SR-04-24-2012-7CCity Council Meeting: April 24, 2012
Agenda Item: 10,
To: . Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Proposed Ordinance Expanding the Options for Providing Hearing
Examiners to Decide Personnel Appeals
Recommended Action
Staff recommends that the Council introduce for first reading the attached Ordinance
amending the Municipal Code provision governing the provision of hearing examiners
for disciplinary appeals to afford two additional options:
• using the California Office of Administrative Hearings and
• employing attorneys familiar with the hearing process as temporary, as- needed
City employees.
Executive Summary
In recent years, the City has significantly expanded the type and number of matters
handled administratively, rather than in the courts. In keeping with this shift, the Council
has approved ordinances expanding the use of hearing examiners to preside over
various types of administrative appeals. And, as experience increased, it became clear
to staff that some administrative changes were necessary to ensure fair and efficient
handling of the hearing workload. Thus, provision was made for administrative review
by senior City staff. However, as to one class of hearings, current Municipal Code
provision limits staff's ability to improve the system. Pursuant to Section 2.04.510,
private attorneys from a panel appointed and administered by the City Attorney's Office
must be used to hear disciplinary appeals that are not heard by the Personnel Board.
Unfortunately, this approach has proven to be unsatisfactory on many occasions in
terms of the quality of decisions; and, it is costly.
The attached, proposed ordinance would allow for two other alternatives: use of
professional hearing examiners employed by the state at the California Office of
Administrative Hearings (state hearing office); and use of retired attorneys with
significant experience with administrative hearings who would work for the City on a
part -time, as- needed basis. It is anticipated that these alternatives would both increase
efficiency and yield higher - quality decisions for the same or a slightly reduced cost.
Background
The City has conducted administrative hearings for decades. The Council and several
boards and commissions conduct hearings, and most of them fall into two areas: land
use and employee disciplinary appeals. And, for many years, the Municipal Code has
required the City Attorney's Office to maintain a list of private attorneys who are
available to hear disciplinary appeals that are not heard by the Personnel Board.
Santa Monica Municipal Code Section 2.04.510.
Starting in the mid- 1990's with the adoption of the administrative citation system,
Council has significantly expanded the type and number of administrative cases
generated by the City. And, this has, in turn, significantly increased the number of
administrative appeals and hearings. By and large, the increased use of administrative
procedures has worked well for the City. The City has remained able to operate a
number of regulatory systems and enforce local laws despite over - crowding and under -
funding of the court system. However, there has been at least one area of concern. As
the workload of administrative hearings grew, attorneys on the City Attorney's list were
used for various types of hearings. But, the overall results were mixed. Thus, on
February 23, 2010, staff proposed and Council ultimately adopted an ordinance defining
the limits of Hearing Officer's authority. As explained in the staff report, this proposal
was made partly because of experiences in which one or more private attorneys serving
as hearing examiners simply did not follow the law. Likewise, on July 12, 2011, staff
proposed and Council ultimately approved an ordinance expanding the use of
administrative citations to remedy code violations and authorizing the City to use
professional hearing examiners at the state hearing office for most classes of cases in
order to ensure sufficient expertise and professional ability and to contain costs.
As a result of these improvements to the administrative
appeal
process,
a smaller
percentage of the total number of administrative hearings
is being
handled
by private
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attorneys, who have been handling about ten cases annually. And this shift has been
beneficial. Administrative hearing decisions are generally rendered promptly and
efficiently and very, very few are challenged. Thus, the shift away from using private
attorneys has yielded positive results in terms of fairness, efficiency and resource
conservation.
However, one class of hearings, personnel disciplinary appeals, continues to be
governed by a Municipal Code provision that requires use of the list of private attorneys.
And, the consequences have continued to be troubling. This system is expensive
because the private attorneys are paid by the hour. And, the quality of the work is
sometimes problematic. While some of the private attorneys who serve as hearing
examiners have done good work, others have sometimes appeared not to understand
the requirements of Due Process or the substantive law. As a result, the outside law
firm that represents the City (to avoid conflicts of interest) has suggested that the City
should raise the hourly rate paid to private attorneys to attempt to attract more qualified
attorneys to the list, which would increase costs.
Discussion
Accordingly, staff recommends that Council expand the alternatives for providing
hearing examiners in personnel appeals by adopting the attached proposed ordinance.
