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Home My WebLink About05 - PERS Disability RetirementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. s October 28, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Human Resources Department Barbara Ramsey, Human Resources Director 949 - 644 -3303, bramsey @city.newport- beach.ca.us SUBJECT: Resolution of the Council of City of Newport Beach regarding Disability Retirements of City Employees; and Industrial Disability Retirement Determinations of Local Safety employees who are members of the Public Employees' Retirement System (PERS) and rescinding Resolution No. 2006 -27 RECOMMENDATION: Staff recommends City Council approve the attached resolution delegating authority to the City Manager to act on behalf of the City with regard to disability retirements of City employees; establishing a procedure for industrial disability retirement determinations of local safety employees who are members of PERS and rescinding Resolution No. 2006- 27. DISCUSSION: Background: The Public Employees' Retirement Law (PERL) requires local agencies to make determinations regarding industrial disability retirements on behalf of their safety members and allows for adopting of resolutions by City Councils to delegate their authority to make such determinations to the incumbent in a designated position, usually the City Manager position, under Section 21173 of the Government Code. The City adopted the original resolution in 1982 to delegate its authority to the incumbent in the position of Personnel Director. The budget cuts in 1995 eliminated the Personnel Director position, so Council rescinded resolution #82 -69 and adopted resolution #95- 138 delegating its authority to the incumbent in the position of City Manager. Article 5, Division 5, Title 2 of the California Government Code establishes the circumstances under which an employee who is a member of PERS may be granted a disability retirement. Within the government code guidelines, the City Manager makes the determination whether the local safety member is incapacitated from performing the Disability Retirement October 28, 2008 Page 2 usual duties of their position and whether the incapacity is a result of an industrial disability. The City Manager often obtains the advice of the Risk Manager, Human Resources Director and outside counsel, if retained. Based on a 2004 California Supreme Court decision, Steven W. Nolan v. City of Anaheim, public agencies were required to include additional information that reflected the holding of the Nolan case in their resolutions. Therefore, the City rescinded resolution #95 -138 and adopted resolution #2006 -27 to include that information. Since the adoption of resolution #2006 -27, there is new legislation, AB 2244, which rescinds the Nolan decision. In this resolution, the Nolan decision language is removed and time frames for the appeals process have been added. Following the filing of an application for disability retirement of a City safety employee, the City Manager will receive evidence -based medical reports from the physician(s) who treated and examined the employee, as well as, any necessary supporting documents from Risk Management to review. The City Manager will review all pertinent documents thoroughly prior to making his determination as to whether or not this employee is substantially incapacitated from performing the usual duties of their position. This resolution removes the Nolan decision, better outlines the time frames of the appeals process and does not grant any additional authority to the incumbent in the position of the City Manager that was not previously authorized by Council resolution #2006 -27. Prepared by: Submitted by: LIA26��- Anderson, Sr. HR Analyst RESOLUTION NO. RESOLUTION OF THE COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE CITY MANAGER TO ACT ON BEHALF OF THE CITY OF NEWPORT BEACH WITH REGARD TO DISABILITY RETIREMENTS OF CITY EMPLOYEES; ESTABLISHING A PROCEDURE FOR INDUSTRIAL DISABILITY RETIREMENT DETERMINATIONS OF LOCAL SAFETY OFFICER EMPLOYEES WHO ARE MEMBERS OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM; AND RESCINDING RESOLUTION NO. 2006 -27 WHEREAS, Article 6 (commencing with section 21150) of Chapter 12 of Division 5 of Title 2 of the California Govemment Code establishes the circumstances under which an employee who is a member of the Public Employees' Retirement System ( "PERS ") may be granted a disability retirement; and WHEREAS, pursuant to said Article 6, the City is charged with the duty to determine, with respect to an application for disability retirement, whether a City employee who is a local safety member of PERS is incapacitated for the performance of duty and whether such incapacity is the result of an "industrial" disability under the PERS law; and WHEREAS, pursuant to Resolution No. 2006 -27, adopted April 11, 2006, the City Council delegated authority for making determinations with respect to disability retirements for local safety members of PERS; and WHEREAS, because the govemment Code sections pertaining to disability retirement have been renumbered and changed since the adoption of Resolution No. 2006 -27, and the California courts have outlined new considerations for disability retirement determinations in light of the reversal of the 2004 decision of Nolan v. City of Anaheim, the City Council finds it desirable to establish a revised procedure for consideration of applications for disability retirement of City employees who are local safety members