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HomeMy WebLinkAboutORD 608FORMS7/01/mpb ORDINANCE NO. SOS AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING CHAPTER 2.52 OF THE CITY OF PALM DESERT MUNICIPAL CODE. The City Council of the City of Palm Desert, California, DOES HEREBY RESOLVE as follows: SECTION 1. That Sections 2.52.060, 2.52.510, 2.52.520, 2.52.530, 2.52.540, 2.52.550 and 2.52.560 of the Muhicipal Code of the City of Palm Desert be and the same hereby are amended to read as follows: "2.52.060. Types of Employees. A. Permanent Employees. Permanent employees are those hired for an indefinite period of time and can be either full-time or part-time employees. Permanent employees, provided they are employed on a half-time basis or more, are eligible for paid holidays, vacation and leaves of absence credits and retirement, health and life insurance, and other compensation benefits. B. Temporary Employees. Temporary employees are those extra help or seasonal employees hired for a definite period of time, usually twelve months or less and can be either full-time or part-time employees. Compensation is set on a per diem or hourly basis. Temporary employees are not eligible for paid holidays, vacation and leaves of absence credits nor health and life insurance, and other compensation benefits. -1- FORMS7/01/mpb ORDINANCE NO. 608 C. Probationary Employees. Probationary employees are all permanent employees who are newly hired and permanent employees who are appointed to a new position due to promotion. Probationary employees shall be subject to a period of six months probation. This probation period may be extended in individual cases by the Department Head, with the approval of the City Manager. No probationary period may be extended more than six months. The work and conduct of probationary employees will be subject to close scrutiny and evaluation. The probationary period shall be considered to be a working test period during which an employee is required to demonstrate his fitness for the position to which he is appointed by actual performance of the duties of the position. An employee shall be retained beyond the end of the probationary period only if the appropriate Department Head affirms that the services of the employee have been found to be satisfactory. An employee dismissed during the probation period from a position to which he had been promoted and who had previously held regular status shall be restored to the position from which he had been promoted unless the employee is dismissed from City service for cause pursuant to this Chapter. -2- FORMS7/01/mpb ORDINANCF NO. 608 2.52.510. Causes For Discipline. A. Employees may be admonished, reprimanded, suspended, demoted or discharged for each of the following causes of discipline: 1. Absence without leave; 2. Use of sick leave in a manner not authorized or provided for pursuant to 2.52.340 or other policies of the City; 3. Omission or willful misrepresentation of a material fact or other fraud in securing appointment; 4. Incompetence; 5. Inefficiency; 6. Malfeasance; 7. Misconduct; 8. Insubordination; 9. Dishonesty; 10. Mishandling of public funds; 11. Falsifying of city records; 12. Unauthorized use and misuse or negligence in the use of city tools, equipment or property; 13. Improper use of controlled substances while on duty or by off -duty use of controlled substances resulting in drunkenness on duty, and/or incapacitation that hinders performance while on duty. The term "controlled substances" shall be as -3- FORMS7/01/mpb ORDTNANCF. NO. 608 defined i:. Division 10 (commencing with Section 11000 or as revised) of the California Health and Safety Code, and shall also mean alcohol; 14. Willful disobedience; 15. Unapproved outside employment, activity, or enterprise which is in violation of 2.52.470 or the City Manager's policy; 16. Willful violation of these rules and regulations, set out in this chapter, administrative regulations, or any departmental rules and regulations; 17. Any conduct which impairs, disrupts or causes discredit to the employee's employment or to the public service. B. Malfeasance and misconduct shall be deemed to include, for the purposes of this section, but shall not be limited to the following acts or commissions: 1. Conviction of a felony. "Conviction" shall be construed to be a determination of guilt by a court of the accused regardless of sentence, grant of probation, or otherwise. 2. The damaging of public property or the waste of public supplies through negligence or willful misconduct. 2.52.520. Types of Discipline. -4- FORMS7/01/mpb ORDINANCE. NO. 608 A. Administrative Leave With Pay. The City Manager or his designated representative may immediately suspend an employee with pay by placing him on administrative leave with pay. 1. Immediate suspension with pay is authorized when the employee's continued presence at the work site could have detrimental consequences. 2. Administrative leave with pay is also authorized, pending investigation into charges of misconduct on the part of the employee. 