Cupertino Municipal Code Ch. 2.52 Personnel Code

The purpose of this chapter is to establish for the City a system of personnel administration creating equitable and uniform procedures applicable to all employees, supervisors, officers and citizens of the City and to assure the recruitment and retention of the most competent persons available.

(Ord. XII, Ch. 1, Art. 1 § 12:1.11, 1970)

The system of personnel administration referred to in Section 2.52.010 and as hereinafter more specifically described and cited as the Personnel Code is adopted.

(Ord. XII, Ch. 1, Art. 1 § 12:1.12, 1970).

The City Council declares its intent that this Personnel Code shall be the enabling act under which administrative rules and regulations may be formulated, adopted, amended, enforced and repealed with the same force and effectiveness as if said administrative rules and regulations were set forth herein; the reason being that the quality of personnel administration is dependent upon employer-employee flexibility to meet all aspects of the evolutionary processes inherent in interpersonal relationships.

(Ord. XII, Ch. 1, Art. 1 § 12:1.13, 1970)

There are created four jurisdictions, as defined in this section, to which all officers and employees of the City shall be subject, except as otherwise excluded under Section 2.52.050 or as exempted under Section 2.52.060; Jurisdiction A: classification and pay; Jurisdiction B: merit and fitness; Jurisdiction C: conditions of employment; and Jurisdiction D: employer-employee relations.

(Ord. XII, Ch. V, Art. 2 § 12:1.21, 1970)

The following offices, positions and employees are excluded from jurisdictions A, B, C and D:

A. All elected officers;

B. City Manager;

C. City Attorney;

D. Chairmen and members of appointed boards, commissions and committees;

E. Persons engaged under contract to supply expert, professional, technical or other services.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 1, Art. 2 § 12:1.22, 1970)

The following offices, positions and employees are exempt from Jurisdiction B:

A. Department directors, designated as such by resolution of the City Council;

B. Employees serving under appointments of provisional, exempt, temporary or emergency status;

C. The Secretary to the City Manager;

D. The Secretary to the City Attorney.

(Ord. 1697, (part), 1995; Ord. 701, § 1, 1975; Ord. XII, Ch. 1, Art. 2 § 12:1.23, 1970)

All provisions and conditions of ordinances or resolutions of the City Council relating to the employment of persons by the City are negated and superseded by this chapter and the rules and regulations derived therefrom.

(Ord. XII, Ch. 1, Art. 3 § 12:1.31, 1970)

Nothing contained in this chapter shall be construed so as to deprive any employee of those benefit accruals and credits earned by or granted to him prior to the effective date of the ordinance codified herein.

(Ord. XII, Ch. 1, Art. 3 § 12:1.32, 1970)

The City Council specifically retains all power and obligations vested in it by law but for purposes of this personnel code has the following specific duties and responsibilities:

A. To approve the resolutions, rules and regulations and any amendments thereto by which the Personnel Code is administered;

B. To receive and take appropriate action on recommendations submitted to it by the City Manager or other interested persons or groups;

C. To conduct on its own initiative any investigation of the Personnel Code.

(Ord. 601, §§ 2.1, 2.2, 1973; Ord. XII, Ch. 2, Art. 1 § 12:2.11, 1970)

The City Manager shall be the appointing authority and Chief Administrative Officer of the Personnel Code and as such shall have the following duties and responsibilities:

A. To appoint persons to and remove persons from positions subject to the provisions of this chapter;

B. To appoint or employ such technical and professional assistants as may be necessary to assist him in the proper discharge of his duties in administering this chapter;

C. To prepare and submit to the City Council such proposed resolutions, rules and regulations to effect a pay plan, a classification plan, rules governing conditions of employment and, at any time subsequent thereto, such amendments as in his opinion are necessary or desirable for the orderly administration of this Personnel Code;

D. To prepare and adopt such administrative regulations as he may deem desirable to supplement, but not to exceed or supplant the provisions of the immediately preceding subsection C;

E. To promote harmonious employer-employee relations as being in the best interest of the City and to administer appropriate disciplinary action when he deems such action to be necessary;

F. To prepare and provide to the City Council such reports on personnel matters as may be requested by the Council or as he may otherwise wish to do on his own volition.

