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Home My WebLink About1996 Ordinance No. 019• • • ORDINANCE NO . /i SERIES OF 1996 BY AUTHORITY COUNCIL BILL NO. 21 INTRODUCED BY COUNCIL MEMBER WIGGINS AN ORDINANCE AMENDING TITLE 3, CHAPTER lN, SECTION 9, OF THE ENGi EWOOD MUNICIPAL CODE 1985 CONCERNING DISCIPLINARY APPE .\LS. WH.c'REAS , the Englewood City Counci l placed on the general election ballot of Novembe,· 7, 1995, a propooed Englewood Home Rule Charter Amendm ent which modified t.\e Englewood Career Service System ; and WHERE.IS, the City, the En glewood Employees Association, the En glewood Firefighter., Association and the Englewood Police Benefit Associatiao wo rked together in proposing language to change the Englewood Home Rule Charter regarding the Career Service System; and WHEREAS , the voters appr<l\'ed the Charter Am endment; and WHEREAS, this change repealed the duties and pow eni of the Career Sen-ice Board and provided that in matters of disciplinary appeals the City Council will nppoint bearing officers Lo hold hearings and make findings and determinations; and WHEREAS , the Englewood Home Ru!,, Charter Section 138:3 (b) requires that appropriate ordinances be enacted goven.1rtg the standards and proc~Jures with respect to such appeals , the hearings to b, conducted and the standards to be applied by the appointed hearing officer and any ap plicable Court review of such decisions; NO\U, THEREFORE, BE IT ORDAINED BY THE CITY COUNC IL OF THE r:ITY OF ENGLEWOOD, COLORADO , AS FOLLOWS : ~-The City Council of the City of Englewor:I, Colorado hereby a pproves amending Title 3, Chapter J.N, Section 9 of the En 6lewood Municipal Cod e to read as foll ows : 3-lN-9: DISCIPLINARY APPEALS: A. Subject Maner of Anneal-A full .tim e , perm anent, classified employee may appeal to~A HEARING OFFICER to review.,;,, A disciplinary suspentlon, disciplinary dem otion or disciplinary di scharge. The B&&NI HEARING OFFICER ,hall hea r the employee 's discipl inary appeal with respect to only whether fl t!t THE su spensinn, demotion , ('I r di scharge was for cause which relates co the pe rformance of duties, personal conduct , or a.ny other factor detrime ntal to the City and/or any other just and reasonable cause . -!- B. Agpea) Proc;educea -• l . Notice of Adverse Action. Concurrently, or in advance of action to suspend, de mote or dismiss ••n e mployee, an appointing authority shall notify an employee of the action being taken , lhe ,...,...., fer lhe aetion •ied in saffieienl detail fer ande,slendinf, SPECIFYING THE OFFENSE($) IN SECTION 3-lM-4 WHICH IS (ARE} THE BASIS FOR DISCIPLINE, the employee's right of appeal, and the manner in which the appe-u may be initiated. Failure of the appointing a uthority to give timely notice shall have the effect of de laying the action until prope r notice is gi ven but shall not invalidate the action . 2. Time Limit for Appeal . The appeal by an employee shall be made within seven (7) working days after receipt of the notice of adverse action or of the occurrence of the event giving rise to the appeal , 3. Method of Filing Appeal. Appeal shall be made by filing • written request for a h earing. Such request shall be filed with the~ Semee l:\e a,d oe ereta~ CITY CLERK within the prescribed time lim it. C. APPOINTMENT OF HEARING OFFICERS 1.. THE CITY COUNCIL S HALL APPOINT A PANEL OF QUALIFIED HEARING OFFICERS TO HEAR DISCIPLINARY APPEALS AND • MERIT APPEALS UNDER THE CAREE R SERVICE SYSTEM PURSUANT TO ARTICLE 138:3(a) OF THE CITY CHARTER. 2. Q UALIFICATIONS OF HEARING OFFICERS. IIBARING OFFICERS SHALL HAVE DEMONSTRABLE ABILITY IN LABOR AND EMPLOYEE RELATIONS MATTERS AND SHALL HAVE EXPERIENCE IN HOLDING HEARINGS AND MAKING FINDINGS ON EMPLOYEE RELATED ISSUES. IT IS PREFERRED THAT THE HEARING OFFICERS HAYE A LAW DEGREE AND BE ADMITTED TO PRACTICE LAW IN COLORADO O R ANOTHER STATE. PERSONS WHO ARE ON THE APPROVED UST OF LABOR ARBITRATORS FOR THE AMI,'RICAN ARBITRATION ASSO CIATION OR MEMBERS OF THE KATIONAL ACADEMY OF ARBITRATORS ARE PRESUMPTIVF.LY Q UALIFIED FOR APPOINTMENT . 