M. " Sibling", for purposesof theCFRAonly, meansaperson relatedto anotherpersonby blood, adoption, or affinity throughacommonlegalor biological parent. n. " Spouse"
1) " Spouse", for purposesof theFMLA only, meansahusband orwife. Forpurposesof thisdefinition, husbandorwiferefersto theotherpersonwith whoman individual enteredinto marriage asdefined or recognizedunder statelaw for purposesof marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of anyState, if themarriageisvalidin theplacewhereenteredintoandcouldhavebeenentered into in at least one State. This definition includes an individual in a same -sex or common law marriage that either: ( i) was entered into in a State that recognizes such marriages; or ( ii) if entered into outsideof anyState, is valid in theplacewhereenteredinto andcouldhavebeenenteredinto in at least one State.
2) " Spouse", for purposesof the CFRA only, means a partner in marriageasdefinedin Family CodeSection300or a domesticpartnerwithin the meaningof Family CodeSections297through297.5; andincludessame -sexpartnersin marriage. 63-
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reasons:
2. REASONS FOR LEAVE: Leave is only permitted for the following a. The birth of a child or to care for a newborn of an employee; b. Theplacementof a child with anemployeein connectionwith the adoption or foster care of a child;
C. Leave to care for a ehild, parent, spouse, of domestic family member who has a serious health condition; or
d. Leave because of a serious health condition that makes the employee unableto performthefunctionsof his/herposition.
For military caregiver leave.
f. For qualifying exigency leave.
3. EMPLOYEES ELIGIBLE FOR LEAVE: An employee is eligible for leave if the employee:
a. Has been employed for at least twelve ( 12) months; and b. Has been employed for at least one thousand two hundred fifty 1,250) hoursduringthetwelve (12) month periodimmediatelyprecedingthecommencementof the leave.
4. AMOUNT OF LEAVE: For FMLA/ CFRA leave, eligible employees are entitled to a total of twelve ( 12) work weeks of leave during any twelve ( 12) month period. For caregiverleave, eligibleemployeesmayrequestup toamaximumof 26weeksto carefor acovered servicememberwithin a single 12-month period.
a. The City usestwelve (12) monthsrolling backwardsfrom the date leave is requestedto commenceto calculate the twelve ( 12) month period. Any 0 familyleaveandmediealleavemaynotexeeedthismaximumtimitlnmostcircumstances, FMLA andCFRAleaverunconcurrently. WhereFMLA leavequalifiesasboth caregiverleaveandcare forafamilymemberwithaserioushealthcondition, theleavewill bedesignatedascaregiverleave first.
b. For caregiver leave, if an eligible employee does not take all of his/ her 26 workweeks of leave entitlement to care for a covered servicemember during the " single 12-month period," theremainingpartof his/her26workweeksof leaveentitlementto carefor the covered servicemember is forfeited.
C. Minimum Duration of Leave
1) If leave is requested for the birth, adoption, or foster care placementof achildof theemployee, leavemustbeconcludedwithinone (1) yearof thebirthor M
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placement of the child. In addition, the basic minimum duration of such leave is two ( 2) weeks.
However, anemployeeis entitled to leave for one of thesepurposes (e.g., bonding with a newborn) for at leastone (1) day, but less than two (2) weeks duration on any two occasions. 2) If leave is requested to care for a , family
member or the employee him/ herself with a serious health condition, there is no minimum amount of leavethat must be taken. However, the notice andmedical certification provisions of this policy must be complied with.
d. Spouses Both Employed By the City - FMLA Bonding Leave In any casein which spousesbethbothparents employed by the City are entitled to bonding leave, the aggregatenumber of workweeks of leave to which both may be entitledmaybelimited to twelve (12) workweeksduringanytwelve (12) monthperiodif leaveis takenfor thebirth or placementfor adoptionor fostercareof theemployees' child (i.e., bonding leave). Thislimitation doesnotapplyto CFRAbondingleave, or to anyothertypeof leaveunder this policy when both spousesor domestic partners are employed by the City. e. Relationship to CFRA Leave to PregnancyDisability Leave. If an employee is eligible for CFRA leave, the employee has certain rights to take both a Pregnancy Disability leaveandCFRA leavefor reasonof thebirth of theemployee's child. Normally, leave taken under CFRA andFMLA run concurrently, except in the caseof PregnancyDisability leave, which runs concurrently with FMLA only. If an employee qualifies for both CFRA leave and PregnancyDisability leavefor reasonof thebirth of the employee's child and/or theemployee's own serious health condition, the maximum leave entitlement for both CFRA leave and Pregnancy Disability leave is the working days in 29'/3 workweeks. This assumes that the employee is disabledbypregnancyfor fourmonths (theworkingdaysin 17'/3weeks) andthenrequests, andis eligible for, a 12-week CFRA leave for reason of the birth of the employee' s child. ( For more information on PregnancyDisability Leave Policy, seeRule XV. E.) EMPLOYEE BENEFITS WHILE ON LEAVE: Leave under this policy is unpaid.
a. HEALTH INSURANCE BENEFITS: Subject to the terms,
conditions, andlimitations of the applicableplans, while on leave, anemployeewill continueto becoveredby theCity'sgrouphealthinsuranceto thesameextentthatcoverageisprovidedwhile the employee is on the job, for a period not to exceedtwelve "`" wed- sthe maximum statutory time from the initiation of the leave, or until such time as accruedpaid sick leave and other paid leavesprovidedforundertheseRulesareexhausted, whicheverislater. However, employeeswill not continueto be coveredunder the City' s non -healthbenefit planswhich are not provided pursuantto theCity' sgrouphealthplans. "Group health benefits" shall include medical, vision, dental, longterm disability andlife insurancecoverageat thelevelsdetermined, maintained, and paid for by the City prior to the sick leave, but shallnot includeexcesscontributionsotherwise provided through deferred compensation.
b. EMPLOYEE CONTRIBUTION: Employees may make the
appropriatecontributionsfor continuedcoverageundertheprecedingnon -healthbenefitplansby 65-
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payroll deductionsor directpaymentsmadeto theseplans. Dependingontheparticularplan, the City will inform the employeewhetherthepremiumsshouldbepaid to thecarrieror to theCity.
Coverageonaparticularplanmaybedroppedif theemployeeismorethanthirty (30) dayslatein making a premium payment. However, the employee shall be given at least fifteen ( 15) days' noticebeforecoverageis to cease, advisinghim/herthat he/shewill be droppedif thepremium payment is not paid by a certain date. Employee contribution rates are subject to any change in rates that occurs while the employee is on leave.
C. CITY RIGHT TO RECOVER: In addition, the City may recover its shareof healthplanpremiumsfor theentireunpaidleaveperiodif bothof thefollowingconditions occur:
1) The employee fails to return from leave after the period of leave to which the employee is entitled has expired. An employee is deemed to have " failed to returnedfrom leave" if he/sheworkslessthanthirty (30) daysafterreturningfrom leave. 2) The employee' s failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition of the employee or his/herfamilymemberthatentitledtheemployeeto leave, or othercircumstancesbeyondthe control of the employee.
3) The City shall have the right to Fe iflis thr-oug
dedtietion from any stims duethe City > unpaidwages, vaeation > d. ACCRUAL OF BENEFITS DURING FMLA/ CFRA LEAVE. Any
seniorityandotherbenefitsnormallyaccruedduringanyperiodof paidleave, shallalsoaccrue during any part of a paid FMLA/CFRA leave. Seniority and other benefit accruals, such as vacation, sick leave, or holiday benefits, will be suspended during any period of unpaid FMLA/ CFRA leave. Upon the employee' sreturn to work from FMLA/ CFRA leave, the employee will have the samelevel of accruedleave balancesthat he/shehad when the FMLA/ CFRA leave commenced, except as those accrued leave balanceswere reduced to provide the employee with paidFMLA/CFRAleavein accordancewiththisSection. Benefitaccrualswill resumeuponreturn to active employment.
6. SUBSTITUTION OF PAID ACCRUED LEAVES: While on leave under thispolicy, assetforthherein, anemployeemayelectto concurrentlyusepaidaccruedleaves.
Similarly, the City may requirean employeeto concurrentlyusepaid accruedleavesafter requestingFMLA and/or CFRAleaveandmayalsorequirean employeeto useFamilyand Medical Care Leave concurrently with a non-FMLA/CFRA leave which is FMLA/CFRA- qualifying.
a. Employee' s Right to Use Paid Accrued Leaves Concurrently with Family Leave: Where an employee has earned or accrued paid vacation, administrative leave, compensatorytime, orpersonalor family leave, thatleavemaybe substitutedfor all orpartof any otherwise) unpaid leave under this policy.
1) With respect to sick leave, an employee is entitled to use sick leave concurrently with leave under this policy if
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a) The leave is for the employee' s own serious health
condition; or
b) The leave is needed to care fora pafent, spouse,
childfamilymemberwith aserioushealthcondition, andwouldbepermittedassickleaveunder the City' s sick leave policy.
b. City' s Right to Requirean Employeeto Use Paid Leave When Using FMLA/ CFRA Leave: Employees must exhaust their accrued leaves concurrently with FMLA/ CFRA leave to the sameextent that employeeshave the right to use their accrued leaves concurrentlywith FMLA/CFRA leave, with two exceptions:
1) Employees are not required to use accrued compensatory timeearnedin lieu of overtimeearnedpursuantto theFair LaborStandardsAct; and 2) Employees will only be required to use sick leave
concurrentlywith FMLA/CFRAleaveif the leaveis for the employee's own serioushealth condition.
C. City' s Right to Requirean Employeeto ExhaustFMLA/CFRA Leave Concurrently with Other Leaves:
1) If an employee takes a leave of absence for any reason which is FMLA/CFRA qualifying, the City may designatethat non-FMLA/ CFRA leave as running concurrentlywith theemployee'stwelve (12) weekFMLA/CFRAleaveentitlement. 2) When the circumstances of an employee's long-term
disabilityleavealsoconstituteaserioushealthconditionundertheFMLAand/orCFRAleave, the City may designatesuch disability leave as a " serious health condition" and FMLA/ CFRA- qualifying. Long-termdisabilityleaveis a formof paidleave, andasaresult, theprovisionsfor substitutionof the employee's earnedor accruedpaid leavearenot applicable, andneitherthe employeenor the City may requirethe substitutionof paid leavesfor the durationof any such long-termdisabilityleave. However, theCityandtheemployeemayagreetohaveaccruedpaid leavessupplementthe employee's long-term disability insuranceplan benefits, up to (but not to exceed) the employee' s full- time salary or wages. Temporarypart-time employees, seasonal employees, emergencyemployees, or any otherhourly employeesarenot eligible for benefits undertheCity' s Long -TermDisability InsurancePlan.
3) TheCity maydesignateaworkers' compensationinjury that alsoconstitutesa "serioushealthcondition" asFMLA/CFRA-qualifying. As with paid short-term disabilityleaveandlong-termdisabilityleave, workers' compensationabsenceis notunpaid, and the provisionsregardingsubstitutionof paid leave do not apply. However, if permitted by Californialaw, theCityandtheemployeemayagreetohavepaidleaves (vacation, floating, sick, etc.) supplement the employee' s workers' compensation benefits up to ( but not to exceed) the employee'snormalfull-time salaryor wages (or for hourly employees, notto exceedtheirregular hourlywageratecappedattheirmaximumhours). Time spent on leave while receiving Workers' Compensationbenefitsor disability benefitsundertheCity' s shorttermdisability policy, maybe 67-
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counted toward the employee' s 12 weeks of FMLA/ CFRA leave if the employee is otherwise an eligible employee under the FMLA/ CFRA.
4) An employee on FMLA/ CFRA leave may also be eligible forpaymentof PaidFamilyLeaveunderCalifornialaw. Interestedemployeesshouldcontactthe California Employment Development Department for information at http:// www. edd.ca.gov/ or 1- 877- 238- 4373 ( telephone) or 1- 800- 445- 1312 ( TTY). d. City' s andEmployee's Rights if an EmployeeRequestsAccrued LeaveWithoutMentioningEithertheFMLA or CFRA: If anemployeerequeststoutilize accrued vacationleaveor other accruedpaid time off without referenceto a FMLA/CFRA qualifying purpose, theCity maynot asktheemployeeif theleaveis for aFMLA/ CFRAqualifyingpurpose.
If the City hasreasonto believe that the leave is FMLA/ CFRA qualifying, then it shall provide the employeewith thenecess4a12gperworkandmaydesignatetheleaveasFMLA/CFRAevenif the employee does not explicitly make such a request. - nIf the City denies the employee' s requestandthe employeeprovidesinformationthattherequestedtime off is for a FMLA/ CFRA qualifyingpurpose, theCitymayinquirefurtherintothereasonfor theabsence. If thereasonis FMLA/CFRAqualifying, theCitymayrequiretheemployeetoexhaustaccruedleaveasdescribed above.
7. MEDICAL CERTIFICATION: Employees who request FMLA/ CFRA leave for their own serious health condition, or to care for a ehild, pafent ^ r a spousefamily member who has a serious health condition, for caregiver leave, or for qualifying exigency leave, must providewrittencertificationfromthehealthcareproviderin accordancewiththisSection. a. Contents.
1) Diagnosis. The Certification should not disclose the underlyingdiagnosisof anyserioushealthconditioninvolvedwithouttheconsentof thepatientin accordancewith California and federal law. For information that may be requestedin connection with a second opinion, see sub -section ( d) below.
2) Information Required for Employee' s Own Serious Health Condition. Employees who requestleave for their own serioushealth condition (or for substance abuseleave), must provideCertificationfrom theemployee'shealthcareprovider, containingthe following information: thedateonwhichtheserioushealthconditionbegan; theprobableduration of theserioushealthcondition; anda statementby thehealthcareproviderthat, dueto theserious health condition, that the employee is unable to work at all or is unable to perform the essential functions of his/her position. The Certification shall be either a Form WH- 380-E, issuedby the U.S. Departmentof Labor; aform issuedby theCaliforniaFair EmploymentandHousingCouncil or Civil Rights Department; or the City form seekingthe sameinformation. 3) Information Required for Family Member' s SeriousHealth Condition. Employees who request leave to care for a ehil , parent, spouseo- registereddoffies`i pai4neffamilymemberwhohasa serioushealthcondition (or for substanceabuseleave), must provideaCertificationfromthefamilymember'shealthcareprovider, containingthefollowing information: the date on which the serious health condition began; the probable duration of the City of Highland Personnel Rules & Regulations
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serioushealth condition; an estimateof the amount of time that the health careprovider believes the employee needsto care for the individual requiring the care; and a statementthat the serious healthconditionwarrantstheparticipationof afamilymemberto providecareduringtheperiod of the treatment or supervision of the individual requiring care. The Certification shall be either a Form WH-380-F, issuedby theU.S. Departmentof Labor; a form issuedby the California Fair EmploymentandHousingCouncilor Civil RightsDepartment; or theCity form seekingthesame information.
4) Information Required for Caregiver Leave. Employees who request a Caregiver Leave must submit a Certification completed by an authorized health care providerof the coveredservicememberas specifiedin the implementing regulations. The
Certificationshallbe eithera FormWH-385, issuedby theU.S. Departmentof Labor; a copyof an Invitational Travel Order ( ITO) or Invitational Travel Authorization ( ITA) issued to any memberof the coveredservicemember's family; or the City form seekingthe sameinformation.
A complete and sufficient Certification to support a request for Caregiver Leave must include writtendocumentationconfirmingthatthecoveredservicemember'sinjury or illnesswasincurred in thelineof dutyonactivedutyandthatthecoveredservicememberisundergoingtreatmentfor suchinjury or illnessby ahealthcareprovider. TheCertificationshouldbelimitedto thecondition for which the employeeis seekingleave. Authenticationand/or clarificationof theCertification may be required by the City. Secondor third medical opinions and recertifications may not be requested. The City may require an employeeto provide confirmation of covered family relationship to the seriously injured or ill servicemember. 1) Information Required for Qualifying Exigency Leave. The first timeanemployeerequestsleavebecauseof aqualifying exigency, theemployeeshallprovide acopyof thecoveredmilitarymember'sactive -dutyordersor otherdocumentationissuedbythe militarywhichindicatesthatthecoveredmilitarymemberisoncoveredactiveduty, andthedates of thecoveredmilitary member'scoveredactiveduty. A copyof newactive -dutyordersor similar documentationshallbeprovidedto theCity if theneedfor leavebecauseof aqualifying exigency arisesout of a differentactivedutyor call to active -duty statusof thesameor a differentcovered militarymember. TheCertificationshallbeeitheracompletedcertificationFormWH-384, issued bytheU.S. Departmentof Labor, ortheCityformseekingthesameinformation. If thequalifying exigencyinvolvesmeetingwith athirdparty, theCity maycontacttheindividualor entitywith whomtheemployeeis meetingto verifythemeetingor appointmentscheduleandthenatureof the meeting. The City may contactthe Departmentof Defenseto requestverification that a coveredmilitary memberis on activedutyor call to active -duty status. b. Time to Provide a Certification. When the need for leave is foreseeable, theemployeeshouldsubmittheCertificationatthetimetheemployeegivesnoticeof the need for FMLA/ CFRA Leave or within five ( 5) businessdays after submitting his/her request for FMLA/ CFRA Leave. In the case of unforeseen leave, the employee should submit the certification within five ( 5) businessdays of his/her determination of the need for FMLA/ CFRA Leave or within five ( 5) business days after unforeseen FMLA/ CFRA Leave commences, whichever occurs first. When an employee' s leave is foreseeable and at least thirty ( 30) days' noticehasbeenprovided, if a medicalcertificationis requested, theemployeemustprovideit beforetheleavebegins, unlessit isnotpracticablefor theemployeeto dosodespitetheemployee's good faith efforts. When this is not practicable, the employeemust provide the requested on
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certificationto the City within thetime framerequestedby theCity (which must allow at least fifteen ( 15) calendar days after the employer' s request), unless it is not practicable under the particularcircumstancestodosodespitetheemployee'sdiligent, goodfaithefforts.
C. Consequences for Failure to Provide an Adequate or Timely Certification. If an employeeprovidesan incompleteor insufficientCertification, the City will advisehim/herin writing asto whatadditionalinformationisrequired, andtheemployeewill have seven (7) calendar days (or longer, if unable to comply in that time frame despite the employee' s diligent goodfaith efforts) to completeandreturntheform. 1) However, if an employee fails to provide a medical
certificationwithin thetime frameestablishedby this policy andthe law, the City may delayor denythetakingof FMLA/CFRAleaveuntil therequiredcertificationis provided. 2) With regard to CFRA leave, if an employee never produces the required certification or recertification for CFRA Leave, the leave is not CFRA Leave. 3) The City may directly contactan employee's health care provideronlytoauthenticateorclarifyinformationprovidedonaCertificationformwithoutfirst obtaining the employee' s permission. In compliance with the FMLA and its regulations, and to protectthemedicalprivacyoftheemployee, orhis/herfamilymember, if theCitydeterminesthat it is necessaryto contactthehealthcareprovider, only apersonemployedin oneof the following employmentcategoriesmaycontactthehealthcareprovider: theCity' shealthcareprovider; the City' s Personnel Director, or an employee( s) of the Personnel Department charged with administering the City' s leave policies. The employee' s direct supervisor shall not contact the healthcareproviderof theemployeeorfamilymember. If theemployeefailsto providetheCity with anauthorizationallowingtheCity to clarify thecertificationwith thehealthcareproviderand doesnot otherwiseclarify thecertificationandthe certificationis unclear, theCity may delayor deny the taking of FMLA/ CFRA Leave.
d. Second and Third Medical Opinions.
1) Employee' s Own Serious Health Condition ( excluding Pregnancy Disability; seeRule XV. E). If the City has a good faith, objective reasonto doubt the validity of a medicalcertificationprovidedby the employeefor his/her own serioushealth condition ( except those involving pregnancy disability), the City may require a medical opinion by a secondhealth careprovider chosenand paid for by the City. The health care provider designatedor approvedby the City will not be employedon a regularbasisby the City. If the second opinion is different from the first, the City may require the opinion of a third provider jointly approvedby theCityandtheemployeebutpaidforby theCity. Theopinionof thethird providerwill bebinding. An employeemayrequestacopyofthesecondand/orthirdhealthcare opinions, or a recertification. An employee or probationary employeemust authorize the release of relevantmedicalinformationpertainingto theconditionfor which leaveis beingsoughtto the second opinion or third opinion health care provider. If the employee fails to do so, approval of his/her request for FMLA/ CFRA Leavemay be delayed or denied. 70-
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2) Caregiver Leave. Second or third medical opinions and recertifications may not be requested.
e. Recertification. Upon expiration of the time period which the health care provider originally estimatedthat the employeeneededfor his/her own serioushealth condition, the employee must obtain recertification if additional leave is requested. The City may request recertifications as otherwise authorized by the FMLA and/or CFRA. Failure to provide recertificationmayresultin delayor denialof continuationof FMLA/CFRA Leave. An employee mayrequesta copyof thehealthcareprovider'sopinionswhenthereis arecertification. f. Intermittent Leave or Leave on a Reduced Leave Schedule. Leave may be takenin severalblocksof time, or intermittentlyor on a reducedwork schedulewhen medicallyadvisable. If anemployeerequestsintermittentleave (a few daysor hoursata time) or on a reduced leave schedule to care for an immediate family member with a serious health condition, theemployeemustprovidemedicalcertificationthatsuchleaveis medicallynecessary.
Medically necessary" meanstheremustbe a medicalneedfor theleaveandthat the leavecan best be accomplished through an intermittent or reduced leave schedule. If intermittent leave is requested, theCity maylimit leaveincrementsto theshortestperiodof timethattheCity' spayroll system uses to account for absencesor use of leave. The City may require an employee who certifies the need for a reduced schedule or intermittent leave to temporarily transfer to an alternativepositionof equivalentpayandbenefitsthatbetteraccommodatestheleaveschedule.
8. EMPLOYEE NOTICE OF LEAVE: Although the City recognizes that emergenciesarisewhich may require employeesto requestimmediateleave, employeesare requiredto give asmuchnoticeaspossibleof their needfor leave. Such notice may be orally given. Verbal notice shouldbe sufficient to make the City awarethat the employeeneeds FMLA/CFRA—qualifyingleave, andtheanticipatedtiming anddurationof theleave. a. Foreseeable Leave -- 30 Days Advance Notice. If leave is foreseeable, atleastthirty (30) days' noticeis requiredbasedonanexpectedbirth, placementfor adoptionorfostercare, orplannedmedicaltreatmentfor aserioushealthconditionof theemployee or afamilymember, ortheplannedmedicaltreatmentfor aseriousinjuryor illnessof acovered servicemember. In addition, if an employee knows that he/shewill need leave in the future but does not know the exact date( s) ( e. g., for the birth of a child or to take care of a newborn), the employeeshallinformhis/hersupervisorassoonaspossiblethatsuchleavewill beneeded. If the Citydeterminesthatanemployee'snoticeis inadequateortheemployeeknewabouttheneedfor the request leave in advanceof the request, the City may delay the granting of the leave until it can, in its discretion, adequatelycoverthepositionwith a substitute. Theemployeeshallconsult with the City and make a reasonableeffort to scheduleany plannedmedical treatmentor supervision so as to minimize disruption to the operations of the City. Any such scheduling, however, shall be subject to the approval of the health care provider of the employee or the employee' s '!` 1.1Cmher.
1) For foreseeable leave due to a qualifying exigency notice mustbeprovidedassoonaspracticable, regardlessofhowfarinadvancesuchleaveisforeseeable. 71-
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2) In those caseswhere the employee is required to provide at least 30 days' notice of foreseeable leave and does not do so, the employee shall explain the reasons why suchnoticewasnotpracticableuponarequestfromtheemployerfor suchinformation. b. Unforeseeable Leave or 30 Days Not Practicable. If the need for leaveisunforeseeable, or 30days' noticeisnotpracticable, suchasbecauseof alackof knowledge of approximatelywhenleavewill be requiredto begin, a changein circumstances, or a medical emergency, notice must be given as soon as practicable. When the need for leave is not foreseeable, an employeemust still comply with the City' s usual and customarynotice and proceduralrequirementsfor requestingleave, absentan emergencyor unusualor unforeseen circumstances.
1) Notice may be given by the employee's spokesperson (e.g., spouse, adult family member, or other responsibleparty) if the employeeis unableto do so personally.
C. Leave Due to Emergency or Unforeseen Circumstances. The City shallnot denya CFRA leave, the needfor which is anemergencyor is otherwiseunforeseeable, onthebasisthattheemployeedid not provideadvancenoticeof theneedfor theleave, solong as the employeeprovided notice to the City assoon aspracticable.
9. CITY REVIEW AND DETERMINATION. Upon receipt of an employee' s request for FMLA/ CFRA leave, the Personnel Office shall review the request, and, when applicable, the medical certification and determine ( a) if the employee is eligible, ( b) if the notification/ certification is sufficient, ( c) if the employee is eligible for or required to take any paid leave, and ( d) if the leave is limited ( alternate schedule, duration, etc.). The City shall respond to theleaverequestassoonaspracticableandin anyeventno laterthanfive (5) businessdaysafter receivingtheemployee'srequest, asprovidedin Subsection (a) and ( b). The City shall attempt to respondto the leave requestbefore the datethe leave is due to begin. Once given, approval shall bedeemedretroactiveto thedateof thefirst dayof theleave. Upondetermination, thePersonnel Office shall notify the employee in accordancewith the following procedures. a. Notice of Eligibility andNotice of Rights and Responsibilities: The PersonnelOffice will notify the employeeof the employee's eligibility to take FMLA/CFRA Leave. Noticeshallbegivento theemployeewithin five (5) businessdaysof receivingtherequest, or within five ( 5) business days of when the City acquires knowledge that an employee's leave maybefor anFMLA/CFRA-qualifying reason, absentextenuatingcircumstances. Theeligibility noticemaybe givenorally or in writing. TheCity shallalsogive written noticeto theemployee of his/ her rights and responsibilities under the FMLA/ CFRA, including the specific expectations and obligationsof the employeeand explainingany consequencesof a failure to meetthese obligations.
b. Designation Notice: The City will notify the employeein writing of the designation of leave as FMLA Leave, CFRA Leave, and/or both FMLA and CFRA Leave.
Notice shallbegivento theemployeewithin five (5) businessdaysof whentheCity hasenough information to determine whether the leave is being taken for a FMLA/ CFRA- qualifying reason, absent extenuating circumstances. If the City hasenoughinformationto provide a designation 72-
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notice when the City gives the employeehis/her notice of eligibility, the City will give the designation notice at that time.
C. At thetimethattheCity notifiestheemployeeof thedesignationof FMLA/ CFRA Leave, the City will notify the employee whether the employee's request to use earnedor accruedleavehasbeengranted, and/or whethertheCity will requiretheemployeetouse anyearnedor accruedpaidleaveconcurrentlywiththeFMLA/CFRALeaveforwhichtheleave is FMLA/CFRA-qualifying.
d. If the amount of leave needed is known at the time the City designatestheleaveasFMLA/ CFRA-qualifying, theCity will notify theemployeeof thenumber of hours, days, or weeks that will be counted against the employee's FMLA/ CFRA leave entitlementin thedesignationnotice. If it is notpossibleto providethehours, days, or weeksthat will be counted against the employee's FMLA/ CFRA leave entitlement ( such as in the caseof unforeseeableintermittentleave), thentheCity will providenoticeof theamountof leavecounted againstthe employee's FMLA/ CFRA leave entitlement upon the requestby the employee, but no moreoftenthanoncein a 30-dayperiodandonly if leavewastakenin thatperiod.
10. RETROACTIVE DESIGNATION OF FMLA/ CFRA LEAVE.
a. The City may not retroactivelydesignateleave as FMLA/CFRA Leave unless:
1) The City learns for the, first time that leave is for a FMLA/CFRApurposeaftersuchleavehasbegun, suchaswhenanemployeegivesnoticeof the needfor anextensionof paid leave (e.g., vacation) with anunpaidFMLA/CFRA leave. In sucha situation, the entireperiodof paid leavemaybe retroactivelycountedasFMLA/CFRAleavefor the period of the leave that was FMLA/ CFRA-qualifying; or, 2) The City ultimately confirms leave as FMLA/ CFRA-
qualifyingandknewthereasonfor theleavebutwasunableto determineif theleavequalified under FMLA and/ or CFRA.
b. The City may alsoretroactivelydesignateleaveas FMLA and/or CFRA Leave to the extent otherwise authorized by federal and statelaw..
11. REINSTATEMENT UPON RETURN FROM LEAVE
a. Right to Reinstatement. Upon expiration of leave, an employee is entitledto bereinstatedto thesamepositionof employmentheldwhentheleavecommenced, or to an equivalentpositionwith equivalentemploymentbenefits, pay, and othertermsand conditions of employment, unless: ( 1) there is no equivalent job available; ( 2) filling the equivalent (substantiallysimilar) job wouldsubstantiallyunderminetheCity' s ability to operate safelyandefficiently; or (3) othergroundssetout in theFMLA and/or CFRA. If an employee is nolongerqualifiedfor his/herpriorpositionbecauseof theemployee's inabilityto attenda necessarycourse, renewa license, etc., asaresultof theleave, theemployeeshallbegivena reasonableopportunity to fulfill thoseconditionsupon return to work. ( For discussion of reinstatementof key employees, seesubsection (d) below.) 73-
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1) An employee' s use of FMLA/ CFRA leave will not result in the loss of any employmentbenefit that the employeeearnedor was entitled to before using FMLA/ CFRA leave. However, employeeshaveno greaterrights to reinstatement, benefits, and other conditions of employment than if the employeehad been continuously employed during the FMLA/ CFRA period.
2) If a definite date of reinstatement has been agreed upon at thebeginningof theleave, the employeewill be reinstatedon the dateagreedupon. If the reinstatementdatediffers from the original agreementof the employeeandCity, the employeewill be reinstated within two business days, where feasible, after the employee notifies the employer of his/ her readiness to return.
3) Upon request, the City will provide the employee a
guaranteeof employmentin thesameoranequivalentjob withequivalentpay, benefits, andother employment terms and conditions upon returning from leave. b. Employee' s Obligation to Periodically Report on Status.
Employeesmay berequiredto periodicallyreporton their statusandintent to returnto work.
Thiswill avoidanydelaysto -reinstatementwhenthe employeeis readyto return.
C. Fitnessfor Duty Certification. As a conditionof reinstatementof an employee whose leave was due to the employee' s own serious health condition, which made theemployeeunabletoperformhis/herjob, theemployeemustobtainandpresentafitness -for - dutycertificationfromthehealthcareproviderthattheemployeeisabletoresumework. Failure to provide suchcertification will result in denial of reinstatement. If an employee is on an intermittent or reducedleave schedule, the City may requesta certification of fitness to return to duty for suchabsencesup to onceevery thirty (30) daysif reasonablesafetyconcernsexist regardingtheemployee'sability to performhis/herduties, basedon theserioushealthcondition for which the employee took such leave. " Reasonable safety concerns" means a reasonable belief of significant risk of harm to the individual employee or others. In determining whether reasonablesafetyconcernsexist, theCity will considerthenatureandseverityof thepotential harm and the likelihood that potential harm will occur.
12. FAILURE TO RETURN FROM FMLA/ CFRA LEAVE. If an employee fails to reportto work promptly attheendof theapprovedleaveperiod, theCity will assumethat the employeehasresigned. In such event, the City will notify the employee of its intention to treat the employee' s failure to return as a resignation from employment. If the employee does not respondwithin five ( 5) businessdaysof written notification sentby the City to the employee's last known addresson file with theCity andprovidejustifiable reason(s) for his/herfailureto return to work, the employee will be separated from employment based on resignation.
13. EXTENSION OF FMLA/ CFRA LEAVE. If an employee wishes to request an extension of leave due to the continuation, recurrence, or onset of his/her own serioushealth condition, or of the serious health condition of the employee' s , ehil ,
or
aret; family memberthe employeemustsubmita requestfor an extensionin writing and may be required to provide subsequent re -certifications. This written request and re- certification ( if applicable) should be made as soon as the employee realizes that he/shewill not 74-
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beableto returnatthe expirationof theleaveperiodin accordancewith theCity' s generalleave of absence policy ( Rule XVI).
14. REQUIRED FORMS AND PROCEDURES
Employeesmust fill out the following applicable forms in connection with leave under this policy:
a. " Request for Family Leave Form". Eligible employees should submit arequestfor FMLA/ CFRA leaveto their supervisorsat leastthirty ( 30) days in advanceof foreseeableevents and as soon aspossible for unforeseeableevents. A request does not have to be in writing, but a written requestwill assistthe City in evaluatingthe employee's request.
Employeesmay obtain a Requestfor Family Leave Form from the PersonnelDepartment.) Failureto complywith thenoticerequirementis groundsfor, andmay resultin, deferralof the requested leave until the employee complies with the policy. ( NOTE: Employees will receive a City responseto theirrequest, whichwill setforth certainconditionsof theleave). b. " Certification Form". A Certification Form either for the employee' s own serious health condition or for the serious health condition of a ehild, parent, er speuwfamily member; or for caregiverleave; or for qualifying exigencyleave. Employees requestingFMLA/CFRA Leave for any eligible reasonare required to submit a completed Certification of Physician or Practitioner" form, (" Certification"). Forms may be obtained from the Personnel Department. The employee should submit the Certification within five ( 5) business days after submitting his/her requestfor FMLA/ CFRA Leave where the need for leave is foreseeable; and within five ( 5) business days of determination of an unforeseen need for FMLA/ CFRA Leave or within five ( 5) business days after unforeseen FMLA/ CFRA Leave commences, whichever occurs first. If an employee provides an incomplete or insufficient Certification, theCity will advisehim/herin writing asto whatadditionalinformationis required, and the employee will have seven (7) calendar days (or longer, if unable to comply in that time framedespitethe employee's diligent goodfaith efforts) to completeandreturnthe form. If an employeefails to providea Certificationwithin thetime frameestablishedby this policy andthe law, theCity maydelayor denythetakingof FMLA/CFRALeaveuntil therequiredcertification is provided.
1) The Certification should not disclose the underlying diagnosisof anyserioushealthconditioninvolvedwithouttheconsentof thepatientin accordance with California and federal law.
