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HomeMy WebLinkAbout20 - Appeals by Candidates for Original EmploymentCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 1�6 (October 13, 2009) TO: HONORABLE MAYOR AND CITY COUNCIL FROM: David R. Hunt, City Attorney ext. 3131, dhunt @newportbeachca.gov SUBJECT: Appeals By Candidates For Original Employment MATTER: A09 -00168 RECOMMENDATION: Adopt Resolution No. 2009 - revising Newport Beach Civil Service Board Rules and Regulations ( "Board Rule(s) ") Section 501.3.3 to include a procedure for appeals by candidates for original employment. DISCUSSION: The Newport Beach Civil Service Board ( "Board ") is required under the City Charter and Ordinance No. 866 to receive and hear appeals filed by candidates for original employment ( "Candidate Appeals "). A candidate for original employment is a person that is seeking first time employment with the City of Newport Beach ( "City "), and is not otherwise a current City employee. The Board Rules do not currently have an established procedure relating to the processing and handling of Candidate Appeals. Thus, the Board desires to amend Board Rule 501.3.3 to create a Candidate Appeals' procedure. On September 9, 2009, the Board held a duly noticed public hearing as required by Newport Beach Municipal Code ( "Code ") Section 2.24.050(B) and recommended the City Council adopt the revised Board Rule 501.3.3 as provided in the attached Resolution. The most significant features of the proposed rule are as follows: 1. The appeal of any candidate must be filed within 5 calendar days of notice of the final decision denying employment. This time frame is consistent with the other appeal sections in the Board Rules. Candidate Appeals October 13, 2009 Page 2 2. The candidate must file an appeal stating the grounds for the appeal and then the department director has the opportunity to address those grounds in an informal memo. 3, The Human Resources Director has the option to attempt to resolve any appeal issue prior to going to the Board. 4. The Board makes the determination as to whether a hearing on the full record needs to be held. If not, the Board will decide the appeal based upon the candidate's statement of appeal and the department director's response. If the Board does decide to pursue a hearing on the full record the matter will be brought back for a hearing based upon a full record of the application and the basis for the decision by the department director. 5. The hearing on the matter will not be an evidentiary hearing. Instead, the hearing will be based upon the record. The question for the Board is whether the department director has abused his or her discretion in denying the candidate's application. The abuse of discretion standard is used since the department director has discretion to make the decision and the candidate has no property right in receiving an offer of employment from the City. This standard is also intended to recognize the power vested in the department director through the City Manager and to honor that power. Thus, the decision of the department director may only be overturned if there is a showing by a candidate of a clear abuse of discretion. Abuse of discretion is defined as the material failure to follow the law or a decision that is not supported by substantial evidence, "Substantial evidence" is a term of art in the law. It means any evidence, even only a scintilla of evidence, which a reasonable mind may rely upon to support a decision. The Board will not engage in a competitive weighing of contradictory evidence. Rather the Board will merely determine whether there is any evidence in the record that supports the department director's decision. Even if there is contrary evidence in the record, and even if that evidence is more persuasive then the evidence relied upon by the department director, the Board would not be in a position to overturn the department director's decision. This procedure is recommended for two reasons. First, it allows for appeal resolution without unduly burdening the Board. Secondly, it honors the City Manager's responsibilities under the Charter and all of the City's ordinances regarding the hiring of personnel, as delegated to the department directors. For the City Council's convenience, copies of the Board's previous staff reports regarding Candidate Appeals are attached to this staff report. Candidate Appeals October 13, 2009 Page 3 Environmental Review: Staff recommends the City Council find that the Resolution accompanying this staff report is not subject to the California Environmental Quality Act ("CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Prepared by: OFFICE OF TH&OITY ATTORNEY Michael Torres, Deputy City Attorney City of Newport Beach Submitted by: OFFICE OF THE CITY ATTORNEY 1 „1 avid R. Hunt, City Attorney City of Newport Beach Attachments: Draft Resolution Regarding Candidate Appeals' Rule Past Civil Service Board Staff Reports Regarding Candidate Appeals RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING NEWPORT BEACH CIVIL SERVICE BOARD RULES AND REGULATIONS SECTION 501.3.3 REGARDING CANDIDATE APPEALS WHEREAS, the Newport Beach Civil Service Board ( "Board ") is empowered under the City Charter and Ordinance No. 866 to act in an advisory capacity to the City Council on personnel administration in the City service; and WHEREAS, the Board is designated as the appropriate body to receive and hear appeals filed by candidates for original employment; and WHEREAS, the Board's current rules and regulations do not include procedures goveming candidate appeals for original employment; and WHEREAS, Newport Beach Municipal Code Section 2.24.050(B) allows the Board, following a public hearing, to recommend to the City Council proposed Board rules and regulations; and WHEREAS, on September 9, 2009, following a duly noticed public hearing the Board voted to recommend to the City Council an amendment to Board Rule 501.3.3 regarding candidate appeals for original employment. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: Subsections "E" and "F" of Newport Beach Civil Service Board Rules and Regulations Section 501.3.3 are amended to read as follows: "E. Appeals by Candidates for Original Employment Appeals to the Board by unsuccessful candidates for original employment shall be considered pursuant to the procedure set forth below: de 1. An unsuccessful candidate seeking review of denial of employment by the Board shall submit a written statement of appeal to the Human Resources Director not later than five (5) calendar days after the date the notice that he or she has not been offered employment with the City was placed in the mail with first class postage pre -paid addressed to the candidate. The candidate's written statement of appeal shall be considered delivered when received and "time stamped" by the Human Resources Director. The "time stamp" shall indicate the date and time the appeal is received by the Human Resources Director. Appeals filed after the deadline shall be rejected by the Human Resources Director and not considered by the Board. 2. The written statement of appeal must include: (i) the candidate's full name; (ii) the candidate's mailing address; (iii) the title or position for which the application was made; (iv) all bases on which the candidate relies in concluding he or she was improperly denied employment; and (v) a written acknowledgement by the candidate that consideration of the appeal by the Board shall occur in open public session and that the candidate voluntarily waives any expectation of privacy as to the facts and circumstances of his or her application and its rejection by the City. 3. Upon receipt of the written statement of appeal, the Human Resources Director shall forward the appeal to the Department Director that has responsibility for the position sought by the candidate. 4. The Department Director shall, within ten (10) working days of receipt of the appeal from the Human Resources Director, respond in writing to the Human Resources Director indicating the reason(s) for which the candidate was not offered employment. 5. The Human Resources Director may, in his or her discretion, provide the candidate with a copy of the Department Director's written reason(s) for denial and an opportunity to respond to the Department Director's reason(s) for denial. The Human Resources Director may, in his or her discretion, meet with the candidate to address the issues raised in the candidate's written statement of appeal and the Department Director's reason(s) for denial. 6. If the candidate's concerns are not resolved by the Human Resources Director the matter shall be placed on the agenda of the next available regular Board meeting consistent with the notice period provided in subsection '7" below. Each Board member shall be provided a copy of the candidate's statement of appeal, the Department Director's reason(s) for denial, and any additional -2- relevant documentation as determined by the Human Resources Director. 7. The candidate shall be given prior written notice of the Board's meeting and shall be entitled to address the Board in support of his or her appeal. The City's failure to comply with any of the timing /notice requirements in this Section 501.3.3 shall not invalidate any action taken by the Board on appeal or the Department Director's original denial of a candidate. 8. The Board shall determine by majority vote whether the submitted documents establish a basis for an appeal hearing, or whether the matter may be resolved without a hearing. If the Board determines there is no justification for an appeal hearing, the Board shall issue a written determination to that effect and the appeal shall be dismissed. If the Board votes in favor of an appeal hearing, a hearing shall be calendared and held at the next available regular meeting of the Board. Notice of the appeal hearing shall be provided to the candidate pursuant to section "7" above. 9. If an appeal hearing is held the Board shall be provided with a full record (i.e., oral board or written testing results, background investigation, etc.) of the candidate's application, including the documents provided pursuant to subsection W above as certified by the Human Resources Director. The Board may receive any oral argument offered at the appeal hearing in support of, or opposition to, the appeal. The Board shall not accept or consider any evidence, either oral or documentary, not present in the record of the application certified by the Human Resources Director. 