hearing Officer, the parties exceptions and the parties arguments. The Hearing Officer should subml t his recommendation within 30 days if no post hearing brief's are requested, or 60 days if the parties wish to file post hearing brlefs. This tlme may be extended by the mutual agreement of the parties. The Hearing Offlcer's recommendation should be in writing, and should consist of his/her findings of fact, the basis therefore, his findings of law, If applicable and a recommendation as to the appropriate renedy. The Hearing Officer's .. . . " ~ Santa Monica Personnel Board June 30, 1988 Page 3 recommendations will be served on the parties when received by the Personnel Commission. The parties should have 15 days to file exceptions to the Hearing Officer's recomnendations. The parties must attach proof that they served the opposing party with a copies of the exceptions at the same tine as the fillng with the Personnel Board. The Personnel board should meet wlthin 30 days after the filing of the exceptions to consider the reconnendation of the Hearlng Officer and the parties exceptions and argument. The Personnel Board should make findings of fact, state the basis for such findings, and make a decision to uphold the recommendation of the Hearlng Offlcer, reject the Hearlng Officer's recoMmendation or modify the recommendation. The parties should have 30 minutes to argue their exceptions as well as to rebut those filed by the other party. . . . ATTACHMENT D 6/22/88 Memorandum from MEA . . . MEMORANDUM TO: Santa Monica Personnel Board FROM: Rene Talbott, President, Municipal Employees Assn. &~ Paul B. Worthman. Consultant to MEA DATE: June 22. 1988 SUBJECT: Use of Hearing Officer by Personnel Board in Discipline Appeals The Santa Monica Municipal Employees Association (MEA), rep- resenting approximately 300 clerical. technical, and professional employees, strongly supports in prIncIple the proposal to estab- lish an optional Hearing Officer disciplinary appeals process. As described to MEA. the proposed alternative diSCiplinary appeals process would provide for the option of having a Hearing Officer preside over the disciplinary appeals hearing. The Hear- Ing Officer would (1) hear evidence and witnesses; (2) identIfy the issues under consideration; (3) make findings of fact; and (4) make a recommendation to the Personnel Board regarding dis- positIon of the case. Final decision-makIng authority would con- tinue to reside with the Personnel Board, which would review the Hearing Officer's findings and recommendation, and any exceptions filed by the complaintant or the City, and then sustain, modify, or overturn said findings and recommendations. In the past two decades, since California adopted collective bargainIng for local government employees, disciplinary appeals have increasingly been dealt with either through a negotiated ar~ bItration procedure or through more systematic application of labor relations principles by Civil Service Hearing Officers (in jurisdIctions like Los Angeles County, Los Angeles City, Tor- rance. Long Beach. etc.), even where appointed Civil Service or Personnel Boards retain final jurisdiction over the appeal. IntroductIon of a corps of professional hearing officers, experienced in application of basic prinCiples of labor relations and employee diSCIpline in numerous jurisdIctions would not only expedite the conduct of indiVIdual hearings, it would also enable the Board when making a final determination to have benefit of proposed findings by a professional, experiencedrneutral hearing offIcer regarding the specific situation. MEA does have several concerns about the actual implementa- tion of the program as presented in the II Mode 1 for DIScussionll shared by Personnel Director Karen Bancroft. We have discussed these concerns with Lynn Cacciatore and Karen Bancroft and hope that our proposals can be supported by them, as well as by the Personnel Board. . . . ~ 1. Selection of Hearing Officer Panel: One key to successful implementation of a hearing officer process is the perceived and actual experience ano knowledge, as well as the neutrality, of the hearing of- ficers. Thus, it is important that the hearing officers be neutrals experienced in the fIeld of labor relatIons and employee disciplIne. Thus, using a panel of arbItrators who work with the Court system ~o~ld not provide that ex- perience and knowledge, in MEAls opinion. Recommendation: Select a Hearing Officer Panel list from an existIng experienced body of panelists, like the Los Angeles County Civil Service Commission, or from the arbitration panel of the American Arbitration Association. 2. Selection of the Panel for a Particular Case: As noted above, success of the hearing officer option depends not only on the experience and knowledge of the hearing officer, but also in the parties' confidence in the neutrality and objectivity of the hearing offIcer. MEA does not believe that perceived objectivity and neutrality can be maintained by having the City Attorney (either directly or the person appointed to serve as the Personnel BoardJs attorney) select the three person panel from whom the hear- ing officer is chosen. Such a procedure would be akin to having a prosecuting at- torney, or someone in the prosecutor's office, select the jury 'panel from which the prosecutor and defense attorneys then select the jurors. Even if though the District Attor- ney, or City Attorney in the case of the Santa Monica Hear- ing Officer. for example, attempted to choose the three per- son panel "objectIvely," inherent biases would of cr~rse im- pact on the selection. Therefore, the panelists would either actually be those who lean towards the employer -or equally bad- would not have the confidence of the employee or union. Recommendation: The selection of a three person panel, from whom a hearing officer would be selected in a particular case, should be determined by lot or through some other ran- dom process from the entIre panel. 