Resolution No. 81051 RESOLUTION NO. 8105
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3 A'RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND ADOPTING AMENDED PROCEDURES
4 FOR MAKING DISABILITY DETERMINATIONS FOR LOCAL
5 SAFETY MEMBERS AND FOR APPEALS OF SUCH
DETERMINATIONS
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7 WHEREAS, the City Council on September 22, 1992, in
8 Resolution No. 6161 adopted a Procedure for Making Disability
9 Determinations for Local Safety Members, and a Procedure for Appeal of
10 a Disability Determination by a Local Safety Member (collectively the
11 "Procedures"); and
12 WHEREAS, Government Code Section 21154 provides -that the
13 governing body of a contracting agency such as the City of Vernon (the
14 "City") shall be requested to make a determination whether a local
15 safety member is incapacitated for the performance of duty, on the
16 basis of competent medical opinion; and
17 WHEREAS, Government Code Section 21156 requires the governing
18 body of the City, the City Council, to certify to the Board of
19 Administration of the Public Employees' Retirement System ("PERS") its
20 determination whether a. local safety member is so incapacitated; and
21 WHEREAS, Government Code Section 21156 further provides that
22 a local safety member may appeal the determination by the City Council
23 and further requires that any appeal hearing shall be conducted by an
24 administrative law judge of the Office of Administrative Hearings of
25 the State of California; and
26 WHEREAS, the City Council desires to amend the Procedures to
27 reflect statutory changes in the relevant sections of the Government
28 Code affecting the City's procedures for making disability
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determinations for local safety members and for appeals of such
determinations; and
WHEREAS, by letter dated November 14, 2002, Bruce V.
Malkenhorst, the City Administrator/City Clerk, has recommended that
the amended Procedures be approved and adopted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and adopts the amended Procedure for Making Disability
Determinations for Local Safety Members and the amended Procedure for
Appeal of a Disability Determination for Local Safety Member, a copy
of which are attached hereto and made a part hereof as Exhibits "A
and "B," respectively.
SECTION 3: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 20th day of November, 2002.
ATTEST:
BRUCE V. MALKENHORST, City°Clerk
(LEONIS C. MALB RG, Mayor
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STATE OF CALIFORNIA }
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8105, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday,
November 20, 2002, and thereafter was duly signed by the Mayor of the
City of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
0
PROCEDURE FOR MAKING DISABILITY
DETERMINATIONS FOR LOCAL SAFETY MEMBERS
(Amended November 20, 2002)
1. Pursuant to Government Code Section 21152, any local safety
member may make an application for disability retirement,
and an authorized representative may make such an
application on behalf of a local safety member. Any such
application shall include an address, a telephone number
and a PERS identification number for the applicant.
2. Upon receipt of any such application for disability
retirement, the City Administrator/City Clerk or his
designee will notify the applicant of his/her
responsibility to provide medical records to the City
Administrator/City Clerk that would support a determination
by the City of the applicant's disability.
3. The City Administrator/City Clerk or his designee may
review the applicant's personnel file. If necessary,
pursuant to Government Code § 21154, the City
Administrator/City Clerk or his designee shall obtain a
medical examination of the applicant which indicates
whether the applicant is physically or mentally
incapacitated for the performance of the applicant's usual
duties, as defined in Government Code § 20026. Medical
examination results, any other relevant available
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information which indicates whether the applicant is
substantially unable to perform his/her usual duties, and
available information from workers' compensation
proceedings shall be considered by the City
Administrator/City Clerk in preparing his recommendation to
the City Council.
4. The City Administrator/City Clerk or his designee shall
notify the applicant of his recommendation and the hearing
date on which the City Council will consider such
recommendation and make its determination regarding the
applicant's request for disability retirement. The City
Administrator/City Clerk shall promptly schedule a hearing
by the City Council at a meeting no earlier than fifteen
days from the date notification of the recommendation is
sent to the applicant. Pursuant to Government Code Section
21157, any such hearing shall be concluded within six
months after receipt of the application unless this time
requirement -is waived in writing by the applicant.
5. Any additional medical evidence which the applicant desires
to submit before the City Council hearing shall be received
by the City Administrator/City Clerk no later than five
days prior to the hearing.
6. At the hearing, the applicant shall have the burden of
proof that he or she is substantially unable to perform his
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7.
a
or her usual duties because of physical or mental
incapacity and that such incapacity is industrial. The
applicant shall produce competent medical evidence and
opinion on that issue. At the hearing, the City
Administrator/City Clerk may produce evidence and opinion
which supports the recommendation. At the hearing, the
applicant may be represented by counsel.