2) Information Required for Employee' s Own Serious Health Condition. Employees who requestleave for their own serious health condition ( or for substance abuseleave), must provideCertificationfrom theemployee'shealthcareprovider, containingthe following information: thedateonwhichtheserioushealthconditionbegan; theprobableduration of theserioushealthcondition; andastatementby thehealthcareproviderthat, dueto theserious health condition, that the employee is unable to work at all or is unable to perform the essential functions of his/ her position. The Certification shall be either a Form WH- 380- E, issued by the U.S. Departmentof Labor; aform issuedby theCaliforniaFairEmploymentandHousingCouncil or Civil Rights Department; or the City form seeking the sameinformation. 75-
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3) Information Required for Family Member' s Serious Health Condition. Employees who request leave to care for a ehilden t spouser- ; stored demestieY....,.... gib..,.......... pal4nerfamily member who has a serioushealth condition (or forsubstanceabuse leave), must provide a Certificationfrom the familymember's healthcare provider, containingthe followinginformation:
the dateon whichthe serioushealth conditionbegan; the probableduration of theserious health condition; an estimateof theamountof timethat the healthcare providerbelieves the employeeneeds to carefor theindividualrequiring the care; and a statementthat the serioushealth conditionwarrants the participationof a familymemberto providecare duringthe periodof thetreatmentor supervisionof theindividualrequiring care. The Certificationshall be eithera Form WH- 380-F, issuedby theU. S. Departmentof Labor; a formissuedby theCaliforniaFair Employment and HousingCouncil or CivilRightspartment; or theCityformseekingthe sameinformation. 4)
InformationRequired for CaregiverLeave. Employeeswho request a CaregiverLeave must submita Certificationcompleted by an authorizedhealth care provider of thecoveredservicememberas specifiedin theimplementingregulations. The Certification shall be eithera FormWH- 385, issuedby theU. S. Departmentof Labor; a copyof an InvitationalTravel Order ( ITO) or InvitationalTravel Authorization (ITA) issuedto anymember of thecoveredservicemember's family; or theCityform seekingthe sameinformation. A completeand sufficientCertificationto supporta requestfor CaregiverLeave must includewritten documentationconfirming that the coveredservicemember's injuryor illnesswas incurredin thelineof dutyon activeduty and thatthe coveredservicememberis undergoingtreatment for such injuryor illnessby a healthcare provider. The Certificationshould be limitedto theconditionfor whichthe employeeis seekingleave. Authenticationand/ or clarificationof theCertificationmay be requiredby the City. Secondor thirdmedicalopinionsand recertificationsmay not be requested.
The City may requirean employeeto provideconfirmationof coveredfamily relationship to theseriouslyinjured or ill servicemember, which may take the formof a simplestatement from the employee, or a child's birthcertificate, a courtdocument, etc. The City is entitled to examinedocumentationsuch as a birthcertificate, etc., but the employeeis entitledto the returnof theofficialdocumentsubmitted for thispurpose. 5) InformationRequired for QualifyingExigency Leave. The first timean employeerequests leave becauseof a qualifyingexigency, the employeeshall providea copyof thecoveredmilitary member's active -duty ordersor otherdocumentationissued by themilitary which indicatesthat the coveredmilitary memberis oncoveredactive duty, and the datesof thecoveredmilitary member's coveredactive duty. A copyof newactive -duty ordersor similardocumentation shall be providedto theCityif theneedfor leavebecauseof a qualifyingexigency arises out of a differentactive duty or callto active -duty statusof thesameor a differentcovered military member. The Certificationshall be eithera completedcertificationForm WH- 384, issuedby theU. S. Departmentof Labor; a formissuedby theCaliforniaFair Employmentand HousingCouncil or CivilRightsDepartment; or theCityform seekingthe sameinformation. If the qualifying exigencyinvolvesmeetingwith a thirdparty, the Citymaycontactthe individualor entity with whomthe employeeis meetingto verifythe meetingor appointmentschedule and the nature of themeeting. The City may contactthe Departmentof Defenseto requestverificationthat a coveredmilitary memberis onactiveduty or callto active -duty status. 76- City
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6) Time to Provide a Certification. When an employee' s leave isforeseeableandatleastthirty (30) days' noticehasbeenprovided, if aCertificationisrequested, the employeemustprovideit beforethe leavebegins. When this is not possible, the employee mustprovidetherequestedCertificationto the City within fifteen (15) calendardaysafterthe City'srequest, unlessit is notpracticableundertheparticularcircumstancesto dosodespitethe employee's diligent, good faith efforts, or the City agreesin writing to allow the employee more than 15 calendar days to return the requested Certification. 7) Consequences for Failure to Provide an Adequate or Timely Certification. If anemployeeprovidesanincompleteCertificationtheemployeewill be given a reasonableopportunity to cure any such deficiency. However, if an employee fails to provide a Certification within the time frameestablishedby this policy, the City may delaythe taking of FMLA/ CFRA Leave until the required Certification is provided. The City may directly contact an employee's healthcareprovideronly to authenticateor clarify informationprovidedon a Certification form without first obtaining the employee' s permission. In compliance with the FMLA andits regulations, andto protectthemedicalprivacy of theemployee, or his/her family member, if theCity determinesthatit isnecessaryto contactthehealthcareprovider, only aperson employedin one of the following employmentcategoriesmay contactthehealthcareprovider:
TheCity'shealthcareprovider; theCity'sPersonnelManager, oranemployee(s) ofthePersonnel Department charged with administering the City' s leave policies. The employee' s direct supervisorshall not contactthehealthcareprovider of the employeeor family member. If the employee fails to provide the City with an authorization allowing the City to clarify the certificationwith thehealthcareprovideranddoesnot otherwiseclarify thecertificationandthe certificationis unclear, theCity maydenythetakingof FMLA/CFRA Leave. continuation; and
C. Authorization for payroll deductions for benefit plan coverage d. Fitnessfor Duty to Return from Leave Form.
15. POSTING OF FMLA AND CFRA RIGHTS AND RESPONSIBILITIES.
A generalnoticeof theprovisionsof theFMLA andCFRAis postedby theCity in eachof the following locations:
a. HighlandCity Hall, 27215BaseLine Road, Highland, CA 92346; and
b. Highland Corporation Yard, 7935 Central Avenue, Highland, CA 92346.
The City also posts a general notice about the provisions of the FMLA/ CFRA on its website. A copy of the generalnotice is may alsobe obtainedfrom the Administrative Services Department.
E. PREGNANCY DISABILITY LEAVE
1. POLICY. The following policy is establishedin compliancewith the requirements of the California Disability Leave Law (" PDL") set forth in California Government 77-
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Code Section 12945 et seq., and applicable State regulations. The City will provide a pregnant employeewith aleaveof absencewithout pay for up to thenumberof hourstheemployeewould normallyworkwithinfourmonths (or one-thirdof year, or 17-1/3 weeks) whentheemployeeis disabledby pregnancy, childbirth, andrelatedmedicalconditions. Eligible employees may also requesttemporarytransfersandreasonableaccommodationsdueto pregnancy, childbirth, or relatedmedicalconditions, if requested, supportedby propermedicalcertification, andotherwise qualifying as reasonable accommodation. Retaliation against employees for taking Pregnancy Disability Leave is prohibited by law and City policy.
Rights and obligations which arenot specifically setforth below shall be as specified in the Government Code and implementing regulations.
2. DEFINITIONS. Thefollowing termsshallhavethefollowing meaningsin this Section, except asotherwise specifically provided. a. " Comparableposition" meansapositionthat involvesthe sameor similar dutiesandresponsibilitiesandis virtually identicalto theemployee's original positionin terms of pay, benefits, andworking conditions.
b. " Disabledby pregnancy" meansanyemployeewho, in the opinion of theemployee'shealthcareprovider, is unablebecauseof pregnancytoperformanyoneor more of theessentialfunctionsof theemployee'sjob or to performanyof thesefunctionswithout undue risk to the employee, to thepregnancy's successfulcompletion, or to otherpersons. Examples mayincludeanemployeewhoissufferingfromseveremorningsicknessorneedsto taketimeoff for prenatalor postnatalcare, bedrest, gestationaldiabetes, pregnancy -inducedhypertension, preeclampsia, post-partumdepression, childbirth, lossor endof pregnancy, or recoveryfrom childbirth, loss, or endof pregnancy, asdeterminedby theemployee'shealthcareprovider.
C. " Essential functions" has the same meaning as set forth in Government Code Section 12926( f), as amended from time to time.
3. ELIGIBLE EMPLOYEES.
a. All employees who are or have been pregnant are eligible for PregnancyDisability Leave ("PDL"), temporary transfer or temporary reasonable accommodation under this Section. There is no minimum length of service requirement before an employee disabledby pregnancy, childbirthor arelatedconditionis entitledto PregnancyDisability Leave.
4. REASON FOR LEAVE.
a. To be eligible for Pregnancy Disability Leave, the employee must be disabledby pregnancy, childbirth, or relatedconditions, asdefinedby law. b. The PDL allowance includes time taken ( with or without pay) for any of the following reasons.
1) The employee is unable to work at all, is unable to perform anyoneor moreof theessentialfunctionsof the employee'sjob, or is unableto performanyone Im
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or moreof the essentialfunctionsof herjob without unduerisk to the employee, the successful completionof pregnancy, or to otherpersons, becauseof pregnancyor childbirthor becauseof anymedicallyrecognizedphysicalor mentalconditionthatis relatedto pregnancyor childbirth including severe morning sickness); or
2) The employee needsto take time off for prenatal care.
5. DURATION OF LEAVE AND CONDITIONS.
a. Full- time Employees. For full- time eligible employees, Pregnancy DisabilityLeavemaybetakenfor upto thenumberof hourstheemployeewouldnormallywork within four ( 4) calendarmonths (one-third of a year, or 17-1/3 weeks). For a full- time eligible employeewho works forty ( 40) hours per week, "four months" means 691 hours of leave entitlementbasedon40hoursperweektime17-1/3weeks. If anemployee'sschedulevariesfrom month to month, a monthly averageof the hours worked over the four months prior to the beginningoftheleaveshallbeusedforcalculatingtheemployee'snormalworkmonth. b. Part -Time Employees. An employee who works less than forty ( 40) hoursperweekwill receiveapro rataor proportionalamountof PDL.
C. Variable Schedule. For employees who work on a variable work schedule, thenumberof workingdaysthatconstitutes "fourmonths" is calculatedon aprorataor proportional basis.
d. Extension. If the initial period of Pregnancy Disability Leave provesinsufficient, considerationwill begivento awrittenrequestfor a singleextensionof no more than ten ( 10) calendar days.
e. Intermittent Leave. Pregnancy Disability Leave may be taken intermittentlyor ona reducedleaveschedulewhenmedicallyadvisable, asdeterminedby the employee'shealthcareprovider. The City maylimit intermittentor reducedleaveincrementsto the lesserof (i) onehour, or (ii) any shorterincrementusedunderthe City' s payroll systemto account for absences or use of leaves. If an employee takes leave on an intermittent basis, or a reducedwork schedule, only theamountof leaveactuallytakenmaybe countedtowardthefour monthsof PregnancyDisability Leave (or pro -ratedportion) to which theemployeeis entitled.
6. PAY STATUS. PregnancyDisability Leavesare unpaid. However, an employeeon PDL will utilize any accumulatedleaveto remainin paid status, in the following situations:
a. An employee may elect to use accrued vacation leave or other accruedpersonalleavetoremaininpaidstatusduringanyPregnancyDisabilityleavebeforetaking unpaid PDL.
b. An employeeon PregnancyDisability Leavemustuseanyaccrued paidsickleavebeforetakingunpaidPDL.
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C. A full- time employee may be eligible for benefits under the City' s Long -Term Disability ( LTD) Insurance program. The terms of the LTD Program shall govern eligibility. If LTD is not selected, theemployeewill berequiredto useaccruedunusedpaid sick leave hours.
d. The receipt of vacation pay, sick leave pay, or disability benefits (if any) will not extendthe length of the PregnancyDisability Leave.
7. BENEFITS DURING PREGNANCY DISABILITY LEAVE.
a. Group Health Insurance: Subject to the terms, conditions, and limitationsof theapplicableplans, theCity will continueto providehealthinsurancebenefitsfor the full periodof the approvedPDL leaveup to four monthsin a 12-monthperiod, at the same level andunder the sameconditions that coveragewould have beenprovided if the employee had continued employment continuously for the duration of the PDL. The time that the City maintains andpaysfor grouphealthcoverageduringPDL shallnotbeusedto meetanemployer'sobligation to payfor 12weeksof grouphealthcoverageduringCFRAleave, evenwheretheCity designates PDL as leave under the FMLA. If an employee fails to return to work after her leave entitlement hasbeen exhaustedor expires, the City has the right to recover its shareof health plan premiums for the entire leave period if-
1) The employee fails to return at the end of her PDL; and 2) The employee' s failure to return from leave is for a reason other than one of the following:
a) Taking CFRA leave, unless the employee chooses
not to return to work following the CFRA leave;
b) The continuation, recurrence or onset of a health
condition that entitles the employee to PDL, unless the employee chooses not to return to work following the leave.
c) Non -pregnancyrelated medical conditions requiring
further leave unless the employee chooses not to return to work following the leave. d) Any other circumstance beyond the control of the
employee, including, but notlimited to, circumstanceswheretheemployeris responsiblefor the employee's failure to return (e.g., the employer doesnot return the employee to the sameposition or reinstate the employee to a comparable position), or circumstances where the employee must carefor oneselfor afamily member (e.g., theemployeegivesbirth to a child with a serioushealth condition).
3) In the event the employee fails to return under this section, the City hasthe right to recoverpremiumsthroughdeductionfrom any sumsdue (e.g., unpaid wages, vacation pay, etc.).
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b. - Other benefit plans. The City will continue to pay premiums under Groupdisabilityandlife insuranceplans (if applicable) forupto fourmonthsof thePDL.
C. Any seniorityandotherbenefitsnormallyaccruedduringanyperiod of paidleave, shallalsoaccrueduringanypartof apaidPregnancyDisabilityLeave. Seniority leaveaccrualsand other benefitsdo not accrueduring an unpaid PregnancyDisability leave.
However, the employee would return to work with the sameseniority and unusedleave balances as when the unpaid leave commenced, except as those accrued leave balances were reduced to providetheemployeewith paidPregnancyDisabilityLeavein accordancewith this Section.
Benefit accruals will resume upon return to active employment.
8. TEMPORARY TRANSFERS AND OTHER TEMPORARY
REASONABLE ACCOMMODATIONS. An employee may request a temporary transfer to anotherposition, or requestothertemporaryreasonableaccommodations, when, basedon the certification of the employee' s health care provider, a temporary transfer or other temporary reasonable accommodation( s) is medically advisabledue to pregnancy, childbirth, or related medical conditions, in accordance with the following provisions. a. Temporary Transfers. The City will grant a request for temporary transferif theCitymayreasonablyaccommodatethetemporarytransfer. TheCitywill notgrant atemporarytransferif it wouldrequiretheCitytocreateanewposition, resultin thedischargeor demotion of another employee, violate the terms of any collective bargaining agreement, transfer anotheremployeewith moreseniority, or promoteor transferanyemployeewho is not qualified toperformthenewjob. TheCitymayaccommodateatemporarytransferrequestbytemporarily transferringanotheremployeebutisundernoobligationtodoso. TheCityreservestheoptionof grantingatemporarytransfertoapositionotherthanthatrequestedbytheemployee, basedupon the needsof the City and the employee's medical condition. b. Temporary reasonable accommodations. The City will grant a request for temporary reasonable accommodations if such accommodations or may grant other temporaryreasonableaccommodationsconsistentwith themedicalcertification, bonafide occupationalqualifications, andbusinessnecessity. TheCity reservestheright to refuseto make suchreasonableaccommodation where suchaccommodation(s) would causeanunduehardshipto the City.
C. If an employee'shealth careprovider provides medical certification that anemployeehasa medical needto take intermittent leave or leave on areducedwork schedule and it is foreseeable because of pregnancy, the City may require the employee to transfer temporarilyto anavailablealternativepositionthatmeetstheneedsof theemployee, subjectto the following:
1) The employee must meet the qualifications of the position; and
2) Thealternativepositionmusthavetheequivalentrateof pay and benefits; and
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3) The alternative position better accommodates the
employee's leave requirements than the employee's regular job; and 4) The alternative position does not have to have equivalent duties.
d. Upon certification by the employee's health careprovider that there is no furthermedicaladvisabilityfor thetransfer, intermittentleave, or leaveon a reducedwork schedule, theCity will reinstatetheemployeeto thesameor comparablepositionin accordance with this Section as set forth below.
9. RELATIONSHIP BETWEEN PREGNANCY DISABILITY LEAVE
AND FMLA/CFRA LEAVE. TheCity' sFamily andMedicalLeavePolicyundertheFMLA and CFRA is set forth in Subsection D of this Section.
a. Normally, leave taken under CFRA and FMLA run concurrently, except in the case of PDL leave, which runs concurrently with FMLA only. If an employee is eligible for PDL and is also eligible for CFRA Leave at the time of request for PDL, the four weeks of PDL authorizedby this Sectionshallbein additionto thetwelveworkweeksof CFRA Leave.
In suchsituation, the maximum leave entitlement for an employee for both PDL and CFRA leave for reason of the birth of the child and/or the employee' s own serious health condition, is the workingdaysin 291/3workweeks. Thisassumesthattheemployeeis disabledby pregnancyfor four months (the working daysin 171/3weeks) andthenrequests, andis eligible for, a 12-week CFRA leave for reason of the birth of the employee' s child. b. If an employee is eligible for PDL and is also eligible for FMLA Leave ( but is not eligible for CFRA Leave), any available FMLA Leave and any available PregnancyDisability Leaveshallrun concurrently. Themaximumamountof timethataneligible employeemaytakefor FMLA LdaveandPregnancyDisability Leave, is 12workweeks.
10. RELATIONSHIP BETWEEN PREGNANCY DISABILITY LEAVE
AND DISABILITY ACCOMMODATION. The right to take PDL is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation for a disability under Government Code section 12940. At the end or depletion of an employee' s PDL, an employee whohasaphysicalor mentaldisability (whichmayor maynotbedueto pregnancy, childbirth, or relatedmedicalconditions) maybeentitledto reasonableaccommodationunderGovernmentCode section12940. Entitlementto leavefor adisabilitywill bedeterminedonacase -by casebasisand is not diminishedby theemployee's exerciseof herright to pregnancydisability leave.
11. REINSTATEMENT.
a. Upon timely return at the expiration of the approved leave including any intermittent leave or leave on a reduced work schedule), or temporary transfer, the employeeshallbereinstatedto thesamepositionsheheldprior to herleaveor transfer, unless:
1) The employee would not otherwise have been employed in thesamepositionatthetimereinstatementisrequestedfor legitimatebusinessreasonsunrelated to the employee' s leave or transfer; or
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2) Eachmeansof preservingthejob for theemployee (suchas leaving it unfilled or filling it with a temporaryemployee) would substantiallyunderminethe City' sability to operatethebusinesssafelyandefficiently.
An employee has no greater right to reinstatement to the same position or to other benefits or conditions of employment than if the employee had been continuously employedin this positionduringthePDL or transferperiod. b. If the employee is not reinstated to the same position, the employee will be reinstated to a comparable position unless:
1) There is no comparable position available; or,
2) If the PDL doesnot qualify for FMLA ( seeSection 305), a comparablepositionis available, but filling thatpositionwith thereturningemployeewould substantiallyunderminetheCity' sability to operatethebusinesssafelyandefficiently.
An employee has no greater right to reinstatement to a comparable position or to other benefits and conditions of employment than an employee who has been continuously employedin anotherpositionthatis beingeliminated.
C. If an employee disabled by pregnancy has taken a Pregnancy Disability Leavefor longerthanfour months, theCity will treattheemployeethe sameregarding reinstatementrights as it treatsany other similarly situatedemployeewho hastakena similar length disability leave.
d. If an employee takes CFRA Leave at the expiration of Pregnancy Disability Leave, theemployee'sright toreinstatementisgovernedby SectionD, regardingCFRA leave, and not this Section.
e. Before an employeewill be permitted to return from a PDL of three 3) days or more, the employee must obtain a certification from a health care provider that the employee is able to resume work.
f. If the employee can return to work with limitations, the City will evaluatethoselimitationsand, if possible, will accommodatetheemployeeasrequiredby law. g. The City will provide the employee with the guaranteeof reinstatement in writing, upon the employee' s request.
12. FAILURE TO RETURN FROM PREGNANCY DISABILITY LEAVE. If an employeefails to report to work promptly at the endof the approvedPregnancyDisability Leaveperiod, the City will assumethatthe employeehasresigned. In such event, the City will notifytheemployeeof itsintentiontotreattheemployee'sfailureto returnasaresignationfrom employment. If the employee does not respond within five business days of written notification sentbytheCitytotheemployee'slastknownaddressonfile withtheCityandprovidejustifiable reason(s) for his/her failure to return to work, the employee will be separatedfrom employment based on resignation.
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13. EXTENSIONS. An employee who requests an extension of PDL due to the continuation, recurrence, or onset of a medical condition, must submit a requestfor an extension in writing. This written requestshould be made assoon asthe employeerealizesthat return at the expirationof theleaveperiodis notpossible. Requestswill beconsideredin accordancewith the City's usual proceduresandpracticesfor leavesof absence, or the Disability Accommodation Policy ( Section XVI. H).
14. PROCEDURES. To ensure employees receive the best benefit of leave provisions, requestsfor leavemustcomplywith City proceduresandpolicies. Notwithstanding theprovisionsof theselaws, employeesarerequiredto observeall Citypoliciesregardingleave requests, absences, notification to supervisors and appointing authorities, payment of insurance premiums, anduseof paidleave, whetheror not addressedherein. a. Application for Leave: An employee requesting Pregnancy Disability Leavemust completea "Requestfor Leave/Notice of Leave" form and return it to his/her Department Head for their signature. Forms may be obtained from the Personnel Office.
The Department Head shall forward the application immediately to the PersonnelOffice. b. Notice of Leave: When the needfor PregnancyDisability Leave is foreseeable, such as the becauseof a planned medical treatment, the employee must submit an applicationfor leaveat leastthirty (30) daysbeforetheleaveis to begin. If theneedfor leaveis not foreseeable, noticemustbegivenassoonaspossible, butnotlaterthanfive (5) working days afterlearningof theneed. Failureto providesuchnoticeis groundsfor delayor denialof a leave request, except if the need for leave was an emergency or was otherwise unforeseeable. The City shallrespondto theleaverequestassoonaspossibleandin anyeventno laterthanten (10) days after receiving the request. When possible, employeesmust make a reasonableeffort to schedule foreseeableplannedmedicaltreatmentssoasnot to undulydisrupttheCity' soperations.
C. Typeof Notice. For City purposes, writtennoticewill be required, but maybe submittedafteranoralrequest. Oralnoticemustbeprovidedaccordingto department policiesregardingemergencyor unplannedabsences.
d. Medical Certification: A request for Pregnancy Disability Leave must be supported by Medical Certification (" Certification") from the employee' s physician or otherhealthcareprovider. Certificationformsmaybe obtainedfrom Personnel. Thecompleted Certificationmustbeprovidedto theCity within fifteen (15) daysin advanceof theleaverequest orasfarin advanceaspracticable. Suchcertificationis notrequiredwith regardtobirth of achild. 1) In the case of medical certification indicating disability necessitatinga leave, theCertificationmuststatethedatethattheemployeebecamedisableddue to pregnancy, theprobabledurationof theperiodorperiodsof disability, theemployeeisunable toperformoneormoreessentialfunctionsofherpositionwithoutunduerisktotheemployee, the successfulcompletion of pregnancy or to others.
2) In the case of medical certification indicating disability necessitatinga temporarytransfer, the Certificationmust containthe dateon which the needto transferbecamemedicallyadvisable, theprobabledurationof theperiodor periodsof theneedto City of Highland Personnel Rules & Regulations
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transfer, and an explanatorystatementthat due to the employee's pregnancy, the transfer is medically advisable.
3) The City may also require that the employee obtain
subsequentrecertifications if the employeeupon the expiration of theoriginal leaveperiod requests any additional leave periods.
4) Consequences for Failure to Provide an Adequate or Timely Certification: If anemployeeprovidesanincompletemedicalcertification, the employeewill be given a reasonableopportunity to cure any deficiency. However, if an employee fails to provide a medicalcertificationwithin thetime frameestablishedby this Policy, the City may delaythe takingof PregnancyDisabilityLeaveuntiltherequiredcertificationisprovidedormaydenythe leave.
e. Review and Determination: No later than ten ( 10) calendar days of receivingarequestforPDL, reasonableaccommodationand/ortransfer, thePersonnelOfficeshall respond to the employee' s request. The Personnel Office shall attempt to respond to the leave requestbeforethedatetheleaveis dueto begin. Oncegiven, approvalshallbedeemedretroactive to the date of the first day of the leave.
15. POSTING OF NOTICE OF EMPLOYEE RIGHTS AND
RESPONSIBILITIES.
a. A generalnotice of theprovisions of theFEHA regarding pregnancy disabilityleave, temporarytransferandtemporaryaccommodationispostedbytheCityineachof the following locations:
1) Highland City Hall, 27215 Base Line -Reafl, Highland, CA 92346; and
2) Highland Corporation Yard, 7935 Central Avenue,
Highland, CA 92346.
b. The City also posts a generalnotice about the provisions regarding pregnancydisabilityleave, temporarytransferandtemporaryaccommodationundertheFEHAon its website. A copyof thegeneralnoticemay alsobe obtainedfrom theAdministrativeServices Department.
F. STATE WORKERS' COMPENSATION
1. Employeesmaybeprovidedwith upto amaximumof three (3) consecutive regular workdays of ,,.,,, har-,,eable non -char egable leave following an occupational injury under the Workers' Compensation Act of the State of California.
2. The City desires to allow employeesto supplementtheir Workers' CompensationInsuranceearningwhile theemployeeis unableto work dueto on- the-job injuries.
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earningwith accruedvacation, accruedcompensatorytime, administrativeleave, floating holiday, and/or sick leave in an amountnot to exceedhis/her normal gross salary when combined with any Workers' Compensation Insurancepayments for the sameperiod of time.
3. Theemployeemayexpendall accruedsickleave, accruedfloatingholiday, accruedcompensatorytime, administrativeleave, andvacationleave, until all suchleavetime has been expended. If the employeedesiresto expend accruedleaveasallowed by theseRules, he/she will be consideredby the City to be on regular statusuntil all accruedleave time has been expended. When all accrued leave time has been expended, the employee will be on leave without payforthefull periodof thetemporarydisability, unlessotherwiseauthorizedorrequiredby law.
The employee shall be eligible to receive the amount normally available under the City' s group health/life insuranceprogramandshall accruevacationandsick leaveat two-thirds (2/3) of the normal accrual.
4. Application:
a. When an employee is out on an industrial injury, no charge will be made to leave benefits for the first three ( 3) days. Any paymentsfrom Workers' Compensation Insurance will be applied first to repurchase accrued leave time used, next to reimburse the City for the first three regular workdays and any balance would go to the employee. It is the intent to providefull benefitswherepossibleandisnotconstruedtoallowtheemployeewindfallincome. b. The deductionby the City from the employee's accumulatedsick leaveshall be limited to the samepercentageasthe amountduefrom Workers' Compensation bears to the amount paid by the City. ( For example, an employee of the City entitled to twelve dollars ($ 12.00) per day from the City received $9.00 per day from the Workers' Compensation and the difference of three dollars ($ 3.00) perdaybeingpaidby theCity. In deductingfrom such employee' s accumulated sick leave, such deduction shall be made daily on the samebasis, i.e., one- fourth ( 1/4) of a day.)
G. BEREAVEMENT LEAVE
Whenever an employee is compelled to be absent from work because of the death of the employee' s immediate family member (as defined in Rule XV. E), the employee may upon approval of the Department Head, use up to three -five ( 35) days of any accumulated sick leave, vacationleave, floatingholiday, or compensatorytime off dueto him/herfor overtimeworked, to attend the funeral of memorial services. If the employee does not have any accumulated leave available the employee is entitled to take unpaid leave for a maximum of 5 dates.
Additional time off for travel may be granted upon the recommendation of the Department Head and approved by the City Manager. For provisions on leave and reasonable accommodation for an employeewhose immediate family memberis deceasedasthe direct result of a crime, see also Rule XVI. E.
H. RETIREMENT PLAN
All full- time employees are eligible for membership in the Public Employees Retirement System (" PERS") in accordance with the California Public Employees' Retirement City of Highland Personnel Rules & Regulations
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Law (" PERL"), asamendedby the California Public Employees' PensionReformAct of 2013 PEPRA"). TheCity shallpay costsandmakecontributionsin accordancewith resolutionsof the City Council and asrequired by PERS. For classicmembers as defined in PEPRA, the City shall report the value of the Employer Paid Member Contributions (EPMC) to PERS asadditional compensation. For new members, as defined in PEPRA, the City will pay costs and make contributions in accordance with PEPRA and the applicable PERS contract and City resolutions.
ADMINISTRATIVE LEAVE
FLSA- exempt employees arenot eligible for overtime pay for working hours over and above the normal work schedule. Employees so designated shall be entitled to up to eighty 80) hours of Administrative leave per year. Administrative leave may be taken at any time on approval of the Department Head and at the discretion of the City Manager. The maximum amount of accrued Administrative leave shall be limited to one hundred and sixty ( 160) hours. At the discretionof the City Manager, on a case -by -casebasis, accrualsover the maximum may be extendedfortheperiodof six (6) monthsbeforelost. Intheeventemploymentisterminatedwith theCity, theemployeeshallbepaidfor accruedadministrativeleavewhich hasaccruedwithin the limits specified above.
ADMINISTRATIVE LEAVE BUY- BACK
Employeeseligible for administrative leavemay at their option buy-back up to sixty 60) hoursof administrativeleaveperfiscalyear. Employeesshallrequestthebuy-backin writing to the Finance Department. No negative leave balances shall accrue due to a buy- back allowed under this Section. This programshall only be availablewhen funding is provided for these purposesin the budget.
K. DONATED LEAVE BANK
Employeesat their option may chooseto donateaccruedleaveinto a leavebank maintainedby theCity, for useby otherte-employeesundertheconditionsof this Sectionand proceduresestablishedby theCity. Onlythefollowingcategoriesof accruedleaveareavailable for donatingpurposes: vacation, floatingholidays, compensatorytime, andadministrativeleave.
Theonlyaccruedleavethatmaybedonatedis thatleavethatis availableto betakenby the donating employee. Donated hours shall be placed into the leave bank. Employees receiving a donation are limited to withdrawing hours from the bank and may not withdraw more than they would normallybepaidin awork week. If anemployeereceivingadonationis receivinganother meansof paysuchasdisability: insuranceorworkerscompensationtheemployeeshallbelimited to their normalrateof pay aftercombiningtheothersource. Employeesreceivingtime from the leave bank must have used all available accrued leave before being eligible for donations.
Employeesmusthavea bonafide illness, injury or otherreasonasapprovedsolely by theCity Manager to be eligible for donations. The length of time that an employee may receive donations from the bank is variable and shall be determined solely by the City Manager. No negative leave balances shall occur as a result of this Section.
L. HEALTH/ LIFE INSURANCE PROGRAM
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The City shall provide a health/life insuranceplan for all full-time continuous salaried employees. Life Insurance in the amount of the annual salary of eacheligible employee shallbeprovidedbytheCitybasedonalife insuranceplanselectedby theCity, toalimit of one - hundred fifty thousanddollars ($ 150, 000). Eligibility shall be determined in accordancewith the Planprovider'srequirements. TheCityshallmakeavailableupto onethousandfivefoufhundred dollars ($ 1,5400) permonthfor fiscalyear20234-/20242- andonethousandfivefexrhundredfifty dollars ($ 1,5 50) permonth for fiscal year20242-/2025-3 towardsemployeebenefitsto full-time andapprovedeligiblepart-time employeesundertheCity of HighlandPremiumOnly Plan. This amount shall be first applied to health and dental insurance coverage for the eligible employee.
TheCity shallprovidetheCity CouncilMembersanamountequalto thatprovidedto employees undertheCity of HighlandPremiumOnly Plan (Section125Plan). These funds shall be available for the purchaseof health, dental, andvision insuranceor any otherbenefitsavailableto employees. To receivetheCity of HighlandPremiumOnly Plan (Section125Plan), theemployee mustbepaidaminimumof one-half (1/2) plusoneof his/herscheduledhours. Forexample, an employeescheduledto work eighty (80) hoursperpayperiodmustbepaidfor aminimumof forty- one 41) hoursduringa payperiodto receivetheCity of HighlandPremiumOnly Plan (Section 125 Plan). At notimeshalltheCity CouncilMemberbenefitsbeconvertedto salary. For eligible retirees, theCity shallcontributetwo hundreddollars ($200) per month toward health insurance.
M. CONTINUANCE OF MEDICAL COVERAGE ( COBRA)
The City will provide employeeswho separatefrom the City with continuedmedical benefits coveragein accordancewith applicable provisions of the Consolidated Omnibus Budget ReconciliationAct (COBRA) andanyotherapplicableprovisionsof federallaw andstatelaw.
N. DEFERRED COMPENSATION PLAN
TheCity will contractto provideadeferredcompensationprogramfor regularfull andpart-time employeesandwill paythecostsof planadministration.
O. EDUCATIONAL REIMBURSEMENT
An employeemay be reimbursedfor tuition, textbooks and institutional fees incurredin successfullycompletingjob -relatedcoursework and seminarsfrom an accredited educationalinstitution. Course work must be approvedin advanceby the Department Head to be eligible for reimbursementuponproof of successfulcompletionof coursework. The maximum benefitperyearperemployeeshallbe asdeterminedin advanceby the City Manager, within the amountadoptedfor suchpurposein the annualCity budget. If the employee voluntarily leaves the employmentof the City within one (1) yearof completionof coursework, employeeshall reimbursetheCity fundsreceivedfor educationalreimbursementfor saidcoursework.
P. CALL - OUT CREDIT
A credit shall be applied when an FLSA employee in the competitive service who has left the work site and is called to come back to work between the hours of 7:00 p.m. and 7:00 a. m., on a workday, or at any time during a normal day off. The minimum credit shall be for compensation in the amount of one and one half ( 1- 1/2) hours. The compensation will be at the rate of time and one half ( 1- 1/2). This policy shall also apply to those FLSA employeesworking on
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underanalternativework schedule, aslong asthey arecalled -out a minimum of two (2) hours after or two (2) hoursbefore their normal workday, or at any time during a normal day off.
Employeeswho areon standbydutyunderRuleXV.Q shallnot beeligible for or receivecall -out credit.
Q. STANDBY COMPENSATION
1. Standbyduty. FLSAemployeesin thecompetitiveservicewhoarereleased fromactivedutybutarerequiredby theirdepartmentstomeetthefollowingrestrictions, shallbe assignedtomandatorystandbyduty. Standbydutyrequiresthatemployeessoassignedshall: ( a)
be reachableby telephoneor other communicatingdevices; (b) be able to report to active duty within 60 minutes time; and ( c) refrain from activities which will impair their ability to perform assignedduties. Standbyduty shall be rotatedamongqualified employeeson a weekly basis beginningattheendofthenormalworkdayonMondayandendingatthebeginningoftheworkday onthefollowingMonday. Employeesonstandbydutyshallnotbeeligiblefororreceivecall -out credit ( see Rule XV. P.