3. Duties of the Hearing Officer: a. Date of Hearing,: The Model for discussion only provides five days notice of the date and place of hearing. Such notice is not adequate for an employee and employee representative (nor the City) to clear calenders and be able to attend such a hearing. -... ~~~~--- -....--------- ---- -----------,..------ -- -- -- - - --- . ,. . . Recommendation: The date for the hearing should be set by mutual agreement of the Hearing OffIcer, the employee, and the City. Only if a date withIn sixt1~ (60) days of the date set to hearing cannot be agreed upon, should a hearIng officer be empowered to 'unllaterally set a date, in which case at least twenty- ,one (21) days notice must be provided. b. Rules for Conduct of Hearinq: The City has proposed that In the absence of Personnel Board rules or provi- sions of the MuniCIpal Code, provisions of the Califor- nia AdminIstrative Procedures Act apply. These proce- dures can be unnecessarily cumbersome and formal. Recommendation: Adopt a provision that in the absence of Personnel Board rules or provIsions of the Municipal Code, the rules of the American Arbitration Association prevail. 4. Report of the Hearing Officer: The Model Draft indicates that written objectIons to the Hearing OffIcer findings and/or recommendation should be fIled wIthin three (3) days prior to the Personnel Board consideration of the report. However, there is no pro~ion for a minimum time frame to prepare and file a report. Recommendation: Adopt Drovisions that allow fifteen {15} working days for the filing of any exceptions to the Hearing ~fflcerts Report. 5. Election of the Hearing Officer Option: . The model draft reads as if either the employee~ the City or "the Personnel Board itself can opt to have a disciplinary appeal heard by a Hearing Officer. While MEA does not have strong objections to such a procedure, the union believes that inItially the option mIght be offered only to the employee. That's because a hearing by a Hearing OffIcer might be more inclIned to require profeSSIonal repre- sentatIon for the employee and in some cases an employee mIght prefer to represent herself/himself directly before the Personnel Board. If the City or Personnel Board opted for the Hearing Officer alternative in such a partIcular case, an employee might then feel obJigated to obtain professional representation. . Recommendatlon: Adopt rules that limit selection of the Hearing Officer option solely to the employee for an initial trial perIod of two years. -..~--..-~ ~~__"'- .. ----_ ---"'-':..:---_-_- _ ~ -. ~ ."':,:-....:,.0- .L...I.'V<i_..... ~ -" ... ;. , .fi . . Summary: As Indicated earlier, MEA supports in principle the adoption of the Hearing Officer alternatIve. It would pot, however support~ the alternative if the Board adopted a program in which the City or Board could elect the Hearing Officer alternative and the Hearing" Officer panelists were not clearly recogniz~ ex- perIenced labor rela~ions professional neutrals and/or the City Attorney was allowed to choose the three panelists from whom the parties then chose the actual Hearing Officer in a partICUlar case. Such is the situation In the Model Draft presently before MEA, and presumably the Personnel Board. If these conditions prevaIled, then MEA believes employees could face a situatIon where the City referred an appeal to a Hearing Officer, and the Cityls Attorney then selected (from a panel of attorneys who did not necessarily have labor relations experience nor were identifiable neutrals) three panelists, all of whom might be perceived -Of in fact be- "pro-management.1I MEA hopes, however, that the Personnel Board, as well as the Personnel Director and City Attorney1s Office, agrees that the establishment of a Hearing Officer alternative, deslreable in principle, be set up in such a way that no questIon of expertise, neutrality and objectiVIty of a Hearing OffIcer exists. Thus, we hope that our recommendations in those directions can be adopted. Lastly, MEA should pOInt out that the grievance/appeal process for employees it represents is a mandatory subject of bargaining under California Government Code Section 3500 et. seq. MEA. agreed with the City in its Memorandum of Understanding to use the present Personnel Board process for appeals of termina- tion~ demotion or suspension, as well as treating denials of step Increases resulting from unsatisfactory evaluations as a demo- tion. Consequently, any new procedure affecting MEA represented employees would need to have MEA agreement if applicable to MEA represented employees. The organization is prepared to commit, however,. that even if MEAls recommendations are not totally adopted, nor specifically adopted, MEA will gIve its agreement to modifIcation of the present Personnel Board appeals process so long as the modification meets MEAls concerns about random selection of hearIng officers from a pool or panel of experienced neutrals, and/or lets an employee-appellant have sole recourse to the Hearing Officer alternative. >