10. The Board's inquiry on appeal shall extend solely to the question of whether the Department Director has committed a prejudicial abuse of discretion in denying the candidate employment. The Board shall only consider the evidence in the full record of the candidate's application provided by subsection "9" above. The Board shall modify the decision of the Department Director only upon a specific finding that the Department Director committed a prejudicial abuse of discretion. A "prejudicial abuse of discretion" is established when it is affirmatively shown by the candidate that: (i) the Department Director did not proceed in a manner required by law; or (ii) the Department Director's decision to deny employment was not supported by substantial evidence. "Substantial evidence" shall exist to support the Department Director's decision if there is any evidence in the record before the Board that could reasonably be relied upon to support denial of employment, regardless of whether there is also evidence to the contrary in the record. The appeal hearing may be continued from time -to -time by the Board. 15411 F. Findings The Board shall certify copies of its findings and decisions to the City Manager, the Department Director from whose action the appeal was made, and the appellant employee or unsuccessful candidate for original employment." This Resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this Resolution. ADOPTED, this 13'h day of October, 2009. ATTEST: Leilani Brown, City Clerk Edward Selich Mayor of the City of Newport Beach -4- CITY OF NEWPORT BEACH HUMAN RESOURCES DEPARTMENT Terri L. Cassidy, J.D., Director To: Chairman and Members of the Newport Beach' {Civil Service Boprd From: Terri L. Cassidy, Human Resources Director Mynette Beauchamp, Assistant City Attorney Re: Appeal Rights by Unsuccessful Applicants BACKGROUND: In late 2008, several applicants for positions in the City of Newport Beach Fire Department were notified that they would not be hired by the City due to issues arising during the pre- employment process. The applicants sought their remedy to the rejection from the Fire Chief /Human Resources Department before the Civil Service Board. This was a case of first impression, as no applicants had previously asked for such an appeal before the Board. Although the individuals in this group of Fire applicants did not pursue their requests for appeal (one withdrew his request after meeting with the Fire Chief and Human Resources Director and the others chose not to follow through), the Civil Service Board requested an analysis of their obligation to entertain, hear and decide such matters. A written legal opinion on the subject was requested from the Board's special legal counsel, Jeffrey Freedman of the ,law firm of Liebert Cassidy Whitmore. This opinion, dated December 15, 2008, is attached as Exhibit A. In the opinion it indicates that the City Council adopted Ordinance No. 866, Section 5(c) specifically authorizes the Board "to receive and hear appeals by any person or any applicantor any applicant or candidate for a position in the City for original appointment " After receiving the legal opinion, the. Board requested that some language /procedure be drafted to address these types of appeals, which are different than the types of appeals the Board hears related to disciplinary actions (full evidentiary hearings which are required due to Constitutional considerations). Agenda Item #6 3300 Newport Boulevard • host Office Box 1768 • Newport Beach. California 92658 -8915 Telenhone: 19491 844 :3300 . Fax. 19491644 -3305 . www.cttv.newoort- beach.ca.us t Page 12 June 1, 2009 CSB Meeting Appeal Rights by Unsuccessful Applicants Further, the Civil Service Board expressed concerns over the information that would be shared in a public forum by unsuccessful applicants being of a confidential and possibly personal nature and the manner in which protections could be incorporated into a proposed procedure. ANALYSIS: The City Attorneys Office had requested that Jeffrey Freedman, Outside Special Legal Counsel, draft an "Appeals by Applicants" Procedure to use in the event that these requests are made of the Civil Service Board. The procedure would have to be incorporated into the Civil Service Rules as Section 501.3.4 (Appeals by Applicants) and if approved by the Board, recommended to the City Council for adoption. The difference between the appeal process by an applicant from an appeal by an employee is that an applicant does not have a property interest in their employment. Therefore, the full evidentiary hearing that the CSB uses in other circumstances does not automatically apply. The suggested process for applicants will include an initial screening of the appeal overseen by the Human Resources Director. The Human Resources Director, upon receipt of an appeal, will forward it to the Chief (Department Director) for an appropriate written, factual response as to why the individual was not offered or an offer was rescinded for employment. If deemed appropriate, the applicant could then be offered an opportunity to provide a written response to the Chiefs reasons as stated. If it is determined that the Chief has abused his /her discretion in rejecting an applicant for employment, or if it is determined that the matter should be considered for an appeal hearing based upon the written request and response by the Chief, then the matter would be placed on the Agenda of a Civil Service Board meeting, with due notice to the applicant. The Board would then decide whether a full hearing is required or if the appeal may be resolved solely on the appeal and the information compiled by the Human Resources Director. The goal here is that full hearings would only be ordered by the Board in a case of a serious factual or legal issue that cannot be resolved based solely upon documentation, but requires live testimony and the opportunity for cross - examination of adverse witnesses. The Civil Service Board has requested a draft procedure be brought to them for consideration. This is attached as Exhibit B. Page 13 June 1, 2009 CSB Meeting Appeal Rights by Unsuccessful Applicants RECOMMENDATION: This item involves a matter that has not been dealt with by the Civil Service Board. The CNB City Attorney's Office has requested assistance from outside legal counsel for an opinion and a draft procedure following the discussion on the June 1, 2009 agenda, it is recommended that the Board give direction to the Human Resources Director to return at the July or August Board meetings with a Final Proposed Procedure that could be adopted by Resolution of the CSB and then recommended to the City Council (after approval by the City Attorney and a public hearing on the proposal) in accordance with Section 5 (b) of the City's Ordinance 866. Enclosures — "A" — Legal Opinion by Jeffrey Freedman, Esquire "B" — Draft Procedure — Appeals by Applicants 0 . "C" — Ordinance 866 Section 5(b)(c) "D" — Full Appeal Process This pave intentionally blank Enclosure A Legal OPIRIOn by Jeffrey Freedman, ESOVIrO ? % 0 LIEBERT CASSIDY WHITMORE A Pxwz.IONAL LAW CURVOit.v.N j LOS ANGBLIS I FlE5N0 I SAN FRANCISCO 6033 Wssr CtN[oar BaVrsvAeN. SCnx 500 WsAN¢1.65. C.uawxxa 90(A5 T:010)9E1Q2000 F1(3101337- 37 IFREEDM (NLCWLEGAL.COM December I5, 2008 (310) 981 -2093 CONFIDENTIAL ATTORNEY- CLIENT PRIVILEGE Honorable Chair Bert Carson and Members of the Civil Service Board City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Re: Whether Civil Service Board is required to hear appeals by unsuccessful job applicants Client- Matter: NE020 -001 Dear Mr. Carson and Board Members: The Civil Service Board (Board) has requested our written opinion on the question of 4 i whether the Board is required to hear appeals filed by job applicants who are not offered employment with the City. For the reasons explained below, we conclude that the Board has jurisdiction over such appeals and, indeed, is required to conduct a hearing on such an appeal if one is timely filed. e FACTUAL INFORMATION The following information was provided to us by former Human Resources Director Barbara Ramsey. We have based our analysis upon the information provided by Ms. Ramsey. If any of this information is incorrect; please advise us immediately as this may require us to modiP our views- The City recruited to We entry level candidates into the position of firefighter. Applications were received and an examination and assessment process was conducted, leading to the issuance of an eligibility list from which appointments could be made. Under city practice, the department head (in this case the Fire Chief) personally interviews individuals from the eligibility list and decides whether to offer employment. A particular applicant succeeded in having his name placed on the eligibility list and was interviewed by the Fire Chief. The Chief determined not to offer this person employment and the candidate attempted to appeal. The question for determination is whether the Board has jurisdiction, and therefore the obligation, to entertain such an appeal and to conduct a hearing thereon. 293461.1 NE020- MI w Jcwlegatcom Mr. Bert Carson December 15, 2008 Page 2 ANALYSIS Newport Beach is a charter city. The current Charter was adopted by the voters on January 7, 1955. Section 710 of the Charter creates and section 711 empowers the Board. As a quasi-judicial arm of the City, the Board only possesses those powers and duties delegated to it in the Charter by the voters. (Zuniga v. Los Angeles County Civil Service Commission (2006) 137 Cal.AppAth 1255, 1259, 124 Cal.Rptr.2d 924; Hunter v. Los Angeles Civil Service Commission (2002) 102 Cal.App4th 191, 124 Cal.Rptr. 2d 924; Talmo v. Civil Service Commission (1991) 231 Cal.App.3d 210, 219, 282 Cal.Rptr. 240, 244; Chavez v. Sacramento County Civil Service Commission (1978) 86 Cal.App.3d 324, 327 -28, 150 Cal.Rptr. 197, 199.) Section 711(c) of the Charter empowers the Board to hear appeals brought by City employees challenging disciplinary actions which might have been imposed upon them such as termination, suspensions and demotions. Neither subsection (c) nor any other provision in section 711 or elsewhere in the Charter specifically empowers the Board to entertain appeals brought by unsuccessful job applicants. However, section 711(e) directs the Board to "Perform such other duties as may be prescribed by ordinance." In November 1958 the City Council adopted Ordinance No. 866 which primarily deals with the City personnel system. Section 5(c) of this Ordinance specifically authorizes the Board "to receive and hear appeals by any person or any applicant or candidate for a position in the City for original appointment." Since this language is contained in an Ordinance, this additional responsibility was lawfully delegated to the Board in light of section 711(e) of the Charter. . In addition to the Charter and Ordinance, the functions of the Board are also described in the City's Civil Service Rules. Section 501.3 of these rules essentially repeats the language of section 5(c) of Ordinance No. 866. See also section 2.24.050, subsection C of the City Municipal Code, which essentially codifies section 5(c) of Ordinance 866. Aftotdingly, we conclude h`lat the BoaW not-only has the jurisdiction but also has the responsibility to hear appeals brought by unsuccessful job applicants as long as the appeal is filed in a timely manner. We understand that no individual has filed such an appeal in recent memory, perhaps going back as many as 16 years. The fact that no such matter has been brought before the Board does not allow the conclusion that the Board's authority has been lost or otherwise limited. We suspect that unsuccessful job applicants have either chosen not to challenge their job denial, or simply were unaware of the provisions referenced above. 