(Ord. 1697, (part), 1995; Ord. 601, § 2.3, 1973; Ord. XII, Ch. 2, Art. 1 § 12:2.12, 1970)

The regulatory and permissive provisions by which this Personnel Code will be governed shall be by resolutions of the City Council and duly adopted administrative rules and regulations.

(Ord. XII, Ch. 2, Art. 2 § 12:2.21, 1970)

Resolutions of the City Council and administrative rules and regulations formulated under this Personnel Code shall be filed with the City Clerk after having been duly adopted and on the filing shall become effective the same as if having been incorporated herein.

(Ord. XII, Ch. 2, Art. 2 § 12:2.22, 1970)

There shall be a classification plan covering all positions subject to Jurisdiction A to provide for the establishment of groups of positions substantially similar with respect to duties, responsibilities and working conditions so that the same schedules of compensation may be applied with equity to all positions in the same class.

(Ord. XII, Ch. 3, Art. 1 § 12:3.11, 1970)

The classification plan shall be adopted in its effective form as a resolution of the City Council.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 3, Art. 1 § 12:3.12, 1970)

The classification plan shall include a job description for each position; class titles and specifications; and an allocation listing of positions to classifications.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 3, Art. 1 § 12:3.13, 1970)

There shall be a pay plan governing the rates and methods of compensation for all employees subject to Jurisdiction A so as to provide for equitable salary ranges or schedules of pay and the amounts so paid to employees as a result thereof.

(Ord. XII, Ch. 3 Art. 2 § 12.3.21, 1970)

There shall be included in the rules, provisions and conditions for the appointment, employment and retention of those employees who are subject to Jurisdiction B to be on a basis of merit and fitness.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 4, Art. 2 § 12:4.11, 1970)

The rules referred to in Section 2.52.220, shall provide the basis of a merit system by which the personnel program will be administered; provided, however, that the term “merit system” shall not be construed as being limited in connotation to that commonly associated with civil service. Adoption shall be by resolution of the City Council.

(Ord. XII, Ch. 4, Art. 1 § 12:4.12, 1970)

The rules shall include provision for the establishment of lists of eligible applicants by one or more examination processes that in the opinion of the appointing authority best determines the qualifications of applicants in correlation with the needs of the City; for the selection of persons from said lists; for discharge of employees; and for such other provisions deemed necessary or desirable to administer fairly the personnel program on a merit basis as hereinafter defined.

(Ord. 1697, (part), 1995: Ord. XII, Ch. 4, Art. 1 § 12:4.13, 1970)

There shall be rules covering all positions subject to Jurisdiction C to provide the basis of common understanding between supervisors and employees as to terms and conditions of employment.

(Ord. XII, Ch. 5, Art. 1 § 12:5.11, 1970)

The rules shall be adopted by resolution of the City Council.

(Ord. 1697, (part), 1995: Ord. XII, Ch. 5, Art. 1 § 12:5.12, 1970)

The rules shall include the following subject matter for which provisions and conditions shall be set forth and may include such other topics, provisions and conditions not in conflict with this Personnel Code as may be necessary or desirable to carry out the purpose and intent of this chapter:

A. Recruitment and retention:

1. (Repealed),

2. Examinations to test fairly the fitness of applicants, or such other methods as can best serve the purpose of determining excellence, qualification or fitness,

3. Eligible lists of names of successful applicants from which merit appointments will be made,

4. Selection of employees for appointment which process may include, among others, one from the three highest ranking eligibles available, one from among those in the highest category when eligible lists are so constructed or from successful applicants on a pass-fail basis,

5. Certified status for all employees successfully completing their probationary period when appointed under the conditions of Jurisdiction B,

6. Probationary status for all employees appointed from eligibility lists or as a result of having successfully completed an examination, the duration of which is to be predetermined for each class,

7. Provisional status for employees appointed to positions subject to Jurisdiction B and for which no eligible lists exist, such appointments to be terminated no later than one hundred eighty days,

8. Temporary status for all employees appointed to seasonal, part-time or other nonpermanent work,

9. Exempt status for all employees occupying positions not subject to Jurisdiction B;

B. Disciplinary actions and appeals: Consistent with the provisions of law, the rules shall include procedures concerning disciplinary actions and appeals.

