HomeMy WebLinkAboutApprove personnel commission procedure for review of non-dis (2) pm � J
Council/Agency Meeting Held: Ci3'Y 0
Deferred/Continued to:
Approved ' ❑ Conditionally Approved ❑ Denied • Ci erk' Sig re
Council Meeting Date: 6/5/2006 Departmen D Number.` ADCs 06-08
CITY OF HUNTINGTON BEACH
.REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND qTY COUNCIL MEMBERS
-'SUBMITTED BY: . PW-E-L0—P CULBRETH-GRA , CITY ADMINISTRATOR°
PREPARED BY: ROBERT HALL, DEPUTY CITY ADMINISTRATOR/CITY SERVICES
SUBJECT: APPROVAL OF PERSONNEL COMMISSION PROCEDURE FOR
REVIEW OF NON-DISCIPLINARY GRIEVANCES
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of issue: The Huntington Beach Municipal Code, Chapter 2,'Section 100.100,
provides that a Board or Commission may'adopt bylaws and rules as may be` necessary. or ,
convenient for the conduct of business, subject to approval of the City Council. .
Fundirlg Source: None
Recommended Action: Motion to:
e ,
Approve the Personnel Commission Procedure for Review of,Non=Disciplinary Grievances as .,
approved by the Personnel Commission:
Alternative.Action(s):
Do not approve the -Personnel Commission Procedure for Review of. Non-Disciplinary .
Grievances.
,
REQUEST FOR COUNCIL ACTION
MEETING.DATE:' 6/5/2006 DEPARTMENT ID NUMBER: ADCS 06'08 .
Anaiysis`:
Personnel Rule 19;, Grievance Procedure Non-Disciplinary Matters, provides at Step 5b.that .
--the Personnel Commission may agree to review .the matter directly: in lieu of a hearing
officer. .This,provision°applies to the following Huntington Beach bargaining units: `Municipal
Employe,es', ,Association (HBMEA), ' Management Employees' . .Organization_ (MEO'),
Firefighters' Association(HBFA), Fire Management Association (FMA) and the Marine Safety
Officers' Association (MSOA).
Historically, most City non-disciplinary grievance reviews have been submitted to a-Hearing
Officer. A non-disciplinary grievance review is'currently pending directly with the.Personnel
Commission 'in lieu of a- hearing officer. . However, there are no procedures in place
governing the Personnel Commission review of Non-Disciplinary Matter Grievances: At the
direction' of the. Commission,' legal counsel to the .Personnel. Commission prepared the .
.; attached procedure to be used when reviewing non-:disciplinary,grievances. The Personnel
Commission; 'at its regular scheduled .meeting on May 17, 2006, unanimously voted to
approve,the procedure and recommended its submission to the City Council for approval.
Human Resources staff and the City's Attorney ;Office- have reviewed the proposed
procedures and agree with the proposed process. These procedures have also been
distributed to all affected Huntington Beach bargaining units for ,review and comment..` 'To
date, no objections have been-received.-1 .
Environmental Status: None
Attachament(s)':
Descriptionllverkl Is
�., 1: Personnel Commission Procedure for .Review: of Non-Disci plinary
Grievances
P:\RCA\RCA 2006\RCA PC Proc for NonDisc Griev 6-5-06.doc-2- 5/22/2006,12:44 PM
�� ATTACHMENT .#l "
PERSONNEL COMMISSION PROCEDURE FOR REVIElIIi F
NON-DISCIPLINARY GRIEVANCES
Section 19-5 of the Personnel Rules of the City of Huntington Beach provides a
five step review procedure for the presentation of a non-disciplinary grievance.
The rule provides that any non-disciplinary grievance, which remains.unresolved
after the first four steps may be appealed to the Personnel Commission for a final
Step 5 review. Rule 19 states that the Commission's Step 5 review is to be a de.
novo 'hearing, meaning that the Commission is to hear all of the relevant factual
evidence and issues from each side, and to then reach its own findings and
conclusions independent of any of the determinations or decisions made at any
: of the prior Steps in the grievance process.
:Personnel Rule 1975, Step 5(b) provides that the Step 5 hearing is generally to
be conducted by a Hearing Officer. However, the procedure has been amended
by collective bargaining' so that all of the City's Memoranda of Understanding
now state that, "In lieu of the hearing officer process, the Personnel Commission
may agree to hear a' case directly upon submission of the case by mutual
consent of the parties."