2. Standby Compensation. Employees shall be compensated eight ( 8) hours of pay for eachweek of standby duty.
3. Emergency Operations. Standby duty pay may not apply when the City' s EmergencyOperationsCenterhasbeenactivatedandanemployeemay --be assignedto a work shift other than his/ her regular shift.
R. RETIREE HEALTH SAVINGS PROGRAM [ Reserved.]
S. LACTATION ACCOMMODATION POLICY
The City will provide a reasonableamountof break time to accommodatean employeedesiringto expressbreastmilk for the employee's infant child. The break time, if possible, mustrunconcurrentlywith restandmealperiodsalreadyprovidedto the employee. If the break time cannotrun concurrentlywith rest and meal periods alreadyprovided to the employee, the break time will be unpaid.
The City will provide the employeethe useof a room or location, other than a bathroom, that is shielded from view and free from intrusion from coworkers andthepublic, which maybeusedby anemployeeto expressmilk in private. Thislocationmaybetheemployee's private office, if applicable. The location must be safe clean, and free from hazards. It must containaplacetosit asurfaceonwhichtoplaceabreastpumpandanelectricaloutletorcharging station TheCity will alsoprovidea sink andrefrigeratoror othercooling deviceto storebreast milk in at a location in close proximity to the employee' s workspace.
Employeeswith questionsregardingthis policy or requestsshouldspeakwith the PersonnelDirector. Any violation of this Policy may be reportedto the Labor Commissioner Bureau of Field Enforcement.
T. ANNUAL CREDIT MONITORING ALLOWANCE
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TheCity will provideanannualcreditmonitoringallowanceto anypersonwhois a full-time employeeor City Councilmemberasof January1st of eachyearto purchasecredit monitoring insurance. The allowancewill be providedin the employee's first payroll checkfor Januaryof eachyear. The amount will be determined by the Adopted Budget.
XVI. ATTENDANCE, LEAVES, REPORTS AND RECORDS
A. ATTENDANCE
1. Employees shall be in attendanceat their designatedjob location and work in accordancewith the rules regarding hours of work, holidays, and leaves. In the event of an employee's unauthorized absence, or his/her failure to return to duty, the employee is subject to the City' s policy on job abandonment (Rule XIX. B), and/or disciplinary action as appropriate Rule XX). Authorizedabsenceis definedaspermissionto be absentfrom duty for a specified purpose, withtherighttoreturnbeforeorupontheexpirationof theleaveperiod.
2. All departmentsshall keepdaily attendancerecordsof employeeswhich shall be reported to the PersonnelDirector in the form and. on the dates he or she shall specify.
Failureonthepart of anemployee, absentwithout leave, to returnto dutywithin twenty-four (24) hours after notice to return shall be cause for invocation of the Job Abandonment Policy ( Rule XIX. B) and/or discipline ( Rule XX) asappropriate. The depositing in the United Statesmail of a first-classletter, postagepaid, addressedtotheemployee'slastknownplaceof address, shallbe reasonable notice.
B. MILITARY LEAVE
Employeesof the City shallbe entitledto military -leave -in accordancewith the provisionsof federallaw (UniformedServicesEmploymentandReemploymentRightsAct of 1994, 38 U. S. C. § 4301 et seq.) ( USERRA) and California law ( Military & Veterans Code § 387 et seq.), as amended from time to time. An employee requesting leave for this purpose shall providetheDepartmentHead, wheneverpossible, with a copy of the military ordersspecifying the dates, site and purpose of the activity or mission. Within the limits of such orders, the Department Head may determine when the leave is to be taken and may modify the employee's work schedule to accommodate the request for leave. Appendix B sets out the basic parameters of applicablelaw andis not intendedto expandanyrightsbeyondthoseprovidedby federaland statelaws. In theeventof anyconflictbetweentheseRulesor AppendixB andapplicablefederal or state law, the applicable federal or state law will prevail. Answers to specific questions regardingtheapplicationof USERRAandstatelaw maybe obtainedby reviewingtheapplicable statutes directly.
C. LEAVE OF ABSENCE WITHOUT PAY
1. TheCity Manager, in his/herunrestricteddiscretion, maygrantaregularor probationaryemployeeleaveof absencewithoutpayor accrualof seniority, for anamountnotto exceed three ( 3) months. After three ( 3) months, the leave of absence may be extended if so, authorizedby theCity Manager. No suchleaveshallbegrantedexceptuponwrittenrequestof theemployee, settingforth thereasonfor therequest, andtheapprovalshallbe in writing. Upon expirationof aregularlyapprovedleaveorwithin areasonableperiodof timeafternoticeto return City of Highland Personnel Rules & Regulations
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toduty, theemployeeshallbereinstatedin thepositionheldatthetimeleavewasgranted. Failure onthepartof anemployeeon leaveto reportbackto work promptlyat its expiration, or within a reasonabletime after notice to return to duty, shall result in the employee's discharge. The depositingin theUnitedStatesmail of afirst-classletter, postagepaid, addressedto theemployee's last known place of address, shall be reasonablenotice.
2. Increments of sick leave and vacation time shall not accrue during a leave of absencewithoutpay. Exceptasotherwiserequiredby law, duringaleaveof absencewithout pay, theemployeeshallberesponsiblefor payingtheentirecostof his/herowngrouphealth insurance, dental, vision, life insurance, andlong-term disability insurance, andshallnot accrue excess benefit deferred compensation.
3. Seniority credit shall not accrueand shall not be lost as a result of an approved leave of absence without pay.
D. JURY DUTY / COURT LEAVE
1. Everyemployeewhois calledorrequiredto serveasajuror shallbe entitled. to beabsentfromhis/herdutiesduringtheperiodof suchservice. Undersuchcircumstances, the employeemustgivereasonablenoticetohis/hersupervisorthatheor sheisrequiredto servein courtandisrequiredto providea certificatefromthecourtwhichshowsthedatesof attendance andan itemizedaccountof any compensationreceivedfor suchservice. (Labor Code Section 230( a).)
a. The City may requesta defermentof jury duty on behalf of the employee, where that employee' s services are essential to the City' s operations. b. Any fees or compensationreceived by reason of such court attendancein connectionwith jury duty as provided abovemust be deliveredto the Finance Officer. The employee shall receive his/her regular rate of pay during such time as required for his/her jury service.
2. An employee who is ordered to appear in court pursuant to a subpoena or other court order in a matterregardingan eventor transactionwhich he or sheperceivedor investigatedin thecourseof his/herduty, to which theCity is not aparty, shallbe allowedto do sowithout lossof salaryor othercompensationto which he/sheis normallyentitledfromtheCity duringthetimethattheemployeepreparesfor his/herresponseandappearance, duringthetime thathe/shetravelsto andfrom theplacewherethecourtor othertribunalis locatedandwhile he orsheisrequiredtoremainatthatplacepursuanttothesubpoena. Theemployeeshallalsoreceive theactualnecessaryandreasonabletravelingexpenseshe/sheincurredin complyingwith the subpoena. ( Government Code Section 68096. 1.)
3. An employee ordered to appear in court pursuant to a subpoena or other courtorderor appearingasa witnessin anyjudicial proceedingunrelatedto his/herofficial capacityasanemployee, includingbut notlimitedto, anemployeewhois a victim of a crime, shallbe permittedtimeoff withoutpay, or if theemployeechooses, to useaccruedvacation, personalleave, or compensatorytimeoff thatis otherwiseavailableto theemployeeunderthe applicable terms of his/ her employment for this purpose. ( Labor Code Sections 230( b) and ( i).) 91-
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4. An employee shall, promptly upon receipt of summons, subpoena, or other court order, submit a PersonnelAction Form for the time required for jury duty/court leave.
5. An employeeonjury duty/courtleaveshallreportfor duty at the City for alltimeduringregularworkinghoursotherthanthattimeactuallyspentoncourt -leaveassignment jury duty or under court subpoenaor other court order).
6. As used herein, the term " crime" shall have the meaning set forth in Rule XV. E.
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E. LEAVE AND REASONABLE ACCOMMODATION FOR VICTIMS OF
CRIMES
Leave
a. An employeemay take leavewhen time off is required for the employee who is a victim of a crime to obtain or attempt to obtain any relief from a court. Relief includes, but is not limited to, atemporaryrestrainingorder, restrainingorder, or otherinjunctive relief, tohelpensurethehealth, safety, or welfareof thevictim ortheirchild. (Labor Code Section 230( c).)
b. The employeeshall give the City reasonableadvancenotice of his/her intention to taketime off for any purposelisted in Rule XVI.E.I (a) unlessthe advance notice is not feasible. When an unscheduled absenceoccurs, the City will not take any adverse action against the employee if the employee, within a reasonable time after the absence, provides a certification to the City in one of the following forms:
1) A police report indicating that the employee was a victim. 2) A courtorderprotectingor separatingtheemployeefrom the perpetratorof thecrimeor abuse, or otherevidencefrom thecourtor prosecutingattorneythatthe employee has appeared in court.
3) Documentation from a licensed medical professional,
domestic violence counselor ( as defined in Evidence Code Section 1037. 1), a sexual assault counselor ( as defined in Evidence Code Section 1035. 2), a victim advocate, licensed health care provider, orcounselorthattheemployeewasundergoingtreatmentforphysicalormentalinjuries or abuseresulting in victimization from the crime or abuse. d. To the extent allowed or required by law, the City shall maintain the confidentiality of any employee requesting leave under this section. The City shall give the employeenoticebeforeanyauthorizeddisclosureasrequiredby law. e. Any employeemay usevacation, personalleave, or compensatory time off that is otherwise available to the employee undeAhe applicable terms of employment, unlessotherwiseprovidedbyamemorandumof understanding, fortimetakenoff forthispurpose.
2. Reasonable Accommodation. The City will provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for the safety of the victim while at work. a. For purposesof this subdivision, reasonableaccommodations may include the implementationof safetymeasures, including a transfer, reassignment, modified schedule, changedwork telephone, changedwork station, installed lock, assistancein documenting domestic violence, sexual assault, stalking or other crime that occurs in the workplace, an implementedsafetyprocedure, oranotheradjustmentto ajob structure, workplacefacility, or work requirement in responseto domestic violence, sexual assault, stalking, or other crime, or referral to a victim assistance organization.
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b. The City is not required to provide a reasonableaccommodation to an employee who hasnot disclosed his/her statusasa victim of domestic violence, sexual assault, or stalking.
C. TheCity will engagein atimely, goodfaith, andinteractiveprocess with the employee to determine effective reasonable accommodations. In determining whether theaccommodationisreasonable, theCity shallconsideranexigentcircumstanceor dangerfacing the employee.
d. The City is not required to undertake an action that constitutes an unduehardshipontheemployer'sbusinessoperations, asdefinedby GovernmentCodeSection 12926. Forthepurposesof thissubdivision, anunduehardshipalsoincludesanactionthatwould violateanemployer'sdutytofurnishandmaintainaplaceof employmentthatissafeandhealthful for all employees asrequired by Section 6400 of the Labor Code.
Documentation:
1) Upon the request of an employer, an employee requesting a reasonableaccommodationpursuantto this subdivisionshall provide the employer a written statementsignedbytheemployeeoranindividualactingontheemployee'sbehalf, certifyingthat theaccommodationis for apurposeauthorizedunderthis RuleXVI.E.II. 2) The employer may also request certification from an
employeerequestinganaccommodationpursuanttothis subdivisiondemonstratingtheemployee's statusas a victim of domesticviolence, sexual assault, or stalking. Certification shall be sufficient in theform of anyof thecategoriesdescribedin RuleXVI.E. I (b). 3) An employer who requests certification pursuant to
subparagraph (B) mayrequestrecertificationof an employee's statusasa victim of domestic violence, sexual assault, or stalking, or ongoing circumstancesrelated to the crime or abuse, every six months after the dateof the previous certification. d. Confidentiality. Any verbal or written statement, police or court record, or otherdocumentationprovidedtotheCityidentifyinganemployeeasavictimshallbe maintainedas confidentialby the City and shall not be disclosedby the employer exceptas requiredby federalorstatelaworasnecessarytoprotecttheemployee'ssafetyin theworkplace.
The employee shall be given notice before any authorized disclosure. e. Changed Circumstances.
1) If circumstances change and an employee needs a new
accommodation, the employeeshall requesta new accommodation from the City. Upon receiving therequest, theCityshallengagein atimely, goodfaith, andinteractiveprocesswiththeemployee to determine effective reasonable accommodations.
2) If an employee no longer needs an accommodation, the employeeshallnotify theCity thattheaccommodationis no longerneeded. 94-
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f. Policy Against Discrimination or Retaliation. The City shall not discharge, or discriminateorretaliateagainst, anemployeefor takingtime off for relief authorized bythisRuleXVI.E. I (a) or (b), orforrequestingareasonableaccommodationpursuanttothisRule XVI. E.2, regardlessof whether the request was granted.
3. Definitions. Thefollowing termsshallhavethefollowing meaningsin this rule XVI. E: 1 and 2:
a. " Crime" means a crime or public offense set forth in Government Code Section13951, and regardlessof whetherany personis arrestedfor, prosecutedfor, or convicted of, committing the crime.
b. " Domestic violence" means any of the types of abuseset forth in Family Code Section6211, as amended.
C. " Immediatefamily member" meansa personwho is any of the following:
1) Regardless of age, a biological, adopted, or foster child, stepchild, orlegalward, achild of adomesticpartner, achildto whomtheemployeestandsin loco parentis, or apersonto whomtheemployeestoodin locoparentiswhenthepersonwasaminor. 2) A biological, adoptive, or foster parent, stepparent, or legal guardianof anemployeeor anemployee'sspouseordomesticpartner, or apersonwhostoodin locoparentiswhentheemployeeortheemployee'sspouseordomesticpartnerwasaminorchild. 3) A personto whom the employeeis legally marriedunderthe lawsof anystate, oradomesticpartnerof anemployeeasregisteredunderthelawsof anystate or political subdivision.
4) A biological, foster, or adoptive sibling, a stepsibling, or a half - sibling.
5) Any otherindividual whosecloseassociationwith theemployee is theequivalentof a. family relationshipdescribedin subparagraph (1), (2), ( 3), or ( 4). d. " Sexual assault" means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a of, the PenalCode, asamended. e. " Stalking" meansa crime setforth in Section646.9 of the Penal Code or Section 1708. 7 of the Civil Code.
f. " Victim" includes any of the following:
1) A victim of stalking, domestic violence, or sexual assault. 95-
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2) A victim of a crime that causedphysical injury or that caused mental injury anda threat of physical injury.
3) A personwhoseimmediatefamily memberis deceasedas
the direct result of a crime.
4) For the purposesof Rule XVI. D.3 only, any person against whom any crime hasbeen committed.
g. " Victim advocate" means an individual, whether paid or serving as a volunteer, who providesservicesto victims underthe auspicesor supervisionof anagencyor organization that has a documented record of providing services to victims, or under the auspices or supervision of a court or a law enforcement or prosecution agency.
4. Additional Leave - When City Employees 25 or More Employees (Labor Code Section 230. 1)
a. Applicability; Types of Leave. During any period of time that the Cityhas25ormoreemployees, anemployeewhois avictimof acrimemaytaketimeoff from work for any of the following additional purposes:
1) To seek medical attention for injuries caused by crime or abuse.
2) To obtain services from a domestic violence shelter, program, rapecrisiscenteror victim servicesorganizationor agencyasaresultof thecrimeor abuse.
3) To obtain psychological counseling related to an experience of crime or abuse.
4) To participatein safetyplanning andtake otheractionsto increasesafety from future crime or abuse, including temporary or permanent relocation. b. Reasonable Notice. The employee shall give the City reasonable advancenotice of his/her intention to take time off for any purpose listed in Rule XVI. E.4(a)(1), 2), ( 3) or (4), unless the advance notice is not feasible. When an unscheduled absence occurs, the City will not takeanyadverseactionagainstthe employeeif the employee, within a reasonable time aftertheabsence, providesa certificationto theCity in oneof the formslistedin Rule XVLE. I . e.
C. Confidentiality. Theprovisionsof RuleXVI.E. I (d) apply. d. Use of Accrued Leave. The provisions of Rule XVI. E. l (e) apply.
C. Policy Against Discriminationor Retaliation. The City shall not dischargeor discriminate or retaliate against an employee who is a victim for taking time off for any purposeset forth in Rule XVI. E.4(a).
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f. Definitions. The definitions set forth in Rule XVI. E.3 shall apply. g. FMLA. This Rule XVI. E.4 does not create a right for an employee to takeunpaid leavethat exceedsthe unpaid leavetime allowed under or is in addition to the unpaid leave time permitted by, the FMLA. ( See Rule XV. D for the City' s FMLA/ CFRA Leave Policy.) F. TIME OFF TO VOTE
If an employee does not have sufficient time outside of working hours to vote at a statewideelection, the employeemay takeup to two (2) hours off without loss of pay at the beginningorendof theday. Any additionaltimeoff neededto votewill beunpaid.
Dri0r
p.,,.^.,'
for this time ff b the o .. levee' s supen, is,,," oaIf the employee knows on the third working day prior to the electionthat time off will be needed the employeemustprovide two days' notice to the City. ( Elections Code Section 14000.) G. SCHOOL LEAVE
Any City employeewhois aparent, guardianor grandparenthavingcustodyof one ormorechildrenin kindergartenorgradesone (1) throughtwelve (12) orattendingalicensedday carefacilityshallbealloweduptoforty (40) hourseachschoolyear, nottoexceedeight (8) hours in anycalendarmonthof theschoolyear, withoutpay, toparticipatein activitiesoftheschoolof their child. Suchemployeemustprovidereasonableadvancenoticeof theplannedabsence. The employee shall use vacation and/or eempensating-compensatory time ,off to cover the absence.
The employeeshall provide documentationfrom the schoolas verification that the employee participatedin school activities on a specific dateand at a particular time. If both parents, guardiansorgrandparentshavingcustody, workfortheCity atthesameworksite, onlythefirst parentrequestingshallbeentitledto leaveunderthisprovision.
H. AMERICANS WITH DISABILITIES ACT DISABILITY ACCOMMODATION In the event an employeebecomesdisabled within the meaning of the Americans with Disabilities Act or other applicable stateor federal disability laws andthe City is reasonably able to accommodatethe limits or restrictions on that employee' s ability to work, the City will do soprovidedthattheemployeeisqualifiedtoperformthedutiesof ajobthatmaybemadeavailable to him or her. In effectuatingtheprovisionsof this Sectionandthe dutiesof thelaw, the City' s effortstoreasonablyaccommodatetheemployeeshalltakeprecedenceoverandpreemptanyother conflictingprovisionsor limitationsof any memorandumof understandingor civil service regulations. Formsfor usein requestingaccommodationmay be obtainedfrom the Personnel Department.
I. SUPERVISORY DISCRETION. TO RELIEVE EMPLOYEES FROM DUTY
AND FITNESS FOR DUTY
If at any time the supervisor, DepartmentHead or City Managerbelievesan employeeis unableto perform assigneddutiesin a safeandefficient manner, theemployeemay be required to undergo a Fitness For Duty Examination. The purpose of the examination is to determinetheemployee'sphysicalorpsychologicalability to meetthepositionrequirements. The examinationshallbeperformedby amedicaldoctorselectedandpaidfor by theCity. Thedoctor's 97-
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reportshallbe the basisfor determiningwhetherany changeof dutiesis warranted. It is City policyto complywith theAmericanswithDisabilitiesAct andthedisabilityrightsprovisionsof the California Fair Employment and Housing Act. When the City is aware that an employee has a covereddisability andmayneedreasonableaccommodationto performtheessentialfunctions of thejob, theCity will engagein agoodfaithinteractiveprocesswiththeemployeein aneffort to identify possible reasonable accommodations. If an employee has questions about the interactive process or believes that he or shemay need a reasonableaccommodation to perform the essentialfunctions of his/her job, the employeeshould contacthis/her supervisoror the Personnel Department staff.
XVII. PERFORMANCE EVALUATIONS
A. PERFORMANCE EVALUATION PURPOSE
1. Performanceevaluationsproviderecognitionof effectiveperformanceand identify areasthatneedimprovement, asappropriate. Performanceevaluationsmaybeusedasa basis for completion of probation, salary adjustments, promotions, training, and discipline.
Performanceevaluationsmay alsoincludea period of performanceprobationassociatedwith a performanceimprovementplanandheightenedevaluationandcounseling. Routineperformance evaluations are not considered discipline and will not a€feet trigger an employee' s discipline and appealrights, asprovided in theseRules.
2. The PersonnelDirector shallprovide a methodof reportingof individual employeeperformancewhich relates to quantity and quality of work, ability, reliability, attendance, and other job -related factors. The Personnel Director shall prescribe forms for such performanceevaluationsandshallbe responsiblefor assuringthat suchevaluationsareadequate toprovideinformationto boththeemployeeandtheCity for thepurposessetforthin this Section.
An employeemusthaveaperformanceevaluationrating of "meetsjob requirements" in orderto beeligible for amerit salaryincreaseor promotion. Deficienciesin performanceby anemployee mayresultin a decreasein salary, suspension, demotion, or dismissal.
B. PERFORMANCE REPORTS PROCEDURES
I. Department Heads shall periodically rate the performance of each employee; provided, however, thattheDepartmentHeadsmaydelegatetheresponsibilityfor ratingtheperformanceof specifiedemployeesin theirdepartmentsto thatemployee'ssupervisor.
Interimreportsmaybecompletedasnecessarywhenchangesin work performanceoccur. Special evaluationsmaybe requiredat thediscretionof the DepartmentHeadwith theprior approvalof the City Manager, or directly by the City Manager. Each employee shall be informed in such reports of his/ her strengths and weaknesses. The employee shall sign the report to acknowledge its receipt and contents. Such signature shall not necessarily mean he or she fully endorsesthe contents of said report.
2. Theperformancereportwill bepresentedto theemployeeprior to its entry in theemployee'spersonnelfile. Uponrequest, theperformanceevaluationwill bediscussedwith the involved employee with a supervisor or Department Head designee. An employee may respondin writing to aperformanceevaluationwithin seven (7) calendardaysof its receipt. Each City of Highland Personnel Rules & Regulations
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completed evaluation, and the employee's written response, if any, will be maintained in the employee's personnel file. An employee does not have the right to appeal or grieve any matter relating to the content of the performance evaluation.
3. ProbationaryEmployees/New Appointments. Priorto theendof theinitial probationaryperiod, a new hire or re -hire will be evaluated. The outcome of such employee evaluationwill determinewhethertheprobationaryemployeeis rejectedor appointedasa "regular employee." This evaluation is also the means of determining the appropriatenessof a merit increaseattheendof theprobationperiod. Aftersuccessfullypassingtheprobationaryperiod, the employee's anniversarydateis set; andtheemployeereceives "regularemployee" status, which includes being evaluatedon aregular basis.
4. Probationary Employees/Promotional Appointments. An evaluation form will be completedprior to the endof thepromotionalprobationaryperiodto determine "release" to newpositionor returnto theformerpositionif available.
5. Managementemployees shall be regularly evaluatedby the City Manager.
Management employees shall remain at -will employees notwithstanding issuance of a performanceevaluationor reviewby theCity Manager.
XVIII. PERSONNEL RECORDS
A. PERSONNEL FILES
1. Personnel Files. The City maintainsa personnelfile on eachemployee.
Personnel files are located in the Personnel Department. An employee's personnel file shall containonlymaterialthatisnecessaryandrelevantto theadministrationof theCity'spersonnel program. Personnelfiles arethepropertyof theCity, andaccessto theinformationtheycontain is restricted.
2. Notifying City of Changes in Personal Information. Each employee is responsibleto promptlynotify the employee's supervisorandthe PersonnelDirectorof any changesin relevant personal information, including mailing address, telephone number, persons to contactin emergency, andnumberandnamesof dependents.
3. Medical Information.
a. Separate Confidential Files. All medical information about an employeeor applicantis kept separatelyandmaintainedasconfidential, in accordancewith the Americans with Disabilities Act (" ADA") ( 42 U. S.C. Section 12112( d)( 3)(b) and the California Confidentiality of Medical Information Act (" CMIA") ( Cal. Civil Code Sections 56 et seq.).
Medical information will be kept confidential, on separateforms and in separatelocked medical files, and shall bereviewed by authorizedpersonsonly to assesswhether the applicant or employee hasthe ability to perform the functions of thejob, with or without reasonableaccommodation; or whetherthe employeemay posea directthreatto himself/herselfand/or to others; to determine whether the employee is fit for duty; to assistin providing reasonableaccommodation; to provide first aidasnecessary; for insurancepurposes; andto complywith otherprovisionsof Federal and/ or State law.
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b. Information in Medical Files. The City will not obtain medical information about an employee or applicant except in compliance with the California Confidentiality of Medical Information Act. To enable the City to obtain certain medical information, the employeeor applicant may needto sign an AUTHORIZATION FOR RELEASE OF EMPLOYEE MEDICAL INFORMATION.
C. Access to Medical Information. Access to employee or applicant medical information shall be strictly limited to only thosewith a legitimateneedto have such informationfor Citybusinessreasons. Inthecaseof anemployeewithadisability, managersand supervisorsmay be informed regardingnecessaryrestrictions on the work or duties of the employee and necessary accommodations. The City will not provide employee or applicant medicalinformationto a third party (exceptaspermittedundertheCMIA andtheFedef.,l Heal insufanee Peftability Aeeoun* oi" rr^ t ("?- T.?'PA A "; other applicable medical privacylaws, aws, or as otherwiserequiredby law, for examplepursuantto a court order) unlessthe employeesignsan AUTHORIZATION FOR RELEASE OF EMPLOYEE MEDICAL INFORMATION in the form providedby theCity. TheCitywill releaseonlythemedicalinformationthatis identifiedin the employee' s authorization. If the employee' s authorization indicates any limitations regarding the use of the medical information, the City will communicate those limitations to the person or entity to which it discloses the medical information.
4. References and Release of Information in Personnel Files. a. Public Information. Upon request, the City will releaseto the public informationaboutits employeesasrequiredby thePublicRecordsAct. TheCity will notdisclose personnelinformationthatit considerswouldconstituteanunwarrantedinvasionof personal privacy, except asrequired by law or court order.
b. ReferenceChecks. All requestsfrom outside the City for reference checksor verificationof employmentconcerninganycurrentor formeremployeemustbereferred to the Personnel Director. Information will be released only if the employee signs an AUTHORIZATION FOR RELEASE OF EMPLOYMENT INFORMATION in the form provided by theCity, exceptthatwithoutsuchauthorization, theemployee'sdatesof employmentwill be released.
5. Employee Access to Personnel File.
a. Inspection of File. An employeemay inspecthis/her own personnel file, as defined in California Labor Code Section 1198.5, at reasonable times and at reasonable intervals. An employee who wishes to review his/ her file should contact the Personnel Director to arrangean appointment. The review must be done in the presenceof the PersonnelDirector or his/ her designee.
b. Copies. On request, an employee is entitled to receive a copy of any employment -related documenthe/shehassigned. An employeewho wishesto receive sucha copy should contact the PersonnelDirector., On request, the City will also provide an employee single copiesof anyotherdocumentsin his/herpersonnelfile. TheCity maychargeareasonablefeefor the copies.
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C. Removal. Personnelfiles arethepropertyandofficial recordsof the City andmaynotberemovedfrom theCity' spremisesexceptasrequiredby law or courtorder.
XIX. SEPARATION FROM CITY EMPLOYMENT
A. RESIGNATION.
1. An employeewishing to leavethe competitiveservicein good standing shallfile with theAppointingAuthority awritten resignationstatingtheeffectivedateandreasons for leaving, atleasttwo (2) weeks (14calendardays) beforeleavingtheservice, unlesssuchtime limit is waived by the Appointing Authority. A statement as to the resigned employee' s service performanceandotherpertinentinformationshallbeforwardedtothePersonnelDirector. Failure to givenoticeasrequiredbythisRule shallbecausefor denyingfutureemploymentby theCity.
2. A resignation becomes final when acceptedby the Appointing Authority.
Oncea resignationhasbeenacceptedby theAppointingAuthority, it cannotbewithdrawn.
B. JOB ABANDONMENT
1. When in the opinion of the Department Head, it appears that an employee mayhaveabandonedhis/herposition, theDepartmentHeadshallnotify theAppointingAuthority, or a designee. TheAppointingAuthority, or a designee, shallnotify the employeethat the City believesthathe/shemayhaveabandonedhis/herpositionandthathe/shehasthreeten (34-0) days from thedateof thenoticeto contacttheCity regardinghis/herintentto returnto work.
2. The Notice of Abandonment of Position shall be in writing and sent by certifiedmail or personalservice, andby regularmail, to thelastaddresslistedin the employee's personnel records. The Notice shall include the details of the employee' s absence. The Notice shall also indicate that the employee's failure to respond to the Notice within threeten (34-0) days of the date of the Notice will constitute the employee' s automatic resignation from City service.
3. An appearanceof abandonmentof positionmayinclude, but is not limited to, situations:
a. An employee fails to return to his/ her employment upon conclusion of any authorized leave of absence;
b. An employee fails to properly notify his/her immediate supervisor of an absence due to sickness or injury;
C. An employee fails to appear for work without notification or express agreementbetween the immediate supervisor and the employee authorizing the use of any leave time set forth under the City' s personnelpolicies, or
d. An employeefails to keephis/herimmediatesupervisorinformedof theemployee'sdisability statuson adaily basisunlessotherwisedirectedby his/hersupervisor. 101-
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4. An employee' s failure to respond to the Notice of Abandonment of Position within threeten ( 34-0) days of the date of the Notice shall be deemed to be an abandonment of the employee's position and shall constitutethe employee's automaticresignationfrom the City service.
5. Abandonment is considered voluntary, and employees have no right to appealorfileagrievanceif deemedtohaveresignedasaresultofjob abandonmentandshallhave waived all rights under the Personnel Ordinance and these Rules.
6. ThisRulenotwithstanding, employeesabsentwithout leavemaybesubject to disciplinaryaction, includingdischargefrom employment.
7. This Rule shall be implemented in accordance with federal and state law, includingbutnot limitedto, theADA, FEHA, CFRAandFMLA.
C. DISABILITY.
An employee may be separatedbecauseof an inability by the City to provide a reasonableaccommodationthrough the interactive process. The employeewill be given a written pre -separationnoticeof thereasonsfor theseparationandanopportunityto respondbeforethe separation takes effect. Employees separated for disability may be eligible for disability retirement.
D. DEATH.
All compensationdueanemployeeshallbepayableasof thedateof deathandshall bepaidto thesurvivingspouseor to theestateof thedeceasedemployee.
E. RETIREMENT.
Whenever an employee meets the conditions set forth in the PERS Retirement plan regulations, or other applicable City retirement plan, he or shemay elect to retire.
F. DISCHARGE
1. Discharge of Regular Employee. An employee in the competitive service maybedischargedatanytimeby theAppointingAuthority. Wheneverit is theintentionof the AppointingAuthority to dischargeanemployeein thecompetitiveservice, thePersonnelDirector shallbenotified. Disciplinarydischargeactionof regularemployeesshallbetakenin accordance with Rule XX ( Disciplinary Actions).
2. Discharge of Management Employees. Subject to the provisions of Rule IX (ProbationaryPeriod) hereof, thoseemployeeswho areemployedatthewill of theAppointing Authorityinmanagementpositionsorothermayberemovedatanytimewithoutcauseorrightof appeal. Managementpositions are listed in Rule II ( Definitions).
3. Discharge of Probationary Employees and Temporary Part - Time Employees, Seasonal Employees and All Other At -Will Employees. All other employees are at- 102-
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will employeeswhomaybeseparatedatanytimefromtheCity with orwithout cause, andwithout any right of pre- or post -disciplinary due process, or right to evidentiary appeal, review, or grievance. ( SeeRule IX ( Probationary Period).)
G. Layoff of Employees. Whenever, in thejudgmentof the City CouncilManager, it becomesnecessaryto abolishanypositionor employment, theemployeeholdingsuchaposition or employmentmay be laid off or demotedin accordancewith Rule XXI ( Layoff Policy and Procedures) hereof, without disciplinary action and without the right of appeal.
XX. DISCIPLINARY ACTIONS
A. APPLICATION
Employees shall be subject to discipline in accordance with the following provisions:
1. Regular Employees: Except as otherwise set forth in these Rules, a regular employeemaybedemoted, reducedin step, suspended, or dismissedonly for cause.
2. Management Employees: In accordance with the Personnel Ordinance and Rule I.I, managementemployeesare at -will employeeswho serveat the pleasureof the Appointing Authority, andmay be terminatedwith or without cause, andwithout any right to evidentiary appeal, review, or grievancepursuantto theseRules. As such, theprovisionsof thisRuleXX shall not apply to management employees.
3. Probationary, Seasonal, Temporary and Part- time Employees: In accordancewith the PersonnelOrdinanceand Rule I.I, probationary, seasonal, temporary, and part-timeemployees (excludingregularpart-timeemployees) areat -will employeeswhoserveat thepleasureof theCity Managerandmaybedemoted, reducedin step, suspended, or dismissed without cause, prior notice, right of review or appealor grievance. Release during probationary period, orattheconclusionoftheprobationaryperiod, doesnotconstitutedisciplinaryaction. As such, theprovisionsof RuleXX shallnot applyto suchemployees.
4. Contract Employees: The City Managerandother employeeswho have individual employment agreementsshall have only thoserights that are specifically grantedunder the terms of their separateagreements, and thoserights provided by Stateand Federallaw. Unless otherwise specified in the employment agreement, a contract employee of the City is an at -will employeewho servesat thepleasureof theAppointingAuthority who maybeterminatedwith or without causeandwithoutanypre- or post -disciplinarydueprocessor right of evidentiaryhearing, review, or agrievancewith respectto anydisciplinaryactionorterminationfrom employment. As such, provisionsof RuleXX shallnot applyto contractemployees.
B. CAUSE FOR DISCIPLINARY ACTION
Discipline is intendedto be imposedprimarily for corrective purposesand to address deficiencies in work performance. The following is a nonexclusive list of the more common causes for disciplinary action:
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1. Fraudin securingemploymentor making a falseor misleadingstatement on an application for employment.
2. Incompetencyor negligencein theperformanceof duties, i.e., inability to complywiththeminimumstandardof anemployee'spositionfor asignificantperiodof time.
3. Inefficiency or inexcusableneglectof duty, i.e., failure to perform duties requiredof or assignedto an employeewithin his/herposition or failure to carry out dutiesin a prompt, competentand responsible manner.
4. Willful disobedience or insubordination, a willful failure to submit to duly appointedandactingsupervisionorto conformtodulyestablishedordersordirectionsof persons in asupervisorypositionor insultingor demeaningtheauthorityof a supervisoror manager.