3. If the charges against the employee are substantiated by the investigation, appropriate disciplinary action may be taken in accordance with the procedures set forth in this chapter. B. Admonishment or Reprimand. Admonishment and reprimand represent the two mildest forms of disciplinary action and neither type results in the loss of pay for the employee. Based upon reasonable justification, the immediate Supervisor may admonish or reprimand an employee, orally or in writing, which constitutes only a warning to the employee that he is not satisfactorily fulfilling the duties and responsibilities of his position. If the admonishment or reprimand is written, a copy will be sent to the City Manager, and it shall become part of the employee's s•� FORMS7/01/mpb permanent record, and the employee may, within 30 days of receipt of the written reprimand, respond in writing to the City Manager to the charges made. The City Manager shall review the written reprimand and response and may sustain the employee's position. If the employee's position is sustained, the written reprimand and the employee's written response shall be purged from the employee's permanent record. If the employee's position is not sustained, the Employee's written response shall become part of the employee's permanent record. C. Suspension, Demotion, Reduction in Pay or Discharge. The City Manager, Assistant City Manager or the employee's Department Head may suspend, demote, reduce in pay or discharge an employee from his position for just cause. An employee subject to such disciplinary action shall be entitled to the prior written notice of the proposed action pursuant to 2.52.530(B) subject to the exceptions set forth in 2.52.530(B). The employee shall be entitled to respond orally or in writing, to the proposed disciplinary action and shall be entitled to a pre -disciplinary review pursuant to subsection C of Section 2.52.530. No employee shall be penalized by suspension for more than twenty working days in any fiscal year for disciplinary reasons. An employee whose ability to perform his -6- FORMS7/01/mpb ORDINANCE NO. 608 required duties falls below standard, or for disciplinary purposes, may be demoted or be subject to reduction in pay. No employee shall be demoted to a position for which he does not possess the minimum qualifications. 2.52.530. Procedure for Suspension, Demotion, Reduction in Pay, or Discharge. A. Applicability. The procedure in this section applies to permanent employees who may be subject to suspension, demotion, reduction in pay or discharge. These procedures do not apply to temporary employees or to employees during their initial probationary period after hire, reinstatement or re-employment. B. Notice. The authority imposing the discipline shall inform the permanent employee in writing of the proposed disciplinary action at least ten (10) working days before the effective date of the disciplinary action, except that the disciplinary action may be immediate if the City Manager determines that ten (10) days notice would be harmful to the best interests of the City and its citizens. The notice shall include a statement of the proposed action, the reasons for the action, a copy of the charges, if any, and a copy of the materials, if any, upon which the proposed action is based. The notice shall state that the employee has the -7- FORMS7/01/mpb OR.DTNANCF, NO. 608 right to respond, either orally or in writing, to the charges made, and shall state that the employee has the right to request a review within fifteen (15) working days of the employee's receipt of notice of the proposed disciplinary action. Unless the employee timely responds and requests a review, the proposed disciplinary action will be imposed on the date specified in the notice without a review. C. Pre -Disciplinary Review Request. Any permanent employee subject to suspension, demotion, reduction in pay or discharge, has the right, to request an informal review before the authority initially imposing the discipline in order to respond to a proposed suspension, demotion, reduction in pay, or discharge. The review request shall be in writing, subscribed by the employee, and filed with the authority initially imposing discipline and with the City Manager, within five (5) working days of the employee's receipt of notice of the proposed disciplinary action. D. Pre -Discipline Review. Within five (5) working days after receipt of the employee's request for a pre -disciplinary review, the authority initially imposing discipline shall send notice, in writing, of the date, time and place of the pre -disciplinary review to the employee, and to all interested persons or officers named or affected by the filing of the review -8- FORMS7/01/mpb ORDINANCE NO. 608 request, and shall conduct such review within fourteen (14) days of the filing of the request. The review will be closed to the public. Continuances of times set for the review are not favored by the City and will be granted only upon showing of good cause. The following procedures shall be followed at the review: 1. The employee shall appear personally, unless physically unable to do so, at the time and place of the review. 2. The employee may be represented by any person, attorney or a representative of the Palm Desert employees organization, retained at the employees own expense and may select and produce on his behalf relevant, oral or documentary evidence. 3. Witness testimony shall be permitted. 4. Prior to the review, the City shall provide the employee with access to the employee's personnel files, in the presence of the Director of Human Resources, if such access is requested in writing by the employee. 5. The authority initially imposing the discipline shall chair the review and shall at the conclusion of the review issue findings and a decision based upon the written statement of charges, upon the employee's written rebuttal, if -9- FORMS7/01/mpb (ORDINANCE NO. 608 any, and upon the information presented at the review. The Chair may conduct further investigation during the review provided that the employee is given an opportunity to respond to the additional information, gained as a result of the investigation, before the Chair reaches a decision. The Chair may affirm or modify the proposed action by decreasing the severity of the action proposed, or may reverse the action proposed. The City shall have the burden of proof at the pre -disciplinary review and shall be required to prove the charges against the employee by a preponderance of the evidence. If the findings and decision are to impose discipline, the disciplinary action shall be imposed at the time specified in a written notice to the