Loading...
HomeMy WebLinkAboutNS-2208E - Amending Section of Santa Ana Municipal Code About Employees.354 ORDINANCE NO. NS- 2208E AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA AMENDING SECTION 9-118 OF THE SANTA ANA MUNICIPAL CODE TO PROVIDE THAT NO EMPLOYEE WHO IS EXEMPT FROM THE RE- QUIREMENTS OF THE FAIR LABOR STANDARDS ACT SHALL BE SUBJECT TO SUSPENSION WITH- OUT PAY FOR ANY PERIOD OF LESS THAN ONE WEEK, AND STATING THE REASONS FOR ITS URGENCY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That section 9-118 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 9-118. Suspensions; demotions; dismissals. (a) Right to exercise the disciplinary and dismissal powers hereinafter provided is vested respectively in the officers of the city who have the power of appointment as to any position in the personnel system. (b) Except as specified in subparagraph (d), any employee serving a probationary period in a position in the civil service shall be subject to suspension without pay for a period not to exceed ninety (90) days, demotion or dismissal, and the employee so disciplined or discharged shall not have a right of appeal, except that an employee who held permanent status in some other position or employment included within the civil service immediately prior to his appointment to probationary status shall not be discharged without written notice of charges, an opportunity to answer, a written decision as hereinafter provided and right of appeal to the personnel board. (c) Except as specified in subparagraph (d), any employee, other than one serving a probationary period, holding a position in the civil service shall be subject to suspension without pay for a period not to exceed ninety (90) days, or to demotion, or to dismissal subject to a right to appeal to the personnel board in accordance with the procedures set forth in this article. However, such appea~ shall not stay the imposition of suspension, demotion or dismissal following the written decision of the appointing authority. (d) Each or any of said actions relating to suspension, demotion, or dismissal may be taken by the officer having power of appointment to the position for reasonable and sufficient cause; provided, however, that no employee who is exempt from the ordinance No. NS-2208E Page 2 requirements of the Fair Labor Standards Act shall be subject to suspension without pay for any period of less than one week. (e) Each such employee shall have ten (10) days after receipt of the written decision of the appointing authority in which to file a notice requesting a hearing before the personnel board. Such request for a hearing shall be filed with the director of person- nel. If a hearing is requested, the personnel board shall thereupon set a date for hearing the matter at its earliest convenience. Hearing procedures shall be informal, and the rules of evidence generally applicable to administrative proceedings shall apply. Such employee shall have an opportunity at such hearing to be heard in person, or by counsel, and the right to subpoena witness- es. Except as otherwise provided by law, all hearings held under the provisions of this section shall be open to the public. (f) The personnel board shall make written findings which shall state as to each charge whether or not such charge is sustained. The personnel board shall also set forth in writing its conclusions and recommendations based upon such findings, and within ten (10) days after concluding the hearing, it shall certify its findings, conclusions, and recommendations to the officer from whose action the appeal was taken, and to the city manager and the city council. (g) If, with respect to a suspension, demotion, or dismissal, the personnel board shall conclude that the employee charged was not guilty of the act or omission resulting in such suspension, demotion, or dismissal, a recommendation by it of reinstatement without loss of pay shall be binding upon the appointing authority, who forthwith shall order such reinstatement. In the event that the personnel board shall conclude that the employee was guilty of the act or omission resulting in such suspension, demotion, or dismissal but that the penalty was not warranted under the circumstances, the personnel board may review the severity and appropriateness of the punishment. A recommendation by it of a greater or lesser punishment or of reinstatement with or without loss of pay shall be binding upon the appointing authority, who forthwith shall order the same; provided, however, the personnel board may not impose a suspension with loss of pay for any period of less than one week on any employee who is exempt from the requirements of the Fair Labor Standards Act. If, with respect to ~ suspension, demotion or dismissal, the personnel board concludes that the employee was guilty of the act or omission resulting in such suspension, demotion or dismissal, and that such punishment was warranted, such decision shall be final. (h) Vacancies created under this section may