3 . THE COUNCIL SHALL APPOINT AT LEAST THREE (3) HEARING OFFICERS TO THE APPROVED PANEL OF HEARING OFFICERS. THESE APP OINTMENTS SHALL BE FOR A PERIOD OF ONE YEAR WITH THE RIGHT TO BE REAPPOINTED BY THE COUNCIL ON AN ANNUAL BASIS . • -2- • • • 4. WHEN REQUEST FOR ,. HEARING BEFORE A HEARING OFFICER !N CONNECT!v:-1 WITH A DISCIPLlNARY APPEAL IS FILED WITH THE CITY CLERK, THE CITY CLERK SHALL IMMEDIATELY NOTIFY THE CITY COUNCIL AND THE COUNCIL SHALL APPOINT A HEARING OFFICER FROM ITS PANEL TO HEAR THE ~PPEAL IN QUESTION. D. !'EARING PROCEDURES . +, I. Scheduling of Appeals. The Betmi-er Hearing Officer shall sc h edule appe,,l,t A HEARING ~fere 11,ein within thirty (30) days AFTER NOTIFICATION THAT HE/SHE IS APPOINTED AS HEARING OFFICER, unless a !roger time is agreed to by the parties, giving due consideration to the availability of Board 111emhe,s •• THE Hearing Officer. the availability of the parties, the complexities of the specific case~e werklead el lhe Beard:. The-BeeNl ,er-Hearing Officer sh all issue it,, A deci sion within twenty (20 ) day, of the concl u sion of the hearing. o. 2. Postponements. Postponements may be granted only for good cause. 6. Scheduling of cases will initially attempt to accommod ate the n..-ds of both parties in arranging their schedules and making adequate preparation. Postponement beyond the scheduled date will on ly ii<-in recognition of unforeseen li.Ild unavoidable circu.mstancos 3. Subpoenas. Subpoenas for attendance at hearings may be iss~·.t-J Ut · \ request of the parties. The request for a subpoena must contain the names and addresses of those to be subpoenaed and the reason for the n ecessity of such a subpoena. Requests for subpoenas and fo r production of any books, records or papers pertinent to the hearing shall be made to the-GtJ A,lmt,,;s!rae, e Se" iees offiee HEARING OFFICER at least~ FIFI'EEN (15) days prior to the hearing date and must be served at least~ FIVE (5) days prior to hearing. The Beet-ti ehairmM er Hearing Officer shall HA VE AUTHORITY TO issue subpoenas . The Municipal Court shall enfo rce su bpoen as by compelling· attendance . 4. Representation. Any party or person a ppealing te Ike Boarll shall have the right to be accompaniod, represented or ad,ised by an attorney OR REPRESENTATIVE . An y designated attorney OR REPRESENTATIVE should file a notice of representation with the CITY CLERK'S OFFICE as soo n as possible after being so designated, BUT NO LATER THAN FIFTEEN (15) DAYS BEFORE THE HEARING. 5. HEARINGS BEi'ORE THE. HEAR ING OFFICER SHALL BE CONDUCTt,D INFORMALLY. THE APPOINTING AUTHORITY SHALL HAVE THE BURDEN OF PRO OF BY A PREPONDERAN CE OF THE EVIDENCE . TO THE EXTENT PRACTICABLE , THE RULES OF EVIDENCE lN CML NON-JURY CASES SHALL BE FOLLOWED. HOWEVER. WHEN NECESSARY TO DO SO IN ORDER TO ASCERTAIN FACTS AFFECTING THE SUBSTANTIAL RIGHTS TO THE PARTIES TO THE -3- PROCEEDING, THE HEARING OFFICER MAY RECEIVE AND • CONSIDER EVIDENCE NOT ADMISSIBLE UNDER SUCH RULES IF SUCH EVIDENCE POSSESSES PROBATIVE VALUE COMMONLY ACCEPI'ED BY REASONABLE AND PRUDENT PERSONS IN THE CONDUCT OF THEIR AFFAIRS . 6. THE HEARING OFFICER SHALL HAVE TH'O: POWER TO : A . ADMINlSTER OATHS AND AFFIRMATIONS; B. ISSUE SUBPOENAS FOR ATTENDANCE AND COM PP.L THE PRODUCTION OF BOOKS, RECORDS AND PAPERS; C. RULE UPON OFFERS OF PROOF AND RECEIVE RELEVANT EVIDENCE; D. CALL AND QUESTION WITNESSES; E. REGULATE THE COURSE OF THE HEARING; F. HOLD CONFERENCES FOR THE SETTLEMENT OR SPdPLIFICATJON OF THE ISSUES BY CONSENT OF THE PARTIES; AND G. LISPOSE OF PROCEDURAL REQUESTS OR SIMILAR MATTERS . 1. EACH PARTY SHALL HAVE THE RIGHT TO PRESEtIT HIS/HER • CASE BY ORAL AND/OR DOCUMENTARY EVIDENCE, TO SUBMIT RF-BU'ITAL EVIDENCE, AND TO CONDUC'f SUGH CROSS-EXAMINATION AS MAY BE REQUIRED FOR A F'lJLL AND TRUE DISCLOSURE OF THE FACTS. NO EX PARTE MATERIAL OR REPRESENTATION OF ANY KIND S HALL BE RECEIVED OR CONSIDERED BY THE HEARING OFFICER. 