C. Terms and conditions of employment: Terms and conditions of employment including but not limited to absence, group insurance, and performance evaluation, are set forth in memoranda of understanding or resolution adopted by the City Council.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 5, Art. 1 § 12:5.13, 1970)

The purpose of this chapter is to implement Chapter 10, Division 4, Title 1 of the Government Code of the state of California (Sections 3500 et seq.) captioned “Public Employee Organizations,” by providing orderly procedures for the administration of employer-employee relations between the City and its employee organizations and for resolving disputes regarding wages, hours, and other terms and conditions of employment.

(Ord. XII, Ch. 6, Art. 1 § 12:6.11, 1970)

As used in this chapter the following terms shall have the meanings indicated:

A. “Appropriate unit” means a unit established pursuant to Section 2.52.470 of this chapter;

B. “City” means the City of Cupertino, a municipal corporation, and where appropriate herein, “City” refers to the City Council, the governing body of the City, or any duly authorized management employee as herein defined;

C. “Consult or consultation in good faith” means to communicate verbally or in writing for the purpose of presenting and obtaining views or advising of intended actions;

D. “Employee” means any person regularly employed by the City except those persons elected by popular vote;

E. “Employee, confidential” means an employee who is privy to decisions of City management affecting employer-employee relations;

F. “Employee, management” means:

1. Any employee having significant responsibilities for formulating and administering City policies and programs, including but not limited to the chief executive officer and department heads, and

2. Any employee having authority to exercise independent judgment to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or having the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;

G. “Employee, professional” means employees engaged in work requiring specialized knowledge and skills attained through completion of a recognized course of instruction, including, but not limited to, attorneys, physicians, registered nurses, engineers, architects, teachers, and various types of physical, chemical, and biological scientists;

H. “Employee organization” means any organization which includes employees of the City and which has as one of its primary purposes representing such employees in their employment relations with the City;

I. “Employer-employee relations” means the relationship between the City and its employees and their employee organization, or when used in a general sense, the relationship between City management and employees or employee organizations;

J. “Grievance” means as this term is defined in Section 2.52.420;

K. “Impasse” means:

1. A deadlock in the annual (or periodic) discussions between a majority representative and the City over any matters concerning which they are required to meet and confer in good faith, or over the scope of such subject matter, or

2. Any unresolved complaint by an affected employee organization, advanced in good faith, concerning a decision of the municipal employee relations officer made pursuant to Sections 2.52.450 through 2.52.480 of this chapter;

L. “Exclusive representative” means an employee organization, or its duly authorized representative, that has been granted formal recognition by the municipal employee relations officer following a secret ballot election as representing the employees in an appropriate unit;

M. “Mediation or conciliation” means the efforts of an impartial third person, or persons, functioning as intermediaries, to assist the parties in reaching a voluntary resolution to an impasse, through interpretation, suggestion and advice. Mediation and conciliation are interchangeable terms;

N. “Meet and confer in good faith” (sometimes referred to herein as “meet and confer” or “meeting and conferring”) means performance by duly authorized City representatives and duly authorized representatives of an employee organization recognized as the exclusive representative of their mutual obligation to meet at reasonable times and to confer in good faith regarding matters within the scope of representation, including wages, hours, and other terms and conditions of employment, in an effort to:

1. Reach agreement on those matters within the authority of such representatives, and

2. Reach agreement on what will be recommended to the City Council on those matters within the decision-making authority of the City Council. This does not require either party to agree to a proposal or to make a concession;

O. “Municipal Employee Relations Officer” means the City’s principal representative in all matters of employer-employee relations designated pursuant to Section 2.52.320, or his duly authorized representative;

P. “Ordinance” means, unless the context indicates otherwise, the employer-employee relations chapter of the Personnel Code of the City;

Q. “Peace Officer” means as this term is defined in Section 817, California Penal Code;

R. “Recognized employee organization” means an employee organization which has been acknowledged by the Municipal Employee Relations Officer as an employee organization that represents employees of the City. The rights accompanying recognition are either:

1. Formal recognition, which is the right to meet and confer in good faith as the exclusive representative in an appropriate unit, or

2. Informal recognition, which is the right to meet and confer in good faith as a recognized employee organization;

S. “Scope of representation” means all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours and other terms and conditions of employment. City rights (Section 2.52.310) are excluded from the scope of representation.

(Ord. 1697 (part), 1995; Ord. XII, Ch. 6, Art. 1 § 12:6.12, 1970)

Employees of the City shall have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations including but not limited to wages, hours, and other terms and conditions of employment. Employees of the City also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the City. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against because of his exercise of these rights.