5. Dishonesty involving employment, including but not limited to in connection with an employee'sjob duties andresponsibilities.
6. With respect to alcohol and drugs: ( a) possession, use or being under the influence of alcohol, or -illegal drugs, narcotics or non -prescribed controlled substanceswhen reportingforwork, whileonduty (includingbut notlimitedto standbyor call-backtime), while
onCitypremises, and/orwhileusingCityequipmentorvehicles; or (b) reportingforwork, while on duty (includingbut not limited to standbyor call-backtime), while on City premises and/or while usingCity equipmentorvehicles, or performinganyjob duties, while theemployee'sability to performjob dutiesis impairedduetoon -dutyoroff -dutyalcoholor druguse; or (c) engaging in anyactsinviolationoftheCity'sDrug -FreeWorkplacePolicy (RuleXXVII herein). Examples of controlled substances include but are not limited, to: marijuana ( cannabis), amphetamines, opiates, phencyclidine (PCP), cocaineandanyderivativeorpreparationof cocaleaves, LSD, speed andQuaaludes, andanyothersubstancesasmaybefoundin SchedulesI throughV of Section202 of the Controlled Substance Act ( 21 U. S.C. 812) or any federal regulation adopted pursuant thereto, and as amended from time to time.
7. Excessive absenteeism or tardiness.
8. Unauthorized or unexcused absence from employment without leave.
9. Abuse of sick leave, i. e., taking sick leavewithout a doctor's certificate when one is required, or misuse of sick leave.
10. Convictionof a felonyor amisdemeanorof anaturethat (a) disqualifiesan employeefromholdinghis/herpositionpursuantto federalor statelaw; or (b) hasa directand adverserelationshipwith thespecificdutiesof theemployee'sjob thatjustifiesdisciplineupto andincludingdischargefrom employment. Therecordof convictionshallbeconclusiveevidence only of the fact that the conviction occurred. The Personnel Director may inquire into the circumstancessurroundingthe commissionof the crime or offense in order to assistthe DepartmentDirectorin makinganindividualizedassessmentwhetherdisciplineis warrantedand, if so, the degree of discipline. In consideringa conviction, the DepartmentDirector shallutilize thefactorssetforth in RuleVX of theseRulesandasotherwiserequiredby federalor statelaw.
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whether a sentence is imposed by the court. " Conviction" does not include and shall not be construedto include any adjudication by ajuvenile court, or any other court order or action taken with respectto a personwho is undertheprocessandjurisdiction of thejuvenile court.
11. Discourteous treatment of the public or other employees.
12. Improper, unauthorized, or illegal useof City property.
13. Refusal to subscribeto any oath or affirmation which is required by law in connectionwith City employment.
14. Any willful actof conductundertakenin badfaith, eitherduringor outside of dutyhourswhichisof suchanaturethatit causesdiscreditor damagetotheCity, theemployee's department or division.
15. Inattentionto duty, tardiness, indolence, carelessnessor negligencein the careandhandling of City property.
16. Sleeping or malingering while on duty.
17. Violation of the Personnel Rules and Regulations of the City or the rules and regulations of any department.
19. Outside employment not specifically authorized by the Appointing Authority.
20. Acceptancefromanysourceof areward, gift, or otherformof remuneration in addition to regular compensationto an employee for the performance of his/her official duties, or anyotheruseof anemployee's official positionor of theCity' s time, facilities, equipmentor suppliesfor personal gain or advantage.
21. The refusal of any officer or employeeof the City to testify under oath beforeany GrandJury havingjurisdiction over anythenpendingcauseof inquiry in which the investigationof governmentbribery or misconductin City office is involved shallconstituteof itself sufficientgroundfor theimmediatedischargeof suchofficer or employee.
22. Willful violation of any of the provisions of the ordinances, resolutions or anyrules, regulationsor policieswhichmaybeprescribedby the City.
23. Improper political activity, such as campaigningfor or espousingthe electionor non -electionof any candidatein national, state, county, or municipalelectionswhile ondutyand/or duringworkinghours, orin aCityuniformonor off duty; orthedisseminationof political materialof anykind while onduty and/or duringworking hoursor in a City uniform. 105-
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24. Working overtime without authorization.
25. Actions incompatible with, or not in the best interestsof, public service.
26. Violation of or failureto complywith safetystandards; orrefusalor failure to immediatelyfollow safeworkingpracticesor failureto reportpromptlyaninjury.
27. Theftor personaluseof City funds, property, or equipment.
28. Sexual or- other illegal harassment, discrimination or retaliation of City employees, officials, consultants, or members of the public, or other discourteous or offensive treatmentof City employees, officials or consultants, or membersof thepublic.
29. Damage to or destruction of City property.
30. Tardiness.
31. Physical abuse or threats directed at supervisors, coworkers, or members of thepublic; andanyactor threatof workplaceviolenceor fighting on thejob
32. Engagingin bullying or otherabusiveconductof membersof the public, other employees, or officials.
33. Failure to obtain or maintain a certificate or license required for current position.
34. Possessinga firearm or other dangerousweapon on the City' s property or while conducting City businessor official activities.
35. Willful concealmentof pertinent information or documentationfrom supervisors.
36. Failure to maintain proscribed records ( e. g., falsifying, concealing, misusing, mutilating, or removing City documentsor other records).
37. Failure to comply with the dress code, or to maintain grooming, clothing, or uniform standards.
38. Non-compliance with any applicable conflict of interestprovisions or code.
39. Unauthorized release or disclosure of confidential information or documents from any City records.
40. Any othercauseasdeterminedby theCity Manager -li oni-4-ill-lam4o- tfific. This list is not intended to be exhaustive, and other actions adversely affecting the City' s ability to efficiently function may be grounds for disciplinary action. 106-
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C. KINDS OF DISCIPLINARY ACTION
The following disciplinary actions may be taken against any regular employee eitherby the City Manageror his/herdesignee. Disciplinary action may include any one or any combinationof actions, andtheactionsmaynotnecessarilybeappliedin anydefinedorder. Minor Disciplinary action neednot be taken before Major Discipline.
1. Minor Discipline
a. Counseling. A supervisor may counsel an employee for a minor performanceproblem. If thesituationdoesnotimprovewithinareasonableperiod, dependingon the seriousnessof the infraction, the supervisor may repeat the measureor may initiate -another typeof disciplinaryactionappropriateunderthecircumstances. Thesupervisormaykeepawritten recordof thedateandsubstanceof thecounselingsession, but therecordshallnotbecomeapart of theemployee'spersonnelfile unlessthesituationleadingto thecounselingis not correctedor other repeatedinfractions occur, and more seriousdisciplinary proceduresaredeemednecessary. b. Reprimand. A supervisormayissueanoralor writtenreprimandfor a more serious infraction, or for repeated minor infractions. If the situation does not improve within a reasonableperiod (usuallythirty (30) daysto onehundredeighty (1.80) days, depending on theseriousnessof the issue), the supervisormay repeatthe measureor may initiate anothertype of disciplinaryactionappropriateunderthecircumstances. Thesupervisorshouldkeepacopyof the written reprimand, or the written memorandum of the oral reprimand, which statesthe dateand substanceof the subject of the reprimand, describe the plan for improvement, andthe employee's response, if any. The employee shall sign and receive a copy of the memorandum of oral reprimand, and the original shall be filed in the employee's personnel file. A record of informal counselingandverbalreprimandsmay alsobe includedin the employee's personnelfile in connection with a reprimand.
2. Major Discipline. A Director, Department Head, or the City Manager, or his or her designee, may takeanyof the following disciplinary actions, in accordancewith the proceduresetforth in SectionsE andF. A copy of the notice informing the employeeof the proposedmajordisciplineshallbeplacedin theemployee'spersonnelfile. a. Suspension. For serious infractions of the City' s Rules and Regulationsor for persistentfailureto correctdeficienciesnotedin verbalor writtenreprimands, theemployeemaybe suspendedwithoutpayfor up to five (5) daysin apayperiod. b. Demotion. For serious infractions of the City' s Rules and Regulations, an employeemay be reducedfrom a positionin oneclassto a position in another class having a lower salary range.
C. Reduction in Pay. For serious infractions of the City' s Rules and Regulations, an employee's salarymay be reducedto a lower salarywithin his or her existing salary range or in a lower salary range.
d. Dismissal. An employee may be dischargedfrom the City service.
Dismissalmayresultfrom repeatedinfractions, or immediatelyuponseriousinfraction. 107-
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D. NO APPEAL OF MINOR DISCIPLINE
An employeemay file a responseto minor discipline, as definedin SectionC.1 above, to beplacedin his/herpersonnelfile, but hasnoright of reviewor appealpursuantto Rule XX. C, by grievance pursuant to Rule XXIII, or otherwise. This action may be taken by the Department Head in accordance with Section E.
E. MAJOR DISCIPLINE -- DISCIPLINARY PROCEDURES
TheCity is notrequiredto issueMinor DisciplinebeforeissuingMajor Discipline.
Disciplinaryactionmayincludeanyoneor anycombinationof actions, andtheactionsmaynot necessarilybeappliedin anydefinedorder. MajorDisciplineshallbetakenin compliancewith the following procedures:
1. Pre - Discipline Process (" Skelly Procedure")
a. Notice of Proposed Disciplinary Action
Prior to issuance of a written order of major discipline, as defined above, theappropriateauthorityshall give theemployeea written noticeof disciplinewhich sets forth the following:
1) The disciplinary action intended;
2) The specific charges upon which the action is based; 3) A summaryof thefactsuponwhichthechargesarebased;
4) A copyof all written materials, reports, or documentsupon which the discipline is based;
5) Notice to the employee of his/ her right to respond orally and/or in writing to theproposeddisciplinaryactionbeforesaiddisciplineis imposed. Thenotice to theemployeeof theright to respondmustspecifyat leasta five (5) working dayperiodexcept asprovidedbelow. A longernoticemightbewarrantedin specificcasesbecauseofthevolumeof materialor complexityof theissuesinvolvedbut only uponwrittenrequestandwith theapproval of theCity Managershallsuchextendednoticebe granted. Noticeshallalsobe givenof the employee' s right to respond to the charges either orally or in writing to the appropriate authority; 6) The date, time, and personbefore whom the employee may respond in no less than five ( 5) working days; and
7) Notice that failure to respond at the time specified shall constituteawaiverof theright to respondprior to final disciplinebeingimposed. b) Thenotice of proposeddisciplinaryactionmustbe in writing and signedby theDirector, DepartmentHead, orhis/herdesignee. A copyof thenoticeof proposed disciplinary actionandsupportingdocumentsshall be placedin the employee's personnelfile.
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The noticeshallbe deemedreceivedby the employeeon (1) the dayof delivery if deliveredby hand or overnight courier; or (2) when mailed 48 hours after deposit in the United StatesMail, first-classpostageprepaidandaddressedto the employeeat his/heraddresslistedin his/her personnel file.
c) Limitations and Exclusions
1) Oral notice of major discipline is insufficient as full notice toanemployeeandmaybegivenonlyastheinitialnoticein extraordinarycircumstancesthatcall for immediate action. Any suchoral notice shall be followed by written notice, asrequiredby these Rules.
2) An employee may be suspendedwithout prior written notice in extraordinarycircumstanceswhenit is essentialto avertharmto thepublic, otheremployees, or to avert serious disruption of City business. Extraordinary circumstancesinclude, but are not limited to, situations involving misappropriation of public funds or property, working while under the influence of alcohol or illegal drugs or controlled substances, insubordination, commission of acrimeinvolvingmoralturpitudepunishableby imprisonmentof one (1) year, anddisruptionof the City' s businessthrough willful misconduct.
d) Pre - Discipline Employee Response:
The employee shall have the right to submit an oral or written responseby the deadlineset forth in theNotice of ProposedDisciplinary Action in accordancewith Section E. l. a. 7. The employeemay submitanyinformationor documentsthatarematerialandrelevant to the proposed discipline in his/her oral or written response.
2. Order of Disciplinary Action:
Any responsesubmittedby theemployeein accordancewith SectionE.l, d will be consideredand a determinationmadeby the Director, DepartmentHead (or the City Manager) or his/ her designee of appropriate action. The imposition of disciplinary action to suspend, demote, reducein step, or dismissanemployeeis constitutedby writtenorder. Saidorder issimilartothenoticeofproposeddisciplinaryactionandshallalsoadvisetheemployeeofhis/her right to appealandspecific chargesupon which the disciplinary action is based. The effective date of thedisciplinemaybepriorto theorder, providedthecircumstanceswarrantedsuchimmediate action. Theordershallbe signedby theDirector or DepartmentHeador his/her designee, anda copyshallbeservedontheCityManager. Noticeof thetimeallowedforappealandanswershall be statedin theorder. A copyof theordershallbepersonallyservedontheemployeeor sentby certified mail to the employee's last known address, and a copy of the order shall be placed in the employee' s personnel file.
3. Appeal Procedure
a. Notice of Appeal and Request for Hearing: Any regular employee mayappealfromtheorderimposingmajordisciplineandrequestahearingasprovidedforinthese Rules. Thenoticeof appealandrequestfor ahearingmustbein writing andmustbefiled with the City Managerwithin five (5) workingdaysof receiptof theorder. The order shall be deemed 109-
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receivedby the employeeon (1) theday of deliveryif deliveredby handor overnightcourier; or 2) when mailed 48 hours after deposit in the United StatesMail, first- class postageprepaid and addressedto the employeeat his/her addresslisted in his/her personnelfile. b. Appellant Answer to the Charges: If the employee appeals the order imposingmajordiscipline, awrittenanswertothechargesmustalsobefiledwiththeCityManager within five (5) working daysof receiptof theorder. The answerto the chargesmustbe attached to thenoticeof appealandrequestfor ahearing. Theanswermustaddresseachcauseof discipline setforth in theorderandmaystatespecificfactsorreasonsasgroundsfor theappeal.
C. Waiver of Right to Appeal. If the employee fails to file a written appealandrequestahearingwithin theprescribedtime, theemployeeshallhavewaivedtheright to a hearingandall rightsto furtherappealof thedisciplinaryaction, andthe disciplinaryaction shall be final.
4. Hearing Procedures
a. Review of Appeal
1) After receipt of the appeal and request for hearing, the City Manager shall review the appeal and answer to the charges within five ( 5) working days subsequentto his/her receipt of the appealor at suchlater dateasmutually agreedupon by the City Manager and the appellant. Hearings will be closed to the public, as allowed by law, unless the appellantrequestsin writing, atleasttwo (2) daysprior to thehearing, thatthehearingbe open. 2) WheretheCityManagerortheCity Councilhavedesignated
analternateauthorityto performthefunctionsof theCity Managerpursuantto theseRules, in accordancewith RuleI.C.2, thedesignatedauthorityshallperformall of thefunctionsof the City Manager as set forth herein.
3) TheCity Managermay, in his/hersolediscretionandwithin thirty (30) daysaftertheappealis filed, electto havetheappealheardby oneof thefollowing methods:
i) Hearing by the City Manager;
ii) Appoint a hearing officer who shall presentfindings and a recommendation to the City Manager for a final disposition; or iii) Appoint a disciplinary review board composed of
threemembers, includingonememberselectedby theCity Manager, onememberselectedby the employeeandthethird memberselectedby thetwo memberspreviouslydescribed; or iv) Appoint a hearing officer or hearing body, or any
otherhearingproceduremutually agreedbetweentheCity Managerandtheemployee. 4) In the event that the City Manager determines to appoint a disciplinaryreviewboardpursuantto Subsection6.a(iii) or anotheralternativehearingprocedure 110-
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pursuantto Subsection6.a(iv), the disciplinaryreviewboardor otherhearingofficer or hearing bodyshallpresentwrittenfindingsandrecommendationstotheCityManagerforfinaldisposition. 5) TheCity Managershallnotify the appellantin writing asto the governing hearing proceedings.
6) The City Managershall have the final authority on all appealsand may uphold, reverse, or modify the disciplinary action. b. Hearing
1) Time and Place
i) Pursuant to the City Manager' s decision in 6.a(3)
above, theCity Managershalltakeeveryappropriateactionnecessaryandreasonableto convene a hearingwithin the time prescribed. In scheduling the disciplinary hearing, the City Manager shall considerthe availability the hearingofficer, disciplinaryreview board or other hearing body/officialattheconvenienceof theemployee, theparties' representatives, andallwitnesses. ii) The purposeof the hearing is to determinethe
accuracyandthe sufficiencyof the facts attendant tothe disciplinary action. The parties may stipulate to certain facts or evidence that shall be considered without abridgment or adulteration by thehearingbodyor officersuponwhichtheactionwasbasedandanypertinentinformation thatmayestablishthetruth or falsity of suchevidence.
2) Parties
The Appellant and a representative if so desired and the City' s representativeshall attend the hearing. Failure of the Appellant, with or without his/ her representative, to appearin personat thetimeandplacesetfor thehearingshallbe deemeda withdrawal of the appealunless otherwise excusedby the City Manager. 3) Rights
Each party shall havethe right to:
i) Choose a representative and be represented at the
meeting.
ii) Testify under oath.
iii) Call witnessesandpresent documentary evidence.
iv) Question all witnessesand examine the evidence.
v) Argue the mater or issuespresented.
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4) Conduct and Order of the Proceedings
i) The City shall have the burden of proof at the
disciplinaryhearingandshallhaveto provethechargesagainstthe employeeby apreponderance of theevidence. Thehearingneednotbeconductedin accordancewith technicalrulesrelatingto evidence and witnesses, but hearings shall be conducted in a manner which is conducive to determination of the truth.
ii) Any relevant evidence may be admitted if it is the
typeof evidenceonwhich responsiblepersonsareaccustomedto relying in theconductof serious affairs, regardless of the existence of any common law or statutory rules which might make improper the admission of such evidence over objection in civil actions. iii) Hearsay evidence may be used for the purpose of
supplementingor explaininganydirectevidencethatmaynotbe sufficientin itselfto supporta findingunlessit wouldbeadmissibleoverobjectionin civil actions. iv) The rules dealing with privileges shall beeffective to the sameextentthattheyarenow or hereaftermayberecognizedin civil actionsor otherwisein accordance with law.
v) Irrelevant and unduly repetitious evidence may be
excluded.
vi) Decisions made by the hearing board or hearing
officer, includingtheCity Manager, shallnotbeinvalidatedby anyinformality in theproceedings. vii) During examination of a witness, all other witnesses, excepttheparties, shallbe excludedfrom thehearinguponmotion of eitherparty. viii) Thehearingshallbe openedby therecordingof the
time, placeanddateof thehearingandthepresenceof thepartiesandtheirchosenrepresentatives.
TheCity shallfirst presentits caseon whichthedisciplinaryactionwasbased. A hearingguide may be usedand will be made available to all parties.
ix) If the appealis to be heard by the City Manager, the City Managershallhavethesolediscretionandauthorityto conductthehearing. If theappealis to beheardby thedisciplinaryreviewboard, thedisciplinaryreviewboardshallselectachairman to conductthehearing. If ahearingofficer is appointedto heartheappeal, thehearingofficer shall have the solediscretion and authority to conduct the hearing. 5) Record of the Hearing
A recordof theproceedingsshallbe madeandmaintained
by theCity. TheCitymaychooseto makeamechanicalorelectronicrecordof theproceedings.
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6) Adjournment
Thehearingmay be adjournedor recessedfor good cause,
upon the requestof aparty, hearing body or hearing officer. 7) Exhibits and Witnesses
i) The names of witnesses and exhibits shall be
properlyidentifiedandshallbemadepartof theofficialrecord. Thehearingbodyorofficermay exclude witnesses not under examination and admonish witnesses to refrain from discussing the subjectof their testimony with other witnessesor potential witnesses. The parties may remain at all times during the proceeding.
ii) Witnessesshall be required to testify under oath and affirmation. The oath shall read:
Do you solemnly swear (or affirm) that the testimony that youareabouttogivein thismattershallbethetruth, thewholetruthandnothingbutthetruth?" 9) Confidentiality
Thehearingshallbe closedto thepublic andshallnot be a
publicrecordunlessanopenpublichearingis requestedby theappellantassetforthin Section
6. a( 1) above.
10) Expenses
TheCity shallmakeavailableanycurrentemployee(s) of the
Citywhoareidentifiedbytheappellantaswitness(es) requestedtobepresent. Theappellantshall be responsible for arranging for the attendanceof any former employees or any other witnesses who theappellantwishesto presentduringthehearing, andthe appellantshallbearanyexpenses of causingformer employees or witnessesto be present.
11) Closing of Hearing
The hearingbody or hearingofficer shall inquire if either side has anything further to offer. Uponreceivingnegativereplies, thehearingshallbe closed.
Thehearingbodyor hearingofficer shallreporttheirwrittenrecommendationto theCity Manager andthepartieswithin thirty (30) daysaftertheclosingof thehearing. 12) Action of the City Manager
Within a reasonabletime after the disciplinary hearing, the City Managershall issue a written decisioncontaining findings and conclusions. The City Manager shall have the authority to affirm, revoke or modify the decision. If the hearing was conductedby ahearingofficeroradisciplinaryreviewboard, theCityManagershallconsiderthe written findings andrecommendationof thehearingofficer or disciplinaryreview boardbefore issuinghisorherfindingsanddecisionontheappeal. TheCity Managershallnotifytheparties 113-
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within five ( 5) working days of his/her final decision. The decision of the City Manager on any appealconstitutes the final resolution of any appealabledisciplinary action. 13) Status of Appellant
The imposition of any major discipline, including but not limited to, a discharge, shallnotbestayedby anyappealfiled by anemployeefollowing issuance of theorderof disciplineby the City Manager. Any salaryor otherbenefitsfollowing a hearing on anyappealshallbe reinstatedonly if determinedto be appropriateby the City Manager following thecompletionof anysuchappealhearing.
F. JUDICIAL REVIEW
1. Judicialreviewof anydecisionof theCity Managermaybe hadpursuantto Section 1094.5 of the California Code of Civil Procedure only if the petition for writ of mandate pursuantto suchsectionis filedwithinthetimelimitsspecifiedin thisSection.
2. Pursuantto Codeof Civil Procedure Section 1094.6, any suchpetition shall befiled not laterthantheninetieth (90th) dayfollowing thedateonwhichtheCity Managergives written notice of his/ her final decision.
XXI. LAYOFF POLICY AND PROCEDURE
A. STATEMENT OF INTENT
Whenever, in thejudgmentof the City Council, it becomesnecessaryto abolish anypositionoremployment, theemployeeholdingsuchpositionoremploymentmaybelaidoff or demotedfor non -disciplinary purposesand without the right of appealor right to file a grievance.
B. NOTIFICATION
Employees to be laid off shall be given, whenever possible, at least two weeks fourteen ( 14) calendar days') written notice of layoff.
C. VACANCY AND DEMOTION
Exceptasotherwiseprovided, wheneverthereis areductionin thework force, the AppointingAuthorityshallfirstdemoteemployeesin thecompetitiveservicetoavacancy, if any, in alower classfor which theemployeewho is the latest to be laid off in accordancewith Paragraph F is qualified. All personssodemotedshallhavetheir namesplacedon there-employmentlist.
Demotionforpurposesof thisSectionisnotdisciplinaryandshallnottriggerdisciplineorappeal rights.
D. EMPLOYEE DISPLACEMENT
A regularemployeeaffectedby layoff shallhavetheright to displaceanemployee in thesamedepartmentwhohaslessseniorityin alowerclassin thesameclassseriesorin alower 114-
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classificationin which theaffectedemployeeoncehadpermanentstatus. For thepurposeof this Section and Section E, seniority includes all periods of full- time service at or above the classification level where layoff is to occur.
E. SENIORITY
1. In order to retreat to a former or lower class, a regular employee must have moresenioritythanatleastoneof theincumbentsin theretreatclassandrequestdisplacement actionin writing to the PersonnelDirector within five (5) working daysof receiptof noticeof layoff.
2. Employeesretreating to a lower or similar classshall be placed at the salary steprepresentingtheleastlossof pay. In nocaseshallthesalarybeincreasedabovethatreceived in the class from which the employee was laid off.
3. Employees retreating to a lower or similar classshall serve a probationary periodin thenewclassunlesstheyhavepreviouslysuccessfullycompletedaprobationary, period in the class or a class in the class series.
F. EMPLOYMENT STATUS
1. In each class or position, employees shall be laid off according to employment status in the following order: temporary, provisional, probationary, andregular, subject to the following provisions.
2. Temporary, provisional, probationaryandany otherat -will employeesin non -managementpositionsshallbelaidoff accordingtotheneedsoftheserviceasdeterminedby the Appointing Authority, and such employeesshall not have the right to displaceany other employee, nor shall their layoff be determined based on seniority.
3. In cases where there are two or more regular employees in the class from which the layoff is to be made, such employees shall be laid off on the basis of performance and seniority. The last evaluationrating in the class, providing suchrating hasbeenon file at least thirty (30) daysandno morethantwelve (12) monthsprior to layoff asfollows:
a. First, all employeeshavingratingsof "improvementneeded;" b. Second, all employeeshaving ratings of " competent;" and C. Third, all employeeshaving ratings of " outstanding."
4. Employeeswithin eachrating categoryshallbe laid off in inverseorderof seniority in City service.
5. Managementemployeesmaybelaid off in accordancewith theneedsof the City asdeterminedin thediscretionof theCity Managerand/or City Council. 115-
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G. RE- EMPLOYMENT LIST
Thenamesof personslaidoff ordemotedin accordancewiththeseRulesshallbe entered upon a re- employment list. Lists from different departments or at different times for the sameclassof position shall be combinedinto a single list. Such list shall be used by every AppointingAuthoritywhena vacancyarisesin the sameor lower classof positionbefore certification is made from an eligible list.
H. DURATION OF RE- EMPLOYMENT LIST
Namesof personslaid off shallbe carriedonare-employmentlist for one (1) year, exceptthatpersonsappointedtopermanentpositionsofthesamelevelasthatwhichlaidoff, shall, upon such appointment, be dropped from the list. Persons who refuse re- employment shall be dropped from the list. Personsre-employed in a lower class, or on a temporary basis, shall be continued on the list for the higher position for the one (1) year.
XXII. SEPARATION FROM SERVICE
I. DISCHARGE
An employee in the competitive service may be discharged at any time by the AppointingAuthority. Wheneverit is theintentionof theAppointingAuthorityto dischargean employee in the competitive service, the Personnel Director shall be notified. Disciplinary discharge action shall be taken in accordance with Rule XX ( Disciplinary Actions).
Anypersonemployedin anat -will positionmaybedischargedatanytimebythe AppointingAuthority, withoutcause, andwithoutprior noticeof right of appealor grievance. The discharge of an at -will employee for causeshall not modify his/her statusas an at -will employee or providehim/herwith anyrightof appealunderRuleXX or therightto file agrievanceunder Rule XXIII.
J. RESIGNATION
An employeewishingto leavethecompetitiveservicein goodstandingshallfile with theAppointingAuthoritya writtenresignationstatingtheeffectivedateandreasonsfor leavingatleasttwo (2) weeks (fourteencalendardays) beforeleavingtheservice, unlesssuchtime limit is waivedby the AppointingAuthority. A statementasto theresignedemployee's service performanceandotherpertinentinformationshallbeforwardedtothePersonnelDirector. Failure to givenoticeasrequiredbythisruleshallbecausefor denyingfutureemploymentbytheCity.
XXIII. GRIEVANCE PROCEDURE
K. PURPOSE
A grievanceprocedurehasbeenestablishedfor thefollowing purposes:
1. Promoting improved employer/employeerelations by establishingan appropriate means for determining the validity of grievances, that is, claims by an employee that 116-
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the City has violated, misrepresented, or misapplied an obligation to the employee as that obligation is expressed and written in the Personnel Rules, the City' s Rules and Regulations, or otherwise asrequired by law.
2. Providing a method of resolving such claims as closely as possible to the point of origin, asinformally aspossible.
3. Encouragingfreecommunicationsbetweensupervisorsandemployees.
L. DEFINITIONS
1. A " grievance" is a written allegationby anemployee, submittedasherein specified, claimingviolation(s) of thespecificexpresstermsof thePersonnelRulesfor whichthere is no otherspecificmethodof reviewprovidedby theCity exceptasotherwiseexcludedby these Rules. Examplesof mattersthat may be grievedinclude, but arenot limited to, the following:
requests for leave; assignment of standby compensation; training opportunities; and work schedule.
2. A " grievant" is an employeeor groupof employeesadverselyaffectedby an act or omission of the employer.
M. GRIEVANCE PROCEDURE STEPS
StepOne: Supervisor
An employeewhohasagrievanceshallfirst takeit up formally with his/her immediatesupervisorwithin five (5) working daysafterhe/sheknowsor reasonablyshouldhave known the occurrenceof the causefor grievance.
2. StepTwo: Department Manager
If the grievanceis not resolvedwithin two ( 2) working days after its submissionin StepOne, theaggrievedemployee(s) maysubmithis/her/their grievancein writing to the Department Manager within five (5) working days thereafter. No formal format is required forthewrittengrievance. TheDepartmentManagershallmeetwith theemployeewithintwo (2) workingdaysafterreceivingthe grievanceandshalldeliverhis/her answerin writingto the employee within two (2) working days after such meeting.
StepThree: City Manager
a. If the grievanceis not resolvedin the SecondStep, the employee maysubmitit in writingto theCity Manager, or anyalternateauthoritywhichmayhavebeen designatedbytheCityManagerortheCityCouncilpursuanttosectionI.13of theseRules, within five (5) workingdays. Afterhavingreceivedthegrievance, theCityManagershalldeliverhis/her response to the employee in writing within five ( 5) working days. At this step, and at all subsequentstepsin the grievanceprocedure, the employeeshall have the right to present his/her/theirgrievancewith, orwithout, arepresentativeof his/her/theirchoice. Thesetimelimits maybeextendedto adefinitedateby mutualagreementof theemployeeandtheCity Manager. 117-
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Thedecisionof theCity Managershallbe final andbinding, andno furtherreviewof the subject matterof thegrievanceshallbepermittedwithin theCity'sadministrativeprocess. b. Disputes concerning the applicability of the Grievance Procedure thatpersistthroughthethird stepshallbe submittedfor determinationby a court, unlessthe grievant and the PersonnelDirector agreeotherwise.
N. GENERAL PROVISIONS
l . If appealis not madewithin the time limits indicated, the grievance will be considered to have been settled on the basis of the last decision rendered. Any grievance not respondedto within theprescribedtime limits asdescribedin this Sectionwill be automatically advancedto thenexthigherstepunlessthetime limit is extendedby mutualagreement.
2. Employees are assured freedom from reprisal for using the grievance procedure.
O. EXCLUSIONS FROM THE GRIEVANCE PROCEDURE
the following:
conditions.
Thegrievanceproceduresetforthin thisRuleXXIII shallnotbeusedfor anyof I. To resolve complaints, requests or changes in wages, hours and working
2. To challenge the content of employee evaluations or performance reviews.
3. To challenge, obtain review of or otherwise addresscasesof discipline of anykind, including, but notlimitedto, counseling, oralor writtenreprimand, reductionin pay, demotion for disciplinary purposesor due to failure to meet job standards, suspension, or discharge.
positions.
4. To challenge examinations, or appointment or failure to appoint to
5. To challenge rejection from probation.
6. To challengeanye -disciplineor dischargeof anyat -will employee.
7. To challenge any transfer.
XXIV. ANTI - HARASSMENT POLICY
A. POLICY
1. It isthepolicyof theCitytoprovideaneutralworkenvironmentfreefrom discrimination, includingunwelcomesexualoverturesandadvancesfor allemployeesoftheCity.
City employeesareexpectedto adhereto astandardof conductthatisrespectfulandcourteousto allpersons. All employees, consultants, independentcontractors, volunteers, andmembersof the 118-
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public areto be treatedwith respect, courtesy, andtact. Conduct that is personally offensive to others will not be tolerated. Abusing thedignity of anyonethroughethnic, sexist, or racialslurs or otherderogatoryor objectionableconductmaybe causefor disciplinaryactionup to and includingdischargefrom employment. Includedin this areaof offensivebehavioraresuggestive remarks, physical advances, or intimidation.
2. The City prohibits sexualharassment, as well as the harassmentof any individual on the basis of - race, color, ancestryor national origin, religion or creed, age, disability, sexor gender, sexualorientation, genderidentityandgenderexpression, medical condition, maritalstatus, military andveteranstatus, orotherclassspeciallyprotectedby law. This policy appliesto all areasof employment, includingrecruitment, hiring, training, promotion, compensation, benefits, andtransfer. The City recognizesthat impermissible harassmentmay take many forms, including:
a. Verbal conduct such as epithets, derogatory comments, slurs or unwanted sexual advances, invitations, or comments.
b. Visual conduct such as derogatory posters, cartoons, drawings, or gestures.
C. Physical conduct such as assault, blocking normal movements, or interference with work basedon gender, race, or other protected class. d. Threats or demands to submit to sexual requests in order to maintain employmentor avoidsomeotherlossandoffersof job benefitsin returnfor sexualfavors. e. Retaliation for having reported harassmentor making a complaint of harassment, cooperatingin the investigationof a complaint, or for testifying or making a statementaspartof theinvestigationor disciplineprocess.
B. COMPLAINT PROCEDURE:
1. This procedureappliesto all employeesof the City, includepersonsin at - will positionsandpersonsin thecompetitiveservice. AnyCityemployeewhofeelsthatheorshe hasbeenthevictim of prohibitedharassment, discriminationor retaliationhasthe right andthe responsibilityto notifyhis/hersupervisor, DepartmentHead, PersonnelDirector, humanresources manager, City Manager, or any other supervisorof the incidentor incidentsof prohibited harassment, discriminationor retaliationandprovidethenamesof theindividualsinvolved.
2. If the person to whom the prohibited harassment, discrimination or retaliation is to be reported is him/ herself thought to be engaged in the improper conduct, the employeemaycontactthe City Managerdirectly. In theeventthe City Manageris thoughtto be involved, theemployeemay contactthe City Attorney. An employeeis neverrequiredto present a complaint to a party alleged to be involved in the improper conduct. 119-
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3. Any supervisor, manager, orofficial receivingor awareof acomplaintshall report the complaint immediately to the PersonnelDirector who shall assurethat an appropriate investigationis startedpromptly andcompleted. In theeventthePersonnelDirectoris thoughtto be involved in the improper conduct, the complaint shall be reported to the City Manager or City Attorney, who shallberesponsiblefor assuringanappropriateinvestigation.
4. While written complaints are encouragedand provide the best opportunity for a properinvestigation, complaintsmay alsobe verbal or anonymous. All complaints that implicate unlawful workplace harassment discrimination or retaliation will be investigated promptly, objectively, andthoroughly. Investigationswill beconductedin aconfidentialmanner to the extentreasonablypossible, with informationaboutthe complaintbeingreleasedonly on a need - to - know basis.
