Article IX — Disciplinary Actions

The following categories of persons can be terminated at-will and have no rights to any of the pre- or postdisciplinary processes or procedures in this policy: (1) temporary employees, (2) provisional or seasonal employees, (3) probationary employees, (4) any person who serves pursuant to a contract, and (5) any person who is designated "at-will" in any city policy, document, acknowledgement, resolution or ordinance. In addition, any regular employee who is exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) is not subject to any disciplinary penalty which is inconsistent with his or her FLSA overtime-exempt status. (Ord. 1072, 2004; Ord. 1220 § 1, 2011)

• A. Regular employees may be counseled, admonished, reprimanded, suspended, demoted, discharged or incur a reduction in pay for, including, but not limited to, each of the following causes of discipline. Notwithstanding any provision in this article regarding disciplinary action, any regular or acting employee who is exempt from the provisions of the Fair Labor Standards Act (FLSA) is not subject to any form of disciplinary penalty which would violate his or her FLSA overtime-exempt status.

  1. Violation of the city's employee responsibilities and standards of conduct, Municipal Code Section 2.52.505;

  2. Absence without leave;

  3. Excessive absenteeism as defined by his or her department head or memorandum of understanding and/or tardiness;

  4. Uses of sick leave in a manner not authorized or provided for pursuant to the sick leave policy or other policies of the city;

  5. Making any false statement, or any omission or misrepresentation of a material fact;

  6. Providing wrong or misleading information or other fraud in securing appointment, promotion or maintaining employment;

  7. Unsatisfactory job performance;

  8. Inefficiency;

  9. Malfeasance or misconduct, which shall be deemed to include, but shall not be limited to, the following acts or omissions:

     • a. Conviction of a felony. "Conviction" shall be construed to be a determination of guilt of the accused by a court, including a plea of guilty or nolo contendere, regardless of sentence, grant of probation, or otherwise,

     • b. The damaging of city property, equipment or vehicles, or the waste of public supplies through negligence or misconduct;

  10. Insubordination;

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City of Palm Desert, CA

ADMINISTRATION AND PERSONNEL

§ 2.52.905

§ 2.52.910

11. Dishonesty;

12. Theft;

13. Disobedience;

14. Violation of the city's or a department's confidentiality policies, or disclosure of confidential city information to any unauthorized person or entity;

15. Unauthorized use, abuse, or misuse of any city property, including, but not limited to: physical property, tools, equipment, city communication systems, or intellectual property;

16. Mishandling of public funds;

17. Falsifying of city records;

18. Failure to cooperate with employee's supervisors or fellow employees;

19. Violation of the city's zero tolerance drug and alcohol use policy, including improper use of controlled substances while on duty or while representing the city on or off city premises or by off-duty use of controlled substances resulting in intoxication on duty, and/or which hinders performance while on duty. The term "controlled substances" shall be as defined in Division 10 (commencing with Section 11000 or as revised) of the California Health and Safety Code, and shall also mean alcohol;

20. Violation of the city's Internet/e-mail use policy.

21. Violation of the city's zero tolerance policy against harassment, discrimination and retaliation;

22. Violation of the city's zero tolerance policy against violence in the workplace;

23. Unapproved outside employment activity, or enterprise that presents a conflict of interest;

24. Violation of these rules and regulations, set out in this section, the Employee Handbook, administrative regulations, or any department rules and regulations;

25. Any conduct that impairs, disrupts or causes discredit to the city, the employee's employment, to the public service, or other employee's employment;

26. Failure to comply with OSHA safety standards and city safety policies;

27. Failure to report to his or her supervisor contact with criminal authorities which may affect employment with the city;

28. Altering, falsifying, and tampering with time records, or recording time on another employee's time record.

• (Ord. 1072, 2004; Ord. 1220 § 2, 2011)

The city manager may immediately place an employee on an administrative leave with pay.

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City of Palm Desert, CA

PALM DESERT CODE

§ 2.52.910

§ 2.52.925

Administrative leave with pay is authorized when the city manager believes that the employee's continued presence at the work site could have detrimental consequences.

Administrative leave with pay is also authorized, pending investigation into charges of misconduct.

If the charges against the employee are substantiated by the investigation, appropriate disciplinary action may be taken in accordance with the procedures set forth herein. (Ord. 1072, 2004; Ord. 1220 § 3, 2011)

The types of personnel actions and/or discipline that may be imposed on a regular or acting employee are:

• A. Counseling Memo. A counseling memo shall be retained in the supervisor's file, and any response from the employee to the charge.

• B. Oral Admonishment or Reprimand. An oral admonishment or reprimand will be memorialized in writing and retained in the supervisor's file. An oral reprimand may not be appealed under this policy. An employee may respond in writing or orally.

• C. Written Admonishment or Reprimand. A written admonishment or reprimand shall become part of the employee's permanent record, and may be appealed as described herein.

• D. Suspension. The City Manager, assistant city manager or other department director may suspend an employee from his or her position for cause. Documents related to a suspension shall become part of the employee's permanent record. An employee subject to such disciplinary action shall be entitled to prior written notice and appeal, based upon the terms described herein.

