Monterey Municipal Code Art. 14 Disciplinary Procedure

The City Manager and Department Heads shall be authorized to take disciplinary actions up to and including termination.

Notwithstanding any provision in this rule to the contrary, public safety personnel in the Police Department are subject to provisions of the Public Safety Officers Procedural Bill of Rights (POBR), as set forth in Government Code §§ 3300 et seq., and wherever any provisions of these Rules and Regulations conflict with provisions of the POBR, the provisions of the POBR shall prevail. (Ord. 3308, 2002)

Disciplinary action may be taken against an employee for misconduct, including, but not limited to:

a.Incompetence, i.e., inability to comply with the minimum standard of an employee’s position for a significant period of time;

b.Willful disobedience and insubordination, a willful failure to submit to duly appointed and acting supervision or to conform to duly established orders or directions of persons in a supervisory position;

c.Failure to follow work rules;

d.Failure to perform work in a satisfactory manner;

e.Inefficiency or inexcusable neglect of duty, i.e., failure to perform duties required by the employee’s position;

f.Fraud in securing employment or misstatement of fact on an application for employment or other personnel document;

g.Falsification of records or reports;

h.Dishonesty, involving employment;

i.Mental or physical infirmity or defects which render the employee unfit for the proper performance of duties if no reasonable accommodation can be made;

j.Unfitness for duty, including consumption of any alcoholic beverage or non prescribed drug while on duty, or reporting to duty while under influence of any alcoholic beverage or non prescribed drug;

k.Unexcused absence without authorized leave;

l.Abuse of sick leave (see Section 12.02.g.1);

m.Participation in unlawful job actions against the City;

n.Any willful act or conduct, either during or outside of duty hours which is of a criminal, unethical or immoral nature that it would reasonably impair the public trust and confidence in the employee’s performance of duties;

o.Discourteous treatment of the public or other employees within the scope of employment;

p.Theft or improper or unauthorized use of City property;

q.Inattention to duty, tardiness, indolence, carelessness or negligence in the care and handling of City property;

r.Refusal to subscribe to any oath or affirmation which is required by law in connection with City employment;

s.Violation of the duly established rules and regulations published in the employee’s department;

t.Failure to comply with outside employment regulations (Rule 3, Sec. 3.06);

u.Failure to comply with conflict of interest regulations (Rule 3, Sec. 3.05);

v.The refusal of any officer or employee of the City to testify under oath before any Grand Jury having jurisdiction over any pending cause of inquiry in which the investigation of government bribery or misconduct in City office is involved shall constitute of itself sufficient grounds for the immediate discharge of such officer or employee;

w.Willful violation of any of the provisions of the ordinances, resolutions or any rules, regulations or policies which may be prescribed by the department or City;

x.Improper political activity. Example: Those campaigning for or espousing the election or nonelection of any candidate in national, state, county or municipal elections while on duty and/or during working hours or in a City uniform on or off duty; or the dissemination of political material of any kind while on duty and/or during working hours or in uniform.

(Ord 3248 ; 01/2005)

Disciplinary action(s) taken may include oral or written reprimand, suspension, pay reduction, demotion, discharge or any combination of these or other appropriate penalties approved by the City Manager. In accordance with Article IV, Section 4.5 (e) 1 of the City Charter, suspensions imposed under this Section shall be limited to thirty (30) working days.

In the case of management personnel, unpaid suspensions of one (1) or more full working days may be imposed, unless otherwise provided under FLSA. The intent of this section is to be consistent with current FLSA regulations as they apply, or may apply, to exempt employees.

No record of oral reprimands may be separately placed in an employee’s personnel file; however they may be commented on or referred to in any regular or special evaluation report of the employee. Except for police officers, nothing in this section shall preclude a department head or representative from retaining a written record of an oral reprimand pending the issuance of a regular or special evaluation report. An oral reprimand or an evaluation report is not subject to appeal.

