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HomeMy WebLinkAbout05 - Disability Retirement and Reinstatement Determinations and Appeals for Local Safety Members Under the Public Employees Retirement LawTO: FROM: CITY OF NEWPORT BEACH City Council Staff Report November 24, 2015 Agenda Item No. 5 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Barbara Salvini, Human Resources Director - 949-644-3300, bsalvini@newportbeachca.gov PREPARED BY: Sheri Anderson, Risk Manager PHONE: 949-644-3307, candersonC@newportbeachca.gov TITLE: Resolution of the City Council of the City of Newport Beach Regarding Disability Retirement and Reinstatement Determinations and Appeals for Local Safety Members Under the Public Employees Retirement Law; Delegating Authority for Local Public Safety Member Disability Retirement and Reinstatement Determinations and Rescinding Resolution No. 2008-89 ABSTRACT: The Public Employees' Retirement Law (PERL) requires the governing bodies of local agencies to make determinations regarding industrial disability retirements on behalf of its safety members Adoption of Resolution No. 2015-100 authorizes the City to continue with its current procedure for the consideration and determination of applications by local safety member employees for disability retirement and reflects the City's intent to re-evaluate disability retirees under the minimum age for voluntary retirement on an annual basis to determine if they are eligible for reinstatement. RECOMMENDATION: Adopt Resolution No. 2015-100, A Resolution of the City Council of City of Newport Beach, California, Regarding Disability Retirement and Reinstatement Determinations and Appeals for Local Safety Members Under the Public Employees Retirement Law,- Delegating aw,Delegating Authority for Local Public Safety Member Disability Retirement and Reinstatement Determinations and Rescinding Resolution No. 2008-89. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding to carry out the process. Re-evaluations will be expensed to the Workers' Compensation fund, other expenses account 75000750-891035. 5-1 Industrial Disability Retirement Resolution November 24, 2015 Page 2 DISCUSSION: Backqround: The Public Employees' Retirement Law (PERL) requires the governing bodies of local agencies to make determinations regarding industrial disability retirements on behalf of its safety members. Under Government Code section 21173 the City Council, through resolution, may delegate this determination. Since 1982, the City Council has delegated its authority to make these determinations; the current authority rests with the City Manager. In accordance with State law, the City Manager determines whether local safety members are incapacitated from performing the usual duties of their positions and whether the incapacities are industrially (work) related. The City Manager often obtains the advice of the Risk Manager, Human Resources Director and the City Attorney's office in making these determinations. The City Council has adopted resolutions related to the delegation of authority, the process by which industrial disability determinations will be made, and the appeal process from time to time based on changes in PERL and its regulations. Resolution No. 2008-89 (Attachment B) is the most recently adopted resolution on the subject. Following the filing of an application for an industrial disability retirement of a City safety employee, the City Manager receives evidence -based medical status reports from the physician(s) who treated and examined the employee, including reviewing any necessary supporting documents from the Risk Management Division. The City Manager reviews all pertinent documents prior to making his determination as to whether or not the employee is substantially incapacitated from performing the usual duties of his or her position. The proposed resolution (Attachment A) references the applicable law, including Government Code Section 21154, which authorizes the City to file an application for disability retirement and to obtain a medical evaluation to determine whether the employee is substantially incapacitated; and Government Code Section 21192, which authorizes the City to require recipients of disability retirements to undergo medical examinations if they are under the minimum age for voluntary retirement. The City has awarded a number of industrial disability retirements to safety employees over the last five years. The recipients range in age from 25 to 49. It is estimated that each early retirement costs the City a minimum of $500,000 to $750,000. The proposed resolution reflects the City's intent to exercise its authority to re-evaluate industrial disability retirement recipients on an annual basis to determine if they remain incapacitated, or if they can be reinstated while they are under the voluntary retirement age. 5-2 Industrial Disability Retirement Resolution November 24, 2015 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action 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. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Resolution Attachment B — Resolution No. 2008-89 5-3 RESOLUTION NO. 2015 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REGARDING DISABILITY RETIREMENT AND REINSTATEMENT DETERMINATIONS AND APPEALS FOR LOCAL SAFETY MEMBERS UNDER THE PUBLIC EMPLOYEES RETIREMENT LAW; DELEGATING AUTHORITY FOR LOCAL SAFETY MEMBER DISABILITY RETIREMENT AND REINSTATEMENT DETERMINATIONS; AND RESCINDING RESOLUTION NO. 2008-89 WHEREAS, the City of Newport Beach is a contracting agency of the Public Employees Retirement System ("PERS"); and WHEREAS, California Government Code Sections 21150, et seq. and 21190, et seq. require that a contracting agency make determinations relating to disability retirement applications for its local safety member employees, as well as reinstatement of such retirees; and WHEREAS, the Public Employee Retirement Law ("PERL") requires that a contracting agency determine whether an employee of such agency in which he/she is classified as a local safety member is disabled for the purposes of the PERL and whether such disability is industrial within the meaning of such law; and WHEREAS, California Government Code Section 21173 allows the governing body of a contracting agency to delegate any of its authority to make determination regarding disability under the PERL. NOW, THEREFORE, the City Council of the City of Newport Beach does RESOLVE as follows: SECTION 1. Pursuant to Government 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 consult with medical and/or occupational experts, make determinations for disability retirement of employees classified as local safety members, determine whether such disability is industrial, initiate requests for reinstatement of local safety members previously retired for disability, and to certify such determinations and all other necessary information to PERS. SECTION 2. In the event of a dispute regarding retirement or reinstatement of sworn local safety member, where a determination of incapacity is necessary, the City is required by California Government Code Sections 21156 and 11512, as well as the holdings in Usher v. County of Monterey (1998) 65 Cal.App.4th 210 and Langan v. City of EI Monte (2000) 79 Cal.App.4th 608, to have the hearing conducted by an 5-4 ATTACHMENT A Administrative Law Judge ("ALJ") from the Office of Administrative Hearings ("OAH") alone, who will then submit a proposed decision to the Council upon which it may act. The appeal hearing is required to be conducted consistent with the provisions of the Administrative Procedures Act ("APA"), California Government Code Section 11500, et seq. SECTION 3. Appeals taken by employees of disability retirement determinations for local safety members under the PERL and for reinstatement of local safety members who are retired on account of disability under the PERL shall be governed by the provisions of the Administrative Procedures Act (California Government Code Section 11500, et seq.). SECTION 4. Pursuant to California Government Code Section 11517, the City shall retain the statutory right to review the proposed decision of the Administrative Law Judge from the Office of Administrative Hearings and to adopt, modify or reject that proposed decision. The City will follow and comply with all procedural requirements set forth in California Government Code Section 11517. SECTION 5. In the absence of judicial review that may be brought by the employee, the City Manager's final decision shall be certified by the City to PERS in the manner and within the time provided by law. SECTION 6. To the extent the City Manager determines that a local safety member is eligible for disability retirement, but is not eligible for industrial disability retirement, the employee's appeal of the City Manager's decision that the disability retirement is not industrial shall be conducted and heard by the Workers' Compensation Appeals Board (WCAB). SECTION 7. In the event that the City of Newport Beach has not yet rendered a determination on whether a local safety employee is substantially incapacitated for the performance of duty and the employee has yet to undergo an evaluation in accordance with Government Code Section 21154, the City of Newport Beach may file an application for disability retirement with PERS in order to obtain said evaluation for purposes of addressing substantial incapacity. When the evaluation has been received by the City of Newport Beach, the City of Newport Beach will endeavor to make a prompt determination on the application. SECTION 8. Resolution 2008-89, adopted October 28, 2008, is hereby rescinded. 5-5 ATTACHMENT A Adopted this day of , 2015. Mayor of the City of Newport Beach ATTEST: City Clerk 5-6 ATTACHMENT B RESOLUTION NO. 2008- 89 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 Government 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 government 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, Government 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 Government Code section 21173, the City Council hereby delegates to the City Manager the authority to act on behalf of the City 5-7 ATTACHMENT B 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 . ERS: 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 tiles an appeal, the appeal hearing shall be held in conformity with the Administrative Procedures Act (Chapter 5, commencing with section W:3 ATTACHMENT B 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 ADOPTED this 28th day of Octob+ ATTEST: ME � sl1 MEN—=/-.0.City C—lerk 5-9 ATTACHMENT B STATE OF CALIFORNIA. COUNTY OF ORANGE CITY OF NEWPORT BEACH ) 1, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2008-89 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of October 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich Noes: None Absent: Henn Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of October 2008. (Seal) r City Clerk Newport Beach, California 5-10