• E. Demotion. The city manager, assistant city manager or other department director may demote an employee from his or her position for cause. Documents related to a demotion shall become part of the employee's permanent record. An employee subject to such disciplinary action shall be entitled to the prior written notice and appeal, based upon the terms described herein.

• F. Reduction in Pay. The city manager, assistant city manager or other department director may reduce an employee's pay for cause. A reduction in pay for disciplinary purposes may take one of two forms: (1) a decrease in salary to a lower step within the salary range; or (2) a decrease in salary paid to an employee for a fixed period of time. Documents related to a reduction in pay shall become part of the employee's permanent record. An employee subject to such disciplinary action shall be entitled to the prior written notice and appeal based upon the terms described herein.

• G. Discharge. The city manager, assistant city manager or other department director may discharge an employee from his or her position for cause. Documents related to discharge shall become a part of an employee's permanent record. An employee subject to such disciplinary action shall be entitled to the prior written notice and appeal based upon the terms described herein.

• (Ord. 1072, 2004; Ord. 1220 § 4, 2011)

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City of Palm Desert, CA

ADMINISTRATION AND PERSONNEL

§ 2.52.925

§ 2.52.930

An employee may appeal a written reprimand within thirty days of receipt of the written reprimand, by responding in writing to the city manager and requesting that the city manager review the written reprimand and response. The city manager will review the matter and may or may not sustain the appeal.

If the city manager sustains the employee's appeal, in whole or in part, he or she has the discretion to either purge the written reprimand and the employee's written response from the employee's permanent record, or retain an amended reprimand and employee's response in the file.

If the appeal is denied, the employee's written response shall become part of the employee's permanent record and the employee shall have no further appeal. (Ord. 1072, 2004; Ord. 1220 § 5, 2011)

Only regular for-cause employees shall have the right to the conference and appeal processes defined in this section.

• A. Notice of Intent to Discipline. The employee shall be provided a written notice of intent to discipline that contains the following:

  1. The level of discipline intended to be imposed;

  2. The specific charges upon which the intended discipline is based;

  3. A summary of the facts upon which the charges are based;

  4. A copy of all written materials, reports, or documents upon which the intended discipline is based;

  5. Notice of the employee's right to respond to the manager or department head regarding the charges within five calendar days from the date of the notice; either by requesting a conference, or by providing a written response, or both;

  6. Notice of the employee's right to have a representative of his or her choice at the conference, should he or she choose to respond orally; and

  7. Notice that the failure to respond at the time specified shall constitute a waiver of the right to respond prior to the imposition of discipline.

• B. Employee's Response and the Skelly Conference.

  1. If the employee requests an informal conference to respond orally to the charge(s), the conference must be scheduled at least seven calendar days after the date of the notice. The conference will be an informal meeting with the department director, at which the employee has an opportunity to rebut the charges against him or her and present any mitigating circumstances. The department director will consider the employee's presentation before any final disciplinary action.

  2. The employee's failure to make an oral response at the arranged conference time, or

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City of Palm Desert, CA

PALM DESERT CODE

§ 2.52.930

§ 2.52.935

the employee's failure to cause his or her written response to be delivered by the date and time specified in the notice, constitutes a waiver of the employee's right to respond prior to the imposition of the discipline. In that case, the proposed disciplinary action will be imposed on the date specified.

• C. Final Notice of Discipline.

  1. Within five calendar days of receipt of the employee's timely written response or within five days of the informal conference, the department director will: (1) dismiss the notice of intent and take no disciplinary action against the employee; (2) modify the intended disciplinary action; or (3) impose the intended disciplinary action. In any event, the department head shall prepare and provide the employee a notice that contains the following:

     • a. The level of discipline, if any, to be imposed and the effective date of the discipline,

     • b. The specific charges upon which the discipline is based,

     • c. A summary of the facts upon which the charges are based,

     • d. A copy of all written materials, reports, or documents upon which the discipline is based,

e. A statement of the nature of the employee's right to appeal. (Ord. 1220 § 6, 2011)

• A. Request for Appeal Hearing. A regular, for-cause employee may appeal from a final notice of discipline in the form of suspension, demotion, reduction in pay, or termination by delivering a written answer to the charges and a request for appeal to the city manager. The written answer and request for appeal must be received no later than ten calendar days from the date of the manager's or department head's decision.

• B. Date and Time of Appeal Hearing. The city manager shall set a date for an appeal hearing within a reasonable time after receipt of a timely written answer and request for appeal. An employee who, having filed a timely written answer and request for appeal, and who has been notified of the time and place of the appeal hearing, and who fails to appear personally at the hearing, may be deemed to have abandoned his or her appeal. In this case, the city manager may dismiss the appeal.

