HomeMy WebLinkAbout6/29/2005 - STAFF REPORTS (20) V N
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C'94 FORN,P City Council Staff Report
DATE: June 29, 2005 CONSENT
SUBJECT: Resolution Amending Personnel Rule 16.2 to Comply with HUD
Regulations regarding Reasonable Accommodation
FROM: David H. Ready, City Manager
BY: Human Resources
SUMMARY
The City of Palm Springs "City" receives Federal funds through the U.S. Department of
Housing and Urban Development "HUD" for which we administer CDBG program funds.
In order to remain eligible for these funds, the City must comply with HUD requirements
by amending Personnel Rule 16.2 to include reasonable accommodation as a grievance
issue for City employees.
RECOMMENDATION:
Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM AMENDING PERSONNEL RULE 16.2 FOR EMPLOYEES IN THE CITY SERVICE TO
COMPLY WITH FEDERAL AND STATE REGULATIONS REGARDING REASONABLE
ACCOMMODATION'
STAFF ANALYSIS:
The City receives federal funds through HUD for which we administer CDBG funds.
The City was subject to a HUD compliance review last September, and one of the
findings was that we did not provide a grievance procedure for reasonable
accommodation for qualified individuals with a disability in accordance with HUD
regulations. We are currently operating under a 6 month HUD Voluntary Compliance
Agreement. Under the terms of the Agreement, we need to have this grievance
procedure in effect by September 2005.
The City gave notice to each affected employee organization and provided them the
opportunity to meet and confer in good faith to negotiate the proposed change in
Personnel Rule 16.2 to comply with federal and state regulations regarding reasonable
accommodation to qualified individuals with a disability in accordance with the
Item No. 2 . L.
City Council Staff Report
June 29, 2005 -- Page 2
Resolution Amending Personnel Rule 16.2
guidelines set forth in both the ADA and FEHA. None of the Units have issue with this
change.
In order for the City to continue to receive federal funding through HUD, this Personnel
Rule change is mandatory. A Resolution for Council's consideration is attached.
FISCAL IMPACT:
N , ✓ P /
Susan E. Mills, Director of Hu sours David H. Ready, City qanagfr
Attachments:
1. US Department of Housing and Urban development Voluntary Compliance
Agreement
2. Proposed Rule 16.2
3. Resolution
Rule 16 - Grievance Procedure
16.1 Policy
It is the policy of the City of Palm Springs that all employee grievances be
resolved promptly. The purpose of the grievance procedure is to provide a
uniform and equitable procedure for the handling and resolution of employee
grievances. All employees shall be assured freedom from discrimination,
coercion, restraint, or reprisal on account of presenting grievances under this
Rule.
16.2 Definition of a Grievance
A grievance is a complaint by an employee or group of employees concerning
the interpretation or application of policies and procedures governing personnel
practices or work rules, health, or safety of working conditions, alleged improper
treatment, alleged violations of the City's non-discrimination policies particularly
with respect to reasonable accommodation, disciplinary actions which are not
subject to the appeal process, and personnel decisions which are not subject to
Rule 4.3.3 or 7.7 and are not excluded from the grievance procedure elsewhere
in these rules. Complaints involving sexual harassment shall be handled by a
separate procedure. Release or lay-off of employees during an initial
probationary period after hire, reinstatement, or reemployment is not subject to
the grievance procedure.
16.3 Responsibilities in Handling Grievances
16.3.1 Employee
The employee has the responsibility to discuss the grievance with the
immediate supervisor or appropriate official at a time mutually satisfactory
to both parties. Discussion of the grievance shall take place before
initiating a written grievance.