It would allow the City to use the professional hearing officers at the state hearing office
for disciplinary appeals. It would also allow the City to hire attorneys who have public
sector experience, expertise in Due Process and experience with administrative appeals
to conduct personnel hearings on a part -time, as- needed basis.
The state office is already used for appeals by fire fighters because of special state law
requirements. And, the experience has been good. The state office is very efficient;
and the professional hearing examiners are highly competent.
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City staff has discussed the use of the state hearing office with representatives of the
Police Officers Association (POA) because that union's contract gives members the
right to opt for a hearing conducted by a hearing examiner, rather than by the Personnel
Board. (This is a right that other City unions do not have. Thus, the appeals of all other
City employees are heard by the Personnel Board unless the Board decides to send
them out to hearing examiners.) The POA, after consulting with its attorney, indicated
strong support for use of the state hearing office.
Staff assumes that, if the ordinance is approved, all disciplinary appeals involving safety
personnel will be sent to the state office. Complex disciplinary hearings that the
Personnel Board opts not to hear would likely also be sent to that office.
The part -time, as- needed attorneys could be utilized for less complex disciplinary,
appeals, perhaps including suspension cases. And, they would certainly be utilized for
other types of administrative appeals not handled by regular City staff, such as appeals
of performance permit revocations, airport noise citations, and sign code violations.
To meet the requirements of Due Process, the part -time, as- needed attorneys who
serve as hearing examiners would be separated from the regular work of the City
Attorney's Office and from any members of the office who advised City staff on the
particular matter. They would receive case assignments on a rotating basis from
support staff in the City Attorney's Office, who schedule administrative hearings. But,
their work on individual cases would be completely independent. This system would be
similar to the way that Rent Control Board staff processes administrative appeals, using
employees of the Board who function separately from and independently of the Rent
Control Board's legal staff. At present, staff contemplates using retired Rent Control
Board attorneys to serve as Hearing Examiners because of their extensive experience
with administrative processes and Due Process requirements.
GI
Staff anticipates that this system would be less expensive to operate than the current
system on a per case basis. Though the workload varies, private attorneys have been
handling about ten cases annually at a cost ranging between $1500 and $3000 per
hearing. The as- needed attorneys serving as hearing officers would be paid less, per
hour, than the private attorneys now doing the work. And, the state office has shown
itself to be so efficient with individual cases that their service actually costs about the
same or a little less than using private attorneys, even though the per hour cost may be
higher. However, staff notes that though the per case cost should be the same or less
than the present system, the number of cases is increasing as the number and type of
matters handled administratively increases.
The draft ordinance would preserve the possibility of utilizing the present system. While
Council has the alternative of eliminating the provision calling for maintenance of a list
of private attorneys for personnel cases, staff advises retaining it, at least until the City
has a year or two of experience with the new systems. Thus, if Council adopts the
ordinance, there will be three authorized sources for supplying hearing officers to
handle disciplinary appeals: the state hearing office; experienced attorneys working for
the City part -time, as- needed; and a list of private attorneys maintained by the City
Attorney's Office. However, staff anticipates that it would only utilize the first two
alternatives during the next year or two. At the end of that time period, if experience
indicates that the proposed alternatives are somehow inadequate, staff could resume
maintenance of a list of private attorneys and propose to increase their hourly
compensation.
If Council adopts the proposed ordinance, staff will ensure compliance with Due
Process requirements. Each case will be assigned either to the state office or the panel
of part -time, as- needed attorneys based upon its type or upon its complexity or
consequence. As to the state hearing office, there will be no institutional issue as to
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compliance with Due Process requirements because that office is completely
independent from the City. Thus, referring a case to that office is like sending it into the
court system in that the state hearing office operates solely for the purpose of making
decisions according to procedures that are designed to ensure fairness. As to cases
assigned to temporary, as- needed attorneys, fairness will be ensured through random
assignment of cases, probably through a rotation system, and by the expertise of the
individual attorneys. At present, it is contemplated that all will have governmental
experience and therefore be fully familiar with Due Process requirements.