• C. Identification of Issues, Witnesses and Evidence. No later than ten days prior to the appeal hearing, each party will provide each other a statement of the issues to be decided, a list of all witnesses to be called (except rebuttal witnesses), a brief summary of the subject matter of the testimony of each witness, and a copy of all evidence (except rebuttal evidence) to be submitted at the hearing. The city will use numbers to identify its evidence; the employee shall use alphabet letters. Neither party will be permitted to call during the hearing any witness who has not been identified pursuant to this section, nor to use any exhibit not provided pursuant to this section, unless that party can show that they could not have reasonably anticipated the need for the witness or exhibit. The city manager will state at the beginning of the hearing his or her decision as to the precise issue(s) to be decided.

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City of Palm Desert, CA

ADMINISTRATION AND PERSONNEL

§ 2.52.935

§ 2.52.935

• D. Conduct of the Appeal Hearing.

  1. Subpoenas. The city manager has authority to issue subpoenas in the name of the city prior to the commencement of the hearing. Each party is responsible for serving his, her or its own subpoenas. City employees who are subpoenaed to testify during working hours will be released with pay to appear at the hearing. City employees who are subpoenaed to testify during non-working hours will be compensated for the time they actually testify unless the city agrees to a different arrangement.

  2. Continuances. The city manager may continue a scheduled hearing only upon good cause shown.

  3. Record of the Proceedings. All disciplinary hearings may, at the discretion of the parties, be either recorded by a court reporter or tape recorded. Any party who requests a transcript of the proceedings must pay for his, her or its own copy of a transcript.

  4. Authority of the City Manager. As further detailed herein, the city manager has authority to control the conduct of the hearing and to affirm, modify, or revoke the discipline.

  5. Conduct of the Hearing.

• a. The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses, but hearings shall be conducted in a manner the city manager decides is the most conducive to determining the truth.

  • b. Any relevant evidence may be admitted if it is the type of evidence upon which responsible persons are accustomed to rely upon in the conduct of serious affairs, regardless of the existence of any common law or statutory rules which might make improper the admission of such evidence over objection in civil actions.

  • c. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but over timely objection shall not be sufficient in itself to support a finding, unless such evidence would be admissible over objection in civil actions. An objection is timely if made before submission of the case.

  • d. The rules dealing with privileges shall be effective to the same extent that they are now or hereafter may be recognized in civil actions.

  • e. Irrelevant and unduly repetitious evidence may be excluded.

  • f. The city manager shall determine relevancy, weight and credibility of testimony and evidence.

  • g. During the examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing upon the request of either party.

  6. Burden of Proof at the Hearing. The city has the burden of proof by a preponderance of the evidence.

  7. Right to Due Process. The employee shall have the following due process rights during the hearing:

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City of Palm Desert, CA

PALM DESERT CODE

§ 2.52.935

§ 2.52.935

• a. The right to be represented by legal counsel or another chosen representative, at his or her own expense;

• b. The right to call and examine witnesses on his or her behalf;

• c. The right to introduce evidence;

• d. The right to cross-examine opposing witnesses on any matter relevant to the issues;

• e. The right to impeach any witness regardless of which party first called him or her to testify; and

• f. The right to rebut evidence against him or her.

8. Hearing to be Closed to the Public. The hearing will be closed to the public unless the employee requests that it be open.

9. Presentation of the Case. The parties will address their remarks, evidence, and objections, to the city manager. All parties and their counsel or representatives shall not disparage the intelligence, morals, or ethics of their adversaries or of the city manager. The city manager may terminate argument at any time and issue a ruling regarding an objection or any other matter. The city manager may alter the order of witnesses, limit redundant or irrelevant testimony, or directly question the witness. The hearing shall proceed in the following order unless the city manager or advisory hearing officer directs otherwise:

   • a. The city shall be permitted to make an opening statement.

   • b. The employee shall be permitted to make an opening statement.

   • c. The city shall produce its evidence.

• d. The employee shall produce his or her evidence.

  • e. The city, followed by the employee, may offer rebuttal evidence.

  • f. Closing arguments of no more than twenty minutes shall be permitted at the discretion of the city manager. The city shall have the right to argue first, the employee may argue second, and the city may reserve a portion of its argument time for rebuttal.

  • g. The city manager or the parties may request the submission of written briefs. The city manager will determine whether to allow written briefs, the deadline for submitting briefs, and the page limit for briefs.

10. Written Findings and Decision. The city manager shall render a statement of written findings and decision within fourteen calendar days after the hearing has been completed and the briefs, if any, have been submitted. The city manager's decision is final.

11. Proof of Service of the Written Findings and Decision. The city manager shall send his or her final statement of written findings and decision, along with a proof of service of mailing, to each of the parties and to each of the parties' representatives.

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City of Palm Desert, CA

ADMINISTRATION AND PERSONNEL

§ 2.52.935

§ 2.52.935

12. Statute of Limitations. The city manager's written findings and decision is final. There is no process for reconsideration. Pursuant to Code of Civil Procedure Section 1094.6, the parties have ninety days from the date of the proof of service of mailing of the written findings and decision to appeal the decision to the Superior Court in and for the county of Riverside.

• (Ord. 1220 § 7, 2011)

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City of Palm Desert, CA

ADMINISTRATION AND PERSONNEL

§ 2.52.1000

§ 2.52.1000