HomeMy WebLinkAboutRES NO 7-74RESOLUTION NO. 7-74
A RESOLUTION OF THE COUNCIL OF THE CITY OF
BAKERSFIELD ESTABLISHING PROCEDURES AND
REGULATIONS FOR THE DISCHARGE OF DUTIES
AND RESPONSIBILITIES OF CITY MANAGER AND
RETIREMENT APPEALS BOARD CONCERNING DISA-
BILITY RETIREMENT OF LOCAL SAFETY MEMBERS
UNDER THE PUBLIC EMPLOYEES' RETIREMENT LAW
OF THE STATE OF CALIFORNIA.
WHEREAS, by Resolution No. 5-74 , the City Council has
delegated to the City Manager the authority to make any and all
determinations under Section 21023.6 of the Government Code, on
behalf of the City of Bakersfield, whose decisions shall be final
on the llth day after he mails his determination to the applicant;
WHEREAS, by Resolution No. 6-74 , the City Council has
established the Retirement Appeals Board of Bakersfield, to whom
an applicant safety member may appeal the City Manager's determina-
tion within 10 days-of the mailing of such determination to such
applicant; and
WHEREAS, it is necessary and proper to establish pro-
cedures and regulations to provide for the effective discharge of
the duties and responsibilities vested in the City Manager and the
Retirement Appeals Board by this City Council.
NOW, ,.THEREFORE, IT IS HEREBY RESOLVED AND ORDERED AS
FOLLOWS.:.
Manager:
PROCEDURES AND REGULATIONS FOR THE DISCHARGE
OF DUTIES AND RESPONSIBILITIES OF CITY MANAGER
AND RETIREMENT APPEALS BOARD CONCERNING DISA-
BILITY RETIREMENT OF LOCAL SAFETY MEMBERS UNDER
PUBLIC EMPLOYEES' RETIREMENT LAW OF STATE OF
CALIFORNIA.
I
Determinations By City Manager
The following determinations shall be made by the City
1. Whether an applicant local safety member is incapa-
citated physically or mentally for the performance of the duties
of his position.
a. The disability or incapacity for performance of
duty must be permanent or of extended and uncertain duration.
(Sec. 21020, Gov't. Code.) -
b. Incapacity means substantial inability to perform
his usual duties. (6 CA 3d 873.)
c. Such determination of disability shall be made on
a form substantially similar to the document entitled "Determination
of Disability," marked Exhibit '~" and incorporated herein as
though fully set forth.
d. When such determination is made a copy of the
Determination of Disability shall be mailed to the applicant for
disability retirement to his last-known address and an affidavit
of such mailing shall be filed in the office of City Manager.
e. A copy of such Determination shall be mailed to
the Public Employees' Retirement System not earlier than the llth
day following the mailing of a copy of such Determination to the
applicant, as shown on the affidavit of mailing.
f. In the event the applicant appeals the said
Determination within 10 days, including said 10th day, the Deter-
mination shall not be transmitted to the Public Employees' Retire-
ment System until the appeal is heard and determined.
g. If the Retirement Appeals Board of Bakersfield
upholds the original Determination of the City Manager said Deter-
mination shall be mailed forthwith to the Public Employees' Retire-
/ment System.
h. If, however, the said Board reverses the deter-
mination of the City Manager, the City Manager shall adopt the
decision of the Retirement Appeals Board and mail the Determination
of Disability, which shall be in accordance with the decision of
the Retirement Appeals Board.
2. Whether the disability is industrial.
a. "Industrial" means disability as a result of
injury or disease arising out of and in the course of.employment
as a local safety member. (Sec. 20038, Gov't. Code.) The appeal
procedure provided herein shall apply.
b. Where it appears that there is a dispute between
the City and the applicant as to whether the disability is industrial,
the City shall, and the member may, apply to the Workmen's Compensation
Appeals Board for a determination of this question. A copy of such
Board's decision shall be filed with the Public Employees' Retire-
ment System. A Workmen's Compensation award is not sufficient.