293461.1 NF020-001 C✓ Mr. Bert Carson December 15, 2008 Page 3 I understand the Board will place consideration of this issue on the agenda for its January 5, 2009 regular meeting. I have been asked by Ms. Lauren Farley, the acting Human Resources Director, to attend that meeting, and I shall be there. JCF /jmw cc Lauren Farley 293461.1 NW20 -001 Very truly yours, LIEBERT CA,SSIDY WHITMORE This page intentionally blank (1), !' ``./ Appeals by Apolicanis This page IntembuRv Mank 501.3.7 Appeals by Applicants Appeals to the Board by unsuccessful applicants for City employment shall be considered pursuant to the procedure set forth in this subsection. a, An unsuccessful applicant seeking review by the Board shall submit a written statement of appeal to the Human Resources Director not more than ten working days after receipt of notice that he /she has not been offered employment with the City. The statement of appeal shall include a written acknowledgement by the applicant that consideration of the appeal by the Board shall occur in open public session and that the applicant waives any expectation of confidentiality as to the facts and circumstances of her/his application and its rejection by the City. b. On receipt of the written appeal the Human Resources Director shall forward the appeal to the Department Head in question. c. The Department Head shall, within ten days of receipt of the appeal, respond in writing to the Human Resources Director indicating the reason(s) for which the applicant was not offered employment. d. The Human Resources Director may, in his/her discretion; provide the applicant an opportunity to respond to the Department Head's statement of reasons. C. The matter shall be placed on the agenda of the next regular Board meeting. All relevant documents shall be provided to each Board member, including the appeal, the Department Head response, and any additional relevant documentation. f. The applicant shall be given at least one week's written notice and shall be entitled to address the Board in support of his/her appeal. g. The Board shall determine by majority vote whether the appeal establishes a basis for a full evidentiary hearing. If so, a hearing shall be calendared and held in the manner set forth in section 501.3 et sea of these Rules. It. If the Board determines there is no justification for further hearing, it shall so resolve by a written determination and the appeal shall thereby be dismissed. Such action shall constitute final administrative action by the City. 3223511 NE020-001 This g Intentionally bak :7) Enclosure C Ordinance 866 Please refer to section 5(b)(c) 0 U... ( p x i • enryloymept in the Po1SCe and Regull Fite Departments art Included and at in the City afansger when M tons esal dad Setti -era SM of hear f the City Cbarter. The f5ty Chen- porous oil by mele...,b may decade n didate the pos{Uena in Other de. ng—W m SEMON 1 UDRPO6E OF -� �d Alarity of the other ! The ourpme of the system is to lolled ' esgbUsh an equitable and net- or the farm WOOrdare for dealing with and k . Left n l mattes: to attract to [caOmr the City service the mast earn"- this or tent persons available: to anum (a) that the appointment and frame- an adv anmlerrit -111010yeen Will boned mm and : end m pro- fir Aft reasonable security for em, (a) plogxs. Unix SWy1DN 4. CREATION OF k of this CIM sERV= ROARD. and Re Tbce is hereby yfebliahed a Silas s Civil service Board mffiatlnR of the M the members b be appointed by Civil the City Council In aeardarx rig. bu wil the City C hater. Each of ng of the members a ,n be a pemru of prepare good mPUn in his businmq pro- andnat Landon or occupation and dmoea meet i to support civil sende, pnneipin Playme In the ruble � fn I have the force ra receive and the CRY mrvin and »itmd by any findings to the City CC cant or m• City afansger when M m ere do se by the City Co Nemts• spmgen and City Manager or by m icIlOm: the al- land City emplaysto of its findings and as as provided in F role. To Oct in Pachy to the City round admtmstra- serVift rot am seiaco- to the ptavUIM ban K post. 4 the it es• bldsh- em- mane a the el In it Its I and bad to the members of the BOW ■fall the -C y and enacted by the City traneaaIle a q (or the Clark it shall be the d K the (b) Ruled and Regulations. To recommend to Ills ( Coax• oil, after approval by the City hearing therem the a Public amendment err "Peal ms of zuln n the m of #do ordinance. Attar � n each motion Ral waned (1) Police Chief to cams an such subpoems to be served, and n. runt of a person to attend ar to teauty In sewer to such sob• peanyr shall sublect said Vernon to prosecution In the war man- ner act boa by Zen, for failure to appear before the City Council. Each mamba of try Beard shall have the Pow. to administer oaths to vrtmrn. ifs the CRY mrvin and of the )bard findings to the City CC City afansger when M To determine do se by the City Co M far the con. City Manager or by m Saga: to hod land City emplaysto of K lung once a erclat meetings In ay Invaftation tag it the IX M ran ad the Conducts be" the authority to Alarity of the witae®as under cal err Board. and to card their ammdenee to ban K post. 4 the it es• bldsh- em- mane a the el In it Its I and bad to the members of the BOW ■fall the -C y and enacted by the City traneaaIle a q (or the Clark it shall be the d K the (b) Ruled and Regulations. To recommend to Ills ( Coax• oil, after approval by the City hearing therem the a Public amendment err "Peal ms of zuln n the m of #do ordinance. Attar � n each motion Ral waned (1) Police Chief to cams an such subpoems to be served, and n. runt of a person to attend ar to teauty In sewer to such sob• peanyr shall sublect said Vernon to prosecution In the war man- ner act boa by Zen, for failure to appear before the City Council. Each mamba of try Beard shall have the Pow. to administer oaths to vrtmrn. ifs MIS page Intendonalft bbok 011, Enclosure 0 Full Appeal Process OF, MIS a" IntendMill Mask 0,717, NEWPORT BEACH CIVIL SERVICE BOARD PROCEDURAL RULES FOR HEARINGS Section 1: Scope of Rules. The Newport Beach Civil Service Board (Board) has the responsibility to conduct hearings on appeals from certain disciplinary actions and on certain grievances filed by employees and /or their employee organizations. All such hearings shall be conducted in accordance with the following Procedural Rules (Rules). Section 2: Provision of Procedural Rules to Parties. Once a matter has been colendared for hearing before the Board, the Secretary shall advise all parties, in writing, of the time, place and date of the hearing and shall provide each party with a copy of these Rules. Section 3: Provision of Basic Charaina Documents. The Secretary shall provide each member of the Board with copies of the following documents at least ten (10) calendar days prior.to the date of the hearing: ^� A. In a disciplinary case: 1.. The notice of intent to impose discipline, also referred to as a "Skelly" letter, including any attachments provided to the employee at the time of notice. 2. The employee's written response to the notice of intent to impose discipline and /or a transcript of the "Skelly" hearing. 3. The final decision of the Department Director imposing discipline. 4. All notices relating to the charges or discipline given to the employee by his/her supervisor or the Department Director. 5. The appeal and /or request for a hearing. B. In a grievance proceeding: 1. The original grievance submitted by the "grievant , and /or the employee organization. 2. Any response(s) submitted by the Department Director. or City Manager. 3. The final administrative decision on the grievance. 