Chair's Discretion Regarding Conduct of the Non-Disciplinar( Grievance Hearing:
In advance of a scheduled hearing before the Personnel Commission, the
Commission Chair shall review a summary of the non-disciplinary grievance as
submitted by both the Appellant and the City. Each summary shall be submitted
on the attached Personnel Commission summary form within ten*(10) days as
requested by the Secretary to the Personnel Commission on behalf of the
.Commission Chair and shall include' 1) the date of the grievance; 2) name(s) of
grievant(s); 3) statement of grievance; 4) personnel or department rule(s) or
regulation(s) in dispute 5) issue(s) ' to be presented to the Personnel
Commission; and, 6) remedy sought.
Based on the review of the Commission Chair and as may be consulted by legal
counsel to-the Personnel Commission, the Chair shall make the determination in
advance of a scheduled hearing on the following: 1) the need for a pre-hearing
conference and, 2),the order for submission of a written brief by both parties for, .
the Commission. Such determination shall be communicated to both parties by','.,
the'Secretary to the Personnel Commission or his/her designee.
In order to assure the fair and impartial hearing of any non-disciplinary grievance,
the Huntington Beach Personnel Commission shall observe the following...
procedures when it sits as the reviewing body at a Step 5 hearing of a non-
disciplinary grievance, in lieu of a hearing officer:
' Rule 21-13 provides that if any provision of the Rules is inconsistent with;or modified by a M
provision in a Memorandum of Agreement or Memorandum of Understanding,then the provision stated
.in the Memorandum is given precedent.
234120_doc Page I of 7
Adopted Persoimel Commission 5/17/06
A. Definition of Non-Disciplinary Grievance: Under Rule 19 a non-disciplinary
grievance is a dispute concerning the interpretation or application of any. ,
•provision of the City's Employer-Employee Relations Resolution, or any
provision of-this resolution, or ,any departmental rule governing personnel
practices or working conditions, with the exception of disciplinary matters or
matters which have,become subject to the impasse procedures provided in
the_Employer-Employee Relations Resolution (Authority: Personnel Rule:19- _
2).
B. Right to Representation: Each of the parties to the non-disciplinary grievance
are entitled to representation. Said representative shall assist their respective
party to prepare and .present their case to the Commission (Authority:
Personnel.Rule 21-1).
C. Reported Hearing: The hearing before the Commission shall be reported by a
certified court reporter, unless waived by both the Appellant and the City. The
cost of the court reporter shall be borne equally by the City and•the Appellant
(Authority: Personnel Rule 21-8).
D. Authority to Compel Attendance of Witnesses and Production of Documents'
The Personnel Commission has the power to issue subpoenas to compel the
attendance of witnesses at the hearing of the non-disciplinary grievance,
and/or to compel the production of documentary evidence at said hearing.-
The Personnel Commission also has the authority to issue oaths or
affirmations in conjunction with the non-disciplinary grievance hearing
(Authority: Personnel Rule 21-9).
E. Pre-hearing Conference and Exchange of Witness and Exhibit Lists: The. _
Chair of the Personnel Commission shall decide whether a pre-hearing
conference is appropriate. A pre-hearing conference shall be held no later
than fourteen (14) days prior to the hearing. The parties shall exchange
witness and exhibit lists not later than seven> days prior to the hearing and
likewise provide,a copy of said lists to the Secretary of the Commission:
Absent a showing of good cause, a party may not call a witness at the
hearing (other than as -a rebuttal witness) who has not been previously
identified on the offering party's witness list and exchanged with the other,
party (Authority: Disciplinary Grievance Procedure B-3).
F. Briefing' The Commission reserves the right to order briefing by the parties. .
If either party desires to file a brief there is no prohibition upon said filing,just
so long as all parties are served. If one party elects to file a brief without prior•' .
order or instruction from the Commission, all other parties to the hearing
process shall be given the opportunity to file and serve a brief on the same
issue.
23412OAoc Page 2 of 7
Adopted Personnel Commission 5/17/06
G. Closed Session: Hearings shall be held in closed session, unless the law
requires otherwise, however, the grieving employee will be given the option to,
request an open'hearing (Authority: Disciplinary Grievance Procedure B-2).