There must be a finding specifically under Section 21023.6 of the
Government Code with respect to the disability for which the appli-
cant is retired.
c. If no dispute exists and no application is filed
with the Workmen's Compensation Appeals Board, the City Manager's
determination shall be filed with the Public Employees' Retirement
System on the form entitled "Determination of Disability."
3. The effective date of retirement of the applicant for
disability retirement.
a. Applications for disability retirement Of local
safety members whether initiated by the City Manager or the member
must be filed with PERS and retirement can be effective no earlier
than the first of the month in which the application is received
by PERS.
b. If there is a dispute as to the effec-tive date,
the retirement shall be effective on the date the disabling condition
Becomes permanent and stationary as determined by the Workmen's
Compensation Appeals Board, notwithstanding Section 21025.5 of the
Government Code which states that the retirement for disability of
a member who has been granted or is entitled to a leave of absence
with compensation, shall not become effective prior to the expira-
tion of such leave of absence with compensation, unless the member
applies for or consents to his retirement as of an earlier
date.
c. The retirement'of a member who has been granted or
is entitled to sick leave or who is entitled to compensating time
off for overtime, shall not become effective until the expiration of
such sick leave with compensation and the expiration of such com-
pensating time off with compensation, unless the'member applies
for or consents to his retirement as of an earlier date. Sick
leave shall be subject to the regular requirements of law and rules
governing the use of sick leave.
d. Payments made pursuant to Section 4850 of the
Government Code are not salary but workmen's compensation benefits.
(26 CA 3d 200.)
e. The City Manager shall certify on the form
entitled "Determination of Disability" the date that the applicant
has been separated for the condition he finds to be disabling. If
there is a disagreement as to the separation date, a copy of the
Workmen's Compensation Appeals Board determination of the date when
the condition became permanent and stationary will be r.equired to
be filed with the System before the retirement can be accomplished.
f. The appeal procedure provided herein shall apply.
4. Whether a local safety member who has been retired for
disability has ceased to be disabled for his position held at
retirement.
a. The disability test is the same as that for retire-
ment and the appeal procedure provided herein shall apply.
b. Such determination must be made whether the member
is seeking'employment with the City of Bakersfield or any other
agency under PERS.
c. The City Manager may initiate reinstatement
actions and if he does he may cause the development of necessary
evidence and determine whether or not the retired person continues
to be disabled· If the determination is that he is no longer
disabled, the determination shall be forwarded, as provided above,
to PERS which will terminate the disability retirement allowance.
d. Reinstatements will not be made effective earlier
than the first of the month following receipt by PERS of the City
Manager's determination.
B. Applications for retirement.
1. Application to the board of retirement of PERS of a
member for disability may be made by:
a. The City Manager.
b. The member or any person in his behalf.
C. Procedure for City Manager's determination of disability.
1. Upon receipt of an application for disability retire-
ment filed with PERS by a local safety member or upon initiation
of such application by the City Manager, the City Manager shall:
a. Notify the applicant to obtain and cause to be filed
with the City Manager any evidence in the form of written medical
reports, certificates or other documents which the applicant
wishes the City Manager to consider in making the determination
required to be made.
b. Arrange for a medical examination of the applicant
by a physician in cases where the City Manager deems necessary or
desirable and notify the applicant that he is required to report at
a time and place specified.
c. Require the department head ~mploying the appli-
cant to file with the City Manager a complete report on a form to
be supplied by the City Manager.
d. Obtain all claims and medical reports filed by the
applicant for workmen's compensation benefits.
e. Review the applicant's employment status, pay status,
accrued vacation and sick leave entitlement and accrued overtime or
compensating days off and obtain a report from the Finance Director
as to the status of workmen's compensation benefits under Section
4850 of the Labor Code, and the job description for the position
held by the applicant.
f. Gather all information necessary to determine the
effective date of the retirement.
g. Where required by the City Manager, the applicant,
at his own expense, shall obtain a medical examination by a
physician of applicant's choice.
h. Cause a factual investigation of the circum-
stances surrounding the cause of the injury or disease to assist
in the determination whether the incapacity resulted from an
injury or disease arising out of and in the course of employment;
usually the department head's report will be sufficient, but where it
is not the City Manager shall have the authority to retain an
investigator to make such investigation.