(Ord. XII, Ch. 6, Art. 1 § 12:6.13, 1970)

The rights of the City include, but are not limited to, the exclusive right to determine the mission of its constituent departments, commissions and boards; set standards of service; determine the procedures and standards of selection for employment and promotion; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work.

(Ord. XII, Ch. 6, Art. 1 § 12:6.14, 1970)

The City Council shall designate, by resolution, a Municipal Employee Relations Officer who shall be the City's principal representative in all matters of employer-employee relations, with authority to meet and confer in good faith on matters within the scope of representation including wages, hours and other terms and conditions of employment.

The Municipal Employee Relations Officer so designated is authorized to delegate these duties and responsibilities.

(Ord. XII, Ch. 6, Art. 1 § 12:6.15, 1970)

The City Council may adopt such rules and regulations necessary or convenient to implement the provisions of this chapter and Chapter 10, Division 4, Title 1 of the Government Code of the state of California (Section 3500, et seq.).

(Ord. XII, Ch. 6, Art. 1 § 12:6.16, 1970)

Nothing in this chapter shall be construed to deny any person or employee the rights granted by Federal and state laws and City Charter provisions.

(Ord. XII, Ch. 6, Art. 1 § 12:6.17.1, 1970)

The rights, powers and authority of the City Council in all matters, including the right to maintain any legal action, shall not be modified or restricted by this chapter.

(Ord. XII, Ch. 6, Art. 1 § 12:6.17.2, 1970)

Nothing contained in this chapter shall abrogate any written agreement between any employee organization and the City in effect on the effective date of the ordinance codified herein. All such agreements shall continue in effect for the duration of the term specified therein unless modified or rescinded by mutual agreement of the parties thereto.

(Ord. XII, Ch. 6, Art. 1 § 12:6.17.3, 1970)

The provisions of this chapter are not intended to conflict with the provisions of Chapter 10, Division 4, Title 1 of the Government Code of the state of California (Section 3500, et seq.) as amended in 1968.

(Ord. XII, Ch. 6, Art. 1 § 12:6.17.4, 1970)

The City, through its representative, shall meet and confer in good faith with representatives of formally recognized employee organizations regarding matters within the scope of representation including wages, hours and other terms and conditions of employment.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 2 § 12:6.21, 1970)

The City shall not be required to meet and confer in good faith on any subject preempted by Federal or state law nor shall it be required to meet and confer in good faith on employee or City rights as defined in Sections 2.52.300 and 2.52.310. Proposed amendments to this chapter are excluded from the scope of meeting and conferring.

(Ord. XII, Ch. 6, Art. 2 § 12:6.23, 1970)

A. Impasse procedures may be invoked only after the possibility of settlement by direct discussion has been exhausted. The impasse procedures are as follows:

1. Mediation (or conciliation). (Defined in Section 2.52.290) All mediation proceedings shall be private. The mediator shall make no public recommendations nor take any public position concerning the issue;

2. A determination by the City Council after a hearing on the merits of the dispute;

3. Any other dispute resolving procedures to which the parties mutually agree or which the City Council may order.

Any party may initiate the impasse procedure by filing with the other party (or parties) affected a written request for an impasse meeting together with a statement of its position on all disputed issues. An impasse meeting shall then be scheduled by the municipal employee relations officer forthwith after the date of filing of the written request for such meeting, with written notice to all parties affected. The purpose of such impasse meeting is twofold:

a. To permit a review of the position of all parties in a final effort to reach agreement on the disputed issues, and

b. If agreement is not concluded, to mutually select the specific impasse procedure to which the dispute shall be submitted; in the absence of agreement between the parties on this point, the matter shall be referred to the City Council.

B. The fees and expenses, if any, of mediators or of any other impasse procedure, shall be payable one-half by the City and one-half by the employee organization or employee organizations.

(Ord. XII, Ch. 6, Art. 2 § 12:6.24, 1970)

A “grievance” is any good-faith dispute concerning the interpretation or application of a memorandum of understanding or of terms and conditions of employment as set forth in any resolution adopted by the City Council.

Grievances shall be processed in accordance with procedures established by the City.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 2 § 12:6.25, 1970)

When the meeting and conferring process is concluded between the City and a formally recognized employee organization, all agreed-upon matters shall be incorporated in a written memorandum of understanding signed by the duly authorized City and employee representatives.

