SR-603-013 (4)
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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
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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
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SEP 2 7 1988
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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
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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
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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
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ATTACHMENT A
9/21/87 Memorandum (Telephone Survey)
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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Ccmni.SS1OO Hearing .log
October 26, 1983
Page 2
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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
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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
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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.
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CAROL E. M:lSS
Exeo.Jtive Director
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ATTACHMENT A
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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?
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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.
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ATTACHMENT B
Model for D1SCUSSlon
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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.
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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.
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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.
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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.
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ATTACHMENT C
Proposed Addltion and Clarification from SMPOA and STA
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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
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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
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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. .
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ATTACHMENT D
6/22/88 Memorandum from MEA
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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.
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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.
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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.
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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. >