5. If the City concludes that prohibited harassment, discrimination, or retaliation occurred, appropriate corrective action will be taken, including action to stop further harassment, discrimination, or retaliation. Disciplinary action, up to and including termination, maybeimposedonemployeeswho violatethispolicy. If theperpetratoris anon -City employee, theCityshalltakesuchactionasmaybeconsistentwiththelawandwithintheCity'scontrol.
6. Thepartypresentingthecomplaintwill be notifiedof theresultsof the investigation aabut dueto confidentiality concerns, may not always be advisedif disciplinary action or other action is taken. If the allegationsof the complaint cannotbe supportedor are found to lackmerit, thepartieswill benotified. Consistentwith thepolicy of confidentiality, employees are not entitled to copies of notes, an investigation report, or similar confidential documents, except as required by law.
7. Any employeewho witnessesprohibited harassment, discriminationor retaliation directed at or perpetratedby a City employee, consultantor other independent contractor, volunteer, memberof the public or otherpersonhas a duty to report it throughthe processidentified above.
C. EMPLOYEE TRAINING
1. All supervisors shall receive at least two hours of training and instruction onpreventionof sexualharassmentin theworkplace. Trainingandinstructionshallbeprovided within six months of their assumption of asupervisoryposition andonceevery two yearsthereafter or asotherwise required by law. 4t-ainin- sl}all also-b" fovided to all • leyees and to employees - Slk _
11 11- —
Job assignmentsfor- whieh speeifie anti hafassmenttmining has no pfeviously been pFavid n- supervisory employees are required to receive at least one hour of training andinstruction on prevention of sexualharassmentin the workplace. Suchtraining shall includetrainingto preventabusiveconduct, asdefinedin RuleXXVI of theseRules.
XXV. POLICY AGAINST WORKPLACE VIOLENCE
D. STATEMENT
TheCity is stronglycommittedto ensuringthesafetyof all City employeesandhas adoptedthis Policy regardingworkplaceviolence. Consistentwith this policy, acts, or threatsof 120-
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physicalviolence, includingintimidation, harassment, and/orcoercionwhichinvolveoraffectany .
Cityemployee(s) will notbetolerated. Thispolicyappliesto all employeesof theCity, include personsin at -will positionsandpersonsin thecompetitiveservice.
E. OBJECTIVE
1. To ensure all workplace threats and violent behavior are addressed promptly.
2. To ensurethe level of physical/facility security in City workplacesis sufficientto protectthehealthandsafetyof City employees.
3. To ensure all employees are appropriately trained in workplace security, diffusinghostilesituationsandstepsto takeduringanemergencyincident.
4. To ensure that all disciplinary action taken for behavior prohibited under thispolicy isreviewed, evaluated, andadministeredconsistentlyandequitablythroughouttheCity, and in a timely manner.
F. ACTS OR THREATS OF VIOLENCE DEFINED
1. " Threats or acts of violence" include conduct against persons or property that are sufficiently severe, offensive, or intimidating to alter the employment conditions, or to create a hostile, abusive, or intimidating work environment for a City employee or employees.
Although the City has a strong commitmentto CustomerService, the City will not permit employeesto be subjectedto verbal or physical abuse.
2. Generalexamplesof prohibitedworkplaceviolenceinclude, but are not limited to:
Threateningto harm an individual or his/her family, friends, associates, or their property.
2. Making harassingor threateningtelephonecalls, letters, or other forms of written or electronic communications.
3. Intimidating or attempting to coerce an employee to commit wrongful acts that would affect the business interest of the City.
4. Harassing surveillance, also known as " stalking," the willful, malicious, andrepeatedfollowing of anotherpersonandmaking a crediblethreatwith intentto placetheotherpersonin reasonablefearof his/hersafety.
5. Making a suggestionor otherwiseintimating that an act to injure personsor property is " appropriate."
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6. Possessionof firearms, weapons, or any other dangerousdevices on Cityproperty, by anyoneotherthansafetypersonnelwhoaregovernedby theirownpoliciesand procedures.
7. Useof personalor City -issuedtoolsin athreateningmannertoward a City employee or other individual.
G. COMPLAINT PROCEDURE
1. Anyemployeewhofeelsheor she hasbeenthevictimof threatsor actsof violence or has witnessed threatsor acts of violence in violation of this Policy, has the right and theresponsibilityto notifyhis/hersupervisor, or DepartmentHead, or theCityManager, of the incidentor incidentsof abusiveconductandprovidethe namesof the individualsinvolved. The employeemayusetheComplaintProceduresetforthin SectionBof RuleXXV (Anti -Harassment Policy).
2. Any complaintwill be investigatedin accordancewith the proceduresset forth in Section B of Rule XXV ( Anti - Harassment Policy). If the City concludesthat prohibited conduct occurred, appropriate corrective action will be taken, including action to stop further abusive conduct. Disciplinaryaction, up to andincludingtermination, maybe imposedon employeeswho violate this policy. If theperpetratoris a non -City employee, the City shalltake suchactionasmaybe consistentwith thelaw andwithin theCity's control.
H. EMPLOYEE TRAINING
All employees shall receive training and instruction on workplace security practices. Trainingandinstructionshallbeprovidedwithin twelve (12) monthsfollowingthe adoption of this policy and periodically thereafter. Training shall also be provided to all new employeesandto all employeesgivennewjob assignmentsfor which specificworkplacesecurity traininghasnotpreviouslybeenprovided. Additionaltrainingandinstructioncanbeprovidedto all CitypersonnelwhenevertheCityis madeawareof neworpreviouslyunrecognizedhazards, which may affect the workplace.
APPLICATION OF PROHIBITION
1. TheCity'sprohibitionagainstthreatsandactsof violenceappliesto all City personnel, contractandtemporaryworkers, customers, andanyoneelsewhomaybein oronCity propertyoranyplacewhereCitypersonnelworkorotherwiseconductCitybusiness. Violations of thispolicyby anyindividualmaybefollowedby legalactionasappropriate.
2. Violation by an employeeof any provision of this policy may lead to appropriatedisciplinary action, up to and including termination, as provided in Rule XXII Disciplinary Actions).
3. The City may also seeka TemporaryRestrainingOrderor Injunction on behalfof City workersif thesituationwarrantssuchaction.
XXVL POLICY AGAINST ABUSIVE CONDUCT
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POLICY
1. The City is strongly committed to ensuring that City employees are not subjected to abusive conduct in the workplace. Abusive conduct, including bullying, which involvesor affectsanyCity employee(s) will notbetolerated. Thispolicy appliesto all employees of theCity, includepersonsin at -will positionsandpersonsin thecompetitiveservice.
2. Thepurposeof this Rule is to ensurethat all abusiveconductis addressed promptly; to ensureall employeesareappropriatelytrainedtorecognizeabusiveconduct; andto ensurethat all disciplinaryactiontaken for behaviorprohibitedunderthis policy is reviewed, evaluated, and administeredconsistentlyand equitably throughoutthe City, and in a timely manner.
3. Abusive Conduct Defined. The phrase " abusive conduct" means conduct of an employer or employee in the workplace, with malice, that a reasonableperson would find hostile, offensive, and unrelated to an employer' s legitimate business interests. Abusive conduct mayincluderepeatedinfliction of verbalabuse, suchastheuseof derogatoryremarks, insults, and epithets, verbal, orphysicalconductthatareasonablepersonwouldfind threatening, intimidating, orhumiliating, orthegratuitoussabotageorunderminingof aperson'sworkperformance. A single actgenerallydoesnot constituteabusiveconductunlessit is severeandegregious. Abusive conductmay be found to haveoccurredby the actsof one employeeor by severalemployees mobbing").
4. Examples of Abusive Conduct: General examples of prohibited abusive conduct include, but are not limited to, the following:
a. Harmful gossip (rumor andinnuendobasedon incompletefactsor fiction spread with the intent or impact of causing turmoil or discrediting certain individuals or institutions).
b. Behavior that demeans, humiliates, or intimidates others in the workplace;
C. Deliberate exclusion of another employee from work assignments or networks that is not due to legitimate business reasons; employee;
d. Unnecessaryand unwelcomeintrusion in the personallife of an e. Verbal or physical behavior that is derogatory or abusive.
5. Examplesof What is Not Abusive Conduct: The following areexamplesof conduct that is not abusive conduct and does not constitute a violation of this policy:
a. Reasonable counseling, disciplinary actions, or job performance evaluationactions, includingbut not limited to, constructiveandfair criticism of an employee's work performance;
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b. Differences of opinion and non -aggressiveconflicts and problems in workingrelationsorin interactionswith otherpublicagenciesormembersof thepublic; C. A direct or assertive managementstyle, including high workplace expectations;
d. Legitimate management responses to situations that require immediate action.
K. COMPLAINT PROCEDURE
1. Any employeewho feelshe or shehasbeenthevictim of abusiveconduct or haswitnessedabusive conduct in violation of this Policy, hasthe right and the responsibility to notifyhis/hersupervisor, orDepartmentHead, ortheCityManager, of theincidentorincidentsof abusiveconductandprovidethe namesof theindividualsinvolved. The employee may use the Complaint Procedure set forth in Section B of Rule XXV ( Anti - Harassment Policy).
2. Any complaintof abusiveconductwill be investigatedin accordancewith theproceduressetforth in SectionB of RuleXXV (Anti -HarassmentPolicy). If the City concludes thatprohibitedabusiveconductoccurred, appropriatecorrectiveactionwill betaken, including actionto stopfurtherabusiveconduct. Disciplinaryaction, up to andincludingtermination, may be imposed on employeeswho violate this policy. If the perpetrator is a non -City employee, the Cityshalltakesuchactionasmaybeconsistentwith thelawandwithintheCity'scontrol.
L. APPLICATION.
1. ThisPolicyappliesto all City employees, includingall regularfull-timeand regular part- time employees, all other temporary/ part- time employees, contract employees, volunteers, customersandothermembersof thepublic, andanyoneelsewhomaybein or onCity propertyoranyplacewhereCitypersonnelworkor otherwiseconductCitybusiness. Violations of thispolicy by anyindividualmaybe followedby legalactionasappropriate.
M. TRAINING
All supervisors and managers shall receive training and instruction on how to recognizeandpreventabusiveconduct, asprovidedin SectionC of RuleXXV ( Anti -Harassment Policy). Additionaltrainingandinstructionmaybeprovidedor requiredfor otheremployees.
XXVII. DRUG - FREE WORKPLACE POLICY
N. PURPOSE.
1. It is the intent of this personnelrule to eliminatesubstanceabuseandits effectsin theworkplace. While theCity hasnointentionof intrudinginto theprivatelivesof its employees, involvementwith drugs and alcohol off the job can impact job performanceand employee safety. Drug and alcohol abusehas been found to be a contributing factor to absenteeism, tardiness, substandardperformance, increasedpotential for accidents, disruptive behavior, increased workload for co-workers, poor morale, and impaired public relations. To 124-
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furtherits interestsin serviceto thecommunity, avoidingaccidents, promoting, andmaintaininga safeandproductiveworkplaceandprotectingCityproperty, equipmentandoperations, theCity mayconductdrugandalcoholtesting, asprovidedin thispolicy.
2. Thispolicy appliesto all employeesregardlessof appointmenttype ortime basis, including but without limitation, full- time, part-time, temporary, regular, probationary, or management employees), and to all applicants for employment with the City.
3. This policy appliesto alcohol and all substances, drugs, or medications legal or illegal) which could impair an employee's ability to performthe functionsof thejob effectively and safely.
4. However-, in aeeer-danee with federal and state law, the City treats eannabis the same as any othef drug tha4is subjeet to regulation under- this pehey. Mer- eover-, afthetigh the use of eannabis is- under- federal law. The City resen,es the right to take diseiphnaiFyaetien under- this Pokey Whe.n. pufpeses, andwhethefor- notit hasbeenpy-eser-ibedfor- theempleyee's the Stateof GalifoFniahaslegalized the use of eannabisfor r-eer-eational and eeftain medieal uses-.
Consistentwith federallaw and the provisionsof the California Adult Use of Marijuana Act, Proposition 64, the City doesnot permit the use, consumption, possession, transfer, display, sale, or growthof marijuanaonCity ownedor controlledproperty (includingbut not limitedto buildings, parkinglots, parks, andrecreationfacilities) or duringCity sanctionedor sponsoredactivities or events, regardlessof the location. This is true even if the useof marijuana is for medicalpurposesauthorizedandpermittedunderthe CaliforniaCompassionateUseAct, Proposition 215.
AB 2188 Effective January 1 2024 it is unlawful to discriminate against or otherwisepenalizeanemployeeorcandidatefor employmentfortheiroff -dutyandoff -siteuseof cannabisorbasedonapositivetestfor non -psychoactivecannabismetabolites. Thisnewlaw does not allow employees to use or be under the influence of cannabis while on duty, at any work - relatedevent or on City property. This law doesnot applyto employeesinvolvedin building or construction or to employeesin any position where stateor federal law requirestesting for controlled substances. Employeesare also prohibited fr-em having any measur-able amountof narijuana ( ineludi g 14G d— t-abol i3 they. system while dul 1, et to imamT anMetabolites) standard,
euteff
levels published! A
hii nd MentalHealth Seatwire-ees Administr-ation in MandateiFy Guidelinesfor- FedefalWer- kplaeeTestingProgramsor- a* y sueeesser- as- deten:
nined by the City. 5.
The City is committedto providingreasonableaccommodationto thoseemployees whose drug or alcoholproblemclassifiesthem as disabledunder federaland/ or statelaw.
5. Additionally, employees are expectedto bein suitablemental and physicalcondition to performtheir job satisfactorilyand behaveappropriately. Should the use of alcohol125- City
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or otherdrugsinterferewith job performance, employeesmaybeofferedrehabilitativeassistance.
However, failureto meetsatisfactorylevelsof job performancecouldresultin disciplinaryaction up to, andincluding, dismissal.
O. EMPLOYEE RESPONSIBILITIES
1. An employee must not report to work or be on -call while his/ her ability to performthejob dutiesis impaireddueto ondutyoroff dutyalcoholordruguse.
2. An employee must not report to work with alcohol or impairing drugs illegaldrugs, prescriptiondrugswithorwithoutaprescription, ornon-prescriptiondrugs) intheir systemsor possessor utilizesuchsubstanceswhiletheyareon dutyor on -call or duringmeal periods or breaks.
3. An employeemustnot possessor usealcoholor impairing drugs (illegal drugs, prescriptiondrugswithorwithoutaprescription, ornon-prescriptiondrugs) duringwork hoursor while on -call, onbreaks, mealperiodsor atanytimewhile on City property.
4. An employeemustnot directly or througha third party sell, purchase, or providedrugsoralcoholtoanyperson, includinganyemployee, whileeitheremployeeorboth employeesare on duty or ,on -call.
5. An employee must submit immediately to an alcohol or drug test when reasonablesuspicionexists, assupportedby theobservanceof objectivesignsof impairment, that the employee is in violation of this rule and when requested to submit to the test( s) by a responsible City representative.
6. An employeemustnotify his/hersupervisor, beforebeginningwork, when takinganymedicationsordrugs (prescriptionornon-prescription) whichmayinterferewiththe safeandeffectiveperformanceof dutiesoroperationof Cityequipment. An employeewill notbe discriminatedagainstfor his or her doctor -prescribedor - ordereduse of legal medications.
However, theCity takesuchactionasis necessarytopreventtheemployeefromworkingif the employee is impaired by such medications andcannot safely and effectively perform their job duties.
7. An employeemustprovideto the City, or its designatedMedicalReview Officer, withintwenty-four (24) hours. of arequestor, if therequestismadeonaFridayortheday beforeaholidayby thecloseof thenextbusinessday, abonafideverificationof acurrentvalid prescriptionforanypotentiallyimpairingdrugormedicationidentifiedwhenadrugscreen/testis positive. Theprescriptionmustbein theemployee'sname.
P. MANAGEMENT RESPONSIBILITIES AND GUIDELINES:
Managers and supervisors are responsible for reasonable enforcement of this rule.
2. Managersand supervisorsmay requestthrough the PersonnelOffice that an employeesubmitto a drug and/or alcoholtest whena manager. or supervisorhas a reasonable 126-
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suspicion that an employee is intoxicated or under the influence of drugs or alcohol while on the job or on -call. " Reasonable suspicion" shall have the meaning set forth in Subsection D.
Q. REASONABLE SUSPICION TESTING
1. When an employee' s supervisor and a second employee or supervisor have reasonablesuspicion to believe an employee may be under the influence of alcohol, narcotic or anyothercontrolledsubstanceor otherdrug, thatemployeemaybegivenamedicalevaluationby a City -designatedmedical clinic on City time and at City expense. This medical evaluation will be conducted to determine if alcohol or drugs are in the employee' s system.
2. " Reasonable suspicion" is based on objective facts sufficient to lead a r-easenably p,.,,, 1o„*trained supervisor to suspect is under the influence of drugs or alcohol so that the employee's ability to performthe functionsof thejob is impairedor so that the employee's ability to performhis/herjob safelyis reduced. Theitemslistedbelowinclude, but arenotlimited to, objective conditions which alone, or in combination, could lead to a reasonable suspicion that an employee was under the influence of drugs or alcohol. Examples of controlled substances include but are not limited to: marijuana ( cannabis), amphetamines, opiates, phencyclidine (PCP), cocaineandanyderivativeorpreparationof cocaleaves, LSD, speedandQuaaludes, andanyother substancesasmaybe foundin SchedulesI throughV of Section202of theControlledSubstance Act (21U.S.C. 812) or anyfederalregulationadoptedpursuantthereto, andasamendedfromtime to time.
3. Reasonable suspicion may be justified by one or a combination of the following indicators:
Bloodshot or watery eyes
Slurred speech
Alcohol on the breath
Physical and/ or verbal altercation
Inability to walk a straight line
An accident involving City property
Possession of drugs or alcohol
Frequent absenteeism
Confusion/difficulty in concentration
Noticeable change in behavior
NOTE: The foregoing list is not intended to be exhaustive. Other factors will be consideredby a supervisoror managerin determiningthatthereis areasonablesuspicionthatthe employee is under the influence of, of his/her fitness for duty is impaired by drugs and/or alcohol.
4. The following steps establish a procedure to facilitate the medical evaluation process:
Step 1: The Department Head who believes based on his/ her observations or the observations of the employee' s supervisor or manager, that an employee may be underthe influenceof alcoholor drugs, must work with the City 127-
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Manager and document, in writing within reasonable time, the facts constituting reasonablesuspicionthat the employee in question is under the influence of drugs and/ or alcohol. The Department Head will meet with the City Manager, or designee, to discussthe employee's behavior. At that time, it will be determined if the employee should be tested for drugs and/or alcohol. The City Manager, or designee, will arrange for an immediate appointment with a medical facility to conduct the test, unless the employee admits to being under the influence of alcohol or controlled substancesor other drugs.
An employee' s refusal to submit immediately to an alcohol and/or drug analysis when directed by managementmay constitute insubordination, and maybe groundsfor disciplinaryactionup to, andincluding, dismissal.
The City Manager, or designee, encountering an employee who refuses an order to submit to a drug and/or alcohol analysis/test shall, with the assistance of the Personnel Director remind the employee of the requirements to comply and the disciplinary consequencesof failing to comply with this rule.
Step 2: The City will immediately provide transportation for the employee to the medicalfacility andwait for theteststo be completed. Thetypeof testing required will be determined by the physician.
Step 3: After being tested, the employeewill be transported home, or in appropriate situations, to the hospital. The employeewill continue receiving pay during this time anddisciplinary action will not be administered for alcohol and/or drug usein violation of this policy unlessthe test results show the presence of alcohol and/ or drugs. Information obtained through this testing will be treated with strict confidentiality. When warranted, discipline may still be considered for other misconduct, such as unsatisfactory work performance, insubordination, or workplace violence.
Step 4: If alcohol and/or drugs are found in the employee' s body, the City Manager, or designee, shall meet with the employee and explain the proposed disciplinaryaction. Theemployeeshallbeencouragedto seekprofessional assistance.
5. If an employee is convicted of criminal drug activity, the employee must notify theCity Manager, or designee, of theconvictionin writing within five calendardaysafter the conviction.
R. SEARCHES
1. The City reservesthe right to lawfully search, without employee consent, all areasandproperty in which the City maintainscontrol or joint control with the employee, includingbut not limited to, offices, desks, filing cabinets, closets, or otherfurnishings, vehicles, or facilities.
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2. Managers and supervisors shall not physically search the person of the employee(s) without the freely given consentof, and in the presenceof, the employee(s) and his/ her representative( s) if so desired.
S. FOLLOW- UP; DISCIPLINE
1. A positive result from a drug and/or alcohol analysis/test may result in disciplinary action, up to and including termination.
a. If the drug analysis/test is positive, the employee must provide within twenty-four (24) hoursof therequestbonafide verification of a valid currentprescription forthedrugidentifiedin thedruganalysis/testto thePersonnelDirectorortheCity'sdesignated MedicalReviewOfficer. Theprescriptionmustbein theemployee'sname. If theemployeedoes notprovideacceptableverificationof a valid prescription, or if theprescriptionis not in the employee's name, or if the employeehasnot previouslynotified his /her supervisor, asprovided underSubsectionB, paragraph6 of theseRules, theemployeewill besubjectto disciplinaryaction upto, andincluding, discharge. TheCityManager, ordesignee, theDepartmentHeadandtheCity Attorneywill determinethemostsuitabledisciplinaryactionbasedon all pertinentfactsandthese Rules.
2. Should the resultsof the alcohol or drug test be negative, the employeemay returnto theworkplaceandperformregularjob duties, andno furtheractionwill betakenon the incidentthat gaverise to the reasonablesuspicion, absentother factorsindicatingthat returnto work is not advisable or that further action is appropriate.
3. Nothing in this Policy shall prevent the City from contacting appropriate law enforcementshouldtheCity determinethattheemployeeis engagedin theunlawfuluse, sale or distribution of controlled substances or otherwise engaged in illegal activity while on City premises, property or using City equipment.
T. DOCUMENTATION AND CONFIDENTIALITY
1. Recordsrelating to job performance, attendance, and behavior shall be maintained in the employee' s personnel file. Only the behavioranddisciplineassociatedwith alcoholor drugsshouldbedocumentedandplacedin theemployee'spersonnelfile.
2. Laboratoryreportsor testreportsshallnot appearin anemployee'sgeneral personnelfolder. All testsshallbemaintained, alongwith theemployee'smedicalrecords, in a confidentialmedicalfile separatefrom thepersonnelrecordsandkept securelyunderthecontrol of the PersonnelDirector. The reports or testsresults may be disclosed to City managementon a strictlyneed -to -know basis, to the testedemployeeuponrequestsor in responseto a valid subpoena, a valid search warrant, a valid court order or other similar legal orders.
3. Variousfederal, state, andlocal lawsprotecttherightsof individualswith disabilitiesandotherswith regardtotheconfidentialityof medicalinformation, medicaltreatment, and the use of prescriptiondrugs and substancestaken under medical supervision. Nothing containedin this policy is intendedto interferewith individual rights under, or to violate, these laws.
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XXVIII. MANAGEMENT RIGHTS
1. TheCity shallretain, whetherexercisedor not, solely, andexclusively, all express andinherentrightsandauthoritypursuantto law with respectto determiningthelevel of, andthe mannerin which, theCity's activitiesareconducted, managed, andadministered.
2. The City hasthe exclusiveright andauthorityto schedulework and/or overtime work as required in the manner most advantageous to the City.
3. Everyincidentalduty connectedwith operationsenumeratedin job descriptionsis not alwaysspecificallydescribed; nevertheless, it isintendedthatall suchdutiesshallbeperformed by the employee.
4. The Appointing Authority reservesthe right to discipline or discharge employees subjectto theproceduressetforth in thesePersonnelRules.
5. The City shall determineassignmentsand establishmethodsand processesby which assignmentsareperformed.
6. TheCity shallhavethe exclusiveright to transferemployeeswithin departments andto positionsoutsideadepartmentin amannermostadvantageousto theCity.
7. TheCity shallhavetheauthority, withoutprior meetingandconferring, to contract for mattersrelatingto municipaloperations, including contractingoutbargainingunit work. The right of contracting or subcontracting is vested exclusively in the City.
8. The City has the right, without prior meeting and conferring, to effect reorganizations and reallocation of work of the City.
9. The inherent and express rights of the City, including those herein specifically referredto which arenot expresslymodifiedor restrictedby aspecificprovisionhereof, arenotin any way, directly or indirectly, subjectto meetingand conferringor the GrievanceProcedure herein.
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APPENDICES
APPENDIX A: CITY OF HIGHLAND POLICY ON TECHNOLOGY USE AND SECURITY APPENDIX B: MILITARY LEAVE POLICY
APPENDIX C: PAID SICK LEAVE POLICY FOR TEMPORARY/ PART- TIME EMPLOYEES 131-
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TABLE OF CONTENTS
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I. AUTHORITY AND PURPOSE....................................................................................... I II. DEFINITIONS 5
III. GENERAL PROVISIONS............................................................................................. 11 A. FAIR EMPLOYMENT PRACTICES................................................................ 11 B. EQUAL EMPLOYMENT OPPORTUNITY..................................................... I 1 C. DISABILITY ACCOMMODATION................................................................. 12 D. OUTSIDE EMPLOYMENT............................................................................... 12 E. NEPOTISM - EMPLOYMENT OF RELATIVES, SPOUSES OR
DOMESTICPARTNERS................................................................................... 14 F. USE OF COMPUTER SYSTEMS AND OTHER TECHNOLOGY
RESOURCES..................................................................................................... 16 G. USE OF TELEPHONES AND MOBILE/ CELLULAR PHONES .................... 17 H. PERSONAL CONDUCT.................................................................................... 18 I. EMPLOYEE DRESS CODE.............................................................................. 19 J. RECORDS.......................................................................................................... 19 K. CITY PROPERTY.............................................................................................. 20 IV. CLASSIFICATION 21
A. PREPARATION OF CLASSIFICATION PLAN .............................................. 21 B. ADOPTION, AMENDMENT AND REVISION OF PLAN ............................. 21 C. ALLOCATION OF POSITIONS....................................................................... 21 D. NEW POSITIONS.............................................................................................. 21 E. RECLASSIFICATION....................................................................................... 21 F. USE OF CLASS SPECIFICATIONS................................................................. 22 V. RECRUITMENT, SELECTION AND APPOINTMENT............................................. 22 i-
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A. FAIR EMPLOYMENT PRACTICES................................................................ 22 B. ANNOUNCEMENT........................................................................................... 22 C. APPLICATION FORMS.................................................................................... 23 D. ACCEPTANCE OF APPLICATIONS............................................................... 23 E. CANCELLATION/ EXTENSIONS.................................................................... 23 F. APPLICANT QUALIFICATIONS.................................................................... 23 G. PROOF OF RIGHT TO WORK......................................................................... 23 H. REFERENCE/ BACKGROUND INVESTIGATION........................................ 23 I. DISQUALIFICATION....................................................................................... 24 J. NOTICE OF DISQUALIFICATION/ REJECTION........................................... 25 K. CRIMINAL HISTORY - INELIGIBILITY FOR EMPLOYMENT.................. 25 VI. EXAMINATIONS.......................................................................................................... 28 A. EXAMINATION PROCESS.............................................................................. 28 B. ANNOUNCEMENT OF EXAMINATION....................................................... 28 C. PROMOTIONAL EXAMINATIONS................................................................ 29 D. CONTINUOUS EXAMINATION..................................................................... 29 E. CONDUCT OF EXAMINATION...................................................................... 29 F. QUALIFYING GRADE OR RATING.............................................................. 30 G. NOTIFICATION OF EXAMINATION RESULTS AND REVIEW
OFPAPERS........................................................................................................ 30 H. INSPECTION OF TEST ANSWER SHEETS................................................... 30 I. REASONABLE ACCOMMODATION............................................................. 30 VII. EMPLOYMENT LISTS................................................................................................. 30 A. EMPLOYMENT LISTS..................................................................................... 30 City of Highland Personnel Rules & Regulations
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B. DURATION OF LISTS...................................................................................... 31 C. REMOVAL OF NAMES FROM ELIGIBLE LIST........................................... 31 VIII. METHOD OF FILLING VACANCIES......................................................................... 32 A. TYPES OF APPOINTMENT............................................................................. 32 B. NOTICE TO PERSONNEL DIRECTOR.......................................................... 32 C. CERTIFICATION OF ELIGIBLES................................................................... 32 D. APPOINTMENT................................................................................................ 32 E. FITNESS - FOR -DUTY EXAMINATIONS AND DRUG TESTING
33 F. PROVISIONAL APPOINTMENT..................................................................... 33 IX. PROBATIONARY PERIOD.......................................................................................... 34 A. REGULAR APPOINTMENT FOLLOWING PROBATIONARY
PERIOD.............................................................................................................. 34 B. OBJECTIVE OF PROBATIONARY PERIOD................................................. 35 C. COMPLETION OF PROBATION..................................................................... 35 D. REJECTION OF PROBATIONER.................................................................... 35 E. REJECTION FOLLOWING PROMOTION...................................................... 35 F. APPOINTMENT TO A DIFFERENT CLASSIFICATION
DURINGPROBATION..................................................................................... 36 X. REGULAR EMPLOYMENT......................................................................................... 36 A. REGULAR FULL- TIME EMPLOYMENT....................................................... 36 B. REGULAR PART- TIME EMPLOYMENT...................................................... 36 C. TEMPORARY, PART- TIME, EMERGENCY AND SEASONAL
EMPLOYMENT................................................................................................. 37 XI. TEMPORARY EMPLOYMENT................................................................................... 37 City of Highland Personnel Rules & Regulations
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XII. TRANSFER, PROMOTION, DEMOTION, SUSPENSION,
RECLASSIFICATION AND REINSTATEMENT....................................................... 38 A. TRANSFER........................................................................................................ 38 B. VOLUNTARY TRANSFER.............................................................................. 38 C. INVOLUNTARY TRANSFER.......................................................................... 38 D. PROMOTION..................................................................................................... 39 E. DEMOTION....................................................................................................... 39 F. SUSPENSION.................................................................................................... 39 G. REDUCTION IN PAY....................................................................................... 39 H. DISCIPLINE OF FLSA- EXEMPT EMPLOYEES ............................................ 39 I. RECLASSIFICATION....................................................................................... 40 J. REINSTATEMENT........................................................................................... 40 K. CHANGE - OF - STATUS REPORT..................................................................... 40 XIII. COMPENSATION AND PAYROLL PRACTICES..................................................... 40 A. PHILOSOPHY OF COMPENSATION............................................................. 40 B. COMPENSATION ON APPOINTMENT......................................................... 40 C. MERIT SALARY ADJUSTMENTS.................................................................. 41 D. COMPENSATION ON PROMOTION.............................................................. 41 E. COMPENSATION ON TRANSFER................................................................. 41 F. COMPENSATION ON DEMOTION................................................................ 41 G. COMPENSATION ON POSITION RECLASSIFICATION ............................. 42 H. EMERGENCY APPOINTMENT - OUT OF CLASS PAY.............................. 42 I. BILINGUAL PAY.............................................................................................. 43 J. SALARY DEDUCTIONS.................................................................................. 43 iv-
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XIV. WORK WEEK, WORK SCHEDULES, OVERTIME, AND
COMPENSATORYTIME............................................................................................. 44 A. WORK WEEK.................................................................................................... 44 B. WORK SCHEDULE.......................................................................................... 44 C. PAY PERIODS................................................................................................... 45 D. OVERTIME POLICIES - AUTHORIZATION OF OVERTIME ..................... 46 E. CITY PAID HOLIDAYS................................................................................... 47 F. USE OF PERSONAL VEHICLES AND CITY VEHICLES ............................. 48 XV. EMPLOYEE BENEFITS................................................................................................ 48 A. VACATION........................................................................................................ 48 B. HOLIDAYS........................................................................................................ 49 C. SICK LEAVE..................................................................................................... 50 D. FAMILY CARE AND MEDICAL LEAVE....................................................... 55 E. PREGNANCY DISABILITY LEAVE............................................................... 75 F. STATE WORKERS' COMPENSATION.......................................................... 83 G. BEREAVEMENT LEAVE................................................................................. 84 H. RETIREMENT PLAN........................................................................................ 84 I. ADMINISTRATIVE LEAVE............................................................................ 85 J. ADMINISTRATIVE LEAVE BUY - BACK ...................................................... 85 K. DONATED LEAVE BANK............................................................................... 85 L. HEALTH/ LIFE INSURANCE PROGRAM ...................................................... 85 M. CONTINUANCE OF MEDICAL COVERAGE ( COBRA) .............................. 86 N. DEFERRED COMPENSATION PLAN............................................................ 86 O. EDUCATIONAL REIMBURSEMENT............................................................. 86 v-
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P. CALL - OUT CREDIT......................................................................................... 86 Q. STANDBY COMPENSATION......................................................................... 86 R. RETIREE HEALTH SAVINGS PROGRAM [ Reserved.]................................ 87 S. LACTATION ACCOMMODATION POLICY ................................................. 87 T. ANNUAL CREDIT MONITORING ALLOWANCE ....................................... 87 XVI. ATTENDANCE, LEAVES, REPORTS AND RECORDS............................................ 87 A. ATTENDANCE.................................................................................................. 87 B. MILITARY LEAVE........................................................................................... 88 C. LEAVE OF ABSENCE WITHOUT PAY......................................................... 88 D. JURY DUTY / COURT LEAVE......................................................................... 89 E. LEAVE AND REASONABLE ACCOMMODATION FOR
VICTIMSOF CRIMES...................................................................................... 90 F. TIME OFF TO VOTE........................................................................................ 94 G. SCHOOL LEAVE.............................................................................................. 94 H. AMERICANS WITH DISABILITIES ACT DISABILITY
ACCOMMODATION........................................................................................ 94 I. SUPERVISORY DISCRETION TO RELIEVE EMPLOYEES
FROM DUTY AND FITNESS FOR DUTY...................................................... 94 XVII. PERFORMANCE EVALUATIONS.............................................................................. 95 A. PERFORMANCE EVALUATION PURPOSE................................................. 95 B. PERFORMANCE REPORTS PROCEDURES ................................................. 95 XVIII. PERSONNEL RECORDS.............................................................................................. 96 A. PERSONNEL FILES.......................................................................................... 96 XIX. SEPARATION FROM CITY EMPLOYMENT............................................................ 98 A. RESIGNATION.................................................................................................. 98 vi-
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B. JOB ABANDONMENT..................................................................................... 98 C. DISABILITY...................................................................................................... 99 D. DEATH............................................................................................................... 99 E. RETIREMENT................................................................................................... 99 F. DISCHARGE...................................................................................................... 99 XX. DISCIPLINARY ACTIONS........................................................................................ 100 A. APPLICATION................................................................................................ 100 B. CAUSE FOR DISCIPLINARY ACTION........................................................ 100 C. KINDS OF DISCIPLINARY ACTION........................................................... 104 D. NO APPEAL OF MINOR DISCIPLINE......................................................... 105 E. MAJOR DISCIPLINE -- DISCIPLINARY PROCEDURES ........................... 105 F. JUDICIAL REVIEW........................................................................................ 111 XXI. LAYOFF POLICY AND PROCEDURE..................................................................... 111 A. STATEMENT OF INTENT............................................................................. 111 B. NOTIFICATION.............................................................................................. 111 C. VACANCY AND DEMOTION....................................................................... 111 D. EMPLOYEE DISPLACEMENT...................................................................... 111 E. SENIORITY..................................................................................................... 112 F. EMPLOYMENT STATUS............................................................................... 112 G. RE- EMPLOYMENT LIST............................................................................... 113 H. DURATION OF RE- EMPLOYMENT LIST................................................... 113 XXII. SEPARATION FROM SERVICE................................................................................ 113 A. DISCHARGE.................................................................................................... 113 B. RESIGNATION................................................................................................ 113 vil-
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XXIII. GRIEVANCE PROCEDURE....................................................................................... 113 A. PURPOSE......................................................................................................... 113 B. DEFINITIONS.................................................................................................. 114 C. GRIEVANCE PROCEDURE STEPS.............................................................. 114 D. GENERAL PROVISIONS............................................................................... 115 E. EXCLUSIONS FROM THE GRIEVANCE PROCEDURE ............................ 115 XXIV. ANTI - HARASSMENT POLICY................................................................................. 115 A. POLICY............................................................................................................ 1 15 B. COMPLAINT PROCEDURE.......................................................................... 116 C. EMPLOYEE TRAINING................................................................................. 117 XXV. POLICY AGAINST WORKPLACE VIOLENCE....................................................... 117 A. STATEMENT................................................................................................... 117 B. OBJECTIVE..................................................................................................... 117 C. ACTS OR THREATS OF VIOLENCE DEFINED.......................................... 118 D. COMPLAINT PROCEDURE.......................................................................... 119 E. EMPLOYEE TRAINING................................................................................. 119 F. APPLICATION OF PROHIBITION................................................................ 119 XXVI. POLICY AGAINST ABUSIVE CONDUCT............................................................... 119 A. POLICY............................................................................................................ 119 B. COMPLAINT PROCEDURE.......................................................................... 121 C. APPLICATION................................................................................................ 121 D. TRAINING....................................................................................................... 121 XXVII. DRUG FREE WORKPLACE POLICY..................................................................... 121 A. PURPOSE......................................................................................................... 121 viii-
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B. EMPLOYEE RESPONSIBILITIES................................................................. 122 C. MANAGEMENT RESPONSIBILITIES AND GUIDELINES ....................... 123 D. REASONABLE SUSPICION TESTING......................................................... 123 E. SEARCHES...................................................................................................... 125 F. FOLLOW- UP................................................................................................... 125 G. DOCUMENTATION AND CONFIDENTIALITY......................................... 126 XXVIII. MANAGEMENT RIGHTS........................................................................................ 126 ix-
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STAFF REPORT
TO THE CITY COUNCIL
DATE: June 13, 2023
FROM: Joseph A. Hughes, City Manager
PREPARED BY: ChuckDantuono, DirectorofAdministrativeServices/CityTreasurerC5" p Leticia Nava - Cruz, Assistant Director of Administrative Services (, 1C SUBJECT: Resolution No. 2023- implementing on July 1, 2023 a 5% across- the- board adjustment for all employees and implementing on July 1, 2024 a 5% across- the- board adjustment for all employees and other adjustments.