be filled by the appointing authority by temporary appointment pending the comple- 356 2 Ordinance No. NS-2208E 358 Page 3 tion of any proceedings taken hereunder. (i) A reduction in pay shall be treated as a demotion under this section, unless the reduction in pay is part of a plan of reclassification of positions or of a plan to reduce salaries and wages in connection with a general economy or curtailment program, or is the result of a finding by the appointing authority that the employee's performance does not justify the continuance of a level of pay that is dependent upon meritorious service. A failure to grant an increase in pay at a time when an increase would otherwise have been granted as a part of a plan to increase salaries and wages throughout the city service shall not be treated as a demotion under this section. (j) The personnel board may adopt procedural rules to govern the conduct of its hearings. SECTION 2: In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed. 2d 1016 (1985), the United States Supreme Court made the Fair Labor Standards Act and its minimum-wage and overtime provisions expressly applicable to state and municipal employees. This decision effectively overruled the Court's earlier decision in National Leaque of cities v. User¥, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In response, Congress enacted the Fair Labor Standards Amendments of 1985, Pub. L. No. 99-150, Stat. 789, to "ease the fiscal transition for state and local governments newly subject to the Act." Among the amendments were provisions that parts of the Fair Labor Standards Act would not apply to state and municipal governments until April 15, 1986. Fair Labor Standards Amendments of 1985, Pub. L. No. 99-150, § 2(c) (1), 99 Stat. 787, 788-789. The amendments to Santa Ana Municipal Code § 9-118 made by this ordinance shall be retroactive to April 15, 1986. The Executive Director of the City's Personnel Services Agency is hereby directed to research and review all pertinent City records to determine whether any City employee, otherwise exempt from the Fair Labor Standards Act, has been suspended from employment, at any time subsequent to April 15, 1986 and up to the date of adoption of this Ordinance, for reasonable and sufficient cause, for any period of one week or less. If the Executive Director finds evidence of any such suspension or suspensions, the Executive Director shall cause to be restored to each such affected employee all salary and other fringe benefits (such as accrued vacation leave, sick leave or compensatory time) lost b~f that employee for the period of such suspension. The purpose this amendment to Santa Ana Municipal Code § 9-118 is to avoid liability, under 29 C.F.R. § 541.118 (a) (5), for violating the Fair Labor Standards Act. The purpose of the retroactivity provision of this ordinance, and the direction given to the Executive Director of the City's Personnel Services Agency regarding the suspension of any exempt employee for one week or less, is to fall within the "window of correction" provision contained in 29 C.F.R. § 541.118(a) (6). 3 @ © 360 Ordinance No. NS-2208E Page 4 SECTION 3: This ordinance is adopted as an emergency measure for preserving the public peace, health or safety in accordance with section 415 of the Charter of the City of Santa Ana. It has been introduced and adopted at the meeting of the city Council held on the date herein below stated and shall be effective immediately in accordance with section 417 of the said Charter. The reasons for the urgency of this ordinance are as follows: (1) Unless and until section 9-118 of the Santa Ana Municipal code is amended to provide that no employee who is exempt from the requirements of the Fair Labor Standards Act shall be subject to suspension without pay for any period of less than one week the City will face continuing liability for payment of overtime pay to employees who were assumed to be exempt from that Act; and (2) such liability may effect the ability of the City to provide services necessary for the preserva- tion of the public peace, health or safety. SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The city Council of the city of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 5: Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provision applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. 4 Ordinance No. NS-2208E vv~, Page 5 ADOPTED this 15th ATTEST: Clerk of the Council~t COUNCILMEMBERS: Young Aye Pulido Aye Lutz Aye Mills Aye Moreno Aye Richardson Aye McGuigan Aye day of November 1993. · Dan~/H.I Young ~) / Mayor APPROVED AS TO FORM: City Attorney CERTIFICATE OF ORIGINALITY & PUBLICATION State of California County of Orange I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance ~),~ -,~909Og~ to be the original ordinance adopted by the City Council of the City of Santa And on //--/,fi'-- ~,,.~ ; and that said ordinance was published in accordance with the Charter of the City of Santa And. Date: l/I/d, /~.R 5 City of Santa Ana