Alternatives
As an alternative to the changes proposed by staff, Council could direct staff to continue
to maintain the list of private attorneys and raise their hourly compensation to test
whether that approach would yield a better process. However, staff recommends
against that approach because there is no guarantee that there would be any
improvement, and it would certainly be more costly. Or, Council could direct staff to
send all disciplinary appeals to the state office, but that approach would be more costly
than utilizing temporary, as- needed attorneys for some of the less complex or
consequential appeals. And, in any event, whether or not the ordinance is adopted,
staff will likely continue to utilize temporary, as- needed attorneys for other types of
appeals. Accordingly, since this resource would be available, staff recommends that it
be tested for at least this one category of disciplinary appeals.
Financial Impacts & Budget Actions
There is no immediate budget /financial impact to the policy decision. The cost of
private attorneys serving as hearing officers is a General Fund expense, currently
funded through the City Attorney's Office's operating budget. Adopting the proposed
ordinance would not change this approach. As explained above, staff anticipates that
0
the per hearing cost would stay the same or decrease somewhat. The estimated
annual cost associated with providing hearing examiners is being included in the FY
2011 -2013 budget.
Prepared by: Marsha Jones Moutrie, City Attorney
roved:
M rs Jones M trie
Ci A o ey
ATTACHMENT: Proposed Ordinance
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Forwarded to Council:
Rod Gould
City Manager
f:\attyNshare\laws\mjm\Hearing0forsPersonnelAppealsOrdO42412
City Council Meeting: April 24, 2012 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA EXPANDING THE OPTIONS FOR PROVIDING HEARING
EXAMINERS TO DECIDE PERSONNEL APPEALS
WHEREAS, state and local law authorize the City of Santa Monica to conduct
administrative hearings as a means of adjudicating and thereby resolving various types
of disputes; and
WHEREAS, administrative hearings provide an excellent means of adjudication
because they generally proceed more expeditiously than court proceedings and are less
expensive to utilize, while providing the same types of basic procedural safeguards that
ensure fairness; and
WHEREAS, one category of City cases decided by administrative hearing is
appeals of City disciplinary actions; and
WHEREAS, the Santa Monica Municipal Code presently requires that the
hearing examiners for these cases be randomly selected from a list of private attorneys
which is maintained by the City Attorney's Office; and
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WHEREAS, experience has demonstrated certain problems with the cost of
utilizing private attorneys to render decisions and, in some instances, with quality of the
decisions; and
WHEREAS, there are other alternatives to the use of private attorneys, including
use of the California State Office of Hearing Examiners and use of City employees who
are not in any way involved with and kept separate from any involvement in the
underlying matters; and
WHEREAS, the City has successfully utilized these two options in classes of
hearings other than employee disciplinary appeals; and
WHEREAS, experience shows that the options of using State Hearing Officers
and City employees who are attorneys experienced in administrative law would both
likely be less costly, overall, than utilizing private attorneys who are paid by the hour to
render decisions; and both would likely yield better assurance of a fair process and
more consistent results; and
WHEREAS, in order to ensure that City Employees appealing disciplinary actions
are guaranteed speed, fair and consistent decisions and that public resources are not
unnecessarily expended, these two options. for providing hearing officers should be
available for employee disciplinary appeals, as they are for other types of City
administrative hearings.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 2.04.510 is hereby amended
to read as follows:
Section 2.04.510. Use of a hearing officer in
employee -dissiplinary44e"-- ingsby the Personnel Board.
(a) Use of Hearing Officer.
At the request of an employee or if the Personnel
Board determines that it is desirable, it may delegate the
initial review of employee suspensions, demotions and
terminations or other matters to a Hearing Officer. An
employee's request for a Hearing Officer should be
submitted in writing with the answer to the statement of
charges. The City will pay the cost of the Hearing Officer, but
if a court reporter is requested by either party, that party
shall pay the cost of the court reporter.
(b) SelecticnAssignment of Hearing Officer. The
City Attorney may at his or her election, utilize one or more
of the following procedures for assigning Hearing Officers to
cases --- shall - Lie -- selected- ip�asserd anse-wit#- the - following
:
P
(1) City- Employed Hearing Officers.
The City may employ one or more neutral individuals
with training and experience in administrative law and due
process to hear and make initial recommendations on
employee disciplinary appeals or any other employer -
employee dispute referred by the Personnel Board under
this section The Hearing Officer(s) shall be an attorney, or
shall possess other comparable and adequate qualifications
as determined by the CitV Attorney. If more than one
Hearing Officer is employed bV the City, assignments to
particular cases shall be made on a random basis.
(2) Administrative Adjudication Services.
