Loading...
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"