RECOMMENDATION: That the City Council approve Resolution No 2023- _ implementing on July 1, 2023 a 5% across- the- board adjustment for all employees ( except interns) and implementing on July 1, 2024 a 5% across- the- board adjustment for all employees ( except interns) and other adjustments.
FISCAL IMPACT: The total fiscal impact of the across- the- board adjustments for all funds for fiscal year 2023- 2024 will be $ 183, 423 in salaries and $ 29, 147 in benefits this is calculating salaries at the E-step). The total fiscal impact of the across- the- board adjustments for all funds for fiscal year 2024- 2025 will be $ 192, 592 in salaries and $ 31,877 in benefits ( this is calculating salaries at the E-step).
There is adequate funding in the budget to cover the costs of these adjustments.
PUBLIC NOTICE: The agenda for this item was posted at the three required locations.
BACKGROUND: Staff is proposing implementing on July 1, 2023 a 5% across- the- board adjustment for all employees (except interns) and on July 1, 2024 an additional 5% across- the- board adjustment for all employees ( except interns). The total fiscal impact of the across- the- board adjustments for all funds for fiscal year 2023- 2024 will be $ 183, 423 in salaries and $ 29, 147 in benefits this is calculating salaries at the E-step). The total fiscal impact of the across- the- board adjustments for all funds for fiscal year 2024- 2025 will be $ 192, 592 in salaries and $ 31, 877 in benefits ( this is also calculating salaries at the E-step). There is adequate funding in the budget to cover the costs of these adjustments. The interns are excluded because of the state mandate of minimum wage increases.
Approved Motion
Denied Ayes
Continued Noes
Tabled Abstain
Absent
Second Agenda Item No. i -1
File No.
City Clerk Manager
-1-
In addition, staff is also proposingto reclassify7 positionsto betteralignjob dutieswithjob titles. We areproposingtoreclassify6 positionsinPublicWorkstotheirnextclassification. Thisdoesnotinclude any management positions. The three Maintenance Worker I positions are proposed to be budgeted at Maintenance Worker II, the two Maintenance Worker II positions are proposed to be budgeted as Senior Maintenance Workers and the current Senior Maintenance Worker is proposed to budgeted as a Maintenance Superintendent. These positions are a combination of general fund, assessment districts and gas tax. The total cost in year 1 is $44, 412 and an additional $ 46,633 in year 2. The final reclassification we are proposing is in code enforcement. We are proposing to move a Code Compliance Officer to a Senior Code Compliance Officer. Total cost in year 1 will be $ 10, 533 and an additional $ 11,060 in year 2. This position is budgeted in the general fund.
This item was presented to the Finance/Personnel Subcommitteeon March 30, 2023. The Finance/Personnel Subcommittee recommends that the City Council adopt the proposed Resolution implementingon July 1, 2023 a 5% across- the- board adjustment for all employees ( except interns) and implementing on July 1, 2024 a 5% across- the- board adjustment for all employees ( except interns).
The Finance Subcommittee also approves of the other adjustments being made to the 7 positions discussed above. There is adequate funding in the budget to cover the costs of these adjustments. -2-
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF HIGHLAND, CALIFORNIA,
ESTABLISHING EMPLOYEE SALARIES
WHEREAS, the City Councilof the City of Highlandhas determinedit is necessaryfor the efficient operation and management of the City that salary ranges be established for employees; and
WHEREAS, the City Council wishes to continue the implementation of the Classification and Compensation Plan prepared by the Davis Company; and WHEREAS, the City Council recognizes that it competes in a market place to obtain qualifiedpersonnelto performandprovidemunicipalservice, andthat compensationand conditions of employment must be sufficiently attractive to recruit and retain qualified employees.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Highland does hereby resolve to:
1. Implement on July 1, 2023 a 5% across the board adjustment for all employees except interns) and,
2. Implement on July 1, 2024 a 5% across the board adjustment for all employees except interns) and,
PASSED, APPROVED AND ADOPTED this 13th day of June 2023.
Larry McCallon, Mayor
Attest:
Betty Hughes, City Clerk
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STAFF REPORT
TO THE CITY COUNCIL
DATE: June 13, 2023
FROM: Joseph A. Hughes, City Manager
PREPARED BY: Chuck Dantuono, Director of Administrative Services/ City Treasurer 50 Leticia Nava - Cruz, Assistant Director of Administrative Services (_,, J C, SUBJECT: Resolution No. 2023-_ amending the City of Highland Premium Only Plan.
RECOMMENDATION: That the City Council approve Resolution No 2023-_ amending the City of Highland Premium Only Plan.
FISCAL IMPACT: None.
PUBLIC NOTICE: The agenda for this item was posted at the three required locations.
BACKGROUND: On June 23, 1993, the City adopted the City of Highland Premium Only Plan.
Under this plan employees can use pre-tax dollars to purchase health, dental, and vision insurance.
The attached resolution needs to be adopted by the City Council in order to have our plan comply within the Federal guidelines. The plan document is included as attachment "A" to the resolution. This resolution must be adopted annually.
The plan document and adoption agreement are prepared by Health Equity (formerly Wage Works), a firm that specializes in Section 125 Premium Only Plans. The City contracts with Health Equity to assist the City with the preparation of IRS forms and maintenance of the Premium Only Plan.
Attachments:
Adoption Agreement
Resolution ( with Plan Document)
Approved Motion
Denied Ayes
Continued Noes
Tabled Abstain
Absent
Second Agenda Item No.
File No.
k "
City Clerk ager
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RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF HIGHLAND, CALIFORNIA
AMENDING THE CITY OF HIGHLAND PREMIUM ONLY PLAN
WHEREAS, On June 23, 1993, the City Council adopted the City of Highland Premium Only Plan; and
WHEREAS, the City Council of the City of Highland has determined the need to modify the City of Highland Premium Only Plan in order to comply with Federal Guidelines; NOW, THEREFORE, BE IT RESOLVED:
Section 1. Modification to Plan.
The City of Highland Premium Only Plan shall be amended per attachments "A" to this Resolution.
Section 2. Effective Date.
The effective date of the amendments shall be July 1, 2023.
Section 3. Notification to Employees.
Eligible employees under the plan shall be notified as soon as possible regarding this amendment to the City of Highland Premium Only Plan.
Section 4. Authority to Sign.
The Director of Administrative Services is hereby authorized to sign the necessary documents to adopt and amend the Plan.
APPROVED AND ADOPTED this 13th day of June 2023.
Larry McCallon, Mayor
ATTEST:
Betty Hughes, City Clerk
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Attachment A
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Plan Document
As Amended and Restated for 2023
For City of Highland
Section 125 Premium Only Plan
Introduction
Article I Definitions
Article II Participation
Article III Contributions to the Plan
Article IV Benefits
Article V Participant Elections
Article VI Health Savings Account Program
Article VII Administration
Article VIII Amendment or Termination of Plan
Article IX Miscellaneous
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Introduction
The Employer hasadoptedthis Planto recognizethe contribution madeto the Employer by its Employees.
Its purposeis to rewardthemby providingbenefitsfor thoseEmployeeswhoshallqualifyhereunderandtheir dependentsandbeneficiaries. Theconceptof this planis to allow Employeesto chooseamongdifferenttypesof benefitsbasedon their own particular goals, desires, andneeds.
Theintentionof theEmployeris thatthePlanqualifyasa "CafeteriaPlan" within themeaningof Section 125 of the Internal Revenue Code of 1986, as amended, and that the benefits which an Employee elects to receive underthe Planbe includable or excludablefrom the Employee's income under Section 125(a) andother applicable sectionsof the Internal RevenueCodeof 1986, asamended. The Plan is also intendedto meet any applicablestate mandatesthatmayotherwiseapplytotheEmployerasanemployerofEmployeeswhoareeligibletoparticipatein a "premium only plan" sponsoredby theEmployer, asapplicable.
Article I — Definitions
1. 1 " Administrator" means the individual( s) or corporation appointed by the Employer to carry out the administrationof the Plan. The Employer shall be empoweredto appoint andremove the Administrator from time totimeasit deemsnecessaryfortheproperadministrationoftheplan. IntheeventtheAdministratorhasnotbeen appointed, or resignsfromapriorappointment, theEmployershallbedeemedto betheAdministrator.
1. 2 " Affiliated Employer" meanstheEmployerandanycorporationwhichis amemberof acontrolled groupof corporations (as definedin CodeSection414(b)) which includes the Employer; any trade or business whether or not incorporated) which is under common control ( as defined in Code Section 414(c)) with the Employer; anyorganization (whetherornotincorporated) whichis amemberof anaffiliatedservicegroup (as defined in Code Section 414( m)) whichincludestheEmployer; andanyotherentityrequiredto beaggregatedwith theEmployerpursuantto TreasuryregulationsunderCodeSection414(o).
1. 3 " Benefit" meansanyoftheoptionalbenefitchoicesavailabletoaParticipantasoutlinedin Section
4. 1.
1.4 " Code" meansthe Internal RevenueCode of 1986, asamendedor replacedfrom time to time, and which shall also include any governing regulations or applicable guidance thereunder.
1. 5 " Compensation" meansthe total cashremunerationreceivedby the Participant from the Employer duringaPlanYearpriortoanyreductionspursuanttoaSalaryRedirectionAgreementauthorizedhereunder.
1. 6 " Dependent" meansany individual who is definedunderan InsuranceContractor who is a QualifyingChildorParticipant'schild (withinthemeaningof CodeSection152(f)(1) whohasnotattainedage27 asoftheendofthetaxableyearorQualifyingRelativewhoqualifiesasadependentunderanInsuranceContractor under CodeSection 152 (asmodified by Code Section 105(b)), as applicable.
Certainprovisionsof "Michelle'sLaw" in whichtherequirementthataDependentchildhaveafull-time statusinordertoextendcoveragepastastatedagewill generallynotapplyif thechild'sfailuretomaintainfull-time statusisduetoamedicallynecessaryleaveofabsenceorotherchangein enrollment (suchasreductionofhours).
Notwithstandinganythingin thePlanto thecontrary, thePlanwill complywith Michelle'sLaw.
1. 7 " Effective Date" means the effective date as specified in Item 2 of the Adoption Agreement.
1. 8 " Election Period" meansthe period immediatelyprecedingthe beginningof eachPlan Year establishedbytheAdministratorfortheelectionofBenefitsandSalaryRedirections, suchperiodtobeappliedona uniformandnondiscriminatorybasisforall EmployeesandParticipants. However, anEmployee'sinitialElection Period shallbe determinedpursuantto Section5.1.
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1. 9 " Eligible Employee" meansany Employeewho has satisfiedthe provisionsof Section2.1.
However, 2% shareholders as defined under Code Section 1372(b) and self- employed individuals as defined under CodeSection401(c) shall not beeligible to participatein this Plan.
An individual shall not be an "Eligible Employee" if such individual is not reportedon the payroll records of theEmployerasa commonlaw employee. In particular, it is expresslyintendedthatindividualsnottreatedas commonlawemployeesbytheEmployeronitspayrollrecordsarenot "EligibleEmployees" andareexcludedfrom Planparticipationevenif a courtor administrativeagencydeterminesthatsuchindividualsarecommonlaw employees and not independent contractors.
1. 10 " Employee" meansanypersonwhois employedby theEmployer, butfor all portionsof thePlan otherthanprovisionsrelatingto theHealthSavingsAccountProgram, generallyexcludesanypersonwhois employedasanindependentcontractoror anypersonwhois consideredself-employedunderCodeSection401(c), aswell as a greaterthan two percent (2%) shareholder in a Subchapter S corporation, a partner in a partnership or anownerormemberof alimitedliability companythatelectspartnershipstatusonitstaxreturn. ThetermEmployee shall include leased employees within the meaning of Code Section 414( n)(2).
1. 11 " Employer" means the Corporation or any such entity specified in Item 1 of the Adoption Agreement, andanyAffiliatedEmployer (asdefinedinSection1.2), whichshalladoptthisplan; andanysuccessor, which shall maintain this Plan; andany predecessor, which hasmaintainedthis Plan.
1. 12 " Health Savings Account" means an account established in accordance with Code Section 223( d) to whichpartof anyEligibleEmployee'sCafeteriaPlanBenefitDollarsmaybeallocated.
1. 13 " Highly Compensated Employee" means, for the purposes of determining discrimination, an Employee described in Code Section 125 and the Treasury Regulations thereunder.
1. 14 " HSA Trustee" means the designated Trustee ( as defined under Code Section 223(d)( 1)(B) of any Trustestablishedfor qualifyingaccountbeneficiarieswhoelectto establisha HealthSavingsAccount.
1. 15 " InsuranceContract" meansany contractissuedby an Insurer underwriting a Benefit.
1. 16 " InsurancePremiumPaymentPlan" meanstheplan of benefitscontainedin Section4.1of this Plan, which provides for the paymentof PremiumExpenses.
1. 17 " Insurer" meansanyinsurancecompanythatunderwritesaBenefitunderthisPlan.
1. 18 " KeyEmployee" meansanemployeedefinedinCodeSection416(i)(1) andtheTreasuryregulations there under.
1. 19 " Participant" meansanyEligibleEmployeewhoelectsto becomea Participantpursuantto Section
2.3 andhasnotfor anyreasonbecomeineligibleto participatefurtherin thePlan.
1. 20 " Plan" means this instrument, including all amendments thereto.
1. 21 " PlanYear" meansthe12-monthperiodbeginningandendingonthedatesspecifiedintheAdoption Agreement. The Plan Year shall bethe coverageperiod for the Benefits provided for underthis Plan. In the eventa ParticipantcommencesparticipationduringaPlanYear, thentheinitialcoverageperiodshallbethatportionofthe PlanYearcommencingonsuchParticipant'sdateof entryandendingonthelastdayof suchPlanYear.
1.22 " Premium Expenses" or " Premiums" mean the Participant' s cost for the insured Benefits described in Section 4. 1.
152( b):
1.23 " Qualifying Child" meansan individual who, unlessotherwisedescribedunderCodeSection Is a child ( as defined under Code Section 152( f)( 1)), or descendant of such child, or a brother, sister, stepbrother, stepsister, father, mother or any of their ancestors, or any other relative as describedunder Code Section 152(d)( 2), including an individual who hasthe sameprincipal residence as the Employee and who is a member of the Employee' s household; Copyright 2023 FIS All Rights Reserved
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Whohasthesameprincipalresidence, if allowedunderlocallaw, astheEmployeefor more than one-half of the current taxable year;
Isyoungerthanthetaxpayerclaimingsuchindividualasaqualifyingchild, andisundertheage of 19 as of the end of the Plan Year in which the Employee was eligible under this Plan, or is under the age of 24 when covered as a full time student ( as defined under Code Section 152( f)( 2)), after consideration of Code Section 152( c)( 3) as applicable; Hasnotprovidedoverone-halfof hisorherownsupportduringthecurrentPlanYear; and Whohasnot filed ajoint return (otherthanonly for a claimof refund) with theindividual's spouseunder section 6013 for the taxable year beginning in the calendaryear in which the taxableyear of the taxpayerbegins; or
Is a child (within the meaningof Code Section 152(f)( 1) who hasnot attainedage27 asof the end of the taxable year.
Notwithstandinganythingin thePlanto thecontrary, thePlanwill complywith Michelle'sLaw.
1. 24 " QualifyingRelative" meansan individualwho, unlessotherwisedescribedunderCodeSection 152( d) or ( e):
Is a child ( as defined under Code Section 152( f)( 1)), or descendant of such child, or a brother, sister, stepbrother, stepsister, father, mother or any of their ancestors, or any other relative as described under Code Section 152( d)( 2), including an individual who has the sameprincipal residence as the Employee and who is a member of the Employee' s household; Has ( with the exception of certain handicapped dependents described under Code Section 152( d)( 4)) grossincomefor thePlanYearthat is lessthantheallowableincomeexemption amount ( as defined under Code Section 151(d) for that taxable year; For whomtheEmployeeprovidesoverone-half of theindividual's supportfor thatcalendar year; and
Is not anotherwise Qualifying Child of the Employeefor any portion of the PlanYear.
1.25 " Regulations" meanseithertemporary, proposedorfinalregulations, asapplicable, issuedfromthe Departmentof Treasury, aswell asanyfurtherrelatedguidanceor interpretationsissuedasapplicable.
1.26 " SalaryRedirection" meansthecontributionsmadeby theEmployeronbehalfof Participants pursuant to Section 3.1. These contributions shall be converted to Cafeteria Plan Benefit Dollars and allocated to the fundsor accountsestablishedunderthe Planpursuantto the Participants' electionsmadeunderArticle V.
1. 27 " SalaryRedirectionAgreement" meansan agreementbetweentheParticipantandtheEmployer under which the Participant agreesto reduce his Compensationor to forego all or part of the increasesin such Compensationandto havesuchamountscontributedby theEmployerto thePlanontheParticipant'sbehalf. The SalaryRedirectionAgreementshallapplyonlytoCompensationthathasnotbeenactuallyorconstructivelyreceived bytheParticipantasof thedateoftheagreement (aftertakingthisPlanandCodeSection125intoaccount) and, subsequentlydoesnot becomecurrently availableto the Participant.
1.28 "Spouse" meansthelegally marriedhusbandor wife of a Participantin accordancewith applicable stateandfederallaw, unlesslegallyseparatedby courtdecreeorotherwisespecifiedbytheInsuranceContract.
1. 29 " Uniformed Services" meansthe Armed Forces, the Army National Guard, and the Air National Guardwhenengagedin activeduty for training, inactiveduty training, or full-time National Guardduty, the commissionedcorpsof the Public Health Service, andany other categoryof personsdesignatedby the Presidentof the United States in time of war or emergency.
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All otherdefinedtermsinthisPlanshallhavethemeaningsspecifiedin thevariousArticlesof thePlaninwhich they appear.
Article H — Participation
2. 1 Eligibility
As to eachBenefitprovidedhereunder, anyEligibleEmployeeshallbeeligibleto participateasof thedatehesatisfiestheeligibilityconditionssetforthinthepolicyorplanprovidingsuchBenefit, theprovisionsof whicharespecificallyincorporatedhereinbyreference. However, anyEligibleEmployeewhowasaParticipantin the Planon the effective dateof this amendmentshall continueto beeligible to participatein the Plan.
2. 2 Effective Date of Participation
a) An Eligible Employee shall becomea Participant effective as of the later of the date on which he satisfies the requirements of Section 2. 1 or the Effective Date of this Plan. b) If anEligible Employeeterminatesemploymentafter commencingparticipation in thePlan, exceptasotherwiseprovidedintheapplicablepolicyorplanprovidingaBenefit, suchterminatedParticipantswho arerehiredwithin 30 daysor lessof the dateof termination of employment shall not be considereda newly eligible employeeandwill bereinstatedwith thesameelection(s) suchindividualhadbeforetermination. If a terminated Participantis rehiredmorethan 30 daysfollowing termination of employmentandis otherwiseeligible to participate in the Plan, the individual shall be treated as a newly Eligible Employee and may make a new election under proceduresotherwisesetforthwithinthissectionor Section5.1belowasapplicable.
2. 3 Application to Participate
An Employeewhois eligibleto participateinthisPlanshall, duringtheapplicableElectionPeriod, completeanapplicationto participateandelectionof benefitsform, whichtheAdministratorshallfurnishtothe Employee. The election made on such form shall be irrevocable until the end of the applicable Plan Year unless the Participantis entitled to changehis Benefit electionspursuantto Section5.4 hereof.
An Eligible Employee shall also be required to execute a Salary Redirection Agreement, to elect to reducesalarytopayforallowableBenefits, duringtheElectionPeriodforthePlanYearduringwhichhewishesto participateinthisPlan. AnysuchSalaryRedirectionAgreementshallbeeffectiveforthefirstpayperiodbeginning on or aftertheEmployee's effectivedateof participationpursuantto Section2.2. A failureto executea Salary RedirectionAgreementshall constituteanelection by the Eligible Employeeto receivehis or her full salaryor other compensation in lieu of Benefits available hereunder.
2. 4 Termination of Participation
A Participantshallno longerparticipatein this Planupontheoccurrenceof anyof thefollowing events:
a) His termination of employment, subject to the provisions of Section 2.5; b) His death; or
c) The termination of this Plan, subject to the provisions of Section 8.2.
2. 5 Termination of Employment
If a Participant terminates employment with the Employer for any reason other than death, his participationin thePlanshallcease, subjectto theParticipant's rightto continuecoverageunderanyInsurance ContractforwhichpremiumshavealreadybeenpaidoranyotherabilitytocontinueparticipationinaHealthSavings Account pursuantto CodeSection223.
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Whenanemployeeceasesto beaparticipant, thecafeteriaplanmustpaytheformerparticipantany amounttheformerparticipantpreviouslypaidfor coverageorbenefitsto theextentthepreviouslypaidamount relatestotheperiodfromthedatetheemployeeceasestobeaparticipantthroughtheendofthatplanyear.
Article III — Contributions to the Plan
3. 1 Salary Redirection
Benefits underthe Plan shall be financedby SalaryRedirectionssufficient to supportBenefitsthat a Participant has elected hereunder and to pay the Participant's Premium Expenses. The salary administration programoftheEmployershallberevisedtoalloweachParticipanttoagreetoreducehispayduringaPlanYearby anamountdeterminednecessaryto purchasetheelectedBenefit. Theamountof suchSalaryRedirectionshallbe specifiedin theSalaryRedirectionAgreementandshallbeapplicablefor a PlanYear. Notwithstandingtheabove, fornewParticipants, theSalaryRedirectionAgreementshallonlybeapplicablefromthefirstdayofthepayperiod followingtheEmployee'sentrydateupto andincludingthelastdayofthePlanYear. Thesecontributionsshallbe convertedto CafeteriaPlanBenefit Dollars andallocatedto thefundsor accountsestablishedunderthe Planpursuant to the Participants' elections made under Article V.
AnySalaryRedirectionshallbedeterminedpriortothebeginningof aPlanYear (subjecttoinitial electionspursuantto Section5.1) andpriortotheendoftheElectionPeriodandshallbeirrevocableforsuchPlan Year. However, aParticipantmayrevokeaBenefitelectionoraSalaryRedirectionAgreementafterthePlanYear hascommencedandmakeanewelectionand/or SalaryRedirectionAgreementwith respectto theremainderof the Plan Year, if both the revocationand the new election areon accountof andconsistentwith a changein statusand suchotherpermittedeventsasdeterminedunderArticleV ofthePlanandconsistentwiththerulesandregulations oftheDepartmentoftheTreasury. SalaryRedirectionamountsshallbecontributedonaproratabasisforeachpay periodduringthePlanYear. All individualSalaryRedirectionAgreementsaredeemedtobepartofthisPlanand incorporatedby referencehereunder.
3. 2 Application of Contributions
As soonas reasonablypracticalafter eachpayroll period, the Employershall applythe Salary Redirectionto providetheBenefitselectedbytheaffectedParticipants. Anycontributionsmadeorwithheldfrom anEmployee's compensation, pursuantto theEmployee's signedSalaryRedirectionAgreementfor theHealth SavingsAccount shall be credited to such account. Amounts designatedfor the Participant's Premium Expense ReimbursementAccount shall likewise be credited to suchaccountfor the purposeof paying PremiumExpenses.
3. 3 Periodic Contributions
Notwithstandingthe requirementprovidedaboveandin otherArticles of this Planthat Salary Redirectionsbecontributedto thePlanby theEmployeronbehalfof anEmployeeonalevelandproratabasisfor eachpayrollperiod, theEmployerandAdministratormayimplementaprocedureinwhichSalaryRedirectionsare contributedthroughoutthePlanYearona periodicbasisthat is notproratafor eachpayrollperiod. In theevent SalaryRedirectionsarenotmadeonaproratebasis, uponterminationofparticipation, aParticipantmaybeentitled to a refund of suchSalaryRedirectionspursuantto Section2.5.
Article IV — Benefits
4. 1 Benefit Options
EachParticipantmayelectto havehis full compensationpaidto him in cashor electto havethe amountof his CafeteriaPlanBenefit Dollars appliedto any oneor more of the optional Benefits or any othergroup - insuredorself -fundedBenefitpermittedunderCodeSection125, includingMarketplace/StateExchangesSmall BusinessHealthOptions Program (SHOPExchange) or federally facilitated Small BusinessHealth OptionsProgram FF SHOP), whichis offeredby theEmployerassetforth in theAdoptionAgreement. If selectedasanavailable Benefit Option under the Employer' s Adoption Agreement, each Eligible Individual may elect coverage under the Health Savings Account Program option, in which case Article VI shall apply.
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TheemployermayselectsuitablehealthandhospitalizationInsuranceContractsforuseinproviding healthbenefits, whichpolicieswill provideuniformbenefitsfor all Participantselectingthis Benefit.
4. 2 Description of Benefits
Each Eligible Employee may elect to have the Administrator pay those contributions that the Employee is required to make to the Benefit options described under Section 4. 1 as a condition for the Employee and his Dependents to participate in those Benefit options.
4. 3 Nondiscrimination Requirements
a) It is the intentof this Planto providebenefitsto a classificationof employeeswhichthe Secretaryof theTreasuryfindsnotto bediscriminatoryin favorof thegroupin whosefavordiscriminationmaynot occur under Code Section 125 or applicable Regulations thereunder. b) Adjustment to avoid test failure. If the Administrator deems it necessary to avoid discriminationor possibletaxationto Key Employeesor agroupof employeesin whosefavordiscriminationmay not occur in violation of Code Section 125, it may, but shall not be required to reject any election or reduce contributions or non-taxable Benefits in order to assurecompliance with this Section. Any act taken by the Administrator under this Section shall be carried out in a uniform and nondiscriminatory manner. Contributions whicharenotutilizedtoprovideBenefitstoanyParticipantbyvirtueofanyadministrativeactunderthisparagraph shall be forfeited and deposited into the benefit plan surplus.
Article V — Participant Elections
5. 1 Initial Elections
An Employeewhomeetstheeligibility requirementsof Section2.1onthefirst dayof, orduring, a PlanYearmayelecttoparticipateinthisPlanforallortheremainderof suchPlanYear, providedheelectstodoso beforehiseffectivedateofparticipationpursuantto Section2.2orforanewlyEligibleEmployee, nomorethan30 daysaftertheirdateof hire. For anysuchnewlyEligibleEmployee, if coverageis effectiveasof thedateof hire pursuantto Section2.1above, suchEmployeeshallbeeligibletoparticipateretroactivelyasof theirdateof hire.
Newly EligibleEmployeeElectionamountswill becollectedonthefirst payperiodonor afterhis or herelection wasreceived. However, if suchEmployee doesnot completeanapplication to participate and benefit electionform and deliver it to the Administrator before such date, his Election Period shall extend 30 calendardays after such date, orfor suchfurtherperiodastheAdministratorshalldetermineandapplyona uniformandnondiscriminatory basis. However, anyelectionduringtheextended30-dayelectionperiodpursuanttothisSection5.1shallnotbe effectiveuntil thefirstpayperiodfollowingthelaterof suchParticipant'seffectivedateof participationpursuantto Section2. 2or thedateof thereceiptof theelectionformby theAdministrator, andshallbe limitedto theBenefit expenses incurred for the balance of the Plan Year for which the election is made. Any failure to elect the Benefits setforth hereinshallconstituteanEmployee's electionnotto participatein thePlanduringthatPlanYearuntil a valid Election is otherwise made in the manner set forth herein.
5. 2 Subsequent Annual Elections
DuringtheElectionPeriodpriorto eachsubsequentPlanYear, eachParticipantshallbegiventhe opportunitytoelect, onanelectionof benefitsformtobeprovidedbytheAdministrator, whichBenefitoptionshe wishesto selectandpurchasewithhisCafeteriaPlanBenefitDollars. Anysuchelectionshallbeeffectiveforany BenefitexpensesincurredduringthePlanYear, whichfollowstheendof theElectionPeriod. Withregardto subsequentannualelections, the following options shall apply:
a) A Participant or Employee who failed to initially electto participate may electdifferent or new Benefitsunderthe Plan during the Election Period;
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c) An Employeewhoelectsnotto participatefor thePlanYearfollowingtheElectionPeriod will haveto wait until the next Election Period before again electing to participate in the Plan, except asprovided for in Section 5. 4.
5. 3 Failure to Elect
Any Participantfailing to completeanewelectionof benefitsform pursuantto Section5.2 by the endof the applicableElection Period shall be deemedto haveelectednot to participate in the Planfor theupcoming PlanYear. No furtherSalaryRedirectionsshallthereforebeauthorizedor madefor suchsubsequentPlanYearfor such Benefits.
5. 4 Change of Elections
a) Any ParticipantmaychangeaBenefitelectionafterthePlanYear (to whichsuchelection relates) hascommencedandmake new electionswith respectto the remainderof suchPlan Year if, underthe facts andcircumstances, thechangesarenecessitatedby andareconsistentwith a changein statuswhichis acceptable underrulesandregulationsadoptedby theDepartmentof theTreasury, theprovisionsof whichareincorporatedby reference. Notwithstandinganythinghereintothecontrary, if therulesandregulationsconflict, thensuchrulesand regulations shall control.
Ingeneral, achangeinelectionisnotconsistentif thechangein statusistheParticipant'sdivorce, annulment or legal separation from a spouse, the death of a spouse or dependent, or a dependent ceasing to satisfy theeligibilityrequirementsforcoverage, andtheParticipant'selectionunderthePlanistocancelaccidentorhealth insurancecoveragefor anyindividualotherthantheoneinvolvedin suchanevent. In addition, if theParticipant, spouseordependentgainsorloseseligibilityforcoverageunderafamilymemberplanasaresultof achangein marital status or a change in employment status, then a Participant' s election under the Plan to cease or decrease coveragefor that individual underthe Plancorrespondswith thatchangein statusonly if coveragefor that individual becomes applicable or is increased under the family member plan.
Regardlessof theconsistencyrequirement, if theindividual, theindividual'sspouse, ordependent becomeseligible for continuation coverageunder the Employer's group health plan as provided in Code Section 4980Boranysimilarstatelaw, thentheindividualmayelectto increasepaymentsunderthisPlaninordertopay for thecontinuationcoverage. However, this doesnotapplyfor COBRAeligibility dueto divorce, annulmentor legal separation.
Any newelectionshallbeeffectiveatsuchtimeastheAdministratorshallprescribe, but notearlier thanthefirst payperiodbeginningaftertheelectionformis completedandreturnedto theAdministrator. Forthe purposesofthissubsection, achangein statusshallonlyincludethefollowingeventsorothereventspermittedby Treasury regulations:
1) Legal Marital Status: events that change a Participant' s legal marital status, including marriage, divorce, deathof a spouse, legal separationor annulment; 2) Number of Dependents: Events that change a Participant' s number of dependents, including birth, adoption, placementfor adoption, or deathof a dependent; 3) Employment Status: Any of thefollowing eventsthat changethe employmentstatus of the Participant, spouse, or dependent: termination or commencement of employment, a strike or lockout, commencement or returns from an unpaid leave of absence, or a change in worksite. In addition, if the eligibility conditions of this Plan or other employee benefit plan of the Employer of the Participant, spouse, or dependent depend on the employment status of that individual and there is a change in that individual' s employment status with the consequence that the individual becomes ( or ceasesto be) eligible under the plan, then that change constitutes a change in employment under this subsection;
4) Dependent satisfies or ceasesto satisfy the eligibility requirements: an event that causestheParticipant'sdependentto satisfyor ceaseto satisfytherequirementsfor coveragedueto attainmentof age, studentstatus, or any similar circumstance; and
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5) Residency: A change in the place of residence of the Participant, spouse or dependent.
b) Notwithstandingsubsection (a), Participantsmaychangeanelectionfor accidentor health coverageduringaPlanYearandmakeanewelectionthatcorrespondswiththespecialenrollmentrightsprovided in CodeSection9801(f) pertainingto HIPAA specialenrollmentrightsortheFamilyandMedicalLeaveAct.