If, in the City Attorney's judgment the nature,
complexity or circumstances of a particular case warrants
use of an adjudicative service a case maV be referred to the
State Office of Administrative Hearings, the State Mediation
and Conciliation Service the American Arbitration
Association or another mediation or arbitration service that
provides Hearing Officers who are skilled and
knowledgeable in public sector labor and employment
relations.
M
(3) Hearing Officer Panel.
(4a) The City Attorney shatlmay compile a Hearing
Officer panel list of no less than twenty persons who have
agreed to serve as Hearing Officers for a term of two years.
Each panel member shall be experienced in the field of
public sector labor and pefsortnelemployment relations or
employee discipline and shall be an attorney or possess
other comparable and adequate qualifications as determined
by the City Attorney. If the City Attorney opts to compile and
utilize a list of private persons to serve as Hearing Officers
the following procedures shall be utilized for assignment to
each particular case.
(fib) The City Attorney, or his or her designee, shall
select, by a random process, names of eteveanine Hearing
Officers from the Hearing Officer panel list. These names
shall be submitted to the employee or his or her designated
representative and to the City's representative. Within five
days of receipt of the list, the employee and City shall confer
to select a Hearing Officer from the names provided. If the
employee and City are unable to mutually agree on a
Hearing Officer, the Hearing Officer shall be selected by a
process of elimination. Each party, beginning with the City,
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shall strike a name from the list until one name remains, who
shall be the Hearing Officer.
(3c) The City shall promptly notify the Hearing
Officer of his or her selection and within fifteen days of his or
her selection, the Hearing Officer shall notify the parties of a
hearing date. If the Hearing Officer is unable to schedule a
hearing within sixty days of his or her selection, then at the
request of either party, the City Attorney shall provide a new
Hearing Officer list until a Hearing Officer is selected who is
able to so schedule a hearing date.
(c) Duties of Hearing Officer.
(1) The Hearing Officer shall hold a hearing not
later than sixty days following his or her selection unless an
extension of time is granted by mutual consent of the parties.
The parties will be given no less than ten days written notice
of the time and place of the hearing. For good cause, at the
request of any party, the Hearing Officer may reschedule a
hearing.
(2) The hearing will be conducted in accordance
with all applicable laws and procedural rules adopted by the
Personnel Board.
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(d) Report of Hearing Officer.
(1) At the conclusion of the hearing, the Hearing
Officer shall write a report in a format specified by the
Personnel Board and shall make factual findings and
recommendations for consideration by the Personnel Board.
(2) The Hearing Officer shall issue the report to
the City Attorney's Office within thirty days of
sonVIetieRcompleting of—the hearing+ th r�f., n� +„r':°y'�
Oise. The City Attorney's Office shall send a copy of the
report to both the employee and City.
(3) The employee and City shall have fifteen days
from the date they receive the report to file written objections
to the report with the Human Resources Department. All
information necessary for the Personnel Board to make its
decision concerning the objections should be included in the
written objections. If the objections are based upon the
Hearing Officer's findings of fact, the objecting party shall
order and pay for the cost of a transcript of the hearing. Each
party shall serve a copy of his or her objections on the
opposing party.
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(e) Consideration of Report by Personnel
Board.
(1) The Personnel Board shall consider the
Hearing Officer's report within sixty days after it is issued.
(2)
The
Personnel Board
has the power to adopt,
modify or
reject
the findings and
recommendations of the
Hearing Officer based upon the record.
(3) The Personnel Board shall consider all written
objections to the report filed pursuant to subsection (d) and
may, at its discretion, permit a brief oral argument according
to such rules as it may adopt.
(4) The Personnel Board shall render its findings
and conclusions in writing not more than ten days after it
considers the Hearing Officer's report, which shall constitute
the decision of the Personnel Board. A copy will be sent to
the employee, appointing authority, Human Resources
Director, City Attorney's Office, and City Manager.
(f) Review of Personnel Board Decision.
E-3
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 day following the date on which
the decision becomes final in accordance with provisions of
Section 1.16.010 of this Code and Code of Civil Procedure
Section 1094.6.
(g)
Nothing in this
Section
shall constitute or be
construed
as a limitation on
the City
Council's authority to
grant additional procedural rights to City employees through
the collective bargaining process. (Amended by Ord.
2241CCS § 1 adopted 10/23/07)
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
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or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
M SH J NES MOUTRIE
Ci tt n y
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