4. The appeal and /or request for hearing submitted by the grievant. Section 4: Pre - Hearing Briefs. Motions and Requests. A. Each party shall have the right to file a hearing brief and pre- hearing motion. The party shall file an original and ten copies of the hearing brief and /or pre - hearing motions with the Secretary at least fifteen (15) days before the hearing. The Secretary shall promptly distribute the hearing brief and/or the motions to each Member of the Board and the opposing party. S. Each party shall file, with the Secretary, a list of any witnesses or expert witnesses the party intends to call and a list of exhibits the party intends to offer into evidence at the hearing. The party shall file the original and ten copies of the witness list and /or the exhibit list with the Secretary at least ten days before the hearing. Expert witness lists shall include each expert's qualifications. The Secretary shall promptly distribute the witness /expert witness list and /or exhibit list to each Member of the Board and the opposing party. C. The parties shall meet and confer at least twenty (20) days before the 1 hearing to reach an agreement on those facts and issues, which are uncontroverted, and to provide an estimate of time for the hearing. The estimated hearing time and any stipulated facts or issues shall be submitted to the Secretary at time of filing hearing briefs. Section 5: Subpoenas. The Chair shall issue subpoenas compelling the attendance of persons or the production of documents or tangible items provided good cause is shown by the party seeking the subpoena. All requests for subpoenas and supporting documentation shall be submitted to the Secretary at least ten (10) working days before the hearing. The Board may issue subpoenas on its own motion at any time during the pendency of the hearing. The party requesting the subpoena shalt be responsible for service. Section 6: Closed Hearina, Any employee who appeals a disciplinary action shall have the right to a closed hearing or an open hearing. In the event . the employee requests a closed hearing, the hearing room shall be Geared of all persons except members of the Board, the legal advisor to the Board, the parties and their representatives, including the Director of the involved Department or his or her designee, and the investigative case agent of the Department (if any), regardless of their status as a witness, the Human Resources Director, or designee, the Secretary to the Board, a court reporter (if any), and the witness then testifying. Non -party witnesses shall be sequestered in all disciplinary hearings. After giving testimony, each witness shall be admonished not to. discuss his/her testimony with anyone other than the parties of their representatives. Section 7: Burden of Proof. A. In a disciplinary appeal, the City has the burden of proving: (1) each fact necessary to establish the truth of the charge(s) against the employee and; (2) that the discipline imposed was reasonable in view of the offense, the circumstances surrounding the offense, and the past record of the employee. The employee has the burden of proving, any substantive violation or omission of procedure and any defense he or she is asserting. B. In a hearing concerning a grievance, the grievant has the burden of proving, each fact necessary to establish the merit of the grievance and the City has the burden of proving any defense it may be asserting. C. The burden of proof shall be by a preponderance of the evidence. D. At the conclusion of evidence by the parry with the affirmative burden of proof, the opposing party may bring an oral motion to dismiss solely on the basis that the party with the affirmative burden of proof has failed to meet i its burden of proof. Section 8: Hearing Rules. The following rule shall apply to all hearings: A. Oral evidence shall be taken only on oath or affirmation; B. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross- examine opposing witnesses on any matter relevant to the issues even though outside the scope of direct examination, to impeach any witness, and to rebut any evidence. Except as provided in Subsection C, any party may call as a witness any person on the opposing party's witness list. C. The expert witness of any party shall first be examined by that party. An. expert witness is a person whose special skill, knowledge, training or education is sufficient to qualify him/her as an expert on the subject to which his/her testimony relates. �4 D. The hearing shall not be conducted in strict compliance with the rules of evidence. The Chair shall, with or without the advice of Counsel to the Board, make all evidentiary rulings and may admit any relevant evidence if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. The Chair may consider, but shall not be bound by, any statutory or decisional law, which might make improper the admission of the evidence in civil proceedings. E. Hearsay evidence is admissible and may be used for the purpose of supplementing or explaining other evidence. Hearsay evidence shall not be sufficient to support any finding unless the hearsay evidence would be admissible over objection in civil proceedings. F. The rules of privilege shall be effective only to the extent required by the laws of the State of California. G. Documents shall be admitted into evidence subject only to proof of authenticity. The contents of documents shall be considered evidence of the matter stated so long as the sources of information and the method and time of preparation of the document are such as to indicate its trustworthiness. H. Except for documents produced pursuant to subpoena, each party shall, within ten (10) days prior to the hearing, provide the Secretary to the 5` ) Board with 10 copies of all documents to be offered into evidence. Members of the Board shall not consider documents and other tangible evidence until admitted into evidence by the Chair. Documents submitted on behalf of a Department Director (in discipline) or the City Manager (in a grievance) shall be marked numerically in sequence (City Exhibit "1 ", "2" etc.). Documents to be submitted by an employee or grievant (in discipline or a grievance) or an employee association (grievance) shall be marked alphabetically in sequence (Employee Exhibit "A ", "B ", etc.). I. The Chair may, upon a showing of good cause, admit the testimony of any person not identified on a party's witness list or admit tangible evidence not identified on a party's exhibit list. Section 9: Closing Statements. The Chair shall declare the evidentiary record closed and. shall offer the parties an opportunity to make closing statements after each party has presented their evidence. Closing statements shall be limited to ten (10) minutes unless the Chair allots additional time due to the length of the hearing or the complexity of the issues. The party with the burden of proof shall give its closing statement first followed by the dosing statement of the other party. The party with the burden of proof shall have the right to make a reply limited to five (5) minutes. The Chair may, upon a showing of good cause, modify the time allotted for closing statements or the order in which those statements are presented. Section 10: Deliberations and Decision. The Chair shall declare the hearing closed upon completion of closing statements. The Board shall, at that time, or at a subsequent meeting, deliberate on and decide the matter. In the case of a disciplinary hearing, the deliberation shall be conducted in closed session and in full compliance with the Brown Act. The closed session shall be attended only by members of the Board and the legal advisor. The Board shall direct its legal advisor to draft proposed findings and a decision consistent with the tentative decision. Once deliberations have been completed and a tentative decision has been reached, the Chair shall announce on the record that the matter will be calendared at a specific date for consideration of proposed written findings and decision. In the case of disciplinary proceedings, the legal advisor shall transmit the proposed findings and decision prepared directly to Board Members through confidential correspondence. At the date and time set for consideration of the proposed findings and decision, the Chair shall announce the matter and the Board shall then take appropriate action with respect to the proposed findings and decision. The Chair shall sign the findings and decision approved by the Board and the Secretary shall transmit copies to the parties. Section 12: Confidentiality /Disciplinary Proceedings. The findings and decision of the Board with respect to any disciplinary proceeding shall be deemed confidential. The original findings and decision shall become part of the employee's personnel record. The findings and decision shall be disclosed only to the City Manager, the Human Resources Director, the Department Director, and supervisors of the employee. information relevant to implementation of the decision shall be disclosed only to the extent necessary to do so. Adopted 513/99 Revised 12/03/01 CIVIL SERVICE BOARD HEARING SCHEDULE Twenty 120) Days Before Hearing: Parties meet and confer to agree on "facts" and estimate time for hearing. The results of this meeting are submitted to the Board Secretary at time of filing of briefs. Fifteen (15) Days Before Hearing: Parties file a hearing brief and pre - hearing motions with Board Secretary. Requires original and ten (10) copies. Secretary promptly delivers to Board Commissioners. Ten (10) Days Before Hearina: Parties file, with Board Secretary, a list of witnesses and a list of exhibits. Requires original and ten (10) copies. All requests for subpoenas and supporting documentation submitted to Board Secretary. Ten (10) copies of all documents to be offered into evidence provided to Board Secretary. Board to receive, or have received, all documents ten (10) calendar days before Hearing from the Board Secretary. ITEM FIVE CITY OF NEWPORT BEACH CIVIL SERVICE BOARD STAFF REPORT Agenda item No. (September 9, 2009) TO: HONORABLE CHAIR AND MEMBERS OF THE CIVIL SERVICE BOARD FROM: David R. Hunt, City Attorney ext. 3131, dhunt(raneweortbeachca.gov Mynette Beauchamp, Assistant City Attorney Ext. 3130, mbeauchampQnewaortbeachca.gov SUBJECT: Candidate Appeals For Original Employment MATTER: A09 -00168 CANDIDATE v. APPLICANT: The Civil Service Board ( "Board") has reviewed this issue at past meetings. However, in this latest version the terms have changed from "applicant" to "candidate" and the appeals have been limited to appeals of denial of "original appointment," which is a defined term under the Civil Service Ordinance ( "Ordinance "). These changes were made because "applicants" already have appeal rights for "rejection" of applications, and "candidates" are those folks who go through the process and are then denied employment. The phrase "original appointment" is used in reference to appeals to provide consistency and because candidates for promotional appointment have other available appeals rights. ISSUE: What, if anything, should the Board adopt by way of rules to address the issue of candidate appeals for original employment ( "Candidate Appeals") under our Ordinance? RECOMMENDATION: As discussed over the months, we recommend pursuit and adoption of a rule addressing the issue of Candidate Appeals. The latest iteration of that rule is attached. The Board may also make a recommendation to the City Council that it seek amendment of the Ordinance to delete the provision for Candidate Appeals. Staff would support such a recommendation. Applicant Appeals Issues September 9, 2009 Page 2 DISCUSSION: The Newport Beach Civil Service Board Rules and Regulations use a number of defined terms to correspond to persons that seek employment/promotion within the City of Newport Beach ( "City "). In this instance, the Board is reviewing appeals that stem from candidates that are seeking original appointment to a City position. Or put another way, the Board is considering a rule to govern appeals from persons that are denied initial employment with the City. The most significant features of the proposed rule are as follows: 1. The appeal of any candidate must be filed within 5 calendar days of notice of the final decision denying employment. This time frame is consistent with the other appeal sections in the Ordinance. 