As to those matters within the authority of the City Council, the memorandum of understanding shall be submitted to the City Council for determination.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 2 § 12:6.26, 1970)

Reasonable written notice shall be given to each recognized employee organization affected of any ordinance, rule, resolution or regulation directly relating to matters within the scope of representation proposed to be adopted by the City Council or by any board or commission of the City, and each shall be given the opportunity to meet with the Municipal Employee Relations Officer prior to adoption.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 2 § 12:6.27, 1970)

An employee organization that seeks formal recognition for purposes of meeting and conferring in good faith as the exclusive representative of employees in an appropriate unit shall file a petition with the Municipal Employee Relations Officer containing the following information and documentation:

A. Name and address of the employee organization;

B. Names and titles of its officers;

C. Names of employee organization representatives who are authorized to speak on behalf of its members;

D. A statement that the employee organization has, as one of its primary purposes, representing employees in their employment relations with the City;

E. A statement whether the employee organization is a chapter or local of, or affiliated directly or indirectly in any manner with, a regional or state, or national or international organization, and, if so, the name and address of each such regional, state or international organization;

F. Certified copies of the employee organizations' constitution and bylaws;

G. A designation of those persons, not exceeding two in number, and their addresses, to whom notice sent by regular United States mail will be deemed sufficient notice on the employee organization for any purpose;

H. A statement that the employee organization recognizes that the provisions of Section 923 of the Labor Code are not applicable to City employees;

I. A statement that the employee organization has no restriction on membership based on race, color, creed, sex, or national origin;

J. The job classification or titles of employees in the unit claimed to be appropriate;

K. A statement that the employee organization has in its possession written proof, dated within six months of the date upon which the petition is filed, to establish that at least forty percent of the employees in the unit claimed to be appropriate have designated the employee organization to represent them in their employment relations with the City. Such written proof shall be submitted for confirmation to the Municipal Employee Relations Officer or to a mutually agreed upon disinterested third party;

L. A request that the Municipal Employee Relations Officer conduct a secret ballot election to determine if the petitioning employee organization will be recognized as the exclusive representative of the employees in the unit claimed to be appropriate for the purpose of meeting and conferring in good faith on all matters within the scope of representation.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 3 § 12:6.31, 1970)

A. The Municipal Employee Relations Officer, after reviewing the petitions filed by an employee organization seeking formal recognition as the exclusive representative, shall determine whether the proposed unit is an appropriate unit. The principal criterion in making this determination is whether there is a community of interest among such employees. The following factors, among others, are to be considered in making such determination:

1. Which unit will assure employees the fullest freedom in the exercise of rights set forth under this chapter;

2. The history of employee relations:

a. In the unit,

b. Among other employees of the City, and

c. In similar public employment;

3. The effect of the unit on the efficient operation of the City and sound employer-employee relations;

4. The extent to which employees have common skills, working conditions, job duties or similar educational requirements.

B. In the establishment of appropriate units:

1. Professional employees shall not be denied the right to be represented separately from nonprofessional employees; and

2. Management and confidential employees who are included in the same unit with nonmanagement or nonconfidential employees may not represent such employees on matters within the scope of representation.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 3 § 12:6.33, 1970)

A. The Municipal Employee Relations Officer shall:

1. Determine the exclusive representative or City employees in an appropriate unit by arranging for a secret ballot election. The employee organization found to represent a majority of the employees in an appropriate unit shall be granted formal recognition and is the only employee organization entitled to meet and confer in good faith on matters within the scope of representation for employees in such unit. This shall not preclude other recognized employee organizations from meeting with management representatives or employer-employee relations matters of concern to them;

2. Revoke the recognition rights of an employee organization which has been found by secret ballot election no longer to be the exclusive representative.

B. The recognition rights of the exclusive representative, designated in accordance with subsection A of this section, shall not be subject to challenge for a period of twelve months following the date of such recognition.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 6, Art. 3 § 12:6.34, 1970)

No provision or condition contained herein shall be construed as denying the continued employment of any employee who is on the payroll as of the effective date of the ordinance codified herein.

(Ord. 1697, (part), 1995; Ord. XII, Ch. 7, Art. 1 § 12:7.11, 1970)