16.3.2 Supervisor/Division Head
16.3.2.1 For Police and Fire Safety Unit employees, the Supervisor
is responsible for attempting to resolve grievances within the supervisor's
level of responsibility. (16549, 8-9-88)
16.3.2.2 For all other employees, the Division Head is responsible
for attempting to resolve grievances within the Division Head's level of
responsibility. (16549, 8-9-88)
16.3.3 Department Head
The department head has the responsibility for attempting to resolve
grievances within the department or working with other department heads
if the grievance crosses departmental lines; for informing the employee if
the complaint is not a recognizable grievance within the scope of this
grievance procedure and notify the Personnel Officer of such action; for
informing the employee of any limitations of the department head's
authority to fully resolve the grievance; for supplying answers to any
questions concerning the processing of a grievance.
16.3.4 Personnel Officer
The Personnel Officer is responsible for answering any question
concerning the grievance procedure and monitoring the administration of
the grievance procedure.
16.4 Employee Rights and Restrictions
16.4.1 Right to Representation
The grievant has the right to a representative throughout this grievance
procedure. A City employee selected as a representative in a grievance
shall give the employee's supervisor reasonable advance notice and shall
obtain the permission of the immediate supervisor to be absent from
assigned duties to attend a grievance meeting. Such permission shall not
be unreasonably withheld.
16.4.2 Right to Investigate
A grievant and a grievant's representative wishing to enter a work area for
the purpose of investigating a formal grievance must first obtain the
permission of the work area supervisor. The grievant and grievant's
representative shall conduct their investigation on non-working time
unless they have prior approval from their department heads. Permission
in either case shall not be unreasonably withheld, giving consideration to
work of the department and occupational safety.
16.4.3 Right to Use City Time
Employees shall be given a reasonable amount of City time to present
their grievance and shall not lose their rights because of management
imposed limitations in scheduling meetings.
16.5 Time Limits and Waivers
16.5.1 Working Days
For purposes of Rules 14, 15, and 16, "working days" are defined as the
period from 8 a.m. to 5 p.m. excluding weekends and holidays.
16.5.2 Initiation
An employee must initiate the grievance within fifteen (15) working days
of the occurrence of the event giving rise to the grievance or within fifteen
(15) working days after the grievant should, with reasonable diligence,
have had knowledge of such occurrence, whichever is later.
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16.5.3 Management Reply
Failure by management to reply to the employee's grievance within the
time limits specified under the grievance procedure (Rule 16.6) shall
automatically grant the employee the right to process the grievance to the
next level of review. For Police and Fire Safety Unit employees, the
Personnel Officer shall be notified by the next level of supervision and
shall review any failure by management to respond to a grievance. For all
other employees, the Personnel Officer shall be notified and shall review
any failure by management to respond to a grievance. (16549, 8-9-88)
16.5.4 Failure to Appeal to Next Level
If an employee fails to appeal from one level to the next level within the
time limits and in the manner provided under the grievance procedure,
the grievance shall not be subject to further appeal or consideration.
16.5.5 Waiver by Mutual Agreement
Any level of review or any time limits established in the procedure may be
waived or extended by mutual agreement between the employee and
management, which must be confirmed in writing.
16.6 Grievance Procedure
16.6.1 Step One: Informal Grievance Discussion
16.6.1.1 For Police and Fire Safety Unit employees, the grievant
shall submit the grievance to the attention of the grievant's immediate
supervisor within the time period established in Section 16.5.2. A meeting
shall be held between the grievant, the grievant's representative, if
applicable, and the immediate supervisor within three (3) working days
after such submission, to attempt to resolve the grievance, and the
immediate supervisor shall answer orally then or within three (3) working
days of such meeting. (16549, 8-9-88)
16.6.1.2 For all other employees, the grievant shall submit the
grievance to the attention of the grievant's division head within the time
period established in Section 16.5.2. A meeting shall be held between the
grievant, the grievant's representative, if applicable, and the division head
within three (3) working days after such submission to attempt to resolve
the grievance. The division head shall answer orally then or in writing
within three (3) working days of such meeting. Non-safety employees in
the Police Department shall follow the department chain of command in
using the grievance procedure. (16549, 17270, 9-19-90)
16.6.2 Step Two: Written Grievance
For Police and Fire Safety Unit employees, the written grievance must be
submitted by the grievant, if not resolved in Step One, to the supervisor of
the grievant's immediate supervisor, with a copy to the Personnel Office,
within seven (7) working days of the informal grievance meeting provided
for in Step One. For all other employees, if not resolved in Step One, a
written grievance must be submitted by the grievant to the department
head, with a copy to the Personnel Office, within seven (7) working days
of the informal grievance meeting provided for in Step One. The form
must be completed as follows: (16549, 8-9-88)
(1) Written statement of the facts on which the grievance is based,
the problem those facts represent, and, if applicable, the Palm
Springs Personnel Rule which interpretation or application is in
question;
(2) If the employee wishes to have a grievance representative as
provided by these Rules, the employee should name the
representative;
(3) Statement of remedy sought;
(4) Signature of the employee or employees.