8 . A HEARING MAY PROCEED IN THE ABSENCE OF T HE APPOINTING AUTHORITY . IF THE APPELLANT , AFTER DUE NOTICE, FAILS TO ilE PRESENT. OR PAILS TO OBTAIN AN ADJOURNMENT , AND WITHIN FIVE (5) DAYS DOW !WT PROVIDE GOOD CAUSE THEM"Olt TO THE HEARI1,G OFFICER, THE APPOINTING AU'l'nORITY'S ACTION SHALL BE PRESUMED TO BE VALID . 9. A PARTY WHO DOES NOT TESTIF'l IN HIS/HER OWN BEHALF MAY BE CALLED AND EXAMINED BY THE ADVERSE PARTY OR THE HEARING OFFI CER AS IF UNDER CROSS-EXAMINATIO N. JO . IF EITH'ER PARTY DESIRES A VERBATIM RECORD OF THE PROCEEDINGS, THEY MAY CAUSE SUCH A RECORD TO llE MADE, PROVIDED THEY PAY FOR THE RECORD AND MAKE A COPY AVAILABLE TO THE HEARING OFFICER. IF l'HE OTHER PARTY WISH'ES TO HAVE A COPY OF THE TRANSCRIPT THEY • SHALL SHARE ALL COSTS FOR THE TRANSCRIPT. -4- • • • 11 . THE HEARING OFFICER'S DECISION SHALL BE SERVED ON ElACH PARTY BY PERSO AL SERVICE OR BY MAILING BY FIRST CLASS MAIL TO THE LA..'l'I' ADDRESS FURNISHED THE HEARING OFFICER BY SUCH PARTY AND SHALL BE EFFECTIVE AS TO SUCH PARTY ON THE DATE MAILE!: OR SUCH LATER DATE AS IS STATED IN THE DECISION . E. STA NDARDS TO BE APPLIED BY HEARIN G OFFICER THE HEARING OFFICER SHALL MAKE DETAILED WRITTEN FINDINGS OF FACT . IF THE FINDINGS OF FACT DEMONSTRATE THAT AliY OF THE OFFENSE($) SPECIFIED IN SECTION 3-!M-4 WHICH ARE STATED IN THE NOTICE OF ADVERSE ACTION ARE P RESENT , THE HF.ARING OFFICER IS WITHOUT AUTHORITY TO REVERSE OR MO DrFY THE DISCIPLINARY ACTION IMPOSED BY THE APPOINTI NG AUTHORITY AND SHALL ISS UE AN ORDER UPHOLDING THE ACTION OF THE APPOINTING AUTHORITY IF THE FINDIN GS OF FACT DEMONSTRATE THAT NONE OF THE OFFENSE(S ) SPECIFIED IN THE NOTICE OF ADVERSE ACTI ON ARE PRESENT. THE HEARING OFnCER SHALL HAVE AUTHORITY TO ISSUE AN ORDER SETTING ASIDE THE DIS CIPLINARY ACTIO N. THE HEARI NG OFFICER'S DECISIO N SHALL BE FINAL AND BINDI NG . F. ,nmICIAL REVIEW . THE HEARIN G OFFICER'S DECISION IS SUBJECT TO JUDICIAL REVIEW WHICH CAN BE SOUGHT BY EITHER THE EMPLOYEE OR THE CITY ON THE G.tWUND THAT THE FINDI NGS OF FACT WERE NOT SUPPORTED BY THE RECORD AS A WHOLE OR THAT THE HEARING OFFICER FAILED TO FOLLOW THE PROCEDURES HEREIN OR ACTED WITHOUT AUTHORITY AS SPECIFIED HEREIN. S!:mmJ.....2, Safety C!ause:s The City Council , hereby find s, determines, and declares that this Ordinance is pro mulgated under the general police power of the City of Englewood , that it is promu lgated for the health, safety, and welfare of the public, and that this Ordinance 1s necessary for the preserva tion of health and safety nnd for the protection of publi c convenience and welfare . The City Co uncil furthe r determines tbs the Ordinance bears a rational relation to the proper legislative obj ect sought co be obtained. ~. Severnbilitv If any clause , sentence, para graph, or part of this Ordinance or the application thereof to any person or ci rcum stances sh all for a n y reason be adj udged by a co urt of competent jurisdiction inv alid , such judgment shall not affect impair or invalidate the remninder of this Ordin ance or its application to other persons or circ umstances . ~. lnconsi st"'"Dt Ord inances All oth er Ordinances or portions thereof inconsistent or conflicting with this Ord inance or any portion hereof are hereby repeale d to th e extent of such inconsistency or conflict. -5- ~ Effnct of tePMl or modification The repeal or modification of any provision oflbe Code of the City of Englewood by thil Ordinance ahall not releaae, extmguiah, alw-, modify, or change in whole or in pert any penalty, forfeiture, or lia~ility, either civil or criminal, which shall have been incurred under such pro•~•ion, and each provision ahall be treated and held u lltill remaining in forc e for ,be purpoges of sustaining o.ny and all proper actions , IIUita , proceedings, and prosecui.i.:.011 for the enforcement of the penalty, forfeiture, or liability, as well as for the purpoee of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions , suits, proceedings, or prosecutions . Introduced, read in full, and p88sed on first reading on the 6th day of May, 1996. Published as a Bill for an Ordinance on the 9th day of MAI),, 1996 . Read by tiUe and passe.. on final reading on the 20th daynfMay, 1996. Published by tiUe as Ordirumce No/i, Series of 1996, on the 23rd day of May, 1996. Ad. Ob Loucrishia A. Ellis, City Cle rk I, Loucrishia A. Ellis, City Clerk of the City of Englewood. Colorado, hereby certify that the above aod foregoing is a true copy ,12{ the Ordinance passed on final r eading and published by title as Ordinance No .