2. The candidate must file an appeal stating the grounds for the appeal and then the department director has the opportunity to address those grounds in an informal memo. 3. The Human Resources Director has the option to attempt to resolve any appeal issue prior to going to the Board. 4. The Board makes the determination as to whether a hearing on the full record needs to be held. If not, the Board will decide the appeal based upon the candidate's statement of appeal and the department director's response. If the Board does decide to pursue a hearing on the full record the matter will be brought back for a hearing based upon a full record of the application and the basis for the decision by the department director. 5. The hearing on the matter will not be .an evidentiary hearing. Instead, the hearing will be based upon the record. The question for the Board is whether the department director has abused his or her discretion in denying the candidate's application. We use the abuse of discretion standard since the department director has discretion to make the decision and the candidate has no property right in receiving an offer of employment from the City. This standard is also intended to recognize the power vested in the department director through the City Manager and to honor that power. Thus, the decision of the department director may only be overturned if there is a showing by a candidate of a clear abuse of discretion. Abuse of discretion is defined as the material failure to follow the law or a decision that is not supported by substantial evidence. "Substantial evidence" is a term of art in the law. It means any evidence, even only a scintilla of evidence, which a reasonable mind may rely upon to support a decision. The Board will not engage in a competitive weighing of contradictory evidence. Rather the Applicant Appeals Issues September 9, 2009 Page 3 Board will merely determine whether there is any evidence in the record that supports the department director's decision. Even if there is contrary evidence in the record, and even if that evidence is more persuasive then the evidence relied upon by the department director, the Board would not be in a position to overturn the department director's decision. We recommend this procedure for two reasons. First, it allows for appeal resolution without unduly burdening the Board. Secondly, it honors the City Manager's responsibilities under the Charter and all of our ordinances regarding the hiring of personnel, as delegated to the department directors. We also believe the Board may appropriately recommend to the City Council amendment of the Ordinance to delete the provisions related to Candidate Appeals. Under California law, an applicant does not have a property right in receiving an offer of employment. Thus, it is contrary to normal standards in the law to give a candidate the right of an appeal. Frankly, that appellate right throws the system somewhat on its head. Staff has heard the Board indicate that such an appellate right did not make sense; thus, the Board may recommend that the City Council amend the Ordinance to delete Candidate Appeals. Such an amendment would require confirmation through a vote of the people. Conclusion: The Board may review the proposed rule and provide staff with direction regarding further revisions or adoption.. Additionally, the Board may make a recommendation to the City Council to delete Candidate Appeals from our Ordinance. El" Attachment: Draft Candidate Appeals' Rule This pavB InLBqdAl1aft Mank 501.3.3 Hearings E. Appeals by Candidates for Original Employment Appeals to the Board by unsuccessful candidates for original employment shall be considered pursuant to the procedure set forth below. An unsuccessful candidate seeking review of denial of employment by the Board shall submit a written statement of appeal to the Human Resources Director not later than five (5) calendar days after the date the notice that he or she has not been offered employment with the City was placed in the mail with first class postage pre -paid addressed to the candidate. The candidate's written statement of appeal shall be considered delivered when received and "time stamped' by the Human Resources Director. The `Mime stamp" shall indicate the date and time the appeal is received by the Human Resources Director. Appeals filed after the deadline shall be rejected by the Human Resources Director and not considered by the Board. 2. The written statement of appeal must include: (i) the candidate's full name; (ii) the candidate's mailing address; (iii) the title or position for which the application was made; (iv) all bases on which the candidate relies in concluding he or she was improperly denied employment; and (v) a written acknowledgement by the candidate that consideration of the appeal by the Board shall occur in open public session and that the candidate voluntarily waives any expectation of privacy as to the facts and circumstances of his or her application and its rejection by the City. 3. Upon receipt of the written statement of appeal, the Human Resources Director shall forward the appeal to the Department Director that has responsibility. for the position sought by the candidate. 4. The Department Director shall, within ten (10) working days of receipt of the appeal from the Human Resources Director, respond in writing to the Human Resources Director indicating the reason(s) for which _ the candidate was not offered employment. 5. The Human Resources Director may, in his or her discretion, provide the candidate with a copy of the Department Director's written reason(s) for denial and an opportunity to respond to the Department Director's reason(s) for denial. The Human Resources Director may, in his or her discretion, meet with the candidate to address the issues raised in the candidate's written statement of appeal and the Department Director's reason(s) for denial. 6. If the candidate's concerns are not resolved by the Human Resources Director the matter shall be placed on the agenda of the next available regular Board meeting consistent with the notice period provided in subsection 7° below. Each Board member shall be provided a copy of the candidate's statement of appeal, the Department Director's reason(s) for denial, and any additional relevant documentation as determined by the Human Resources Director. 7. The candidate shall be given prior written notice of the Board's meeting and shall be entitled to address the Board in support of his or her appeal. The Cityrs failure to comply with any of the timing/notice requirements in this Section 501.3.3 shall not invalidate any action taken by. the Board on appeal or the Department Director's original denial of a candidate. 8. The Board shall determine by majority vote whether the submitted documents establish a basis for an appeal hearing, or whether the matter may be resolved without a hearing. If the Board determines there is no justification for an appeal hearing, the Board shall issue a written determination to that effect and the appeal shall. be dismissed. If the Board votes in favor of an appeal hearing, a hearing shall be calendared and held at the next available regular meeting of the Board. Notice of the appeal hearing shall be provided to the candidate pursuant to section "7" above. 9. If an appeal hearing is held the Board shall be provided with a full record (i.e., oral. board or written testing results, background investigation, etc.) of the candidate's application, including the documents provided pursuant to subsection W above as certified by the Human Resources Director. The Board may receive any oral argument offered at the appeal hearing in support of, or opposition to, the appeal. The Board shall not accept or consider any evidence, either oral or documentary, not present in the record of the application certified by the Human Resources Director. 10. The Board's inquiry on appeal shall extend solely to the question of whether the Department Director has committed a prejudicial abuse of discretion in denying the candidate employment. The Board shall only consider the evidence in the full record of the candidate's application provided by subsection "9" above. The Board shall modify the decision of the Department Director only upon a specific finding that the Department Director committed a prejudicial abuse of discretion. A "prejudicial abuse of discretion" is established when it is affirmatively shown by the candidate that: (1) the Department Director did not proceed in a manner required by law, or (ii) the Department Director's decision to deny employment was not supported by substantial evidence. "Substantial evidence" shall exist to support the Department Director's decision if there is any evidence in the record before the Board that could reasonably be relied upon to support denial of employment, regardless of whether then; is also evidence to the contrary in the record. The appeal hearing may be continued from time-to -time by the Board. F. Findings The Board .shall certify copies of its findings and decisions to the City Manager, the Department Director from whose action the appeal was made, and the appellant employee or unsuccessful candidate for original employment. This pave Intentionally blank CITY OF NEWPORT BEACH CIVIL SERVICE BOARD STAFF REPORT Agenda Item No. (August 4, 2009) TO: HONORABLE CHAIR AND MEMBERS OF THE CIVIL SERVICE BOARD FROM: Mynette D. B . p, Assistant City Attorney ext. 3130, mb champ @city.rrewport- beach.ca.us SUBJECT: Unsuccessful Applicants' Right to Appeal to CSB ISSUE: Should the Civil Service Board recommend.to the City Council the amendment of the Civil Service Rules and Regulations establishing specific procedural rules for hearing appeals by unsuccessful applicants for Civil Service positions? RECOMMENDATION: After a public hearing, the Board should move to recommend to the City Council to amend the Civil Service Board Rules and Regulations regarding hearing appeals by unsuccessful applicants as provided in the attached draft amendment. DISCUSSION: At the June 1, 2009 meeting of the Board, the Board discussed appeal rights by