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COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
ARTICLE I - GENERAL PROVISIONS
1. Introduction
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 1 of 9
DATED: 4/ 9/ 02
Under State law, it is the responsibilityof the City to make determinationsrelating to disability retirement applications for its employeeswho are safety membersof the Public Employees' Retirement System ( PERS) and relating to reinstatement of such retirees.
As authorized by Government Code Section 21173, the City Council of the City has, with its Resolution No. 7142, delegatedits responsibilitiesto its City Manager.
The following procedureshavebeenestablishedby the City pursuantto that Resolution.
2. Filing of Application
A. Application for Disability Retirement by Safety Employee A safety employee may file an Application for Disability Retirement with the Human Resources Department by following the Safety Officer Disability Retirement Applications Instruction to Employees (see Attachment A). The applicant must filly complete the following two applications forms, andattach any supporting documentation, in order for action to betaken by the City. 1) The PERS Application for Retirement ( PERS- BSD- 369- D) form ( Attachment B). The employee shall sendthe original to PERS at the indicated PERS addressin Sacramento, andfile a copy of the completed form with the Human Resources Director. 2) The applicant must also complete the City of Chula Vista Application for Disability Retirement Safety Member ( HR -238) ( Attachment C), and file it with the Human Resources Director.
B. Application for Reinstatementby a Safety Disability Retiree Pursuant to Government Code Section 21196, an employee previously retired from service with the City due to a disability may apply for reinstatementon the basisthat he/sheis no longer incapacitated.
An Application for Reinstatement must be made in writing and shall include all facts and circumstances forming the basis for his/her application for reinstatement. This request shall be submitted to the Human Resources Director.
COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 2 of 9
DATED: 4/ 9/ 02
All notices given or required in connection with a disability retirement determination pursuantto these proceduresshallbein writing andmaybegivenby personaldeliveryor mail. Noticessentby mailto City shall be addressed as follows:
Director of Human Resources
RE: Disability Retirement
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Notice shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notice shallbe deemedgiven at the time of actual delivery.
Acknowledgement of Application by the City
Within fifteen (15) calendardaysof receiptby the HumanResourcesDirector of the duly completed applicationswith supportingdocumentation, a notice (AttachmentD) shallbe sentby the City to the employeeor retiree andthe representativedesignatedin his/her application (if any) acknowledging receipt of the application, and transmitting to the applicant and his/her representative, a copy of these rules and procedures.
5. Human Resources Director' s Recommendation
The Human Resources Director may initiate a recommendation to the City Manager as to whether certification be submitted to PERS that an employee be retired for disability, or a disability retiree be reinstated. The Human ResourcesDirector shall submit to the City Manager a written report setting forth the facts and circumstances forming the basis for the recommendation. A copy of such recommendation and these procedures shall be sent to the employee or retiree.
6. Investigation and Proposed Disposition
A. The Human ResourcesDirector and such other officials, employeesand/or agentsof the City as may be designated, shall have the authority and duty to investigate the facts and circumstances pertaining to the employee' s or retiree' s application or the Human Resources Director' s wndation. Such fact fording may include ordering the employee or retiree to submit to medical rp* nsychiatricexaminations, securing by subpoena duces tecum or otherwise, medical and other re. mrtc rennrdq and dnrnmentation for review and takino ctatementc by denncitinn or ntherwige of the LJ
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COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
employee, retiree, and/ or other persons.
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 3 of 9
DATED: 4/ 9/ 02
B. The Human Resources Director or designee shall thereafter, based upon the investigation, submit a proposed disposition of the application or Human Resources Director' s recommendation pursuant to paragraph 5, to the City Manager. The City Manager shall send a notice of the proposed disposition to the employee or retiree with copies to the designatedrepresentativeif any (Attachment E).
This notice shall indicate the proposed disposition and that the City shall certify such disposition to PERS unless an objection is filed with the office of the City Manager by the applicant prior to the expiration of fifteen ( 15) calendar days from the date of service of the notice.
7. Final Disposition of Application or Recommendation in Absence of Objection( s) If no objection is received within the fifteen ( 15) calendar days from the date of service, the City Manager shall certify the proposed disposition to PERS ( Attachment F).
8. Informal Conference if Objection( s) are Filed
A. If a timely objection is received (within the fifteen ( 15) calendar days), the Human Resources Director or his/her designeeshall schedulea conferencein no lessthan ten ( 10) and more than twenty 20) calendar days. Written notification of the conference shall be made to employee or retiree, and their designated representative, if any, and such other involved personnel or agents as he/she deems appropriate ( Attachment G). Such notice shall be given at least ten ( 10) calendar days prior to such conference. The Human Resources Director or his/ her designee shall preside over the conference.
B. The purpose of the conferenceshall be to afford the parties an opportunity to reachagreement asto final disposition of the matter, and if no such agreementis reached, to ascertainif any parties in interest request a hearing on the application or recommendation and, if so, to frame issues, enter into stipulations, and discuss dates for the commencement of the baring. The parties will endeavor to set a hearingno later than ninety (90) calendar days (if there is no rehabilitation evaluation pending), or one hundredeighty ( 180) calendardays (if the employee is beingevaluated for rehabilitation), from the date of said conference.