(.:/..., Series of 1996. ~dllb Loucrishia A. Elli s -6 - • • • COUNOL COMMUNICATION Date Agt!uc!a Item Subjed May 6, 1996 Council Bill for Ordinance Amending Title 3, Chapter lN, Section 9 of the 11 a ii Englewood Municipal Code 1985 Concerning Disciplinary Appeals Initiated By Staff Source Department of Administrative Services Randie L. Barthlome, Director o~ Administrative Services ·- • COUNOL GOAL AND PREVIOUS COUNCIL ACTION • In 1995, Council placed on the general election ballot a proposed Charter Amendment changing parts of the Englewood Career Service System. Voters approved the Charter Amendment and it became effective on November 7, 1995. This change repealed the duties and powers of the Career Service Board and provided that in matters of disciplinary appeals the City Council will appoint hearing officers to hold hearings and make findings and determinations. RECOMMENDED ACTION Section 13!!:3 (bl of the Charter requires that appropriate ordinances be enacted governing standards and procedures with respect to such appeals, 1e hearings to be conducted and the standards to be applied by th e appointed hearing officer and any applicable Court review of such decisions. BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED The Cit y and the three Associations (EEA , EFFA and EPB A) worked together in proposing lang uag e to change the Chart er of the City of Englewood regarding the Career Service System. Part of the change was to replace the system of having a Career Service Board wiU1 one that utilizes a hearing officer for matters of disciplin ary appeals. There is one area of disagreement between the City and the threP. Associations in the proposed ordinance -the limited right granted to the hearing officer to reverse or modify disciplinary actions as outlined in Section E of the proposed ordinance. Under the previous Charter language, in cases of disciplinary appeals the Career Service Board had the authority to determine whether there existed just cause for the discipline imposed and they could sustain, reverse, or modify any penalty imposed. In the new Charter language, that section was removed. The Associations want th e hearing officer to have the same right to sustain, reverse, or modiy as was granted to the Career Service Board. The City, on the other hand, can cite problems created in the past by that broad authority and is proposing that if the hearing officer finds that any of the grounds for discipline as specified in Section ~lM-4 of the Municipal Code are present as stated in the notice of adverse action to the employee, then the hearing off:cer cannot reverse or modify the dis ciplinary action . If causes are not present, then the hearing officer can modify or set aside the disciplinary action. The City has been granted the right under Section 137:2 (j) (vi) on page C34 of the Ch.irter "To suspend, discipline, disch arge, and demote for cause, all full-time permanent classified employees." FINANCIAL IMPACT The City pays the fee for the hearing officer. Under the previous system, the City pai • Career Service Board members and the attorney fo r the board. It is estimated that the hearing officer system will result in a savings for the City. With the Career Service Board system, a hearing that was extended for 12 hours over three evenings within a month, and in which all five board members and the attorney attended, would have cost $2,240 . With a hearing officer, it is estimated that th, •ime to hear a case will be less and that the fee for a day will be approximately $700. •