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Home My WebLink AboutNS-2208 - Amending Section of Santa Ana Municipal Code to Provide That No Employee Who Is Exempt...ORDINANCE NO. NS- 2208 AN ORDINANCE OF THE CITY OF SANTA ANA AMENDING SECTION 9-118 OF THE SANTA ANA MUNICIPAL CODE TO PROVIDE THAT NO EM- PLOYEE WHO IS EXEMPT FROM THE REQUIRE- MENTS OF THE FAIR LABOR STANDARDS ACT SHALL BE SUBJECT TO SUSPENSION WITHOUT PAY FOR ANY PERIOD OF LESS THAN ONE WEEK 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 appeal 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 requirements of the Fair Labor Standards Act shall be subject to ORDINANCE N$-2208 3~i~ Page 2 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 a 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- tion of any proceedings taken hereunder. 2 ORDINANCE NS-2208 868 Page 3 (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 by that employee for the period of such suspension. The purpose of 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). ORDINANCE NS-2208 Page 4 : f an section, subsection, sentence, clause, SECTION ~. ~ ~= ordinance is for any reason held phrase or portion v~ ~?C~ ~ ~ ~h~ cision of any courL ~ · nstitutlona~ ~ ~- de . . invalid or ~nc~ .... h ~sion shall not affect the validity competent jurisdiction, suu 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 or more. sections, subsections, sentences, clauses, phrases, portions be declared invalid or unconstitutional. · Neither the adoption of this ordinance nor the SECTION 4. ~ =~ ...... hall in any manner affect the ~=1 herebv o~ any oru~,~ ~ -' ~ -~ns were committed prior to the effective date her , 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 depos'ited pursuant to any ordinance and all rights and obligat~6ns %~ere~nder appertaining shall c~ti~U~.-i~.full force and effect. ADOPTED this COUNCILMEMBERS: Young Aye Pulido Aye Lutz _Aye _ Mills _Aye _ Moreno _Aye Richardson Aye McGuigan Aye 6th day of December Mayor APPROVED AS TO FORM: Edward J. C~o~ city Attorne5~ 1993. 370 CERTIFICATE OF ORIGINALITY & I~UI~LICATION State of California County of Orange I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance NS-2208 to be the original ordinance adopted by the City Council of the City of Santa Ana on 12 -0 6 -9 3 ; and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: /~-~" ~.l~ City ~anta Aha