9. Hearing Request
A. If after an informal conference a settlement or final disposition was not reached and a hearing waa not renne. Ctrd either mrfv may rennect a hearino by aivinu notice in writino to the nther nnrfv
COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
within twenty ( 20) days from the informal conference.
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 4 of 9
DATED: 4/ 9/02
B. The City shall attempt to schedulea hearing within the time periods provided in paragraph 8.13 of Article I.
10. Waiver
The City and employee/retiree may enter into a written agreementwaiving any of the procedures and/ or time limits established in Articles I through III, and stipulate to a different process, if the employee/retiree signsan acknowledgment of the rights being waived by such an agreement.
ARTICLE II - APPEAL OF INITIAL DISABILITY DETERMINATION Initial Determination
Appeals of the City's initial determination of incapacity of the employeepursuant to Government Code Section21156 shall be conductedpursuantto GovernmentCode Section 11500et. seq. and this Article II.
2. Role of Administrative Law Judge
The Administrative Law Judge (hereinafter ALJ) shall preside over the hearing, and shall rule on pre - hearing motions, discovery issuesand on evidentiary and procedural issues. The ALJ shallbe the final decision maker.
Burden of Proof
If the hearing concerns the disability retirement application initiated by the employee, then the employee shall proceed first and shall have the burden of proof. If the hearing concerns the recommendation initiated by the Human Resources Officer then the City shall proceed first and shall have the burden of proof.
4. Costs
The parties shall bear all costs incurred by each such party, including the costs of their witnesses and 9epresentatives, and the costs of a transcript of the hearing ordered by such parry; and shall share uallythe mutuallyincurredcostsof thehearing, includingthe chargesof the court reporteror other n
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COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
l:13lma1) M133119
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 5 of 9
DATED: 4/ 9/ 02
5. Filing and Service of Medical Reports and Documentary Evidence A. No later than fourteen to twenty-one ( 14-21) calendar days before the scheduled commencementof the hearing, each party shall file with the City Manager, and serve on the other party, any and all medical reports and records and other documentary evidence to be relied upon in the presentation of their case. Unless good causeis shown, any document, report of record which is not filed and servedas herein provided shall be inadmissibleat hearing, and no testimony upon which such report, document or record is basedmay be admitted into evidenceat the hearing.
B. Either party may serve a written request for discovery upon the other party. A party is entitled to: ( 1) obtain the namesand addressesof witnessesto the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect andmake a copy of any of the following in the possessionor custody or under the control of the other party:
1) A statementpertaining to the subject matter of the proceeding made by any party to another party or person;
2) Statementsof witnessesthen proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included above;
3) All writings, including, but not limited to, reports of mental, physical and blood examinations andthings which the party then proposesto offer in evidence; 4) Any other writing or thing which is relevant andwhich would be admissiblein evidence; 5) Investigative reports madeby or on behalf of the agencyor other party pertaining to the subject matter of the proceeding, to the extent that such reports ( a) contain the names and addresses of witnessesor of persons having personalknowledge of the acts, omissionsor eventswhich are the basis for the proceedings, or ( b) reflect matters perceived by the investigator in the course of his investigation, or ( c) contain or include by attachment any statement or writing described in 1) to 5), inclusive, or summary thereof.
For the purpose of this section, " statements" include written statements by the person, signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof; of oral statements by the person, and written reports or summaries of such oral
COUNCIL POLICY
CITY OF CIIULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 6o 9
DATED: 4/ 9/02
Nothing in this sectionshallauthorizethe inspectionor copyingof any writing or thing, which is privilegedfromdisclosurebylawor otherwise, madeconfidentialor protectedastheattorney'swork product.
C. If a party refuses to comply with a discovery request, the procedures contained in Government Code Section 11507.7, petitioning a court to compel discovery, shall apply.
6. Hearing Continuances
Scheduledhearingdates may be continued by order of the ALJ pursuant to stipulation of the parties or pursuant to written motion of one of the parties approved by the ALJ. A copy of such written motion must be served on the other party. A continuance may be granted for good cause shown. A Fontmuance shall be granted and all proceedings stayed if it is shown that the retiree: ( a) has failed to isclosefilly to the City the nature, type or character of the disability upon which his/her application is based; or ( b) has failed to disclose the name and address of the physician or other practitioner, or facilities by whom or at which he/she was examined, treated, or evaluated for any condition upon which a claim for disability is or may be based; (c) has failed to participate in or complete any examination or examinationsby a healthpractitioner selectedby the City. In such case, all proceedings shall be stayed until the retiree has made fiill disclosure with respect to ( a) and ( b) above, and has cooperatedin completing any medical examinationsor evaluationsscheduledby the City.
Stipulated Settlement
A. At any time in the proceedings the parties may enter into stipulations and recommend to the ALJ a final disposition regarding the retirement, rehabilitation, and/or employment statusof the retiree.