H. Hearing Procedures:
1. Rules of Evidence. The hearing is civil, not criminal, and the rules of
.,evidence shall apply in general terms, however, the strict rules of evidence
` shall not be applied unless mandated by statute, rule or regulation. The
hearing shall ' be , conducted in- a - manner most conducive to ' the,
determination of truth.
a. Any relevant evidence. is admissible if it is the type of evidence , ,
upon which responsible persons are accustomed to rely upon in the
conduct of serious affairs, regardless of any common law 'or
statutory rule which might make the admission of such evidence
improper.over an objection in a civil action.
b. Relevant evidence is any evidence having a tendency in reason to
prove or disprove a disputed fact which is of, consequence in the ' .
determination of the matter,_including the credibility of witnesses.
c. Hearsay is .admissible - only to supplement or explain other
evidence, but is not sufficient in itself to support a finding unless the
hearsay evidence :would: be admissible over.objection in a civil
action.
d. The rules defining evidentiary privileges shall be effective.to the .
same extent as they are recognized in civil actions.
e. Irrelevant,. cumulative and unduly repetitious evidence may be
excluded by the Chair.
f. The Chair of the Commission shall rule on the .admissibility or
inadmissibility of evidence, but is not strictly bound by the technical
rules of evidence, and may seek the assistance of the legal advisor* ,,
-in making such rulings.
2. Order of Presentation
The Chair of the Commission shall have the discretion to disallow:any ,
oral presentation and require both parties to submit written statements
in lieu of oral presentations. _
a. The Appellant shall first be permitted to make an opening
statement.
234120.doc . , page 3 of
Adopted Personnel Commission 5/17/06
b. The Respondent shall then be permitted to make an opening
statement, which may, however, be reserved until presentation of
its case in chief.
c. The Appellant shall. then present its case in chief as to why the
grievance should be granted. .The Respondent shall have the
opportunity to cross examine each of Appellant's witnesses
immediately after.Appellant concludes direct examination of the
witness. The Commission reserves the right to question each
appellant witness following direct and cross examination.
d. The Respondent shall then present its case in chief as to why the
grievance should be denied. The Appellant shall have the
opportunity to cross examine each of Respondent's witnesses
immediately after Respondent concludes direct examination of the
-witness. . The Commission reserves the right to question each
Respondent witness following direct and cross examination.
e..The parties may then proceed in the same order as they presented
evidence in their cases in chief if they elect to offer .rebuttal
evidence, and the accompanying cross examination of rebuttal
witnesses. The Commission reserves the right to question each
rebuttal witness following direct and cross examination..
f. The Appellant shall then give its closing argument.
g. The Respondent shall then present its closing argument.
h. The Appellant, since he or she has the burden of proof, is allotted a
short rebuttal argument.
3: Exhibits
a. The Appellant shall identify and mark its exhibits numerically. The
Respondent shall identify and mark its exhibits-alphabetically.
b. When an exhibit is admitted into evidence by the Chair of, the
Personnel Commission sitting as hearing officer, the exhibit will
then be distributed to the Commissioners. Therefore, each party.
shall have at least ten (10) copies of each exhibit it seeks to admit
into evidence,and present all ten (10) copies to the Secretary upon
admission of the exhibit into evidence (distribution of copies: seven
(7) to Commissioners, 1 to opposing side, 1 to legal advisor, and 1
to Secretary of the Personnel Commission). The Secretary shall
retain the Commission's original copy, and shall serve as the
Custodian of Records for the hearing.
2341120.aoc rage 4 of 7
Adopted Pffsomiel Comniission 5/17106
c. The Commission Secretary shall also keep a log of all exhibits
which identify the exhibit by name, exhibit number or letter, the date
it was identified and the date it was admitted into evidence. Said'
exhibit log shall be kept as part of the record of the hearing.
4. Testimonial Evidence
Oral evidence shall be taken only upon the testimony of witnesses who
have been properly sworn to testify truthfully under penalty ofperjury
upon their oath or affirmation.
5. Exclusion of Witnesses
During the examination of any-witness, other witnesses who have not
yet testified shall be excluded from the hearing during the presentation
of either side's_evidence, upon the motion of either party.
6. Burden of Proof
The burden of proof is upon the Appellant to show by a preponderance
of;,the evidence that the non-disciplinary grievance should be granted.
Failure to prove that there is sufficient evidence to grant the grievance
shall result in the grievance being denied.
7.. Deliberation
After the receipt of all evidence, and the arguments of each of the
parties, the Commission shall retire into executive session for the
purpose of deliberation, with only Commissioners and the legal advisor
to the Commission present. The Commissioners shall not discuss the
facts of the case nor deliberate in any manner prior to the conclusion of .
the evidentiary portion of the hearing and the final arguments of the
parties regarding their respective positions.