i. Upon receipt and consideration of all requested
documents and reports by the City Manager and all the documents and
reports desired to be submitted by the applicant, the City Manager
may either approve or deny, by his Determination, the disability
retirement or reinstatement, and if approved, determine it to be
either industrial or nonindustrial.
j. Within 3 days after the City Manager's actual
determination, the City Manager shall notify the applicant at the
address shown in the application, of his determination, and if the
determination of the City Manager denies in whole or part any of the
benefits sought in the application, the notice shall advise the
applicant of his right to appeal to the Retirement Appeals Board
of Bakersfield, as hereinafter provided.
II
Appeal to The Retirement Appeals Board
A. The appeal. When requested by an applicant as hereinafter
provided, hearings shall be scheduled and conducted in the following
1. Appeal by applicant. An applicant may appeal any
determination of the City Manager by filing with the City Manager
.a written statement requesting a hearing on the application or
merely stating that he appeals the determination or determinations
made by the City Manager.
Such written appeal shall be filed with the City
Manager before 5 P. M. on the 10th day after the date of mailing
the Determination of Disability. If the 10th day falls on a
Saturday, Sunday or holiday, the time shall be extended until
5 P. M. of the next regular business day following such Saturday,
Sunday or holiday. The appeal must be personally signed by the
applicant.
2. Setting of hearing date. When an appeal is filed
requiring a hearing before the Retirement Appeals Board the City
Manager, within 30 days after receipt of the written appeal or
request for hearing, shall fix a hearing date which shall not be
later than 60 days after the date of the City Manager's receipt of
the appeal or request for hearing.
3. Notice of hearing. The City Manager shall deliver or
mail notice of hearing to the applicant at the address shown in the
application, and to the applicant's attorney, if any, at least 10
days prior to the date fixed for the hearing.
4. Continuances. The City Manager may continue a hearing
to a later date with the consent of the applicant. If a request
for continuance is made and all interested parties do not consent
thereto, the party requesting the continuance may renew the request
at the co~mLLencement of the scheduled hearing. The presiding officer
at the hearing, after hearing any evidence and argument offered with
respect to the request for continuance, shall either grant the
request upon such terms and conditions as he, in his discretion,
shall prescribe, and fix a new date for hearing; or, in the alter-
native, reject the request and proceed with the hearing.
5. Reporter. Hearings may be conducted without a steno-
graphic reporter unless some person interested in the hearing
requests in writing at least one full business day before the date
set for the hearing that such hearing be'reported, and agrees to
pay the cost or fee for such reporting. The report of the proceed-
ings shall be transcribed only if requested by a party and, if so,
the party requesting the same shall pay for the cost thereof.
6. Representation by counsel. An applicant shall be
entitled to be represented by legal counsel at any hearing.
7. Conduct of hearings. Hearings before the Retirement
Appeals Board of Bakersfield shall be conducted in accordance with
the following rules and in the following manner:
a. The Board shall select the presiding officer who
shall preside over all hearings under this resolution, and shall
exercise such control over the proceedings as is reasonable and
necessary. In addition to other duties, he shall rule upon
requests for continuances, order of presentation of evidence, admissi-
bility of evidence and shall administer the oath to witnesses giving
oral testimony.
b. The hearing need not be conducted according to the
technical rules of evidence. Any relevant evidence shall be
admitted if it is the sort of evidence upon which responsible
persons are accustomed 'to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rule which
might make improper the admission of such evidence over objection
in judicial proceedings.
c. Oral testimony shall be given only under oath or
affirmation.
d. Each party shall have the right to call and examine
witnesses, to introduce exhibits; and to cross-examine opposing
witnesses giving oral testimony on any matter relevant to the
issues. If the applicant does not testify on his own behalf, he
may be called and examined as if under cross-examination. Refusal
of any applicant to submit to examination for the purpose of
9. Transmittal of Determination.
a. The final determination of any issue by the
Retirement Appeals Board shall be forthwith transmitted to the
applicant and to the City Manager.
b. Within 3 working days from the date of receipt of
the final determination by the City Manager he shall mail his
Determination of Disability to the Public Employees' Retirement
System, which shall be in accord with the determinations made by
the Board.
o0o .....