16.6.3 Response to Written Grievance in Step Two
16.6.3.1 For Police and Fire Safety Unit employees, the supervisor
who is designated by these Rules to receive the Step Two written
grievance shall investigate the grievance as deemed appropriate by that
supervisor and respond to that grievance within seven (7) working days of
its receipt. A copy of the written grievance answer shall be provided to the
grievant and the grievant shall be requested to initial it only as
acknowledgement of receipt and a copy thereof shall be forwarded to the
department head and the Personnel Officer. If the supervisor designated
by these Rules to receive the Step Two written grievance determines that
the supervisor does not have the,authority to resolve it, that supervisor
shall so inform the grievant and shall forward the written grievance to the
next higher level of supervision with authority to resolve it in Step Two.
(16549, 8-9-88)
16.6.3.2 For all other employees, the department head who
receives the Step Two written grievance shall investigate the grievance
as deemed appropriate.
If the grievance is outside the department head's authority, the
department head shall indicate this in writing, provide a copy to the
grievant and the grievant shall be requested to initial it only as
acknowledgement of receipt and a copy thereof shall be provided to the
Personnel Officer.
If the grievance is within the department head's authority, the department
head shall hold a meeting with the grievant and the grievant's
representative, if applicable, within seven (7) working days following
receipt of the written grievance. The department head shall respond in
writing to the grievance within seven (7) working days of the meeting. A
copy of the written grievance answer shall be provided to the grievant and
the grievant shall be requested to initial it only as acknowledgement of
receipt and a copy thereof shall be forwarded to the Personnel Officer.
(16549, 8-9-88)
16.6.4 Step Three: Submission of Written Grievance to Department
Head/Personnel Officer
16.6.4.1 For Police and Fire Safety Unit employees, if the grievance
is not resolved in Step Two, the grievant may submit the written grievance
to the department head within ten (10) working days after it was
submitted in writing in Step Two.(16549, 8-9-88)
16.6.4.2 For all other employees, if the grievance has not been
resolved in Step Two, the grievant may submit it to the Personnel Officer
within fourteen (14) working days after receipt of the response in Step
Two. (16549, 8-9-88)
16.6.5 Department Head's Investigation in Step Three for Police and Fire-Safety
Unit Employees
The department head shall investigate the grievance as deemed
appropriate by the department head and within ten (10) working days of
its receipt, do one of the following:
(1) Provide a written grievance answer to the grievant and the
grievant shall be requested to initial it only as acknowledgement of
receipt and a copy thereof shall be forwarded to the Personnel
Officer;
(2) If the grievance is outside the department head's authority, the
department head shall indicate this in writing, provide a copy to
the grievant and the grievant shall be requested to initial it as
acknowledgement of receipt and a copy thereof shall be provided
to the Personnel Officer.