unsuccessful applicants as provided in Ordinance No: 866, Section 5(c), which authorizes the Board "to receive and hear appeals by any person or any applicant or candidate, for a position in the City for original appointment." A copy of the Staff Report and attachments from that meeting is attached as Exhibit A. During the discussion at the June 1, 2009 Board meeting, Board members requested certain modifications to the proposed amendment to include providing discretion to the Human Resources Director to meet with the applicant to attempt to resolve the matter prior to the Board hearing the appeal. In addition, there was a request for the rule to address when a rejection of an applicant is determined to be improper and the standard by which such a determination could be made. The proposed amendment incorporating the requested modifications is attached as Exhibit B. Pursuant to Code section 2.24.050 and Civil Service Board Rule 501.6, the Board may '.recommend to the City Council, after approval by the City Attorney and after a public Applicants' Right to Appeal March 2, 2009 Page 2 hearing thereon, the adoption, amendment, or repeal of rules and regulations to implement the provisions of this chapter." Accordingly, following a public hearing on this matter at the Board's August 4; 2009 regular meeting, the Board may move to recommend to the City Council the amendment of the Rules as provided in the attached Exhibit B. Prepared by: ynette D. YAevp' Assistant City EXHIBIT A This page Intentionaft, Mank CITY OF NEWPORT BEACH HUMAN RESOURCES DEPARTMENT Terri L. Cassidy. J.D.. Director To: Chairman and Members of the Newport Beach Civil Service Bo rd From: Terri 1_ Cassidy, Human Resources Director Mynette Beauchamp, Assistant City Attorney Re: Appeal Rights by Unsuccessful Applicants BACKGROUND: In late 2008, several applicants for positions in the City of Newport Beach Fire Department were notified that they would not be hired by the City due to issues arising during the pre- employment process. The applicants sought their remedy to the rejection from the Fire Chief /Human Resources Department before the Civil Service Board. This was a case of first Impression, as no applicants had previously asked for such an appeal before the Board. Although the individuals in this group of Fire applicants did not pursue their requests for appeal (one withdrew his request after meeting with the Fire Chief and Human Resources Director and the others chose not to follow through), the Civil Service Board requested an analysis of their obligation to entertain, hear and decide such matters. A written legal opinion on the subject was requested from the Board's special legal counsel, Jeffrey Freedman of the law firm of Hebert Cassidy Whitmore. This opinion, dated December 15, 2006, is attached as Exhibit A. In the opinion It Indicates that the City Council adopted Ordinance No. 866, Section 5(c) specifically authorizes the Board "to receive and hear appeals by any person or applicant or candidate for a position in the City for original appointment.* After receiving the legal opinion, the Board requested that some language /procedure be drafted to address these types of appeals, which are different than the types of appeals the Board hears related to disciplinary actions (full evidentiary hearings which are required due to Constitutional considerations). Agenda Item #6 3300 Newport Boulevard - Post Office Box 1766 - Newport Beach. California 92658 -8915 m �...L I/\,n\ 4• � n/1nn n _. ,n •n\ n• � nnnP _.� 1 L L .. Page 12 June 1, 2009 CSB Meeting Appeal Rights by Unsuccessful Applicants Further, the Civil Service Board expressed concerns over the information that would be shared in a .public forum by unsuccessful applicants being of a confidential and possibly personal nature and the manner in which protections could be incorporated into a proposed procedure. ANALYSIS: The City Attorney's Office had requested that Jeffrey Freedman, outside Special Legal Counsel, draft an "Appeals by Applicants" Procedure to use in the event that these requests are made of the Civil Service Board. The procedure would have to be incorporated into the Civil Service Rules as Section 501.3.4 (Appeals by Applicants) and if approved by the Board, recommended to the City Council for adoption. The difference between the appeal process by an applicant from an appeal by an employee is that an applicant does not have a property interest in their employment. Therefore, the full evidentiary hearing that the CSB uses in other circumstances does not automatically apply. The suggested process for applicants will include an initial screening of the appeal overseen by the Human Resources Director. The Human Resources Director, upon receipt of an appeal, will Q forward it to the Chief (Department Director) for an appropriate written, factual response as to why the individual was not offered or an offer was rescinded for employment. If deemed appropriate, the applicant could then be offered an opportunity to provide a written response to the Chief's reasons as stated. If it is determined that the Chief has abused his /her discretion in rejecting an applicant for employment, or if it is determined that the matter should be considered for an appeal hearing based upon the written request and response by the Chief, then the matter would be placed on the Agenda of a Civil Service Board meeting, with due notice to the applicant. The Board would then decide whether a full hearing is required or if the appeal may be resolved solely on the appeal and the Information compiled by the Human Resources Director. The goal here is that full hearings would only be ordered by the Board in a case of a serious factual or legal issue that cannot be resolved based solely upon documentation, but requires live testimony and the opportunity for cross - examination of adverse witnesses. The Civil Service Board has requested a draft procedure bebrought to them for consideration. This is attached as Exhibit B. 0•. Page 13 June 1, 2009 CSB Meeting �! Appeal Rights by Unsuccessful Applicants RECOMMENDATION: This item involves a matter that has not been dealt with by the Civil Service Board. The CNB City Attorneys Office has requested assistance from outside legal counsel for an opinion and a draft procedure following the discussion on the June 1, 2009 agenda, it is recommended that the Board give direction to the Human Resources Director to return at the July or August Board meetings with a Final Proposed Procedure that could be adopted by Resolution of the CSB and then recommended to the City Coundl (after approval by the City Attorney and a public hearing on the proposal) in accordance with Section 5 (b) of the CWs Ordinance 866. Enclosures— "A"" Legal Opinion by Jeffrey Freedman, Esquire "8" — Draft Procedure — Appeals by Applicants "C" —Ordinance 866 Section 5(b)(c) "D" —Full Appeal Process U } N •. w r F; €; r � r 'I Sii _ iM € 7j 4 4 e � i ; 9� 1� i a 4 - Q 0 UEEERT CASSIDY WHITMORE A PL0fESS10m^L LAw COEEORAVON ' Los An6ELEs I PEESNO I Sew F4 HascO 603 WwCsmxv B0uw9 Si Son laa�.CUnwne 90045 T.-010)981.2000 U0101337-0937 JF DAR' ^LCWLW.U.COM December 15, 2008 010196144 CONFIDENTIAL ATTORNEY- CLIENT PRIVILEGE Honorable Chair Bert Carson and Members of the Civil Service Board City of Newoort Beach 3300 Newport Boulevard Newport Beach, CA 92660 Re: Whether Civil Service Board is required to hear appeals by unsuccessfid job applicants Client- Matter: NE010 -001 Dear Mr. Carson and Board Members: The Civil Service Board (Board) has requested our written opinion on the question of whether the Board is required to hear appeals filed by job applicants who are not offered employment with the City. For the reasons explained below, we conclude that the Board has jurisdiction over such appeals and, indeed, is required to conduct a hearing on such an appeal if one is timely filed FACTUAL INFORMATION The following information was provided to us by former Human Resources Director Barbara Ramsey. We have based our analysis upon the information provided by Ms. Ramsey. If any of this information is incorrect, please advise us immediately as this may require us to modify our i:ews. The City recruited to hire entry level candidates into the position of firefighter. Applications were received and an examination and assessment process was conducted, leading to the issuance of an eligibility list from which appointments could be made. Under city practice, the department head (in this case the Fire Chief) personally interviews individuals from the eligibility list and decides whether to offer employment. A particular applicant succeeded in having his name placed on the eligibility list and was interviewed by the Fire Chief. The Chief determined not to offer this person employment and the candidate attempted to appeal. The question for determination is whether the Board has jurisdiction, and therefore the obligation, to entertain such an appeal and to conduct a hearing thereon. 293G61.1 NE020 -001 w .Ic IC&31.COm Mr. Bert Carson December 15, 2008 Page 2 ANALYSIS Newport Beach is a charter city. The current Charter was adopted by the voters on January 7, 1955. Section 710 of the Charter creates and section 711 empowers the Board. As a quasi-judicial arm of the City, the Board only possesses those powers and duties delegated to it in the Charter by the voters. (Zuniga v. Los Angeles County Civil Service Commission (2006) 137 Cal.App.4th 1255, 1259, 124 Ca1.Rptr.2d 924; Hunter v. Los Angeles Civil Service Commission (2002) 102 Cal.App4th 191, 124 Ca1.Rptr. 2d 924; Talmo v. Civil Service Commission (1991) 231 Ca1.App.3d 210, 219, 282 Cal.Rptr. 240,244; Chavez v. Sacramento County Civil Service Commission (1978) 86 Cal.App.3d 324,327-28,150 Cal.Rptr. 197, 199.) Section 711(c) of the Charter empowers the Board to hear appeals brought by City employees challenging disciplinary actions which might have been imposed upon them such as termination, suspensions and demotions. Neither subsection (c) nor any other provision in section 711 or elsewhere in the Charter specifically empowers the Board to entertain appeals brought by unsuccessful job applicants. However, section 711(e) directs the Board to "Perform such other duties as may be prescribed by ordinance." In November 1958 the City Council adopted Ordinance No. 866 which primarily deals with the City personnel system. Section 5(c) of this Ordinance specifically authorizes the Board "to receive and hear appeals by any person or any applicant or candidate for a position in the City for original appointment." Since this language is contained in an Ordinance, this additional responsibility was lawfully delegated to the Board in light of section 711(e) of the Charter. In addition to the Charter and Ordinance, the functions of the Board are also described in the City's Civil Service Rules. Section 501.3 of these rules essentially repeats the language of section 5(c) of Ordinance No. 866. See also section 2.24.050, subsection C of the City Municipal Code, which essentially codifies section 5(c) of Ordinance 866. AWDtdingty, we.oanciirde that the %aid not only'has-the jurisdietion but also has the responsibility to hear appeals brought by unsuccessful job applicants as long as the appeal is filed in a timely manner. We understand that no individual has Sled such an appeal in recent memory, perhaps going back as many as 16 years. The fact that no such matter has been brought before the Board does not allow the conclusion that the Board's authority has been lost or otherwise limited.. We suspect that unsuccessful job applicants have either chosen not to challenge their job denial; or simply were unaware of the provisions referenced above. 