Santa Ana Municipal Code § 9-117 Reduction-in-force

Employees having regular status may be demoted for disciplinary reasons or at their own request. Demotions, in either case, shall be within the department in which the employee is serving at the time of demotion and if such vacancy does not exist, demotion cannot be used as a disciplinary measure. In the event an employee requests demotion it must be for a vacancy for which there is no re-employment list. Requests for voluntary demotion must be signed by the employee, approved by the appointing authority, and subject to approval of the city manager before being effective. The city manager, prior to approval of a request for demotion, may conduct such an investigation as he or she deems proper to insure that the request was not submitted under compulsion and that the person demoted possesses the minimum qualifications for the new position if he or she has not previously qualified for the lower position by examinations.

(Code 1952, § 2238; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-2232, § 1, 9-19-94)

An employee may be transferred by the city manager at any time from one (1) position to another in the same class. Transfers shall not be used to effect a promotion, demotion, or reduction, each of which may be accomplished only as provided elsewhere in these rules. No transfer shall be effected between positions in different departments except with the written consent of both appointing powers.

(Code 1952, § 2239; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-994, § 1, 12-1-69; Ord. No. NS-2232, § 1, 9-19-94)

Amendment note—Ord. No. NS-994, § 1, reenacted § 2239 of the 1952 Code, § 9-111 herein.

Any employee voluntarily leaving the employment of the city shall at least two (2) weeks prior to separation, submit a written resignation to his or her department head with the effective date and reason for resignation. Failure to furnish the written resignation within the time stated in this section may be cause for denying the employee reappointment privileges. Resignations shall be forwarded, by the appointing authority, to the executive director of human resources.

(Code 1952, § 2240; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-994, § 1, 12-1-69; Ord. No. NS-2232, § 1, 9-19-94; Ord. No. NS-2946, § 3, 6-5-18)

Amendment note—Ord. No. NS-994, § 1, amended § 2240 of the 1952 Code, § 9-112 herein, by substituting "may" for "shall" in the provisions pertaining to failure to furnish written resignation.

The city manager may permit the withdrawal of a resignation only upon written request filed within ten (10) working days prior to its effective date, and provided such request for withdrawal bears the favorable recommendation of the appointing officer.

(Code 1952, § 2240.1; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-994, § 1, 12-1-69; Ord. No. NS-2232, § 1, 9-19-94)

Amendment note—Ord. No. NS-994, § 1, reenacted § 2240.1 of the 1952 Code, § 9-113 herein.

Upon request, within one (1) year of the separation of a regular employee who resigned in good standing, the city manager may place his or her name on a reappointment list, to be certified as provided in these rules. This list shall expire on the anniversary of the employee's separation date. An eligible, if appointed from a reappointment list shall serve a regular probationary period and shall be considered a new employee for seniority, vacation, and sick leave purposes, provided, however, that the eligible may be reappointed at his or her former salary step.

(Code 1952, § 2241; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-2232, § 1, 9-19-94)

When an employee is entitled to reversion to his or her former position in the competitive service from the excepted service, the executive director of human resources will notify the appointing officer in the department from which the employee transferred to the excepted service. The latter, in restoring the person to the former position, as prescribed in the charter, will provide the required vacant position, if it does not exist, by means of lay-off or demotion, as outlined in other sections of these rules and regulations.

(Code 1952, § 2242; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-2232, § 1, 9-19-94; Ord. No. NS-2946, § 3, 6-5-18)

Editor's note— Ord. No. NS-2232, § 1, adopted Sept. 19, 1994, set out provisions repealing § 9-116, which pertained to reinstatement after military service and derived from Code 1952, § 2243 and Ord. No. NS-277, § 2, adopted Sept. 3, 1957.

When it becomes necessary because of lack of work, lack of funds, or other sufficient reason, to reduce the staff of any city office, activity or department, the reduction shall be accomplished by laying off the employee or employees with the least amount of service, including temporary appointees, that have been appointed in the class, until the necessary reduction has been made. Vacancies in the lowest class, resulting from such lay-off, shall be filled by the employee or employees last appointed to the next higher class, and those vacant positions filled by the employee or employees in the next succeeding higher class and so on until all vacant positions have been filled. Re-employment shall be in reverse order of any lay-off or demotion made under the terms of this section and prior to any other appointments.