A Participant may changean election for accidentor health coverageduring a Plan Year andmake a newelectionthat correspondswith the specialenrollmentrights provided in CodeSection9801(f), including those authorizedundertheprovisionsof theChildren'sHealthInsuranceProgramReauthorizationAct of 2009 (SCHIP); providedthatsuchParticipantmeetsthesixty (60) daynoticerequirementimposedbyCodeSection9801(f) (orsuch longer periodasmay be permitted by the Plan andcommunicatedto Participants).
Suchchangeshalltakeplaceon a prospectivebasis, unlessotherwiserequiredby CodeSection 9801( f) to be retroactive.
c) Notwithstanding subsection ( a), in the event of a judgment, decree, or order (" order") resultingfromadivorce, legalseparation, annulment, orchangeinlegalcustody (includingaqualifiedmedicalchild support order defined in ERISA Section 609) which requires accident or health coverage for a Participant' s child including a foster child who is a dependentof the Participant):
1) The Planmaychangean electionto providecoveragefor the child if the order requires coverage under the Participant' s plan; or
2) The Participantshall be permittedto changean electionto cancelcoveragefor the childif theorderrequirestheformerspousetoprovidecoveragefor suchchild, underthatindividual'splanandsuch coverage is actually provided.
d) Notwithstandingsubsection (a), Participantsmay changeelectionsto cancelaccidentor health coverage for the Participant or the Participant' s spouse or dependent if the Participant or the Participant' s spouse or dependent is enrolled in the accident or health coverage of the Employer and becomes entitled to coverage i.e., enrolled) under Part A or Part B of the Title XVIII of the Social Security Act ( Medicare) or Title XIX of the SocialSecurityAct (Medicaid), otherthancoverageconsistingsolelyof benefitsundersection1928of theSocial Security Act ( the program for distribution of pediatric vaccines). If the Participant or the Participant' s spouse or dependent who has been entitled to Medicaid or Medicare coverage loses eligibility, that individual may prospectivelyelectcoverageunderthePlanif abenefitpackageoptionunderthePlanprovidessimilarcoverage. e) Notwithstandingsubsection (a), Participantsmaymakeaprospectiveelectionchangeto add grouphealthcoveragefor the Participantor the Participant's spouseor dependentif the Participantor the Participant's spouseor dependent, if such individual(s) lose coverageunder any group health coveragesponsored byagovernmentaloreducationalinstitution, including (butnotlimitedto) thefollowing: astatechildren'shealth insurance program ( SCHIP") underTitle XXI of the Social SecurityAct; a medical careprogramof anIndian Tribal government (asdefined in Code Section 7701 (a) (40)), the Indian Health Service, or a tribal organization; a state healthbenefitsrisk pool; or a foreigngovernmentgrouphealthplan, subjectto thetermsandlimitationsof the applicable benefit package option( s).
Further, if the Participant or the Participant' s spouse or dependent who has been entitled to Medicare or Medicaid loseseligibility for suchcoverage, the Participantmay prospectively electto commenceor increasethe accident or health coverage of the individual who loses Medicare or Medicaid eligibility. f) Notwithstanding subsection ( a), Participants who elected to salary reduce through the PremiumOnlyPlanfor accidentandhealthplancoverageis allowedto prospectivelyrevokeor changehis or her electionwith respectto theaccidentor healthplanduringopenenrollmentof aMarketplaceQualifiedHealthPlan QHP) asoutline by the Affordable CareAct (ACA).
The new coveragein a QHP shall be effective no later than the day immediately following the last day of the original coveragethat is revoked.
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g) Notwithstanding subsection ( a), Participants who elected to salary reduce through the PremiumOnlyPlanfor accidentandhealthplancoverageareallowedto prospectivelyrevokehisorherelection with respectto the accidentor healthplan if theParticipantis movedfrom full-time status (at least30 hoursof serviceperweek) topart-timestatus (lessthan30hoursof serviceperweek) andseekcoverageinanotherplanthat providesminimum essentialcoverage.
The new coverageshall be effective no later than the first day of the secondmonth following the month that includes the date the original coverage is revoked. h) If the cost of a Benefit provided underthe Plan increasesor decreasesduring a Plan Year, thenthePlanshallautomaticallyincreaseor decrease, asthecasemaybe, the SalaryRedirectionsof all affected Participants for such Benefit. Alternatively, if the cost of a benefit packageoption increasessignificantly, the Administratorshall permit the affectedParticipantsto eithermakecorrespondingchangesin their paymentsor revoketheirelectionsand, in lieu thereof, receiveona prospectivebasiscoverageunderanotherbenefitpackage option with similar coverage; or drop coverageprospectively if there is no other benefit packageoption available thatprovidessimilarcoverage. ThisPlantreatscoveragebyanotherEmployer, suchasaspouse's ordependent's employer, as similar coverage.
A cost increase or decrease refers to an increase or decrease in the amount of elective contributions underthePlan, whetherresultingfromanactiontakenbytheParticipantsoranactiontakenby theEmployer. i) If the cost of a Benefit PackageOption provided under the plan decreasessignificantly duringaPlanYear, theAdministratorshallpermittheaffectedParticipantstoeithermakecorrespondingchangesin theirpayments; andemployeeswhoareotherwiseeligibleunderthePlanmayelecttheBenefitPackageOption, subject to the terms and limitations of the Benefit Package Option.
If the coverageunder a Benefit is significantly curtailed, and such curtailment results in a loss of coverage, orceasesduringaPlanYear, affectedParticipantsmayrevoketheirelectionsofsuchBenefitand, in lieu thereof, electto receiveona prospectivebasiscoverageunderanotherplanwith similarcoverage, or dropcoverage prospectively if there is no other Benefit PackageOption availablethat provides similar coverage.
If the coverageunder a Benefit is significantly curtailed, and such curtailment doesnot result in a lossof coverage, affectedParticipantsmayrevoketheirelectionsof suchBenefitand, in lieuthereof, electto receive onprospectivebasiscoverageunderanotherplanwith similarcoverage.
If, duringtheperiodof coverage, anewbenefitpackageoptionorothercoverageoptionis added or anexistingbenefitpackageoptionor othercoverageoptionis eliminated) or a significantlyimprovedexisting Benefit Package Option is added, then the affected Participants and employees who are otherwise eligible under the Planmayelectthenewly -addedor significantlyimprovedoption (or electanotheroptionif anoptionhasbeen eliminated) prospectivelyandmakecorrespondingelectionchangeswith respectto otherbenefitpackageoptions providing similar coverage.
0) A Participantmaymakeaprospectiveelectionchangeto addgrouphealthcoveragefor the Participant, the Participant's Spouseor Dependentif such individual losesgroup health coveragesponsoredby a governmentalor educationalinstitution, includinga statechildren's healthinsuranceprogramundertheSocial SecurityAct, theIndianHealthServiceorahealthprogramofferedbyanIndiantribalgovernment, astatehealth benefitsrisk pool, or a foreign governmentgroup healthplan. k) Health Savings Account changes. With regard to the Health Savings Account Benefit specifiedin Article IV, a participantwhohaselectedto makeelectivecontributionsundersucharrangementmay modifyorrevoketheelectionprospectively, providedsuchchangeis consistentwithCodeSection223andthe Treasury regulations thereunder.
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Article VI - Health Savings Account Program
6. 1 Establishment of Program
This Health Savings Account Program ( hereinafter the " HSA") is intended to qualify as a program under Code Section 223 and shall be interpreted in a manner consistentwith such Code Section. The Health Savings Account Programis provided andadministeredby the HSA Trustee.
6. 2 Coordination with Premium Only Plan Benefits
All ParticipantsunderthePremiumOnly Planareeligibleto receiveBenefitsunderthis HSA, aslong as theyotherwisemeetthedefinitionof anEligibleIndividualsetforthunderCodeSection223. TheEmployermay allow employeesto makecontributionsto the HSA with pre-tax dollars, asgovernedandelectedundertheAdoption Agreement. In circumstancesin which Employees are allowed to make pre-tax contributions to the HSA, the Employershallalsohavetheoptionof makingcontributionsto theEmployee'sHSA aswell, throughusageof this Plan and as otherwise set forth herein after consideration of, among other provisions, Article III and Article IV accordinglyrelatedto applicabilityof Employercontributionsandapplicablenondiscriminationstandards. The enrollmentandterminationof participationunderthePremiumOnlyPlanshallconstituteenrollmentandtermination of participationunderthisHSA. In addition, othermattersconcerningcontributions, electionsandthelikeshallbe governedby thegeneralprovisionsof thePremiumOnlyPlan.
Article VII— Administration
7. 1 Plan Administration
The Employer shall be the Administrator, unless the Employer elects otherwise. The Employer may appointanyperson, including, butnotlimitedto, theEmployeesof theEmployer, to performthedutiesof the Administrator. AnypersonsoappointedshallsignifyacceptancebyfilingwrittenacceptancewiththeEmployer.
Upon the resignation or removal of any individual performing the duties of the Administrator, the Employer may designate a successor.
If the Employer elects, the Employer shall appoint oneor more Administrators. Any person, including, but not limited to, the Employees of the Employer, shall be eligible to serve as an Administrator. Any person so appointedshallsignifyacceptancebyfilingwrittenacceptancewiththeEmployer. AnAdministratormayresignby deliveringawrittenresignationto theEmployerorberemovedbytheEmployerby deliveryof writtennoticeof removal, to takeeffectat adatespecifiedtherein, or upondeliveryto theAdministratorif nodateis specified. The Employer shall beempoweredto appoint andremovethe Administrator from time to time asit deemsnecessaryfor theproperadministrationof thePlanto ensurethatthePlanis beingoperatedfor theexclusivebenefitof the Employeesentitledto participateinthePlanin accordancewith thetermsof theAct, thePlanandtheCode.
The operationof the Plan shall beunderthe supervisionof the Administrator. It shall bea principal dutyoftheAdministratortoseethatthePlaniscarriedoutinaccordancewithitsterms, andfortheexclusivebenefit of Employeesentitledtoparticipatein thePlan. TheAdministratorshallhavefull powerto administerthePlanin all of itsdetails, subject, however, to thepertinentprovisionsoftheCode. TheAdministrator'spowersshallinclude, but shall not be limited to the following authority, in addition to all other powersprovided by this Plan:
a) To make and enforce such rules and regulations as the Administrator deems necessary or properfor the efficient administration of the Plan;
b) To interpret the Plan, the Administrator' s interpretationsthereof in good faith to be final andconclusiveon all personsclaiming benefits by operationof the Plan; c) To decideall questionsconcerningthePlanandtheeligibility of anypersonto participate in the Plan and to receive benefits provided under the Plan; d) To reject elections or to limit contributions or Benefits for certain Highly Compensated Participants if it deems such to be desirable in order to avoid discrimination under the Plan in violation of applicable provisions of the Code;
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e) To provideEmployeeswith a reasonablenotificationof theirbenefitsavailableunderthe Plan;
f) To keepandmaintainthePlandocumentsandall otherrecordspertainingto andnecessary for the administration of the Plan;
g) To keepandcommunicateproceduresto determinewhetheramedicalchildsupportorder is qualified underERISA Section609; and
h) To appoint suchagents, counsel, accountants, consultants, andactuariesasmay berequired to assist in administering the Plan.
Anyprocedure, discretionaryact, interpretationorconstructiontakenbytheAdministratorshallbedonein a nondiscriminatorymannerbaseduponuniformprinciplesconsistentlyappliedandshallbeconsistentwiththe intent thatthe Plan shall continueto comply with the terms of CodeSection 125andthe Treasuryregulationsthere under.
7. 2 Examination of Records
The Administrator shall make available to each Participant, Eligible Employee and any other Employeeof theEmployersuchrecordsaspertainto their interestunderthePlanfor examinationat reasonable times during normal businesshours.
7. 3 Payment of Expenses
Any reasonableadministrativeexpensesshallbe paidby the EmployerunlesstheEmployer determinesthatadministrativecostsshallbeborneby theParticipantsunderthePlanor by anyTrustFundwhich maybe establishedhereunder. TheAdministratormayimposereasonableconditionsfor payments, providedthat such conditions shall not discriminate in favor of Highly Compensated Participants.
7. 4 Application of Benefit Plan Surplus
AnyforfeitedamountscreditedtothebenefitplansurplusbyvirtueofthefailureofaParticipantto incuraqualifiedexpensemay, butneednotbe, separatelyaccountedforafterthecloseof thePlanYearin which such forfeitures arose. In no event shall such amounts be carried over to reimburse a Participant for expenses incurredduringasubsequentPlanYearforthesameoranyotherBenefitavailableunderthePlan; norshallamounts forfeitedbyaparticularParticipantbemadeavailableto suchParticipantin anyotherformormanner, exceptas permitted by Treasury regulations. Amounts in the benefit plan surplus shall first be used to defray any administrative costs and experience losses and thereafter be retained by the Employer.
7. 5 Insurance Control Clause
In the eventof a conflict betweenthe terms of this Plan andthe terms of an InsuranceContractof a particularInsurerwhoseproductisthenbeingusedinconjunctionwiththisPlan, thetermsoftheInsuranceContract shall control as to those Participants receiving coverage under such Insurance Contract. For this purpose, the InsuranceContractshall control in definingthe personseligible for insurance, the datesof their eligibility, the conditionswhich mustbe satisfiedto becomeinsured, if any, the benefitsParticipantsareentitledto andthe circumstances under which insurance terminates.
7. 6 Indemnification of Administrator
The Employer agreesto indemnify andto defendto the fullest extentpermittedby law anyEmployee servingastheAdministratoror asamemberof a committeedesignatedasAdministrator (includinganyEmployee or formerEmployeewho previouslyservedas Administratoror as a memberof suchcommittee) againstall liabilities, damages, costs and expenses (including attorney's fees and amountspaid in settlementof any claims approvedbytheEmployer) occasionedby anyactoromissionto actin connectionwiththePlan, if suchactor omission is in good faith.
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Article VIII — Amendment or Termination of Plan
8. 1 Amendment
TheEmployer, atanytimeor fromtimeto time, mayamendanyorall of theprovisionsof thePlan withouttheconsentof anyEmployeeor Participant. No amendmentshallhavetheeffectof modifyinganybenefit electionof anyParticipantin effectatthetimeof suchamendment, unlesssuchamendmentis madeto complywith federal, state or local laws, statutes or regulations.
8. 2 Termination
The Employer is establishingthis Plan with the intent that it will be maintained for an indefinite periodof time. Notwithstandingtheforegoing, theEmployerreservestherightto terminatethePlan, in wholeorin part, at anytime. In theeventthe Planis terminated, no furthercontributionsshallbemade. Benefitsunderany InsuranceContract shall be paid in accordancewith the terms of the Contract.
Any amountsremainingin anysuchfundoraccountasoftheendof thePlanYearinwhichPlantermination occurs shall be forfeited and deposited in the benefit plan surplus.
Article IX — Miscellaneous
9. 1 Plan Interpretation
All provisionsof this Planshallbe governedandinterpretedby the Employer, or it' s delegated Administrator, as applicable, in its full and complete discretion and shall be otherwise applied in a uniform, nondiscriminatorymanner. ThisPlanshallbereadin itsentiretyandnotseveredexceptasprovidedin Section9. 12.
9. 2 Gender and Number
Wherever any words are used herein in the masculine, feminine, or gender neutral, shall be construedasthoughtheywerealsousedin anothergenderin all caseswheretheywouldsoapply, andwhenever anywordsareusedhereinin thesingularor pluralform, theyshallbeconstruedasthoughtheywerealsousedin the other form in all cases where they would so apply.
9. 3 Written Document
This Plan, in conjunctionwith anyseparatewrittendocumentwhich maybe requiredby law, is intendedto satisfy the written Plan requirement of Code Section 125 and any Regulations there under relating to Cafeteria Plans.
9. 4 Exclusive Benefit
This Plan shall be maintained for the exclusive benefit of the Employees who participate in the Plan.
9. 5 Participant' s Rights
This Plan shall not be deemed to constitute an employment contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing containedin thisPlanshallbedeemedto giveanyParticipantorEmployeetherightto beretainedin theserviceof the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon him as a Participant of this Plan.
9. 6 Action by the Employer
Wheneverthe Employer under the terms of the Plan is permitted or required to do or perform any actormatterorthing, it shallbedoneandperformedbyapersondulyauthorizedby itslegallyconstitutedauthority.
9. 7 Employer' s Protective Clauses
a) Upon the failure of the Employer to obtain the insurance contemplated by this Plan (whether as a result of negligence, grossneglect or otherwise), the Participant's Benefits shall be limited to the insurance Copyright 2023 FIS All Rights Reserved
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premium(s), if any, thatremainedunpaidfortheperiodinquestionandtheactualinsuranceproceeds, if any, received bytheEmployerortheParticipantasaresultof theParticipant'sclaim. b) TheEmployer's liability to theParticipantshallonlyextendto andshallbelimitedto any payment actually received by the Employer from the Insurer. In the event that the full insurance Benefit contemplatedis notpromptlyreceivedby theEmployerwithina reasonabletimeaftersubmissionof aclaim, then theEmployershallnotify theParticipantof suchfactsandtheEmployershallnolongerhaveanylegalobligation whatsoever (exceptto executeanydocumentcalledfor by asettlementreachedby theParticipant). The Participant shall befree to settle, compromiseor refusethe claim asthe Participant, in his sole discretion, shall seefit. c) The Employer shall not be responsiblefor the validity of any Insurance Contract issued hereunderor for thefailureonthepartof theInsurerto makepaymentsprovidedfor underanyInsuranceContract.
Onceinsuranceis applied for or obtained, the Employer shall not be liable for any loss which may result from the failure to pay Premiumsto the extentPremium noticesarenot receivedby the Employer.
9. 8 No Guarantee of Tax Consequences
Neither the Administrator nor the Employer makes any commitment or guarantee that any amounts paidto orforthebenefitof aParticipantunderthePlanwill beexcludablefromtheParticipant'sgrossincomefor federalorstateincometaxpurposes, orthatanyotherfederalorstatetaxtreatmentwill applytoorbeavailableto anyParticipant. Notwithstandingtheforegoing, therightsofParticipantsunderthisPlanshallbelegallyenforceable.
9. 9 Indemnification of Employer by Participants
If anyParticipantreceivesoneormorepaymentsorreimbursementsunderthePlanthatarenotfor apermittedBenefit, suchParticipantshallindemnifyandreimbursetheEmployerforanyliabilityit mayincurfor failure to withhold federal or state income tax or Social Security tax from such payments or reimbursements.
However, such indemnification and reimbursement shall not exceedthe amount of additional federal and state incometax thatthe Participantwould haveowed if the paymentsor reimbursementshadbeenmadeto theParticipant asregularcashcompensation, plustheParticipant'sshareofanySocialSecuritytaxthatwouldhavebeenpaidon suchcompensation, lessany suchadditional income and Social Securitytax actually paid by the Participant.
9. 10 Funding
Unlessotherwiserequiredby law, contributionsto thePlanneednotbeplacedin trustordedicated to a specific Benefit, but shall insteadbe consideredgeneral assetsof the Employer until the Premium Expense requiredunderthePlanhasbeenpaid. Furthermore, andunlessotherwiserequiredbylaw, nothinghereinshallbe construedto requirethe Employer or theAdministrator to maintain any fund or segregateany amountfor the benefit of anyParticipant, andno Participantor otherpersonshallhaveanyclaim against, right to, or securityor other interestin, anyfund, accountor assetof theEmployerfromwhichanypaymentunderthePlanmaybemade.
9. 11 Governing Law
This Planis governedby theCodeandtheTreasuryregulationsissuedthereunder (astheymight be amendedfrom time to time). In no event shall the Employer guaranteethe favorabletax treatmentsoughtby this Plan. Totheextentnotpreemptedby federallaw, theprovisionsof thisPlanshallbeconstrued, enforcedand administeredaccordingto thelawsof thestateor commonwealthspecifiedin theAdoptionAgreement.
9. 12 Severability
If anyprovisionofthePlanisheldinvalidorunenforceable, itsinvalidityorunenforceabilityshall notaffectanyotherprovisionsofthePlan, andthePlanshallbeconstruedandenforcedasif suchprovisionhadnot been included herein.
9. 13 Captions
The captionscontainedherein areinsertedonly asa matterof convenienceandfor reference, andin nowaydefine, limit, enlarge, or describethescopeor intentof thePlan, norin anywayshallaffectthePlanorthe constructionof any provision thereof.
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9. 14 Continuation of Coverage
NotwithstandinganythinginthePlantothecontrary, in theeventanybenefitunderthisPlansubject to the continuation coveragerequirement of Code Section 4980B becomesunavailable, each Participant will be entitled to continuationcoverageasprescribedin CodeSection4980B.
9. 15 Family and Medical Leave Act
Notwithstanding any provision to the contrary in this Plan, if a Participant goes on a qualifying unpaidleaveundertheFamilyandMedicalLeaveAct of 1993 (FMLA), to theextentrequiredby theFMLA, after considerationof TreasuryRegulationSection1.125-3 asapplicable, the Employerwill continueto maintainthe Participant's benefits under this Plan on the same terms and conditions as though he/she were still an active Employee (i.e., the Employer will continue to pay its shareof the premium to the extent the Employee opts to continue his/ her coverage). If the Employeeoptsto continuehis/her coverage, the Employeemay pay his/hershare of thepremiumwithafter-taxdollarswhileonleave (orpre-taxdollarstotheextenthe/shereceivescompensation during the leave), ortheEmployeemaybegiventheoptiontopre -payall oraportionof his/hershareofthepremium for theexpecteddurationof theleaveona pre-taxsalaryreductionbasisoutof his/herpre -leaveCompensationby makingaspecialelectiontothateffectpriortothedatesuchCompensationwouldnormallybemadeavailableto him/her (provided, however, thatpre-taxdollarsmaynotbeutilizedto fundcoverageduringthenextplanyear), or via otherarrangementsagreedupon betweenthe Employeeandthe Administrator (e.g., the Administrator may fund coverageduringtheleaveandwithhold "catch-up" amountsupontheEmployee'sreturn). Upon return from such leave, theEmployeewill bepermittedtoreenterthePlanonthesamebasistheEmployeewasparticipatinginthe Planpriorto his/herleave, or asotherwiserequiredby theFMLA.
Furthermore, if aParticipantgoesonaqualifyingpaidleaveundertheFMLA, to theextentrequiredbytheFMLA, the Employeewill continuecoveragewhile on FMLA by the methodnormally usedduring any paid leave.
In allinstances, apaidorunpaidleaveunderFMLAwill betreatedinthesamemannerandconsistentwithanon- FMLA paid or unpaidleave.
9. 16 Health InsurancePortability andAccountability Act Notwithstandinganythingin thisPlantothecontrary, thisPlanshallbeoperatedin accordancewith HIPAA and regulations thereunder.
9. 17 Uniformed Services Employment and Reemployment Rights Act Notwithstandinganyprovisionof thisPlantothecontrary, contributions, benefitsandservicecredit withrespectto qualifiedmilitaryserviceshallbeprovidedin accordancewithUSERRAandtheregulationsthere under, aswell asanyotherapplicableRegulationsspecificto therightsandobligationsof Employerswith Employees on active military leave.
9. 18 COMPLIANCE WITH HIPAA PRIVACY STANDARDS
a) Application. If anybenefitsunderthisCafeteriaPlanaresubjectto theStandardsfor Privacyof IndividuallyIdentifiableHealthInformation (45CFRPart164, the "PrivacyStandards"), then this Section shall apply.
b) Disclosure of PHI. The Plan shall not disclose Protected Health Information to any member of the Employer' s workforce unless each of the conditions set out in this Section are met. " Protected Health Information" shall havethe samedefinition assetforth in the Privacy Standardsbut generally shallmean individuallyidentifiableinformationaboutthepast, presentorfuturephysicalormentalhealthorconditionofan individual, includinggeneticinformationandinformationabouttreatmentorpaymentfor treatment. c) PHI disclosedfor administrativepurposes. ProtectedHealthInformationdisclosedto membersof the Employer's workforce shall be usedor disclosedby them only for purposesof Plan administrative functions. The Plan'sadministrative functions shall include all Planpaymentfunctions andhealth careoperations.
Theterms "payment" and "healthcareoperations" shallhavethesamedefinitionsassetoutin thePrivacy Copyright 2023 FIS All Rights Reserved
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Standards, buttheterm "payment" generallyshallmeanactivitiestakento determineor fulfill Planresponsibilities withrespecttoeligibility, coverage, provisionofbenefits, orreimbursementforhealthcare. ProtectedHealth Informationthatconsistsof geneticinformationwill notbeusedor disclosedfor underwritingpurposes. d) PHI disclosed to certain workforce members. The Plan shall disclose Protected Health InformationonlytomembersoftheEmployer'sworkforcewhoaredesignatedandauthorizedtoreceivesuch ProtectedHealthInformation, andonlyto theextentandintheminimumamountnecessaryfor thatpersonto performhisorherdutieswithrespecttothePlan. "MembersoftheEmployer'sworkforce" shall refertoall employeesandotherpersonsunderthecontroloftheEmployer. TheEmployershallkeepanupdatedlistofthose authorized to receive Protected Health Information.
1) An authorized member of the Employer' s workforce who receives Protected Health Information shall use or disclose the Protected Health Information only to the extent necessaryto perform his or her dutieswith respectto the Plan. 2) In the eventthat any memberof the Employer's workforce usesor discloses ProtectedHealth Information otherthan aspermitted by this Sectionandthe Privacy Standards, theincidentshallbereportedto thePlan'sprivacyofficial. Theprivacyofficial shalltake appropriate action, including:
i) investigation of the incident to determine whether the breach occurred inadvertently, throughnegligenceordeliberately; whetherthereis apatternof breaches; andthe degreeof harm causedby the breach;
ii) appropriatesanctionsagainstthe personscausingthe breachwhich, dependinguponthenatureof thebreach, mayincludeoralorwrittenreprimand, additional training, or termination of employment;
iii) mitigation of anyharm causedby the breach, to the extentpracticable; and
iv) documentation of the incident and all actions taken to resolve the issue and mitigate any damages.
e) Certification. The Employer mustprovide certification to the Plan that it agreesto:
1) Not useor further disclosethe information other than aspermitted or requiredby the Plan documents or as required by law;
2) Ensurethatanyagentor subcontractor, to whomit providesProtectedHealth Information received from the Plan, agrees to the same restrictions and conditions that apply to the Employer with respect to such information;
3) Not use or disclose Protected Health Information for employment - related actions anddecisionsorin connectionwith anyotherbenefitor employeebenefitplanof theEmployer; 4) Reportto thePlananyuseordisclosureof theProtectedHealthInformationof which it becomesawarethat is inconsistentwith the usesor disclosurespermitted by this Section, or required by law;
5) Make available Protected Health Information to individual Plan members in accordance with Section 164.524 of the Privacy Standards; 6) Make available Protected Health Information for amendment by individual Plan membersandincorporateanyamendmentsto ProtectedHealthInformationin accordancewith Section 164.526 of the Privacy Standards;
7) Make available the Protected Health Information required to provide an accountingof disclosuresto individualPlanmembersin accordancewith Section164.528of the Privacy Standards;
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8) Makeitsinternalpractices, booksandrecordsrelatingtotheuseanddisclosureof ProtectedHealth Information receivedfrom the Plan available to the Departmentof Healthand HumanServicesfor purposesof determiningcomplianceby thePlanwiththePrivacyStandards; 9) If feasible, returnordestroyall ProtectedHealthInformationreceivedfromthe Planthat the Employer still maintainsin any form, andretain no copiesof suchinformation when nolongerneededfor thepurposefor whichdisclosurewasmade, exceptthat, if suchreturnor destruction is not feasible, limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible; and
10) Ensure the adequate separation between the Plan and members of the Employer' s workforce, asrequiredby Section164.504(f)(2)(iii) of thePrivacyStandardsandsetoutin (d) above.
9. 19 COMPLIANCE WITH HIPAA ELECTRONIC SECURITY STANDARDS UndertheSecurityStandardsfortheProtectionofElectronicProtectedHealthInformation (45CFRPart164.300 et. seq., the "Security Standards"):
a) Implementation. The Employer agrees to implement reasonable and appropriate administrative, physicalandtechnicalsafeguardstoprotecttheconfidentiality, integrityandavailabilityof Electronic ProtectedHealth Information that the Employer creates, maintains or transmitson behalfof the Plan. "Electronic ProtectedHealth Information" shall havethe samedefinition assetout in the Security Standards, butgenerallyshallmeanProtectedHealthInformationthatistransmittedbyormaintainedin electronic media.
b) Agents or subcontractors shall meet security standards. The Employer shallensure thatanyagentorsubcontractortowhomit providesElectronicProtectedHealthInformationshallagree, in writing, toimplementreasonableandappropriatesecuritymeasurestoprotecttheElectronicProtected Health Information.
c) Employer shall ensure security standards. The Employer shall ensurethat reasonable andappropriatesecuritymeasuresareimplementedto complywith theconditionsandrequirementsset forth in Section 11. 18.
9. 20 MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT
NotwithstandinganythinginthePlantothecontrary, thePlanwill complywiththeMentalHealthParityand Addiction Equity Act andERISA Section712.
9. 21 GENETIC INFORMATION NONDISCRIMINATION ACT ( GINA) NotwithstandinganythinginthePlanto thecontrary, thePlanwill complywith theGeneticInformation Nondiscrimination Act.
9. 22 WOMEN' S HEALTH AND CANCER RIGHTS ACT
NotwithstandinganythinginthePlantothecontrary, thePlanwill complywiththeWomen'sHealthandCancer Rights Act of 1998.
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Adoption Agreement ( 2023)
For City of Highland
Section 125 Premium Only Plan
The undersignedEmployer amendsthe Premium Only Planfor thoseEmployeeswho shall qualify as Participantshereunder. It shall be effective asof the datespecifiedbelow. The Employer herebyselectsthe following Plan specifications:
1. Name of Employer: City of Highland
2. Effective Date: This AmendedPremium Only Plan shall beeffective asof July 1, 2023.
3. Effective Date of Original Plan: This Premium Only Planwasoriginally effective July 1, 1993.
4. PlanYear: TheAmendedPlanyearshallbeginonJuly 1, 2023, andendonJune30, 2024. Future planyearswillbebasedonthesametwelve-month periodbeginningeachJuly1andendingeach June 30.
5. Plan number: 520
6. Employer'sPrincipal Office: ThisPremiumOnlyPlanshallbegovernedunderthelawsof the:
a. ( X) State of California
b. () Commonwealth of
7. Benefits: All the benefits listed below are included in this plan whether or not you currently offer them:
Health Insurance and Voluntary Plans. Premiumsthat arepayroll deductedon a pre-tax basis mayincludelow -deductibleor high -deductiblemedicalinsurance, dentalinsurance, visioncare, critical illness insurance, accidentaldeath/dismemberment (ADD) insurance, hospital indemnity and/orcancerinsurance. Individually -ownedinsurancepolicypremiumsmaynotbepaidwith pre-tax dollarsthrough the Premium Only Plan.
Group -Term Life Insurance up to $50,000. The $50,000 limit must include any employer - providedgroup -termlife insurancecoverage. Forexample, if theemployerprovides $20,000of group -termlife insuranceforemployees, thenparticipantsinthePOPcanpayrolldeduct premiumsonapre-taxbasisfor upto $30,000of additionalcoverage. However, employeesmay notpaypremiumsthatcoverspousesordependentsonapre-taxbasis, evenif theamountisde minimis.
Disability Plan. Short-termandlong-termdisabilitypolicies. If payrolldeductedonapre-tax basis, any future benefitsreceivedwill betaxableto the employee.
Health Savings Account ( HSA). Allows employeesto makecontributions by pre-tax payroll deductionto their individually -ownedHSA. Employersmay alsomakecontributionsto the employee'sHSAplanoneachemployee'sbehalf, in themannersetforth in thePlan. by
City of Highland
AFFILIATES: NONE
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STAFF REPORT
TO THE CITY COUNCIL
DATE: June 13, 2023
FROM: Joseph A. Hughes, City Manager
PREPARED BY: Chuck Dantuono, Director of Administrative Services/ City Treasurer SUBJECT: Gift Policy
RECOMMENDATION: That the City Council approve the amended Gift Policy.
FISCAL IMPACT: Increasing employee years of service gifts by $15 for each category.
PUBLIC NOTICE: The agenda for this item was posted at the three required locations and on the City' s website.
BACKGROUND: The current gift policy has been in effect since March 12, 1996. Since then, the costof giftsfor employeeyearsof servicerecognitionhasincreasedconsiderably. It has increased to the pointwherethe currentvendoris workingwith staff on pricingso we can staywithinour policy limits. The types of gifts for employee recognition are pens, clocks, wood plaques, and acrylic plaques.
Staff recommends approving the attached amended Gift Policy.
Approved Motion
Denied Ayes
Continued Noes
Tabled Abstai
Absent
C
City Clerk
Second Agenda Item No.
File No.
nager
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June 13, 2023MarGh 1''—,, 9N
City of Highland
Policy on Gifts
PURPOSE.
It is the purpose of this policy to provide dollar amounts/limits on gifts purchased by the City in order to eliminate potential conflicts.
DEFINITIONS.
Illness -Serious injury or illness requiring hospitalization for an extended period of time.
Immediate family -Spouse, employer's or spouse's mother, father, brother, sister, child, grandparents.
ITEMS COVERED.
Any gift purchased by the City for Council members, Board members, Committees, Volunteers, and full- time Employees.
REVIEW.
The City Manager shall review the expenditures for gifts to ensure that they fall under the guidelines established by this policy.
LIMITS.
City Council.
Leaving office (Chair [Harvard engraved Captain's chair or Boston Rocker manufactured by Standard Chair of Gardner, Inc.] or Pictures, Plaque, and Proclamation).
Illness/ Death.
Council member ( Card).
Immediate family ( Card).
Community Volunteers/ Appointees.
Appointed Board or Committee members.
Leaving office ( Proclamation).
Illness/ Death.
Member ( Card).
Immediate Family ( Card).
Work project Volunteers - Specific tasks/ assignments.