16.6.6 Step Four: Submission to the City Manager for Police and Fire Safety Unit
Employees
If the grievance has not been resolved in Step Three, the grievant may
submit it to the Personnel Officer within fourteen (14) working days after it
was submitted in Step Three. The Personnel Officer shall deliver the
grievance within two (2) working days to the City Manager. (16549, 8-9-
88)
16.6.7 City Manager's Decision in Step Four for Police and Fire Safety Unit
Employees
When the grievance has been forwarded to the City Manager for a
decision, the City Manager may appoint a delegate (hereinafter call
"delegate") who shall not be a party to any portion of the grievance and
who shall have the same authority to render a decision on the grievance
as does the City Manager. The City Manager(or delegate) shall either(1)
render a written decision within ten (10) working days of the receipt of the
grievance in the City Manager's office; or (2) refer the grievance to an
informal hearing. If an informal hearing is held, it may be held before the
City Manager (or delegate), in which case a written decision must be
rendered within five (5) working days of the conclusion of the hearing.
The City Manager also has the discretion to refer the grievance to an
advisory board made up of City employees, City officials, or other persons
deemed appropriate by the City Manager; except that no board member
shall have a direct interest in the outcome of the grievance. The purpose
of such an advisory board is to investigate and report facts and make
recommendations to the City Manager (or delegate). The advisory board
must send its recommendations to the City Manager (or delegate) within
five (5) working days of the conclusion of the hearing and the City
Manager (or delegate) must render a written decision within five (5)
working days of receiving the recommendations of the advisory board.
Any decision of the City Manager (or delegate) shall be delivered to the
employee with a copy to the Personnel Office and department head. The
decision of the City Manager (or delegate) shall be final and binding.
(16549, 8-9-88)
Effective August 1, 1992, a Police Safety Unit Employee grieving a Letter
of Reprimand shall, before the City Manager issues a final determination,
have a grievance on a Letter of Reprimand heard before a hearing officer
or a committee, as provided for above, unless the officer waives his or her
right to said hearing. (18257, 12-15-93)
16.6.8 Personnel Officer's Response to Written Grievance for All Other
Employees
When the grievance has been forwarded to the Personnel Officer for a
decision, the Personnel Officer may appoint a delegate (hereinafter called
"delegate") who shall not be a party to any portion of the grievance and
who shall have the same authority to render a decision on the grievance
as the Personnel Officer.
The Personnel Officer (or delegate) shall hold an informal hearing with
the grievant, the grievant's representative, the department head and any
relevant witnesses for either side within ten (10) working days of receipt
of the grievance. The Personnel Officer (or delegate) shall render a
written decision within five (5) working days of the informal hearing.
Copies of that written decision shall be sent to the grievant, the grievant's
representative, the department head, and the Personnel Office.
The Personnel Officer also has the discretion to refer the grievance to an
advisory board of no more than five (5) members and made up of City
employees, City officials, or other persons deemed appropriate by the
Personnel Officer, except that no member shall have a direct interest in
the outcome of the grievance. The grievant or grievant's representative
shall submit a list of acceptable advisory board members to the Personnel
Officer within three (3) working days of the Personnel Officer's decision to
use an advisory board. Such list shall be used to fill no less than two-fifths
(215) of the advisory board positions. The purpose of such an advisory
board position is to hold a hearing to investigate and report facts and
make recommendations to the Personnel Officer (or delegate). The
advisory board must send its recommendation to the Personnel Officer
(or delegate) within five (5) working days of the conclusion .of the hearing
and the Personnel Officer must render a written decision within five (5)
working days of receiving the recommendations of the advisory board.
Any written decisions by the Personnel Officer regarding a grievance shall
be delivered to the grievant, the grievant's representative, the department
head, and the Personnel Office. The decision of the Personnel Officer (or
delegate) shall be final and binding. (16549, 8-9-88)
16.7 Administrative Appeal Under California Government Code 3304(b)
A grievance under Rule 16 or an appeal under Rule 15, whichever applies
pursuant to these Rules, shall constitute an administrative appeal for a person in
the City Service entitled to administrative appeal pursuant to California
Government Code 3304(b); provided further that not withstanding any provisions
in these rules to the contrary, the Police Chief may bring an appeal pursuant to
Rule 15 and a probationary police officer may bring a grievance pursuant to Rule
16 for purposes of an administrative appeal to which that person is entitled under
California Government Code 3304(b).
