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O2399City Council Meeting: May 8, 2012 Santa Monica, California ORDINANCE NUMBER 2399 (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 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. 2 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 by 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 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) Assignment 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: (1) City - Employed Hearing Officers. 3 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 City Attorney. If more than one Hearing Officer is employed by 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 may 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. 12 (3) Hearing Officer Panel. (a) The City Attorney may 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 employment 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. (b) The City Attorney, or his or her designee, shall select, by a random process, names of nine 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, 5 shall strike a name from the list until one name remains, who shall be the Hearing Officer. (c) 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. a (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 completing the hearing. 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. 7 (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. 0 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. 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, 0 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: MARSHA JONES MOUTTfF Cit orne ;� 10 Approved and adopted this 8th day of May, 2012. Richard Bloom, Mayor State of California ) County of Los Angeles ) ss. City of Santa Monica ) I, Denise Anderson - Warren, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2399 (CCS) had its introduction on April 24, 2012, and was adopted at the Santa Monica City Council meeting held on May 8, 2012, by the following vote: Ayes: Council members: Holbrook, McKeown, O'Day, Shriver Mayor Pro Tern Davis, Mayor Bloom Noes: Council members: None Absent: Council members: O'Connor A summary of Ordinance No. 2399 (CCS) was duly published pursuant to California Government Code Section 40806. ATTEST: Al - Denise Anderson - Warren, Acting City Clerk