Leaving service (Community Spirit or if more than five
years of service -Proclamation).
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Employees.
Employment anniversaries ( Gift not to exceed).
5 years of service- 55. 00$ 4& G9.
10 years of service- 65. 00$ 50-. 00.
15 years of service- 75. 00$ 60- G9.
20 years of service- 85. 00$ 70M.
25 years of service- 95. 00$ 80:- GG.
Retirement ( Plaque and/ or Proclamation).
Leaving City service with sufficient notice (Plaque and/or Proclamation).
Illness/ Death.
Employee ( Card).
Immediate Family ( Card).
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STAFF REPORT
TO THE CITY COUNCIL
DATE: June 13, 2023
FROM: Joseph Hughes, City Manager
PREPARED BY: Chuck Dantuono, Director of Administrative Services, City Treasurer D John Toon, Assistant Chief Admin, Cal Fire
SUBJECT: San Manuel Community Credit Fund Restricted Grant Agreement.
RECOMMENDATION: That the City Council authorize the City Manager to sign the attached San Manuel Community Credit Fund Restricted Grant Agreement with San Manuel Band of MissionIndianspertainingto a Multi -PurposeFire TrainingStructureto be constructedat Fire Station No. 3.
FISCAL IMPACT: The total amount of San Manuel Community Credit Funds to be used by the City pursuant to this Agreement after they are completed is $260, 000.
PUBLIC NOTICE: The agenda for this item was posted at the three locations per Resolution No. 2011- 047 and on the City' s website.
BACKGROUND: Pursuant to a Gaming Compact with the State of California, the San Manuel Band of Mission Indians has established a San Manuel Community Credit Fund, with funding that can be used for various specific purposes as described in the Compact. The City has requested and received the Tribe's approval to allocate Community Credit Funds to construct a Multi - Purpose Fire Training Structure at Fire Station No. 3.
Drager fire training systems are custom engineered and designed using once used sea containers, a concept that is much less costly than a permanent cement or steel structure. The insulatedburn areas are designed for temperatures up to 2,3000, minimize degradation of the walls over time and will allow several hundred training evolutions with limited maintenance requirements. Drager also provides full structural engineering support and utilizes structural analysis to assure that their facilities meet all structural integrity and weight -bearing requirements. Most unique to the Drager product is that it includesan intensive, two-day Train -The -Trainer course for instructors. The training coursewas conceivedby the Swedish RescueTeam in Skovde, Swedenand further developed exclusively by Drager in the USA.
Approved Motion Second Agenda Item No. - 2oDenied
Ayes Continued
Noes File No. Tabled
Abstain Absent
City
ClerkCity Manager
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Upon completion of this training, student trainers receive certification to teach to this internationally recognized standard. This training is delivered by instructors certified to this standard, with a high level of expertise in all aspects of fire behavior and only students trained to this standard should conduct subsequent instructional programs. All Drager fire training systems are compliant to the current NFPA 1402 standard.
Highland' s specific system, although not designed to burn class A materials due to AQMD regulations, has been customized and is a unique one -of -a -kind training system. Fully engineered drawings have been completed and the system is ready to be built as planned. There are currently no comparable systems to the custom Drager Swede Survival System and no comparable instructionalprogramsinthe US, as only Dragerofferssucha comprehensivepackageof custom design characteristics, engineering resources, and certified training instructors who train to an internationally recognized standard.
The bid award will be presented to the Council at a future meeting.
Staff recommends that the City Council authorize the City Manager to sign this San Manuel CommunityCreditFundRestrictedGrantAgreementwith SanManuelBandof MissionIndians.
The City Attorney has reviewed this agreement and has approved as to form. -2-
RESTRICTED GRANT AGREEMENT
San Manuel Band of Mission Indians
and
City of Highland
Multi -PurposeFire Training Structure
This Restricted Grant Agreement ( this " Agreement") is entered into and made effective as of the date of last signature ( the " Effective Date") by andbetweenthe SanManuel Band of Mission Indians, a federallyrecognizedIndiantribelocatedat26569CommunityCenterDrive, Highland, CA, 92346 (" Tribe"), andthe City of Highland (" Grantee"), located at 27215 Base Line, Highland, CA, 92346. Tribe, on the one hand, and Grantee, on the other hand, are each referred to herein individually as a "Party" and together asthe "Parties." I. GRANTEE' S STATUS. This grant is specifically conditionedupon Grantee's statusasan eligible granteeof Tribe in accordancewith this Section. Grantee represents and warrants that it operates a fund that is a tax- exempt under Section 170 ( b)( 1)(v) of the Internal Revenue Code of 1986, as amended ( hereinafter the " Code"), becauseGranteeis a governmental unit asdefinedby Section170(c)(1) of theCode. Granteerepresentsandwarrantsthatit is nota privatefoundationasdefinedin Section509(a) oftheCode. Granteewill notifyTribeimmediately of anyactualor proposedchangein its tax statusduringtheGrantPeriod (asdefinedbelow).
II. PURPOSE OF GRANT. The Parties acknowledge and agreethat the purposeof Tribe's Grant (asdefinedbelow) is to providefunding for fire training equipmentandnecessary site preparationwork (hereinafter " Grant Project"). The Grant ( as defined below) is made only for theadditionof thefire training equipmentandsitepreperationwork describedin this Agreement.
Thegrantfunds, which includesanyinterestearnedonthefunds (hereinaftercollectivelyreferred to as " Grant"), maynot beusedfor anyotherpurposewithout prior written approvalfrom Tribe.
III. OBJECTIVES OF GRANT PROJECT.
Grantee shall undertake and complete Grant Project within eighteen ( 18) months of the Effective Date unless Tribe agrees in writing to alternative timelines.
IV. AMOUNT AND PAYMENT OF GRANT. The Parties agree the Grant amount is Two -Hundred Sixty Thousand Dollars ($ 260, 000. 00), payable upon Grantee's requestwithin 15 businessdaysof Tribe's receiptof the fully executedAgreement, andwill beusedsolelyto fund purchaseof thefire training equipmentandsitepreparationwork.
V. PERIOD OF GRANT; TERM OF AGREEMENT. The Grant will be applied to fundGrantProjectfor theperiodfrom EffectiveDatethroughcompletionof the GrantProjector within eighteen ( 18) months of Effective Date, whichever first occurs (" Grant Period").
VI. TERMS AND CONDITIONS OF GRANT. Grantee agrees that the Grant is subject to the following conditions:
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a. Expenditure of Grant Funds.
1. Use of Funds. Granteewill spendthe Grant only for thepurposesof funding the Grant Project as described above.
2. Payment of Funds to Related Parties of Tribe. No part of the Grant may be paid to any director, officer, employeeor citizen (or their family members) of Tribe for any purpose.
b. Return of Funds. Grantee shall return to Tribe any and all Grant funds if Tribe determines in its reasonable discretion that either of the following apply:
Grantee hasnot performed in accordancewith this Agreement; or
2. Any portion of the Grant is not usedfor the Grant Project.
C. Records, Audits, Site Visits. The Grant provided by Tribe will be accountedfor separately in Grantee's books and records. A systematic accounting record shall be kept by Grantee of the receipt and disbursement of the Grant. Grantee will retain original substantiating documents related to restricted Grant expenditures and make these records available for Tribe' s review upon 10businessdays prior written request. As a material term of this Agreement Grantee agreesto maintain adequatefinancial recordspertaining to the Grant for aminimum of threeyears after completion of the Grant Project, andacknowledgesthat Tribe may require Granteeto produce written documentation related to the Grant expenditures in a format appropriate to be forwarded by Tribe to the Stateof California in orderto comply with Compactrequirements, andGrantee agreesto timely comply with any suchrequest. Tribe, or a designatedrepresentative, reservesthe right, upon written notice, to conduct a site visit and/or audit Grantee's books and recordsrelating to the expenditure of the Grant.
d. Reports. Grantee will submit a brief written summative report confirming completion of the Grant Project within sixty ( 60) days following the end of the Grant Period. e. Expenditures. Expenditures of the Grant must be made substantially in accordance with SectionVI. Any materialchangeswill besubjectto Tribe'sprior written approval. f. Licensing and Credentials. Grantee will maintain, in full force and effect, all requiredgovernmentalor professionallicensesandcredentialsfor itself, its facilities, andfor its employeesand all other personsengagedin work in conjunction with the Grant. g. Management and Organizational Changes. Granteewill provide immediatewritten notice to Tribe if significant changes or events occur during the Grant Period which could potentiallyimpactthe progressor outcomeof the Grant Project, including, without limitation, changesin Grantee's managementpersonnel or lossesof funding from any other sources. h. Termination. Either Party heretomay terminate this Agreement upon not lessthan thirty (30) days' prior written noticeto theotherfor failureon thepartof suchPartyto performa material obligation hereunder, or for a breachof such Party's representationor warranty made in this Agreement. Tribe may terminate this Agreement upon not less than thirty ( 30) days' prior 2-
11026- 0001\ 2793415v2. doc
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written notice to Grantee for ( i) Grantee's change in the fundamental mission, or ( ii) Grantee's implication in an event, or series of events, of such notoriety or opprobrium that the continuation of this Agreement has or will have a negative impact upon Tribe, its image or reputation, or iii) Grantee'sinabilitytofulfill therequirementsforpaymentsetforthherein. Intheeventof any termination of this Agreement, Grantee shall return all Grant funds received excluding all expenditures and contractual encumbrances consistent with this Agreement and incurred by Grantee in reliance on this Agreement.
If Tribe terminates this Agreement dueto Grantee'sbreachhereof, Granteewill remove all signageand other identification from the facilities and all other places, things and sites wherever there are references to Tribe ( collectively, " All Identification"), at Grantee' s sole cost and expense.
Under all events of termination hereunder, the removal of All Identification will be completedassoonasreasonablypractical, but in noeventlaterthanthirty (30) daysafterthenotice of termination. Theforegoingrightsandremediesarecumulativeof, andin additionto, anyrights, remediesor recoursesto which theterminatingpartymaybeentitledat law or in equity. i. Public Reporting and Media. In recognition of the Grant it is the Parties' understandingthatGranteewill expressits appreciationandproviderecognitionpublicly to Tribe.
ThePartieswill mutuallyagreein advanceonthemannerof presentationandcontentsof such publicrecognition. Granteewill alsodisseminateto thepublic, by usingestablishedchannelsof communication, pertinentinformationrelatingto the results, findingsor methodsdeveloped through the Grant.
j. Knowing Assumption of Obligations. Granteeacknowledgesthat it understandsits obligations imposed by this Agreement.
k. Terrorist Activity. Grantee represents and warrants that it does not support or conduct, directly or indirectly, violenceor terroristactivity of anykind.
1. Identificationof Tribe. Granteeshalldisplaya signatthefacility, attheir costand for the durationof the useof the facility, that states "This equipmentwas madepossiblewith fundingfrom the SanManuelBandof MissionIndians." All proposed external communications byGranteeregardingthesubjectmatteroftheGrantortheTribeshallbesubmittedfirsttoTribe for its review and written approval.
M. Ownership and Use of Marks.
1. License. Grantee acknowledges and agrees that Tribe is the owner of all right, title and interest in and to Tribe' s name and logo ( collectively its " Marks") and that Grantee' s useof the Markspursuantto this Agreementinuresto the benefitof Tribe. Tribe hereby grants Grantee a non- exclusive and non -transferable license, without the right to sublicense, to use the Markssolely in connectionwith providing recognitionof the Grantpursuantto this Agreement.
Granteewill have no rights in or to the Marks, exceptasexpressly grantedherein. Tribe expressly reservesto itself all rights in and to the Marks not expressly granted to Grantee pursuant to this Agreement. The manner and use of the Marks shall comply with all federal and state laws 3-
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pertainingto tradenames, trademarksandservicemarksin forceat anytime andshallclearly indicateTribe'sownershipof theMarksasrequestedandapprovedby Tribe.
2. Approval Rights. All usesof the Marks by Granteeare subject to the prior written approval of Tribe. Grantee will submit to Tribe for approval, at least ten ( 10) business dayspriortoits intendedfirstuse, allmaterialswhichcontaintheMarks (whetherin printmedia, directmail, television, radio, internet, email, billboard or in anyotherform, mediaor channel).
Tribe will havetheright to review andapprove any copy containing referenceto Tribe or including the Marks prior to its use by Grantee. Tribe will use its reasonable efforts to promptly review materialssentby Granteefor approvalandwill notunreasonablywithholdor delayits approval.
In no event shall Granteemake any unapproved changesto the Marks. n. Selection of Sub ragntees. With regard to the selection of any subgrantees to carry outthepurposesof theGrant, Granteeretainsfull discretionandcontrolovertheselectionprocess, actingcompletelyindependentlyof Tribe. Thereis no agreement, written or oral, by which Tribe may cause Grantee to choose any particular subgrantee.
o. No Agency. Granteeis solelyresponsiblefor all activitiessupportedby theGrant, thecontentof anyproductcreatedwiththeGrant, andthemannerin whichanysuchproductmay be disseminated. This Agreementwill not createany agencyrelationship, partnership, or joint venture between the Parties, and Grantee will make no such representation to anyone.
P. Remedies. If Tribe determines, in its reasonable discretion, that Grantee has substantiallyviolatedorfailedtocarryoutanyprovisionhereof, includingbut notlimitedtofailure to submitreportswhendue, Tribemay, in additionto anyotherlegalremediesit mayhave, refuse tomakeanyfurtherGrantpaymentsto Granteehereunderoranyother grantagreement, andTribe maydemandthereturnof all orpartof theGrantfundsnotproperlyspentor committedto third parties, which Granteewill immediatelyrepayto Tribe. Tribe may also avail itself of any other remedies available at law.
q. Waiver of Claims and Indemnification. Grantee waives any and all claims and recourseagainstTribe, including the right of contribution for loss or damagesto personsor propertyarisingfrom, growingoutof, orin anywayconnectedwithorincidentalto fulfillmentof the terms and conditions specified in this Agreement. Additionally, Grantee will indemnify, defend, protectandhold Tribe andits officers, managers, members, employees, agentsand representatives, harmless from any cost, expense, claim, demand, liability and/or damage, includingreasonableattorney'sfeesandcosts ("Claims"), arising out of or in connection with, in wholeor in part, (i) anyfalseor misleadingrepresentationmadeby Grantee, its agents, employees or delegated representatives in connection with this Agreement, ( ii) its breach of any term of this Agreement, ( iii) the performanceof Tribe's obligationspursuantto this Agreement, or (iv) any claimsor actionsbroughtby third parties, including, but not limited to, partiessetforth below.
Granteefurtherwaivesanyandall Claimsto theextentresultingfrom, relatingto or arisingout of i) thefacilitieswhereprogramsaredeliveredand/ortheoperationalactivitiesof Granteetherein, including, without limitation, any disputesby, betweenor amongparticipants, users, guests, or any other attendees and Grantee ( or Grantee' s respective agents, subcontractors ( if any), and employees) or its productsandservices, anypersonalinjuriessustainedby anypersonator in connectionwith the facilities whereprogramsare delivered, and/or any agreementswith third 10 11026- 0001\ 2793415v2. doc
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partiesenteredintobyGranteeoritsagentsin connectionwiththeoperationofthesamefacilities, or (n) the negligent acts or omissions or willful misconduct of Grantee or its agents, subcontractors if any), or employeesin connectionwith thesubjectmatterof thisAgreement, exceptto theextent thoseClaimsaredirectlycausedbythenegligenceorwillful misconductof Tribeorits agentsor employees.
The obligationsof this SectionVI ( q) shall surviveuntil the expirationof the statuteof limitations applicable to the event giving rise to the Claims. r. Notices. All notices, requests, demands, or other communication permitted or requiredto begivenunderthis Agreementshallbe in writing andshallbedeemedgivenor made whensentby UnitedStatescertifiedor registeredmail, returnreceiptrequestedandpostage prepaid, orbyanationallyrecognizedovernightcourier, deliveryfeeprepaid, andin eithercaseto thepersonsandattheaddressesspecifiedbelow:
If to Tribe:
Eric Ustation
San Manuel Band of Mission Indians
26569 Community Center Drive
Highland, CA 92346
If to Grantee:
Joseph A. Hughes, City Manager
27215 Base Line
Highland, CA 92346
Thepersonsandaddressessetforthabove, fromtimeto time, maybechangedby writtennotice sent as aforesaid to the other Party.
S. Captions. All captions and headings in this Agreement are for the purposes of referenceandconvenienceonly. Theyshallnot limit or expandtheprovisionsof this Agreement. t. Entire Agreement,• Amendments and Modifications. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any andallpriorandcontemporaneousoral, writtenandotheragreementsbetweentheParties. This Agreementmaynotbeamendedor modified, exceptin awriting signedby bothParties.
U. Governing Law/ Jurisdiction. This Agreement shall at all times be governed by and construed in accordance with the laws of the State of California applicable to agreements made in California. Nothing in this Agreementshallbe construedasa waiver of Tribe's immunity to unconsented suit.
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V. Non -Assignment. The Parties agreethat none of the provisions of this Agreement shallbeassignedor delegatedto anyotherpersonor entitywithouttheprior written consentof the otherParty, which consentwill bein theParty's soleandabsolutediscretion.
W. Successors and Assigns. The Parties agree that this Agreement shall be binding upon them and eachof their respective successorsand permitted assigns.
X. Amendment. ThisAgreementmayonly beamendedin awriting signedby eachof the Parties hereto.
Y. Waiver. No waiver hereunderwill be valid unless setforth in a writing signed by thePartyto beboundthereby. Neitherthefailurenor anydelayonthepartof eitherParryto exerciseanyrightorremedyunderthisAgreementshalloperateasawaiverthereof.
Z. ForceMajeure. Eachof the Partiesshall be excusedfrom performing its obligations underthisAgreementif its performanceis delayedor preventedby anyeventbeyondsuchParty's reasonablecontrol, including, but notlimited to, actsof God, earthquake, fire, explosion, weather, disease, war, insurrection, civil strife, riots governmentactions, or power failure, providedthat suchperformanceshallbeexecutedonlytotheextentof andduringsuchdisability. aa. Severability. In the event any portion of this Agreement or any amendmentsor addendahereto shall be held illegal, void or ineffective, the remaining portions hereof shall remain in full forceandeffect. If anyof thetermsor conditionsof this Agreementis in conflict with any applicable statute or rule of law, then such tern or condition shall be deemed inoperative to the extentthatit mayconflict therewithandshallbedeemedto bemodifiedto conformto suchstatute or rule of law.
bb. Counterparts. This Agreement may be executedin two or more counterparts, each of which is deemedan original, but all of which taken together shall constitute one and the same instrument.
The Parties have executed this Agreement as of the date first written above.
SAN MANUAL BAND OF MISSION CITY OF HIGHLAND
INDIANS
C M.
Christopher Benak Joseph A. Hughes
SVP Accounting City Manager
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4X dt. STAFF REPORT
F HtG,
ti$
Q
TO THE CITY COUNCIL
DATE: June 13, 2023
FROM: Joseph A. Hughes, City Manager
PREPARED BY: Chuck Dantuono, Director of Administrative Services/ City Treasurer SUBJECT: Resolution No. 2023- approving a Wildland Protection Agreement ( WPA) with the State of California for FY 2023- 2024.
RECOMMENDATION: That the City Council approve Resolution No. 2023- approving the Department of Forestry and Fire Protection (Cal Fire) Wildland Protection Agreement ( WPA) for July 1, 2023 - June 30, 2024.
FISCAL IMPACT: $ 51, 483. 66. There are sufficient funds in the FY 2023- 2024 Budget for this.
PUBLIC NOTICE: The agenda for this item was posted at the three required locations.
BACKGROUND: This item is presented to the Council annually. The City Council in August of 2021 approved the first WPA for FY 2021- 2022. The Wildland Protection Agreement is essentially an insurance policy. With the constant threat of deadly and destructive wildland fires in California, especially evidentbytherecentlargefiresthat haveimpactedtheCityaswellasthe surroundingareasinCalifornia, twoyearsagothe StateproposedaWPAfor speciallychosenopenspaceareas (acres) withinthe foothill areas of East Highland. The City has large areas of wildlands as well as structures located in the wildland- urban interface. Within the last five years the City has had multiple wildland fires, the "Bridge Fire" on Greenspot near the old iron bridge, the "King Fire" on Base Line just east of Fire Station No. 2, and the " Mentone Fire" on Greenspot Rd/ Newport. These three fires were within the City, which makes the City responsible for all fire suppression costs. The cost of suppressing a wildland fire with aircraft, hand -crews, and dozers can become extremally costly very quick.
With this agreement, if there is a fire within or adjacent to the chosen open space areas, CAL FIRE will send a full wildland fire response including aircraft, hand -crews, and dozers. CAL FIRE will protect those lands as if they were a State Reasonability Area (SRA). All suppression costs for a fire within or adjacent to that chosen area will be covered under the WPA. This will continue to be an annual fee and will be due whether it is used or not, like an insurance policy. There is no proposed change to the map. Planning staff has reviewed the map attached to the WPA and agrees with the proposed boundaries. The City Attorney has reviewedthe WPA and has approved as to form.
Approved Motion Second Agenda Item No.
Denied Ayes
Continued Noes File No.
Tabled Abstain
Absent
City Clerk City Manager
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RESOLUTION NO. 2023 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HIGHLAND, CALIFORNIA,
APPROVING THE DEPARTMENT OF FORESTRY AND FIRE PROTECTION ( CAL FIRE) WILDLAND PROTECTION AGREEMENT ( WPA) FOR JULY 1, 2023, TO JUNE 30, 2024 BE IT RESOLVED, by the City Councilof the City of Highland, that said City Councildoes hereby approve the attached agreement ( Exhibit A) with the California Department of Forestry and Fire Protection ( CAL FIRE) dated June 13, 2023. This agreement provides Wildland Fire Protection for the City of Highland from July 1, 2023, to June 30, 2024.
NOW THEREFORE, BE IT RESOLVED that the Mayor of the City Council of the City of Highland, is authorized to sign and execute said agreement on behalf of the City of Highland.
APPROVED AND ADOPTED this 13th day of June 2023.
Larry McCallon, Mayor
ATTEST:
Betty Hughes, City Clerk
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Exhibit A
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STATE OF CALIFORNIA
COOPERATIVE FIRE PROGRAMS AGREEMENT NUMBER 3CA06328
LOCAL RESPONSIBILITY AREA WILDLAND PROTECTION
REIMBURSEMENT AGREEMENT REGISTRATION NUMBER:
LG- W REV 1/ 2023
1. This Agreement is entered into between the State Agency and the Local Agency named below:
STATE AGENCY' S NAME
California Department of Forestry and Fire Protection — ( CAL FIRE)
LOCAL AGENCY' S NAME
City of Highland ( Wildland)
2. The term of this Agreement is: July 1, 2023 through June 30, 2024
3. The maximum amount of this Agreement is: $ 51, 483. 66 FiftyOneThousand, FourHundredEightyThreeDollars, andSixtySix Cents
4. Thepartiesagreeto complywiththetermsandconditionsof thefollowingexhibitswhichare bythis referencemadea part of the Agreement.
Exhibit A — Scope of Work — Includes page 2 (contact page) in count for Exhibit A 2 pages Exhibit B — Budget Detail and Payment Provisions 2 pages Exhibit C* — General Terms and Conditions; DGS GTC Version: 04/ 2017 0 pages Exhibit D — Special Terms and Conditions ( Attached hereto as part of this Agreement) 1 pages Exhibit E — Additional Provisions 6 pages
Items shown with an Asterisk (*) are hereby incorporated by reference and made part of this Agreement as if attached hereto.
General Terms and Conditions can be viewed at: http:// www. dgs. ca. gov/ ols IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
LOCAL AGENCY California Department of General
LOCAL AGENCY' S NAME
Services Use Only
City of Highland
BY ( Authorized Signature) DATE SIGNED( Do not type)
PRINTED NAME AND TITLE OF PERSON SIGNING
ADDRESS
27215 Base Line Rd. Highland, CA 92346
STATE OF CALIFORNIA
AGENCY NAME
California Department of Forestry and Fire Protection
BY ( Authorized Signature) DATE SIGNED( Do not type)
Z
PRINTED NAME AND TITLE OF PERSON SIGNING
MatthewSully, AssistantDeputy Director, CooperativeFire ADDRESS P.O. Box 944246, Sacramento, CA 94244- 2460
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ContractorName: City of Highland ( Wildland)
Contract No: 3CA06328
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EXHIBIT A
COOPERATIVE FIRE PROGRAMS
AGREEMENT FOR PROTECTION OF WILDLANDS WITHIN LOCAL AGENCY RESPONSIBILITY AREA
1. The project representatives during the term of this Agreement will be:
CAL FIRE Unit Chief: Local Agency: City of Highland
Name: Shane Littlefield Name: Larry McCallon
Phone: ( 909) 881- 6900 Phone: ( 909) 864- 6861
Fax: ( 909) 881- 6969 Fax:
All required correspondence shall be sent through U.S. Postal Service by certified mail and directed to:
CAL FIRE Unit Chief: Shane Littlefield Local Agency: City of Highland Section/ Unit: San Bernardino Unit Section/ Unit:
Attention: Patrick Aguada Attention: Larry McCallon
Address: 3800 N. Sierra Way Address: 27215 Base Line Rd San Bernardino, CA Highland, CA 92346
92405
Phone: 909) 881- 6900 Phone: 909) 864- 6861
Fax: 909) 881- 6969 Fax:
Send an additional copy of all correspondence to:
CAL FIRE
Cooperative Fire Services
P. O. Box 944246
Sacramento, CA 94244- 2460
2. AUTHORIZATION
This Agreement is entered into this 1st day of July, 2023, by and between the State of California, hereinafter called STATE and City of Highland, County of San Bernardino, State of California, hereinafter called Local Agency through its duly authorized officers. As used herein, Director shall mean Director of the California Department of Forestry and Fire Protection (CAL FIRE). Where the standard clauses for example in Exhibit C, use the word "Contractor" that word shall mean LOCAL AGENCY as LOCAL AGENCY is used in this Agreement.
Section 4142 of the Public Resources Code provides that the Director may enter into cooperative Agreements with localjurisdictions for the purpose of providing wildlandfire protection.
3. SCOPE OF WORK
LOCAL AGENCY has the responsibility for protection of life, property, and wildland areas comprising1261 acresof land as indicatedon the map includedunder Exhibit E and desiresto contract with the STATE to provide wildland fire protection to said area. -5-
ContractorName: City of Highland ( wildland)
Contract No: 3CA06328
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STATE has the ability to provide wildland fire protection for said area, of the type and degree, which it now provides on adjacent State Responsibility Areas.
4. SERVICES BY STATE
A. STATE shall provide wildland fire protection for the areas defined in the above section.
B. For those areas, which are adjacent to State Responsibility Area, STATE will provide wildland fire protectionat the same level of service it now provideson adjacentState Responsibility Area.
C. For those areas ( islands), which are not adjacent to State Responsibility Area, the wildland fire protectionprovidedbytheSTATEwill be limitedto thoseresourcesidentifiedinthe preplanned wildland response for the respective area. Any resources beyond those specified in the preplannedwildland responseare assistanceby hire and the financial responsibilityof the LOCAL AGENCY.
5. ADMINISTRATION
A. LOCAL AGENCY agrees that STATE may dispatch fire protection resources available under this Agreement to other areas of the state when needed at the sole discretion of STATE.
B. STATE response will be subject to availability of resources.
C. Incident Management within the contract area shall conform to current Incident Command System criteria for Unified Command.
D. STATE and LOCAL AGENCY shall, through established dispatch procedures, immediately notify each other of any fire incident within the contract area.
6. MUTUAL AID
LOCALAGENCYshallprovidemutualaid responseintothecontractareafor wildfires. Structuralfire protectionremainsthejurisdictionalandfinancialresponsibilityof LOCALAGENCY.
7. ENTIRE AGREEMENT
This Agreement contains the whole Agreement between the parties. It cancels and supersedes any previous Agreement for the same or similar services.
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ContractorName: City of Highland ( Wildland)
Contract No: 3CA06328
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EXHIBIT B
BUDGET DETAIL INVOICING, PAYMENT AND RECONCILIATION
1. Invoicing and Payment:
A. LOCAL AGENCY shall pay STATE for providing said protection at the rate of $36. 45per acre, plus an 12.01% administrative charge for a total of $ 51,483. 66 upon presentation of an invoice by STATE. The rate per acre and administrative charge will be calculated by STATE prior to January 1, of each year and annually thereafter, for the succeeding fiscal year subject to approval by LOCAL AGENCY. This Agreement shall be amended each fiscal year to reflect new rates.
B. STATEshallprovidethirty (30) daywrittennoticeto LOCALAGENCYof the cost peracreand the administrative charge to be assessed for each subsequent fiscal year during the term of this Agreement; LOCAL AGENCY shall have thirty ( 30) days to approve said rate; if written approvalis not receivedby STATEwithin said period, STATE's obligationshereundershall terminate; LOCAL AGENCY shall be liable for all amounts due up to and including the date of such termination.
C. To minimize the need for reconciliation payment is expected in full after the LOCAL AGENCY receives the STATE invoice. Payments made by the LOCAL AGENCY will cover the protection rateper acreand the administrativechargefor the protectionservicesrenderedby STATEand includingany other costs as providedherein, giving creditfor all paymentsmade by LOCAL AGENCY and claiming the balance due to STATE, if any, or refunding to LOCAL AGENCY the amount of any overpayment.
Budget Contingency Clause
A. If the LOCAL AGENCY's governing authority does not appropriate sufficient funds for the current yearoranysubsequentyearscoveredunderthisAgreement, whichresultsin aninabilityto pay the STATE for the services specified in this Agreement, the LOCAL AGENCY shall promptly notifytheSTATEandthisAgreementwillterminatepursuantto the noticeperiodsrequired herein.
B. Iffundingforanyfiscalyearis reducedor deletedbytheLOCALAGENCYfor purposesofthis program, theLOCALAGENCYshallpromptlynotifytheSTATE, andtheSTATEshallhavethe option to either cancel this Agreement with no liability occurring to the STATE, or offer an agreement amendment to LOCAL AGENCY to reflect the reduced amount, pursuant to the notice terms herein
C. If the STATE Budget Act does not appropriate sufficient funds to provide the services for the currentyearoranysubsequentyearscoveredunderthisAgreement, whichresultsinaninability to providetheservicesspecifiedinthisAgreementto theLOCALAGENCY, theSTATEshall promptlynotifytheLOCALAGENCY, andthisAgreementwill terminatepursuantto thenotice periods required herein.
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ContractorName: City of Highland ( Wildland)
Contract No: 3CA06328
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D. Iffundingfor anyfiscalyearis reducedor deletedbytheSTATEBudgetActfor purposesof this program, theSTATEshallpromptlynotifytheLOCALAGENCY, andtheLOCALAGENCYshall have the option to either cancel this Agreement with no liability occurring to the LOCAL AGENCY, or offer an agreement amendment to LOCAL AGENCY to reflect the reduced services, pursuant to the notice terms herein.
E. Notwithstandingtheforegoingprovisionsin paragraphsA andB above, theLOCALAGENCY shall remain responsible for paymentfor all services actually rendered by the STATE underthis Agreement regardless of LOCAL AGENCY funding being reduced, deleted or not otherwise appropriatedfor this program. The LOCAL AGENCY shall promptly notify the STATE inwriting of any budgetary changes that would impact this Agreement.
F. LOCAL AGENCY and STATE agree that this Budget Contingency Clause shall not relieve or excuse either party from its obligation(s) to provide timely notice as may be required elsewhere in this Agreement.
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ContractorName: City of Highland ( Wildland)
Contract No: 3CA06328
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EXHIBIT D
SPECIAL TERMS AND CONDITIONS
1. Cancellation
Failure of either party to meet any of the terms and conditions of this Agreement, including non- paymentof moniesdue hereunder, shall be cause for the terminationof this Agreement; such termination shall become effective upon written receipt of 30 day notice of cancellation.
2. Audit
If the Agreement is over $ 10,000, the parties shall, in accordance with Government Code Section 10532, be subject to examination and audit of the State Auditor General for a period of three ( 3) years after final payment under the Agreement. Examination and audit shall be confined to those matters connectedwith performanceof the Agreement including, but not limited to, cost of administeringthe AgreementThe Contractorwarrants by executionof this Agreement, that no person or selling agency has been employed or retained to solicit or secure this Agreement upon Agreement or understanding.
3. Operating Plan
Priorto April1 of eachyear, STATEand LOCALAGENCYshallestablisha joint OperatingPlanfor the contract area, which shall be attached after Exhibit E. If LOCAL AGENCY received its structuralfire protectionfrom anotherlocal agency, the local agency providingthe structuralfire protection must be party to the Operating Plan.
4. Extension of Agreement
Unless there is written notice by LOCAL AGENCY to terminate this Agreement STATE shall extend thisAgreementfor a singleone-year periodfromthe originalterminationdate. Thecostof services providedby STATEduring the extendedperiodshall be based uponthe rates publishedfor the fiscalyearinwhichthe extendedperiodfallshada newAgreementbeenenteredinto.
5. Modification
This Agreement may be amended at any time by written mutual consent of the parties hereto.
6. Indemnification
Eachparty, to the extentpermittedby law, agreesto indemnifyand hold harmlessthe otherparty, its officers, agents, and employees from any and all claims and losses accruing or resulting to any person, firmor corporationwhomaybe injuredor damagedby the indemnifyingparty. -9-
ContractorName: City of Highland ( Wildland)
Contract No: 3CA06328
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EXHIBIT E
ADDITIONAL PROVISIONS
Attachments
Budget Plan
Topographic Map
Operating Plan
Annual Report
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Contract Name: City of Highland ( Wildland)
Contract #: 3CA06328
Page #: 8
LOCAL RESPONSIBILITY AREA ( LRA) WILDLAND PROTECTION REIMBURSEMENT AGREEMENT Program Cost Account ( PCA #) 39017
THIS IS THE BUDGET PLAN FOR THE LOCAL RESPONSIBILITY AREA ( LRA)
WILDLAND FIRE PROTECTION REIMBURSEMENT AGREEMENT BETWEEN THE
STATE OF CALIFORNIA, DEPARTMENT OF FORESTRY & FIRE PROTECTION ( CAL FIRE) AND THE CITY/ TOWN OF Highland A LOCAL AGENCY
FOR THE 2023/ 2024 FISCAL YEAR
AGREEMENT COST CALCULATIONS:
Number of Acres 1261
General Fund Reimbursement $ 16. 33 $ 20, 592. 13
Unit Budget $ 20. 12 $ 25, 371. 32
Sub - Total $ 45, 963. 45
Admin Rate 12. 01 % $ 5, 520. 21
Total Protection Cost $ 51, 483. 66
Comments Section:
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City of Highland ( Wildland)
Contract# 3CA06328