293461.1 NE020 -Ml X 10 Mr. Bert Carson December 15, 2008 Page 3 I understand the Board will place consideration of this issue on the agenda for its January 5, 2009 regular meeting. I have been asked by Ms. Lauren Farley, the acting Human Resources Director, to attend that meeting, and I shall be there. JCFrjmw cc Lauren Farley 293461.1 NnD"I Very truly yours, LIEBERT C&SSIDY WHITMORE MI 0 F N E 501.3.7 Appeals by Applicants Appeals to the Board by unsuccessful applicants for City employment shall be considered pursuant to the procedure set forth in this subsection. a. An unsuccessful applicant seeking review by the Board shall submit a written statement of appeal to the Human Resources Director not more than ten working days after receipt of notice that he/she has not been offered employment with the City. The statement of appeal shall include a written acknowledgement by the applicant that consideration of the appeal by the Board shall occur in open public session and that the applicant waives any expectation of confidentiality as to the facts and circumstances of her/his application and its rejection by the City. b. On receipt of the written appeal the Human Resources Director shall forward the appeal to the Department Head in question. C. The Department Head shall, within ten days of receipt of the appeal, respond in writing to the Human Resources Director indicating the reason(s) for which the applicant was not offered employment d. The Human Resources Director may, in his/her discretion, provide the applicant an opportunity to respond to the Department Head's statement of reasons. C. The matter shall be placed on the agenda of the next regular Board meeting. Ali relevant documents shall be provided to each Board member, including the appeal, the Department Head response, and any additional relevant documentation. f The applicant shall be given at least one week's written notice and shall be, entitled to address the Board in support of his/her appeal. g. The Board shall determine by majority vote whether the appeal establishes a basis for a full evidentiary hearing. If so, a hearing shall be caleadamd and held in the manner set forth in section 501.3 eLM of these Rules. h. If the Board determines there is no justification for further hearing, it shall so resolve by a written determination and the appeal shall thereby be dismissed. Such action shall constitute final administrative action by the City. 322.352.1 NED20-001 T-T , F I ; - 'I r 1 1 & ! ; I 1 �77 P 71,11, 3 LF77 7 = is j4] pleme refer to seem 5(b)[c) • E 0 IN U--N J 6 i rm +u the Police are Included in the System, enoept these Pali. rlRbdto by BGetm sm d the Cz Chanson 7be Wty Coen- e8 by aMhaaoe map Include m the S9atam POSitbns is Other SECnObF a PtmpOSB OF SYSIU . BeSutatiens sMN have the face and Cled d law. [d appeal= 7b receive and hear appmle wbmthd by amy Pinson - dldale mop+MeaO M other ta- o ,.Ia 7be purpose at the System Is to kwed vteiafwn d thh a ahbtls6 an equitable and nine. a the Hake and Bedm Cam precadme mr denude t.fM . and to «inns? Its mdh Personnel matters; to attract to recommendations as POP the City service the meet oomph• this Odi a tent persons available; to aaane (d) AdvWW rele 7r that the appointment and promo- an adWao4 aMdty m I Um cc w>ptopeea vrnt be Mud Council m permmd add an melt a" Shea: and to Pro- tiro In the OFY emviee. Kde reasonable security Ca am- (a) Seawmmt and ylyace fins. Subject to the Po SECTION t CRFA71ON OF A of Uds sdidabae and tb uhm in accordance ty charter. Herb d shall M a perem d In his budm% pro- 7g!lF�,AND �OIM Or ILe isrefbdr at 1M Bard ldglt M. W Yectmec ib detamhe the order of bnsima Csv the ton. dad of us YgEnedu is to Mkt sound weft Special mmeam as are nemwaq an all K at chairman a a majority at the mambers of the Board, and to AM ra�lagd. A proondbW the membma of tM Bard A" crost[mle a Quorum Or 1M transaction a tom. M Rdo and Regulations. 7L Incmammd to the Cur ocam. d% after affecoval by Me CkW Atormy and allv adop ee pubtl araendoment. a repW at Itch of WARtion at ant- lain. 7b mete d p in to exammom and to came• bw to Anse au ea m to be s rvOk and a pemm to at =d or a wawer to atith er hall aabtect add Den Igs' y Tt j s �. ? � g - G t FM PSIA S s : a Y ' � P ? � �' � [ s � v � �. r g 'r i:% x i ; �Y 1 r , a 1 NEWPORT BEACH CIVIL SERVICE BOARD PROCEDURAL RULES FOR HEARINGS Section 1: Scope of Rules. The Newport Beach Civil Service Board (Board) has the responsibility to conduct hearings on appeals from certain disciplinary actions and on certain grievances filed by employees and /or their employee organizations. All such hearings shall be conducted in accordance with the following Procedural Rules (Rules). Section 2: Provision of Procedural Rules to Parties. Once a matter has been calendared for hearing before the Board, the Secretary shall advise all parties, in writing, of the time, place and date of the hearing and shall provide each party with a copy of these Rules. Section 3: Provision of Basic Charaina Documents. The Secretary shall provide each member of the Board with copies of the following documents at least ten (10) calendar days prior to the date of the. hearing: A. In a disciplinary case: 1. The notice of intent to impose discipline, also referred to as a. "Skelly" letter, including any attachments provided to the employee at the time of notice. 2: The employee's written response to the notice of intent to impose discipline and/or a transcript of the "Skelly" hearing. The final decision of the Department Director imposing discipline. All notices relating to the charges or discipline given to the employee by his/her supervisor or the Department Director. The appeal and /or request for a hearing. grievance proceeding: The original grievance submitted by the grievant and /or the employee. organization. Any response(s) submitted by the Department Director or City Manager. 3. The final administrative decision on the grievance. 4. The appeal and /or request for hearing submitted by the grievant. Section 4: Pre- Hearinn Briefs, Motions and.Reouests. A. Each party shall have the right to file a hearing brief and pre - hearing mofion. The party shall file an original and ten copies of the hearing brief and /or pre - hearing motions with the Secretary at least fifteen (15) days before the hearing. The Secretary shall promptly distribute the hearing brief and /or the motions to each Member of the Board and the opposing party- B. Each party shall file, with the Secretary, a list of any witnesses or expert witnesses the party intends to call and a list of exhibits the party intends to offer into evidence at the hearing. The party shall file the original and ten copies of the witness list and /or the exhibit list with the Secretary at least ten days before the hearing. Expert witness lists shall include each expert's qualifications. The Secretary shall promptly distribute the witness/expert witness list and /or exhibit list to each Member of the Board and the opposing party. C. The parties shall meet and confer at least twenty (20). days before the hearing to reach an agreement on those facts and issues, which are uncontroverted, and to provide an estimate of time for the hearing. The estimated hearing time and any stipulated facts or issues shall be submitted to the Secretary at time of filing hearing briefs. Section 5: Subpoenas. The Chair shall issue subpoenas compelling the attendance of persons or the production of documents or tangible items provided good cause is shown by the party seeking the subpoena. All requests for subpoenas and supporting documentation shall be submitted to the Secretary at least ten (10) working days before the hearing. The Board may issue subpoenas on its own motion at any time during the pendency of the hearing. The party requesting the subpoena shall be responsible for service. Section 6:. Closed Hearing, Any employee who appeals a disciplinary action shall have the right to a dosed hearing or an open hearing.. in the event the employee requests a dosed hearing, the hearing room shall be cleared of all persons except members of the Board, the legal advisor to the Board, the parties and their representatives, including the Director of the involved Department or his or her designee, and the CSI investigative case agent of the Department (if any), regardless of their status as a witness, the Human Resources Director, or designee, the Secretary to the Board, a court reporter (if any), and the witness then testifying. Non -party witnesses shall be sequestered in all disciplinary hearings. After giving testimony, each witness shall be admonished not to discuss his/her testimony with anyone other than the parties of their representatives. Section 7: Burden of Proof. A. In a disciplinary appeal, the City has the burden of proving: (1) each fact necessary to establish the truth of the charge(s) against the employee and; (2) that the discipline imposed was reasonable in view of the offense, the circumstances surrounding the offense, and the past record of the employee. The employee has the burden of proving, any substantive violation or omission of procedure and any defense he or she is asserting. B. In a hearing concerning a grievance, the grievant has the burden of proving, each fact necessary to establish the merit of the grievance and the City has the burden of proving any defense it may be asserting. C. The burden of prof shall be by a preponderance of the evidence. D. At the conclusion of evidence by the party with the affirmative burden of proof, the opposing party may bring an oral motion to dismiss solely on the basis that the party with the affirmative burden of proof has failed to meet its burden of proof. Section 8: Hearina Rules. The following rule shall apply to all hearings: A. Oral evidence shall be taken only on oath or affirmation; B. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross - examine opposing witnesses on any matter relevant to the issues even though outside the scope of direct examination, to impeach any witness, and to rebut any evidence. Except as provided in Subsection C, any party may call as a witness any person on the opposing party's witness list. C. The expert witness of any party shall first be examined by that party. An expert witness is a person whose special skill, knowledge, training or education is sufficient to qualify him/her as an expert on the subject to which his/her testimony relates. 0 D. The hearing shall not be conducted in strict compliance with the rules of evidence. The Chair shall, with or without the advice of Counsel to the Board, make all evidentiary rulings and may admit any relevant evidence if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. The Chair may consider, but shall not be bound by, any statutory or decisional law, which might make improper the admission of the evidence in civil proceedings. E. Hearsay evidence is admissible and may be used for the purpose of supplementing or explaining other evidence. Hearsay evidence shall not be sufficient to support any finding unless the hearsay evidence would be admissible over objection in civil proceedings. F. The rules of privilege shall be effective only to the extent required by the laws of the State of California. G. Documents shall be admitted into evidence subject only to proof of authenticity. The contents of documents shall be considered evidence of the matter stated so long as the sources of information and the method and time of preparation of the document are such as to indicate its trustworthiness. H. Except for documents produced pursuant to subpoena, each party shall, within ten (10) days prior to the hearing, provide the Secretary to the Board with 10 copies of all documents to be offered into evidence.. Members of the Board shall not consider documents and other tangible evidence until admitted into evidence by the Chair. Documents submitted on behalf of a Department Director (in discipline) or the City Manager (in a grievance) shall be marked numerically in sequence (City Exhibit "1 ", "2 ", etc.). Documents to be submitted by an employee or grievant (in discipline or a grievance) or an employee association (grievance) shall be marked alphabetically in sequence (Employee -Exhibit "A ", "B ", etc.). I. The Chair may, upon a showing of good cause, admit the testimony of any person not identified on a party's witness list or admit tangible evidence not identified on a party's exhibit list. Section 9: Closing Statements. The Chair shall declare the evidentiary record closed and- shall offer the parties an opportunity to make closing statements after each party has presented their evidence. Closing statements shall be limited to ten (10) minutes .unless the Chair allots additional time due to the length of the hearing or the complexity of the issues. The party with the burden of proof shall give its dosing statement first followed by the dosing statement of the other party. The party with the burden of proof shall have the right to make a reply limited to five (5) minutes. l� The Chair may, upon a showing of good cause, modify the time allotted for ✓ dosing statements or the order in which those statements are presented. Section 10: Deliberations and Decision. The Chair shall declare the hearing closed upon completion of dosing statements. The Board shall, at that time, or at a subsequent meeting, deliberate on and decide the matter. In the case of a disciplinary hearing, the deliberation shall be conducted in dosed session and in full compliance with the Brown Ad. The closed session shall be attended only by members of the Board and the legal advisor. The Board shall direct its legal advisor to draft proposed findings and a decision consistent with the tentative decision. Once deliberations have been completed and a tentative decision has been reached, the Chair shall announce on the record that the matter will be calendared at a specific date for consideration of proposed written findings and decision. In the case of disciplinary proceedings, the legal advisor shall transmit the proposed findings and decision prepared directly to Board Members through confidential correspondence. At the date and time set for consideration of the proposed findings and decision,. the Chair shall announce the matter and the Board shall then take appropriate action with respect to the proposed findings and decision. The Chair shall sign the findings and decision approved by the Board and the Secretary shall transmit copies to the parties. Section 12: Confidentiality /Dfscfnlinary Proceedinas. The findings and decision of the Board with respect to any .disciplinary proceeding shall be deemed confidential. The original findings and decision shall become part of the employee's personnel record. The findings and decision shall be disclosed only to the City Manager, the Human Resources Director, the Department Director, and supervisors of the employee. Information relevant to implementation of the decision shall be disclosed only to the extent necessary to do so. Adopted 5/3/99 Revised 12103/01 CIVIL SERVICE BOARD HEARING SCHEDULE. Twenty (20) Days Before Hearing: Parties meet and confer to agree on °facts° and estimate time for hearing. The results of this meeting are submitted to the Board Secretary at time of filing of briefs. Fifteen (16) Days Before Hearing: Parties file a hearing brief and pre- hearing motions with Board Secretary. Requires original and ten (10) copies. Secretary promptly delivers to Board Commissioners. Ten (10) Days Before Hearina: Parties file, with Board Secretary, a list of witnesses and a list of exhibits. Requires original and ten (10) copies. All requests for subpoenas and supporting documentation submitted to Board Secretary. Ten (10) copies of all documents to be offered into evidence provided to Board Secretary. Board to receive, or have received, all documents ten (10) calendar days before Hearing from the Board Secretary. 0 EXHIBIT B This page intendonaliil dank 501.3.4 Appeals by Applicants Appeals to the Board by unsuccessful applicants for City employment shall be considered pursuant to the procedure set forth in this subsection. A. An unsuccessful applicant seeking review by the Board shall submit a written statement of appeal to the Human Resources Director not more than ten (10) working days after receipt of notice that he or she has not been offered employment with the City. The applicant shall be deemed to have received such notice three (3) working days after the date of the written notice from the City to the applicant. The applicant's written statement of appeal shall be deemed delivered on the date postmarked by the US Postal Service If mailed by First Class Mail, or on the date delivered to the Human Resources Department if delivered in person. The written statement of appeal must include the applicant's full name, the title or position for which the application was made, and all bases on which the applicant believes his or her application was rejected improperly. The written statement of appeal shall also include a written acknowledgement by the applicant that consideration of the appeal by the Board shall occur in open public session and that the applicant waives any expectation of confidentiality as to the facts and circumstances of his or her application and its rejection by the City. B: On receipt of the written statement of appeal, the Human Resources .Director shall forward the appeal to the Department Director of the position sought by the applicant. C. The Department Director shall, within ten days of receipt of the . appeal, respond in writing to the Human . Resources Director indicating the reason(s) for which the applicant was not offered employment. D.: The Human Resources. Director may, in his or her discretion, provide the applicant an opportunity to respond to the Department Head's statement of reasons: The Human Resources Director_ may; in his or her discretion, meet with the applicant to address the issues raised in the written statement of appeal and the Department Directors response. E. If the applicant's concems remain. unresolved, the matter shall be placed on the agenda of the next regular Board meeting consistent with the notice period provided in section F below. All relevant documents shall be provided to each Board member,'including the.. 0 appeal, the Department Head response, and any additional relevant documentation. F. The applicant shall be given at least one week's written notice and $half be entitled to address the Board In support of his or her appeal. G. The Board shall determine by majority vote whether the appeal establishes a basis for a full evidentiary hearing, or whether the matter may be resolved based on the documentation submitted. If the Board votes in favor of a full evidentlary hearing, a hearing shall be calendared and held at the nekt regular meeting of the Board. Upon a fi evidentiary hr irii g, the Board shall modify the decision of the Department- Qlrector only upon a specific finding that the Department Director committed a prejudicial abuse of discretion, which may be shown if the Department Director has not proceeded In a manner required by law or if the decision is not supported by substantial evidence. If the Board finds that a modification of the Department Director's decision is Warranted, die Board shall send the application back to the Department Director and the Human ke�ormces Director to_ no fy_ he- tejestfea -in accordance with the Board's recommendation. The Board shall so resolve its determination by a written statement and the action shall constitute a final administrative action by the City. H. If the Board determinos there is no justification for further hearing, it shall so resolve by a written dete rnlnafion and the appeal shah thereby be dismissed. Such action shall constitute a final administrative action by the City. I.