employee following the review. A copy of the final decision shall be sent to the City Manager. The decision shall be final and conclusive in the absence of either an appeal to the City Manager, initiated in the time and manner hereinafter provided, or upon the City Manager's notice to the employee that the City Manager will review the decision. -10- FORMS7/01/mpb ORDINANCE NO. 608 2.52.540. Appeal to City Manager. If an employee, who has had a pre -disciplinary review and decision not before the City Manager, wishes to appeal the decision further, he must file with and request a review before the City Manager within fourteen (14) days of receipt of the pre -disciplinary review decision. Upon receipt of such request, the City Manager shall review only the documents provided at the informal pre -disciplinary review, including copies of the charges made, copies of any written evidence presented, any written findings and decision, and any documents from the employee's personnel file if relevant. If the City Manager conducts further investigation, hears additional testimony from the employee, or reviews additional evidence not provided at the pre -disciplinary review, such information, testimony or evidence shall be provided to the pre -disciplinary review officer and to the employee, which persons shall be given an opportunity to respond to the additional information, before the City Manager reaches a decision. The City Manager shall notify the employee in writing of his final determination within fourteen (14) days of the employee's request for review of the discipline imposed. The City manager may affirm, decrease or reverse the discipline imposed. The City Manager's decision shall be final and conclusive in the absence of a timely petition to arbitrate -11- FORMS7/01/mpb ORDINANCE NO. 608 initiated by a qualified employee in the time and manner as provided in Section 2.52.550. 2.52.550 Appeal by Arbitration. A. Petition for Arbitration by Qualified Employee. Any permanent employee subject to discipline who has received a pre -disciplinary hearing, a City Manager review, if appropriate, and who has had the following discipline imposed: 1) suspension of 5 days or more without pay; 2) demotion; or 3) reduction of pay of 5 days or more; or 4) discharge; who wishes to appeal a disciplinary decision further, must submit the disciplinary action for review by an arbitrator. The arbitrator's decision shall constitute the final and binding decision of the City. Such submission may occur by filing a petition for arbitration within twenty (20) days after the employee's receipt of the City Manager's notification of decision. Failure to petition for arbitration within twenty (20) days will conclusively be deemed a waiver of the right to arbitrate. The Arbitrator's decision will be final and binding on both parties. -12- FORMS7/01/mpb ORDINANCE NO. 608 B. Statement of Issue. Within five (5) working days after the City receives the petition for arbitration, the parties or their representatives shall meet to prepare a joint written demand for arbitration which shall contain the issues or nature of dispute to be arbitrated. In the event the parties are unable to agree upon the issue, or issues to be arbitrated, or the nature of the dispute, each party will prepare its own statement of the issue, or issues, or a statement of the nature of dispute and shall submit their statements to the selected arbitrator. The selected arbitrator shall, at the beginning of the hearing referred to below, state his/her opinion as to what are the issue, issues, or nature of dispute. C. Selecting the Arbitrator. Within five (5) working days after the City receives the petition for arbitration the parties shall contact the American Arbitration Association, or the State Mediation and Conciliations Service to request arbitration. The parties shall also request copies of the current Rules of the American Arbitration Association. The Arbitrator shall be appointed pursuant to the American Arbitration Association Rules. Said rules shall be on file with the City Clerk. -13- FORMS7/01/mpb ORDINANCE NO. 60S D. Arbitration Rules and Procedures. The rules and procedures of the arbitration shall be those current Rules of the American Arbitration Association on file with the City Clerk. E. Costs. The fees of the Arbitrator and the American Arbitration Association administrative fee will be borne by the employee and the City as follows: The employee shall be responsible for a portion of the total cost of arbitration unless the discipline imposed is reversed by the Arbitrator or the discipline imposed is withdrawn by the City prior to the Arbitrator's final decision. The employee's share of the total cost of arbitration shall be equal to thirty percent (30%) of the employee's net pay for eighty (80) hours of work. The City shall pay the remaining costs of arbitration. The Arbitrator may require a fee deposit to arbitration, which the City shall pay. Each party shall bear its own witness, court reporter and attorney fees. If other employees are required to serve as witnesses in the Arbitration hearing, those employees will be allowed time off with pay. 2.52.560. Civil Action. Pursuant to Code of Civil Procedure Section 1094.6, no action shall be brought in 1 -14- FORMS7/01/mpb ORDINANCE NO. 608 Superior Court to challenge any City action with respect to discipline of employees more than ninety (90) days after the employee has obtained a final, non -appealable disciplinary decision. SECTION 2. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert and the same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this 28th day of June , 1990, by the following vote, to wit: AYES: BENSON, KELLY, SNYDER, CRITES NOES: NONE ABSENT: WILSON ABSTAIN:NONE ATTEST: SHEILA R. City of Pa BUFORD CRITES, Mayor City of Palm Desert, Cali ornia IL GAN, CiPF Clerk Desert, ifornia -15-