of PERS, and to rescind Resolution No. 2006 -27; and WHEREAS, Govemment Code section 21173 authorizes the City Council to delegate to a subordinate officer the authority to act on behalf of the City with respect to disability retirements of City employees, including but not limited to, local safety employees. NOW, THEREFORE, the City Council of the City of Newport Beach does RESOLVE as follows: SECTION 1. Pursuant to California Govemment Code section 21173, the City Council hereby delegates to the City Manager the authority to act on behalf of the City of Newport Beach to make determinations under Section 21152(c) of the Government Code with respect to disability of employees of the City and whether such disability is industrial, and to certify such determinations and all other necessary information to the Public Employees' Retirement System. SECTION 2. The City Council hereby adopts the following procedure for the consideration and determination of applications for disability retirement of City employees who are local safety members of PERS: 1. Following the filing of an application for disability retirement of a City employee who is a local safety member of PERS ( "member"), the Board of Administration of the Public Employees Retirement System ( "Board ") will request the City to determine whether the member is substantially incapacitated for the performance of duties of the position. Upon receiving the Board's request, the City shall make an initial determination, upon medical and other available information offered by either the member or the City, to determine whether the member is incapacitated for the performance of duty and whether such incapacity is the result of an industrial disability. Unless waived in writing by the member, the City shall make its determination within six months of the date of receiving the Board's request. The initial determination shall be made by the City Manager or such other person as the City Manager may designate. a. If the City determines that the member is substantially incapacitated for the performance of the duties of his or her position in the City and that the incapacity is as the result of an industrial disability; or, if the incapacity is not the result of an industrial disability if the member has five or more years of service, the City Manager shall certify that determination to PERS on a form prescribed by PERS. A member with less than five years of service whose disability is not industrial is not eligible for disability retirement. b. If the City and the member are not in agreement as to whether the disability is industrial, either the member or the City may petition the Workers' Compensation Appeals Board ( "WCAB ") to request a findings of fact determination of whether or not the disability is industrial. 2. The City shall notify the member by certified mail (return receipt requested) or by personal service of its intent to certify to PERS its determination as to whether the member is incapacitated for the performance of duty in the City. The City shall also advise the member that he or she has thirty calendar days within which to appeal the City's determination, in accordance with Government Code section 21156. 3. The member may appeal the City's determination by so advising the City Manager, or such other person as the City Manager may designate, in writing on or before the date specified in the City's letter of determination. 4. If the member files an appeal, the appeal hearing shall be held in conformity with the Administrative Procedures Act (Chapter 5, commencing with section 11500, of Part 1 of Division 3 of Title 2 of the Government Code, as may from time to time be amended). The City shall notify CalPERS of the request and the Office of Administrative Hearings, which shall set a cause hearing to be conducted by an Administrative Law Judge of the Office of Administrative Hearings. a. The hearing shall be conducted with the Administrative Law Judge acting as the presiding officer and shall be held within ninety calendar days from the date the City's letter of determination was sent by certified mail to the member. b. An administrative record shall be generated at the hearing pursuant to the Administrative Procedures Act. A certified Shorthand Reporter shall record all testimony. C. Following the hearing, within thirty calendar days of receipt of the Administrative Law Judge's report, the City Manager or his or her designee shall review the administrative record and make a decision and findings of fact regarding the issue of whether the member is incapacitated for the performance of duty. The City shall serve the decision and findings on the member by certified mail. The City shall also certify its determination to PERS. d. The City's decision and findings shall also advise the member of the right to seek judicial review of the decision within thirty calendar days by filing a Petition for Writ of Mandate in the Superior Court of Orange County. The City shall notify CalPERS upon receipt of notice that the member has filed a Petition for Writ of Mandate, or upon the expiration of thirty calendar days where the member has not filed a Petition for Writ of Mandate. SECTION 3. Resolution No. 2006 -27, adopted April 11, 2006, is hereby rescinded. BE IT FURTHER RESOLVED that the City Clerk is authorized and directed to transmit a certified copy of this Resolution to the Public Employees' Retirement System, P.O. Box 942704, Sacramento, California 94229 -2709. ADOPTED this day of 2008 Mayor ATTEST: City Clerk