2.36.330 Disciplinary action—Charges, response, final action

2.36.330 Disciplinary action—Charges, response, final action.

A. Removal, Demotion, Reduction in Compensation, Suspension of More Than Five Days. In the case of employees declared exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), such employees may be terminated, demoted, suspended for more than one work week or reduced in compensation for any of the grounds set forth above. Such employees may also be suspended for less than one work week for a violation of city safety rules of major significance. Employees not exempt from the overtime requirements of the FLSA may be removed, reduced in compensation, demoted or suspended for more than five days. In any disciplinary matter wherein it is proposed that a regular employee in the classified service shall be removed, reduced in compensation, demoted, or suspended for more than five days or the shift equivalent, the procedures for notifications, response and final action shall be as follows:

1. Charges. The employee against whom the disciplinary action is proposed shall be provided with written notice stating any and all reasons, specifically and in detail, for the proposed action prior to the effective date thereof. The material on which the notice is based, including, but not limited to, statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and either provided to the employee or made available to the employee for review. Any materials not so provided or made available shall not be used to support the reasons in the notice.

a. The employee may respond to the notice of proposed disciplinary action within five business days, unless the appointing authority authorizes a longer time, following delivery of the notice to the employee. The employee may respond through a designated representative, personally in writing or any combination thereof. The right to answer personally includes the right to answer orally in person by being given an opportunity to make any representations which the employee believes are pertinent to the matter. When the employee requests an opportunity to answer personally, the appointing authority shall personally hear the answer.

b. Irrespective of the manner of response, the employee may submit any material or evidence which is pertinent to the matter. The appointing authority shall consider any representations, statements, materials, or any other evidence submitted by the employee with or as his/her response.

3. Employee Status After Notice. The employee shall be retained in active status during the response period. Provided, however, when in the opinion of the appointing authority, circumstances are such that the retention of the employee in an active status during the response period may result in damage to city property, may be detrimental to the interests of the city, or may be injurious to the employee, fellow workers or the public, the appointing authority may temporarily assign the employee to duties in which these conditions do not exist, or may place the employee on paid suspension during the response period.

a. Within three business days following the response of the employee to the notice of the proposed disciplinary action or, if no response is received within three business days following the expiration of the response period, the appointing authority shall deliver a notice of final decision to the employee. If discipline is imposed a notice of decision shall be delivered to the employee personally or by mail to the address of record in the employee’s personnel file. The notice shall be dated and shall inform the employee of his/her right to appeal the notice of decision pursuant to the provisions of Section 2.36.340. Disciplinary action shall be effective upon the personal delivery or mailing of the notice.

b. If no discipline is to be imposed, the notice of decision shall so indicate and the personnel director shall be directed to delete from the employee’s personnel file all references to the matter.

B. Suspension of Five Days or Less. In any disciplinary action wherein it is proposed that a regular employee in the classified service who is not exempt from the provisions of FLSA be suspended for five days or less, the procedures shall be as provided under subsection A of this section. In a disciplinary action for a major safety rule violation, wherein it is proposed that a regular exempt employees in the classified service be suspended for five days or less, the procedures shall be as provided under subsection A of this section. Provided however, that in the alternative the appointing authority may impose immediate final discipline without prior notice and right to respond in which event the procedures subsequent to imposition of discipline shall be as follows:

1. Materials. Within five business days following the imposition of discipline a written notice stating any and all reasons specifically and in detail for the proposed action, materials on which the disciplinary action is based and investigative reports or extracts therefrom shall be assembled and either provided to the employee or made available to the employee for review.

a. The employee may respond to the appointing authority concerning the imposed disciplinary action and the materials in support thereof within five business days of receipt of the materials. The employee may respond through a designated representative or personally, or in writing or any combination thereof.

b. The right to answer personally includes the right to answer orally in person by being given an opportunity to make any representations which the employee believes are pertinent to the matter. When the employee requests an opportunity to answer personally, the appointing authority shall personally hear the answer.

c. Irrespective of the manner of response, the employee may submit any material or evidence which is pertinent to the matter. The appointing authority shall consider any representations, statements materials or any other evidence submitted by the employee with or as his/her response.

3. Appointing Authority Action. Within three business days following the response, if any, of the employee, the appointing authority shall either confirm or rescind the imposed disciplinary action, and shall give written notice to the employee of the decision to confirm or rescind. If the discipline is rescinded, appropriate action, including credit for back pay in case of suspension, shall be taken and the personnel director shall be directed to delete from the employee’s personnel file all references to the matter. If the discipline is confirmed the notice to confirm shall inform the employee of his/her right to appeal: the effective date of the disciplinary action for the purpose of appeal shall be the date of delivery or mailing of the notice to confirm.

C. Reprimands. In any disciplinary action wherein it is proposed that a regular employee in the classified service receive a written reprimand, the procedures shall be as provided in the alternate method in subsection B of this section, with the following exceptions:

1. A reprimand need not include statements of witnesses or other supporting documents, but shall set forth the circumstances in sufficient detail to permit the employee to understand the nature and basis of the action.

2. Reprimands shall not be placed in the employee’s personnel file unless approved by the appointing authority. In such cases, the employee shall have the right to submit a written response to the reprimand and such response shall be placed in the employee’s personnel file. (Ord. 1313 § 1, 1996; prior code § 2706.1)