AGREEMENT FOR
VOLUNTARY COMPLIANCE
WITH
SECTION 504 OF THE REHABILITATION ACT OF 1973
AS AMENDED
BETWEEN THE
U.S.DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
AND THE
CITY OF PALM SPRINGS
3200 EAST TAQUITZ CANYON WAY
PALM SPRINGS, CA. 92262
CASE NUMBERS:
09-03-R-0003.4 (Title VI)
09-02-R-0002-6 (Section 504)
09-02-R-0002-9 (Section 109)
I. INTRODUCTION
The United States Department of Housing and Urban
(hereinafter, the Department or HUD) pursuant to its law
enforcement responsibilities under Section 504 of the
Rehabilitation Act of 1973 (29 USC 794) conducted a
compliance review of the Federally assisted programs
administered by the City of Palm Springs (hereinafter the
Recipient).
Based upon the information collected during the review, the
Department made a preliminary finding that the Recipient's
written Grievance Procedures as outlined in the Recipient's
Personnel Rules did not contain language for the provision of
reasonable accommodation. The Department finds that this
represents a violation of Section 504 of the Rehabilitation Act
of 1973 and HUD's implementing regulation 24 CFR Part 8.53
(b)•
The Recipient has recognized and acknowledges the above
finding and the parties have agreed that it is in their respective
interests to settle this matter voluntarily through the
development of a Voluntary Compliance Agreement
hereinafter the Agreement), so that energies may be directed to
the administration and improvement of the Recipient's
assistance programs in a manner that complies with applicable
law, rather than engage in prolonged disputes or litigation.
Notwithstanding any other terms, provisions or language
contained in this Agreement, the Exhibits or the cover letter,
nothing contained herein shall be construed to be a final finding
or determination by HUD that the Recipient or any of its agents
or employees have intentionally or unintentionally engaged in
practices having the effect of illegally discriminating on the
basis of disability.
The parties hereby agree that nothing contained in this
document, exhibits, or cover letter shall be construed as an
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admission of liability, or an admission of having acted in
violation with respect to the Department's preliminary finding,
by the Recipient, or any of it agents or employees.
The parties also agree that nothing in this Agreement is
intended to confer on any non-signatory third party a right to
sue for an alleged breach of this Agreement, and the parties
hereto expressly intended to preclude the inference of any third
party beneficiary rights hereunder; provided, however, that
nothing in this Agreement is intended to diminish or alter any
legal remedy with respect to the Recipient that would otherwise
be available to persons by law.
The Department and the Recipient having agreed to settle and
resolve voluntarily the Department's preliminary finding
without the necessity of formal evidentiary hearings or other
judicial processes, hereby agree and consent to the terms of this
Agreement
II. GENERAL PROVISIONS
A. With respect to any accommodations, facilities, services,
financial aid, or other benefits, the Recipient, its officers,
trustees, directors, agents, employees, successors, and all
persons in active concert or participation with any of them,
agree to refrain from any acts that have the purpose or the
effect of subjecting qualified disabled persons to discrimination
solely on the basis of disability, including the provisions set
forth under the Introduction Section of this Agreement on
pages 2-3.
B. This agreement applies to all federally funded prograrns and
related facilities that the Recipient, its agents, successors, and
or beneficiaries own, control, operate or sponsor.
C. The Department may conduct an on-site review of the
Recipient's compliance with the provisions of its Agreement,
and the Recipient will grant the Department's employees
access to its premises, records, and personnel with reasonable
3
notice during normal business hours, during the pendancy of
this Agreement.
D. The effective date of this Agreement is the date of the last
signature on the signature page. This Agreement shall remain
in effect for a three year period following the date of execution,
unless the Department determines that the Agreement must be
revised or extended based on its review of the Recipient's
performance under the Agreement and notifies the Recipient to
this effect prior to the expiration date.