During deliberation the Commissioners shall discuss the evidence
presented at the hearing, and shall then determine the relevancy and
appropriate weight to ascribe to the evidence. The Commissioners
shall also determine the credibility of the witnesses who testified at the
hearing ..and the. appropriate weight to ascribe to the testimonial
evidence.
During deliberations the Commission shall determine whether, in light of
all of the evidence presented, the weight of the evidence results in a
finding, that there is reasonable and sufficient *cause to grant the
grievance. If the facts preponderate in favor of a finding that there is
' reasonable and sufficient cause to grant the grievance, then the
Commission shall determine that the grievance is granted. If, however,
234ixdoc Page 5.of 7
Adopted Persomiel Pommission 5/17/06
the factual evidence preponderates in favor of a finding that there is not
sufficient cause to grant the grievance, then the Commission's
conclusion shall be that the grievance is denied.
8. Announcement of Determination
After the Commission has deliberated and come to its determination,
the Chair shall reconvene the closed session hearing. The Chair shall
. then announce the determination of the Commission as either having
granted or denied the grievance. Whereupon the Secretary shall poll
each Commissioner on the record as to whether he or she concurs .
with the announced determination of the Commission.
9.1 Preparation"of the Written Findings
After the Commissioners have been polled, the Chair will then direct
the legal advisor to prepare written findings and conclusions leading to.
the Commission's determination of the non-disciplinary grievance, and
a date in the future when the Written Findings can be reviewed and,_
adopted by the Commission.
10. Service of the Written Findings
After adoption of the Written Findings the Secretary to the.-
Commission shall serve a copy of the findings on each of the parties
to the non-disciplinary grievance along with an appropriate notice that
the Commission's determination is the final administrative action
which can be taken on this grievance, and that any further redress
must be sought via the appropriate judicial proceeding.
234120.doc Page 6 of 7
Adopted Personnel Commission 5/17/06
City of Huntington Beach
Non-Disciplinary Grievance Summary Form
Names)of Grievant(s): Date Grievance Filed:
Department: Position(s):
Statement of Grievance:
Personnel Rule(s) or Regulation(s) in dispute under which this non-disciplinary grievance is based:
issue(s)to be'presented to the Personnel Commission:
Remedy Sought:
Summary Comments
Step One: Informal discussion/immediate supervisor(optional)
Comments:
Step Two,: Formal Procedure/Immediate Supervisor
r � .
Comments: .
Step Three: Department Head
Comments:
Step Four. City Administrator
Comments: '
Representative's Signature: Date:
Now .Attachments are not necessary nor is the summary intended to exceed this page.
234120.doc Page 7 of 7
' Adopted Personnel Commission 5/17/06
RCA ROUTING SHEET
INITIATING DEPARTMENT: ADMINISTRATION
SUBJECT:- APPROVAL OF PERSONNEL COMMISSION
PROCEDURE FOR REVIEW OF'
NON-DISCIPLINARY GRIEVANCES
COUNCIL MEETING DATE: .tune 5, 2006
-RCA;ATTAC H M E_NTS yd a
.S TATUS
:., .,,._� w v
Ordinance (w/exhibits & legislative draft if applicable) Attached El
Not Applicable ❑_
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable ❑
Tract Map, Location Map and/or other Exhibits Attached ❑
Not Applicable ❑
Contract/Agreement (w/exhibits if applicable)- Attached
(Signed in full by the City Attorney) Not Applicable ❑
Subleases, Third Party Agreements, etc: Attached ❑
(Approved as to form by City Attorney) Not Applicable . El
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not Applicable ❑
Fiscal impact Statement(Unbudget, over $5,000) Attached ❑
Not Applicable ❑
Bonds.(If applicable) Attached El
Not Applicable El
Staff Report (If applicable) Attached ❑
Not Applicable El
Commission, Board or Committee Report (If applicable) Attached ❑
Not Applicable ❑
Findings/Conditions for Approval and/or Denial Attached ❑
Not Applicable ❑ '
i. ... FIX NATI,. N,, QRMISSINGTT C T& .
REVIEWEDpu RETURNED FORWARDED;.
„ . ��
Administrative Staff ( )
Assistant City Administrator (Initial) ( ) ( )
City Administrator (Initial) { ) ( )
City'Clerk ( )
EXPLANATION FOR REj RN OF.ITEM: -
N. .r.
(Below • . - For City Clerk'sUse Only)
RCA Author: 1. Youssefieh