After the hearing is concluded, the City Council shall make
written findings based upon the evidence, and the written
findings and the determinations by the City Council shall
be made pursuant to resolution within thirty (30) days
after the hearing.
Pursuant to Government Code Section 21156, the City Council
shall adopt a resolution and certify to the Board of
Administration of the Public Employees' Retirement System
("CALPERS") its determinations that the local safety member
is or is not physically or mentally incapacitated for the
performance of that local safety member's usual duties and
that the incapacity is or is not industrial.
If it is determined that the applicant is not incapacitated
from the performance of duty, the City Clerk/City
Administrator shall notify the applicant by certified mail
or by personal service of his or her right to appeal the
decision and request a hearing within thirty days of the,
■
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notice. If it is determined that the applicant is
incapacitated for the performance of duty, the City
Clerk/City Administrator shall notify the applicant by
certified mail or by personal service.
10. If it is determined that the applicant is incapacitated but
that the cause of incapacity is nonindustrial, the City
Administrator/City Clerk will so certify to CALPERS. Under
such circumstances, if the applicant contends that the
cause of disability is industrial, the applicant may
petition, pursuant to Government Code § 21166, the Workers'
Compensation Appeals Board (the "WCAB") for a Finding of
Fact determining causation. If the WCAB determines the
cause of incapacity to be industrial, or nonindustrial, the
City Clerk/City Administrator will so certify to CALPERS.
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EXHIBIT
PROCEDURE FOR APPEAL OF A DISABILITY
DETERMINATION FOR LOCAL SAFETY MEMBERS
(Amended November 20, 2002)
1. A local safety member may appeal any determination by
the City Council regarding an application for
disability retirement in accordance with Government
Code Section 21156.
2. Any such appeal shall be made within thirty (30) days
after service upon said local safety member or upon
his or her representative of said determination, by
filing with the City Administrator/City Clerk a
request for an appeal hearing before an administrative
law judge ("ALJ") and a written statement of the
issues upon which rehearing is sought.
3. Within fifteen (15) days after such a request for
rehearing and a written statement of the rehearing
issues is filed, the City Administrator/City Clerk
shall notify the Office of Administrative Hearings and
will request a hearing date and a pre -hearing
conference with an ALJ.
4. The local safety member will be informed that the
hearing will be held at the time and place designated
by the Office of Administrative Hearings which shall
set a hearing date and pre -hearing conference.
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, t a
5. Pursuant to Government Code Section 21156, any appeal
hearing shall be conducted by an administrative law
judge of the California Office of Administrative
Hearings, pursuant to those provisions of the
Government Code relating to administrative
adjudication (Government Code Section 11500-11529),
except that the notice of appeal and statement of
appeal issues by the local safety member shall take
the place of the accusation and the statement of
issues contemplated by Government Code Sections 11503
and 11504 and that the local safety member, as
appellant, shall be the initiating party and the City
the respondent.
6. After appointment of the ALJ, the City
Administrator/City Clerk shall transmit the record of
the hearing before the City Council, the notice of
appeal, the statement of appeal issues and the
response to the ALJ, who shall hear the appeal. If
necessary, the ALJ may require the parties to submit
additional written legal arguments.
7. Pursuant to Government Code Section 11508, any appeal
hearing shall be held within Los Angeles County.
8. At the hearing, the ALJ shall preside over the case.
Pursuant to Government Code § 11512(a), the City
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itself shall determine whether the ALJ is to hear the
case alone or whether the City itself is to hear the
case with the ALJ.
9. When the City itself hears the case, the ALJ shall
preside at the hearing, rule on the admission and
exclusion of evidence, and advise the City on matters
of law pursuant to Government Code § 11512(b). The
City itself shall exercise all other powers relating
to the conduct of the hearing but may delegate any or
all of them to the ALJ. Upon submission of the case,
the City shall adopt its decision.
10. When the ALJ alone hears the case, he/she shall
exercise all powers relating to the conduct of the
hearing. Under Government Code § 11517(c) if an ALJ
alone hears the case, he/she shall prepare within 30
days after the case is submitted to him/her a proposed
decision in a form that may be adopted by the City as
the final decision in the case.
11. Thirty days after the receipt by the City of the
proposed decision, a copy of the proposed decision
shall be filed by the City as a public record and a
copy shall be served by the City on the local safety
member and his/her attorney. Pursuant to Government
Code § 11517(c)(2), within 100 days of receipt by the
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City of the ALJ's proposed decision, the City may act
as prescribed in Steps 12 through 16 below. The
proposed decision shall be deemed adopted by the City
if the City fails to act as prescribed in Steps 12
through 16.