10.
answering relevant questions shall be grounds for dismissing the
application.
e. Copies of the reports or records of any govern-
mental agency, division or bureau shall be accepted as evidence in
lieu of the original thereof.
f. The production of medical evidence in the form
of written reports is favored.
g. The right to cross-examine a physician on his'
written report shall be deemed waived where the report of the
physician has been filed with the City Manager and served upon
adverse parties 10 days or more prior to the hearing of the case
unless the physician is caused to appear at the hearing by the
party seeking to cross-examine him.
h. Nothing herein shall preclude the Retirement
Appeals Board from requiring an independent medical examination of
the applicant by a doctor selected by the Board, which independent
examination shall be made at the expense of the City.
i. At the conclusion of the hearing the Board shall
make and the City Attorney shall prepare in accordance therewith,
findings of fact and determination of the issues. Such findings
and determinations may be made at the time of the conclusion of the
hearing o~ the Board may take the matter under submission and sub-
sequently make its findings of fact and determination of the issues
at any meeting of said Board called and held within 30 days of the
conclusion of-the hearing. Such decision shall be final and conclusive.
8. Quorum and Votin~ of Board of Appeals.
a. A quorum consists of the majority of the qualified
members of the'Appeals Board. "
b. A majority of the legal votes cast, a quorum being
present, is sufficient to carry a motion. Members present but not
voting are disregarded in determining whether a motion is carried.
I HEREBY CERTIFY that the foregoing Resolution was passed
and adopted by the Council of the City of Bakersfield at a regular
meeting thereof held on the 28th day of January, 1974, by the follow-
ing vote:
ACTING'~'~CLERK d6E~OfficiokClerk of
CoUnci~o~~ed City of Ba ersfield
the
APPROVED this 28t~day of January, 1974
akersfie ld, ~ .' ~. _
APPROVED as to form:'
CITY' A~6~ Of 'the C akers~field
DETERMINATION OF DISABILITY
OF THE
CITY MANAGER, CITY OF BAKERSFIELD
(1)
(2)
(3)
Pursuant to authority delegated to me by action of the
Council of the City of Bakersfield, by Resolution No. adopted
on the day of January, 1974, under Section 21023.6 of the
Government Code, and after review of medical and other evidence relevant
thereto, I hereby determine that ,
a local safety member of the Public Employees' Retirement System, employed
by the City of Bakersfield incapacitated
(is) (is not)
within the meaning of the Public
(physically) (mentally)
Employees' Retirement LaW-l for performance of his duties in the position
of .
(job title)
Pursuant to such authority I also determine ~that such incapacity
is a result of injury or disease arising out of and in the course of his
employment by the City of Bakersfield as a local safety member, and
certify that neither the City nor the member has filed a petition or
application for determination by the Workmen's Compensation Appeals Board.
or
A petition for determination under Sections 21023.6 and
21026 whether such disability is the result of~i~{~jury or disease
arising out of and in the course of his employment by the City of
Bakersfield, in which he was a local safety member, has been filed
with the Workmen's Compensation Appeals Board. A certified copy of
such determination .
(is. attached) (will be provided when rendered)
I hereby certify that the member was separated from his
employment in the position of 'after
(job title)
expiration of his leave rights under Sections 21025.2 and 21025.5 of
EXHIBIT "A"
the Government Code, effective and that
no dispute as to the expiration of such leave rights is pending.
or
I hereby certify that the member was separated from his
employment in the position of ,
(job title)
effective ,7the day upon which the
condition causing his disability became permanent and stationary as
determined by the Workmen's Compensation Appeals Board in the attached
find ing.
You are hereby advised
that you have the right to appeal any determination herein made by the
City Manager by filing with the City Manager your written statement
requesting a hearing on the application or by merely stating in writing
that you appeal the determination or determinations made. Such written
appeal shall be filed before 5 p.m. on the day of
197_, and must be personally signed by you.
H. E. BERGEN
City Manager
City of Bakers field
EXHIB IT "A"