E. This Agreement does not increase or diminish the ability of any
person or class of persons to exercise their rights under Section
504, Title VI, the Fair Housing Act, or any other federal, state,
or local civil rights statute or authority. This Agreement does
not create any private right of action for any person or class of
persons not a party to this Agreement.
F. This Agreement does not affect the ability of the Department to
take action under appropriate statutory or regulatory
authorities.
G. This Agreement is a public document. A copy of this
Agreement and all reporting data the Recipient generates to
comply with this Agreement shall be made available to any
person in accordance with the law. The Recipient shall provide
a copy of this Agreement to any person upon request.
III. SPECIFIC PROVISIONS
A. Within 180 days of the effective date of this agreement, the
Recipient will provide to The Department, a Memorandum of
Understanding that for all practical purposes is an Addendum
to the Crrievance Procedures (Rule 16 of the Recipient's
Personnel Rules). Said Memorandum of Understanding will be
approved by the City Council.
IV. WAIVERS, MODIFICATIONS AND AMENDMENTS TO
THE AGREEMENT
4
A. No provision hereof may be waived unless in writing signed by
all parties hereto. Waiver of any one provision herein shall not
be deemed to be a waiver of any other provision herein. This
Agreement may be modified or amended only by written
agreement executed by all of the parties hereto.
B. This Agreement contains the sole and entire agreement and
Understanding of the parties with respect to the entire subject
matter hereto, and any and all prior discussions, negotiations,
commitments or understandings related hereto, if any, are
hereby merged herein. No representations, oral or otherwise,
have been made by any party hereto. No other agreements not
specifically contained herein, oral or otherwise, shall be
deemed to exist or to'bind any of the parties hereto.
V. FAILURE OR REFUSAL TO CARRY OUT THE TERMS OF
THE AGREEMENT
A. The Recipient agrees that:
1. It has entered into this Agreement in consideration of
and for the purpose of obtaining and continuing to
receive Federal financial assistance extended by the
Department;
2. Such Federal financial assistance is extended in reliance
on the representations made in this Agreement;
3. A failure or refusal to carry out the terms of this
Agreement shall constitute noncompliance with 24 CFR
8.57 (a) and (b).
5
This Agreement for Voluntary Compliance with Section 504 of the
Rehabilitation Act of 1973 is entered into by the U.S. Department of
Housing and Urban Development, Office of Fair Housing and Equal
Opportunity, and the City of Palm Springs.
Date ��-�
City Manager, City of Palm Spr' s
Attes _ Date. b3/6 q j as
City e c, City of Palm Spring§ /
BY ` A) Date
Regional Director
Office of Fair Housing and EqralOpportunity (FHEO)
Region 9
ON
APPROV S TO FORM:
By:
Title: ""/
RESOLUTION NO,
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS AMENDING PERSONNEL
RULE 16.2 FOR EMPLOYEES IN THE CITY
SERVICE TO COMPLY WITH FEDERAL AND
STATE REGULATIONS REGARDING
REASONABLE ACCOMMODATION
WHEREAS, the City Council by Ordinance 1211, on January 18, 1984, adopted
Chapter 2.40 to the Palm Springs Municipal Code, regulating the personnel
system within the City; and
WHEREAS, the City Council desires to amend personnel rule 16.2 for employees
in the City Service; and
WHEREAS, the Municipal Employees Relations Representative and the Service
Employees International Union Local 700, Management Association of Palm
Springs, Palm Springs Fire Safety Association, Palm Springs Fire Management
Association, Palm Springs Police Officers Association, and the Palm Springs
Police Management Association have met and conferred in good faith on matters
within the scope of representation; and
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY
RESOLVE AS FOLLOWS:
SECTION 1. That Personnel Rule 16.2 be amended to comply with federal and
state regulations regarding reasonable accommodation.
ADOPTED THIS 6th day of July, 2005.
David H. Ready, City Manager
ATTEST:
James Thompson, City Clerk
-on16
Resolution No.
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No. _ is a full, true and correct copy, and was duly adopted at a
regular meeting of the City Council of the City of Palm Springs on
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
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