12. The City may adopt the decision in its entirety.
13. The City may reduce or otherwise mitigate the proposed
penalty and adopt the balance of the proposed
decision.
14. The City may make technical or other minor changes in
the proposed decision and adopt it as the decision.
Action by the City under this paragraph is limited to
a clarifying change or a change of a similar nature
that does not affect the factual or legal basis of the
proposed decision.
15. The City may reject the proposed decision and refer
the case to the same ALJ if reasonably available,
otherwise to another ALJ, to take additional evidence.
16. The City may reject the proposed decision, and decide
the case upon the record, including the transcript, or
upon an agreed statement of the parties, with or
without taking additional evidence. By stipulation of
the parties, the City may decide the case upon the
record without including the transcript.
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17. The City shall send the public safety employee a copy
of the decision. The employee may petition for
reconsideration within 30 days of receipt of the
decision pursuant to Government Code § 11521(a). If
reconsideration is denied, the employee may seek
judicial review pursuant to Government Code § 11523.
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SUPPORTING
DOCUMENTS
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
City Council
City of Vernon
Honorable Members:
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
November 14, 2002
a
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
Staff recently completed a review of Resolution No. 6161, approving
and adopting a procedure making Disability Determinations for Local
Safety Members and a Procedure for Appeals of Such Determinations, and
submitted said resolution to the City Attorney's office for
amendments/corrections as necessary. This has been reviewed by the
City Attorney's office and it is hereby recommended that Resolution
No. 6161 be amended to incorporate necessary changes due to
amendments/changes in current laws.
Very truly yours,
Bruce V. Malkenhorst
City Administrator/City Clerk
BVM/gm
Orosco Gloria
To: eddie
Cc: Lehr, Judy
Subject: Resolution on Procedures for Determining
���„�arr► Disabilityof Local Safety Members
Eddie: Resolution No. 6161 (adopted 9/22/92) adopted a procedure to be utilized by the city clerk's office in the
determination of a disability retirement for local safety measures. would you please review that procedure to ensure that
the referenced GC's still apply & that it is, in its entirety, thorough & accurate.
I appreciate your expeditious review & response.
thank you.
Gloria Jean
Chief Deputy City Clerk
I
Molleda, Gloria '
From: Orosco, Gloria
Sent: Thursday, November 14, 2002 12:43 PM
To: Molleda, Gloria
Cc Giron, Nelly
Subject: disability procedures
please prepare & add the following communication from BVM to the agenda:
Staff recently completedd a review of Resolution 6161, "...Approving & Adopting A Procedure for Making Disability
Determinations for Local Safety Members & a Procedure for Appeals of Such Detemiations," and submitted said resolution
to the city attorney's office for amendments/corrections as necessary. This review has been completed by the City
Attorney's office and it is hereby recommended that Resolution 6161 be amended to incorporate necessary changes due
to amendments/changes in current laws.
thank you.
Gloria Jean
Chief Deputy City Clerk
4,.rWY
AD NISTRATOR/CITY CLERK'S OFFIC
INTER -DEPARTMENT MEMORANDUM �
DATE: November 14, 2002
TO: Bruce V. Malkenhorst, City Administrator/City Clerk
FROM: Gloria J. Oros &,hief Deputy City Clerk
RE: Procedures on Making Disability Determinations and Appeals
Of Same for Local Safety Members
Dear Mr. Malkenhorst:
As I previously mentioned to you I had asked the City Attorney to
review Resolution 6161 pertaining to disability determination
procedures & appeals for Local Safety Members. That resolution was
originally adopted in 1992 & I was concerned about any laws that
have changed which may affect our current policy. This resolution
deals solely with how the safety member applies for such disability
& the procedures the City Clerk must follow in making his
recommendation to the council & advising the applicant of the
appeals process that is available to him.
The city attorney has completed his review and made necessary
changes. I have reviewed the draft & nothing has substantially
changed. At this time I am requesting this be placed on the
November 20, 2002 City Council agenda for their approval.
Thank you.
CITY ADMINISTRATOR/CITY CLERK'S
INTER -OFFICE MEMORANDUM
DATE: December 4, 2002
TO: Cindy Calzada, Secretary
FROM: Nelly Giron
Assistant to the Chief Deputy City Clerk
RE: Resolution Nos. 8102, 8103, and 8105
Per your request, transmitted herewith is a copy of the above
mentioned.
:gm
CC: Resolution No. 8102
Resolution No. 8103