(Ord 3368; 03/2006)

Written reprimands shall be served on the employee prior to being placed in their personnel file. The reprimand shall contain the reason or cause for the action and where appropriate, guidance on how the employee may resolve the issue. The reprimand shall contain a notice that the employee may respond in writing prior to a time not less than five (5) working days after receipt of the reprimand. Upon receipt of the response or expiration of the time without response, the department head shall either withdraw the reprimand, place the reprimand and the response, if any, in the personnel file, or request further information. Within two (2) working days of final determination, the department head shall notify the employee of the final action in writing and provide the Human Resources Director (Ord 3385; 02/07) with copies of all documents to be placed in the personnel file. A written reprimand is not subject to appeal.

For public safety classifications of the Police Department the following procedure shall apply to written reprimands. Written reprimands shall be served on the employee prior to being placed in his/her personnel file. The reprimand shall contain a notice that the employee may respond in writing prior to a time not less than five (5) working days after receipt of the reprimand. Upon receipt of the response or expiration of the time without response, the imposing authority shall either withdraw the reprimand, place the reprimand and the response, if any, in the personnel file, or request further information. Within two (2) working days of final determination, the imposing authority shall notify the employee of the final action in writing and provide the Human Resources Director (Ord 3385; 02/07) with copies of all documents to be placed in the employee’s personnel file. In accordance with Government Code §§ 3000 et seq., the Public Safety Officers Procedural Bill of Rights Act (POBR), a public safety officer in the Police Department may appeal a written reprimand to the City Manager. The decision of the City Manager shall be final. (Ord. 3368, 2006; Ord. 3308, 2002)

a.Except for reprimands, written notice of proposed disciplinary action shall be served on the employee personally or by certified mail to the last known address, and a copy of the notice shall be submitted to the Human Resources Director (Ord 3385; 02/07) for inclusion in the employee’s personnel file. Failure to receive mailed notice shall not be grounds for reversal or delay of the proposed discipline.

b.At a minimum, the written notice shall contain the following information:

1.The disciplinary action proposed;

2.The effective date of the action;

3.The reason or cause for the action;

4.A statement that the employee may inspect copies of all materials upon which the action is based;

5.A statement that the employee has the right to representation and to respond, either orally or in writing, to the authority initially imposing the discipline.

c.Except in instances where disciplinary action must be taken immediately, the notice shall be provided the employee at least five (5) working days before the disciplinary action is to be effective. Where immediate disciplinary action has been imposed, such action shall not become final until notice has been furnished the employee as noted above and the employee has had an adequate time of not less than five (5) working days to respond to the proposed discipline.

d.Any employee may be immediately suspended with or without pay by a department head pending proposed discipline in any situation where the employee is accused of misconduct which constitutes job related moral turpitude, or where the employee’s presence at the workplace could result in a disruption or interruption. The determination of whether the suspension will be without pay shall be made by the City Manager and shall be based on the severity of the misconduct alleged, the conclusiveness of the evidence of misconduct, and the nature of discipline proposed by the department head.

e.Should the employee fail to respond to the notice of proposed disciplinary action as outlined in Section 14.06.b.5 and 14.06.c., such action shall constitute a waiver of all rights to appeal under these rules. (Ord. 3273, 2000)

a.Once the conditions of Section 14.06 have been met, the employee shall be served either personally or by certified mail to the last know address with a written notice of action, which shall be submitted to the Human Resources Director (Ord 3385; 02/07) to be placed in the employee’s personnel file. The Human Resources Director (Ord 3385; 02/07) will notify the Finance Department if discipline affects the employee’s compensation or benefits.

b.At a minimum, the written notice shall contain the following information.