B. The ALL may accept, modify or reject the stipulated settlement. If the stipulated settlementis rejected or modified, the retiree shall have the right to proceed with a hearing.
8. Subpoenas
A. Any subpoenasshall beissuedby the ALJ.
B. The parties may avail themselves of the subpoena process to ensure the availability of witnesses. Any applicable costs, fees and expensespursuant to Government Code Sections 68097.1. 1t. seqshallbepaidperSection4, Costs.
COUNCIL POLICY
CITY OF CHULA VISTA
Disability Retirement - Safety Employees
ADOPTED BY: 2002- 105
AMENDED BY:
9. Conduct of Hearing
POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 7 of 9
DATED: 4/ 9/ 02
A. The conduct of the hearing shall be under the direction of an Administrative Law Judge. The City shall retain the services of an Administrative Law Judge ( ALJ) from the State Office of Administrative Hearings.
B. The proceedingsat the hearingshall be recorded by a certified shorthandreporter.
C. The City shall prepare and serve a statement of issues on the retiree or designated representative, if any, thirty (30) daysprior to the hearing. Theissueswhichmaybeconsideredat the hearing, by stipulation and/or the presentationof evidence, may include:
1) Disability - Is the retiree substantially incapacitatedat the presenttime from the performance of the duties of the position held when he or she was retired for disability, or the position in the same classification, and for the duties of the position with regard to which he or she has applied for reinstatement from disability retirement?
2) If the retiree is found to be disabled due to mental disorder, is he/ she competent to act on his/her behalf in legally binding retirement matters?
3) Should the retiree be certified to PERS for reinstatement? 4) Is the retiree' s age at the date of application for reinstatement at least six months less than the age of compulsory retirement for service applicable to the class or category in which it is proposed to employ the retiree?
D. If the hearing concernsthe application of a retiree, then the retiree shallproceed first, and then shall have the burden of proof. If the hearing concerns a recommendation of the Human Resources Director pursuant to Article I, Paragraph5, then the City shallproceed first, and shall have the burden of proof.
E. The hearing shall not be bound by technical rules of evidence; the normal rules applicable to administrative proceedings shall apply.
F. Each party has the right to be represented, to present relevant evidence, to examine and cross- examine witnesses, and to object to, rebut and argue the probative value of such evidence.
G. The hearing shall continue from day-to- day until the proceedingsare concluded or continued to
COUNCIL POLICY
CITY OF CHULA VISTA
CT: Disability Retirement - Safety Employees POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 8 of 9
ADOPTED BY: 2002- 105 DATED: 4/ 9/ 02
AMENDED BY:
H. The ALJ may hold the record open, at his/her discretion, for the submission of briefs and/ or the assignment of an independent medical examiner ( IME).
1) Such IME will be firmished all documentary evidencepresented; will examinethe retiree at the expenseof the City, and shall report in writing to the City Manager or designee. The ALJ will serve said report upon all parties within fifteen ( 15) calendar days of receipt, and all parties shall have ten 10) calendardaystherefrom to respond in writing to such report. 2) Any party may request cross-examination by deposition of the IME within ten ( 10) calendar days of serviceat suchparty's expensefor the doctor's fee andcost of a court reporter only. The court reporter shall transmit the record directly to the ALJ presiding at the hearing with copies to be sent to a requesting party at that party' s expense-
00. Findings and Conclusions
The ALJ shall issue written findings and final decisions.
The ALJ who presided at the hearing, shall direct that Certification of Disposition to PERS Attachment F) be made accordingly to PERS of the City's final determination of the application or recommendation based on such findings and conclusions, with copies of such certification and the Report of Findings and Conclusions (Attachment ID to the parties and their representatives, if any.
Within sixty (60) calendar days of the closing of the record, the ALJ or designee, who presided at the hearing, shall provide the parties in interest and their representativeswith said written findings of fact and conclusions.
The ALJ shall be responsible to serve copies to the retiree and the City.
A. Reconsideration
Any partymaymovefor reconsiderationof thedecisionof theALJ who presidedat thehearing, within thirty ( 30) daysafter service of such decision. The ALJ, who presided at the hearing, shallact on said reconsideration request within thirty ( 30) days of receiving it. If no action is taken within said thirty 30) day period, the reconsiderationrequestis deemeddenied. 4t.
Appeal
COUNCIL POLICY
CITY OF CHULA VISTA
SUBJECT: Disability Retirement - Safety Employees POLICY EFFECTIVE
NUMBER DATE PAGE
662- 08 4/ 9/ 02 9 of 9
ADOPTED BY: 2002- 105 DATED: 4/ 9/ 02
AMENDED BY:
An aggrieved party may seek judicial review of the final hearing determination pursuant to the procedures in Code of Civil Procedure Section 1094. 6.
ARTICLE III - APPEALS OF REINSTATEMENT DETERMINATIONS
1. Reinstatement
An appeal by the City or retiree concerning the retiree's application for reinstatement from disability retirement or the City's order of reinstatementshall be governedby this Article 11, paragraphs 1-10.