1.The disciplinary action taken;

2.The effective date of the action;

3.The reason or cause for the action;

4.A statement that the employee may inspect copies of all materials upon which the action is based;

5.A statement that the employee has the right to appeal under these Rules;

6.A statement that the employee has the right to representation of their choice.

a.The appeals procedure contained herein shall apply to all discipline involving loss of pay. Reprimands are not appealable, but the employee may submit a statement to be filed with the reprimand. Determinations of disciplinary actions appealed to the City Manager not involving termination are final.

b.Disputes concerning the interpretation and application of these Personnel Rules and Regulations or any memorandum of understanding between the City and a recognized employee organization shall be processed in accordance with the Grievance Procedure set forth in these Rules.

a.An employee may appeal any disciplinary action, except oral and written reprimands, to the City Manager. This appeal must be filed in writing with the City Manager within five (5) City working days of the date of the notice of disciplinary action.

b.An informal hearing shall be held with the City Manager and the employee within twenty (20) City working days of the receipt of the employee’s appeal. In the absence of the City Manager, the Assistant City Manager shall act in the City Manager’s place.

Such hearings shall be closed and the rules of evidence shall not apply. Either the Department Head or the employee may call witnesses. (Ord 3273; 01/00)

The Department Head, or Department Head’s representative, will attend the hearing and may designate one person who may be present throughout the hearing. The employee may designate two persons who may be present throughout the hearing and who may also act as the employee’s representative and/or legal counsel. The Department Head, or representative, may present the department’s case, or may designate legal counsel to do so. (Ord 3273; 01/00)

The Human Resources Director (Ord 3385; 02/07) and the City Attorney, or their designees, may be present throughout the appeal hearing. (Ord. 3273, 2000)

c.The City Manager shall render a decision on the appeal within ten (10) City working days from the conclusion of the hearing. In rendering a decision, the City Manager may reaffirm the disciplinary action, reverse it or reduce it.

a. Definitions.Appeal Authority for Library personnel means the Board of Library Trustees. The Appeal Authority for other personnel is the City Council. For appeals involving Library personnel, the term “Clerk” in the below procedures denotes the Library personnel serving as the Clerk to the Board of Library Trustees. For appeals involving other personnel, the term “Clerk” as used in this section means the City Clerk.

b.Decisions of the City Manager which result in termination may be appealed to the City Council. Disciplinary actions initiated by the City Manager, except oral or written reprimands and actions not involving loss of pay, may be appealed to the Appeal Authority. This appeal shall be in writing and filed with the City Clerk within ten (10) City working days of receipt of the City Manager’s decision. The appeal shall be signed by the employee and shall set forth the reasons for the appeal. The Clerk shall provide written notice of the appeal to the Appeal Authority, the City Manager, the City Attorney, the employee’s department head, the Human Resources Director, and to any other appropriate parties.

c.Upon the filing of an appeal, the Clerk shall notice a hearing of the appeal within fifteen (15) City working days, and the hearing shall be held not less than ten (10) City working days nor more than forty-five (45) City working days from the date of the Clerk’s notice. The Clerk’s notice shall include the date, time and place of the hearing. Once commenced, the hearing may be continued until it can be completed.

d.The Appeal Authority’s hearing shall be closed, unless requested to be open by the employee. Formal rules of evidence shall not apply. Principles of due process will be applied. Provisions of the Ralph M. Brown Act, the City Charter, and the City Code shall apply to all such hearings.

e.The Appeal Authority shall render its decision in writing to the employee within ten (10) City working days after the conclusion of the hearing. Appropriate copies of the decision will be furnished to the City Manager, Human Resources Director, and department head of the employee. The decision will also be reported in open session of the Appeal Authority in accordance with the Ralph M. Brown Act and the City Code.

f.In rendering its decision, the Appeal Authority may reaffirm the disciplinary action, reverse it or modify it. (Ord. 3653 § 13, 2022; Ord. 3385, 2007)

a.The intent of the time limits set forth herein are to expedite the review and hearing of the employee’s appeal. They should be adhered to unless expressly extended upon written agreement by the employee and the City.

b.Failure on the part of the employee, without just cause, to comply with such time limits, or any extensions thereto, shall constitute a withdrawal of the appeal without further recourse to resubmittal under this procedure and the discipline may be imposed.