(Code 1952, § 2244; Ord. No. NS-277, § 2, 9-3-57; Ord. No. NS-2232, § 1, 9-19-94; Ord. No. NS-2285, § 8, 5-6-96)

(a) Right to exercise the disciplinary and dismissal powers hereinafter provided is vested respectively in the officers of the city who have the power of appointment as to any position in the personnel system.

(b) Except as specified in subparagraph (d), any employee serving a probationary period in a position in the civil service shall be subject to suspension without pay for a period not to exceed ninety (90) days, demotion or dismissal, and the employee so disciplined or discharged shall not have a right of appeal, except that an employee who held regular status in some other position or employment included within the civil service immediately prior to his appointment to probationary status shall not be discharged without written notice of charges, an opportunity to answer, a written decision as hereinafter provided and right of appeal to the personnel board.

(c) Except as specified in subparagraph (d), any employee, other than one serving a probationary period, holding a position in the civil service shall be subject to suspension without pay for a period not to exceed ninety (90) days, or to demotion, or to dismissal subject to a right to appeal to the personnel board in accordance with the procedures set forth in this article. However, such appeal shall not stay the imposition of suspension, demotion or dismissal following the written decision of the appointing authority.

(d) Each or any of said actions relating to suspension, demotion, or dismissal may be taken by the officer having power of appointment to the position for reasonable and sufficient cause; provided, however, that no employee who is exempt from the requirements of the Fair Labor Standards Act shall be subject to suspension without pay for any period of less than one (1) week.

(e) Each such employee shall have ten (10) calendar days after receipt of the written decision of the appointing authority in which to file a notice requesting a hearing before the personnel board. Such request for a hearing shall be filed with the executive director of human resources. If a hearing is requested, the personnel board shall thereupon set a date for hearing the matter at its earliest convenience. Hearing procedures shall be informal, and the rules of evidence generally applicable to administrative proceedings shall apply.

Such employee shall have an opportunity at such hearing to be heard in person, or by counsel, and the right to subpoena witnesses. Except as otherwise provided by law, all hearings held under the provisions of this section shall be open to the public.

(f) The personnel board shall make written findings which shall state as to each charge whether or not such charge is sustained. The personnel board shall also set forth in writing its conclusions and recommendations based upon such findings, and within ten (10) days after concluding the hearing, it shall certify its findings, conclusions, and recommendations to the officer from whose action the appeal was taken, and to the city manager and the city council.

(g) If, with respect to a suspension, demotion, or dismissal, the personnel board shall conclude that the employee charged was not guilty of the act or omission resulting in such suspension, demotion, or dismissal, a recommendation by it of reinstatement without loss of pay shall be binding upon the appointing authority, who forthwith shall order such reinstatement. In the event that the personnel board shall conclude that the employee was guilty of the act or omission resulting in such suspension, demotion, or dismissal but that the penalty was not warranted under the circumstances, the personnel board may review the severity and appropriateness of the punishment. A recommendation by it of a greater or lesser punishment or of reinstatement with or without loss of pay shall be binding upon the appointing authority, who forthwith shall order the same.

If, with respect to a suspension, demotion or dismissal, the personnel board concludes that the employee was guilty of the act or omission resulting in such suspension, demotion or dismissal, and that such punishment was warranted, such decision shall be final.

(h) Vacancies created under this section may be filled by the appointing authority by temporary appointment pending the completion of any proceedings taken hereunder.

(i) A reduction in pay shall be treated as a demotion under this section, unless the reduction in pay is part of a plan of reclassification of positions or of a plan to reduce salaries and wages in connection with a general economy or curtailment program, or is the result of a finding by the appointing authority that the employee's performance does not justify the continuance of a level of pay that is dependent upon meritorious service. A failure to grant an increase in pay at a time when an increase would otherwise have been granted as a part of a plan to increase salaries and wages throughout the city service shall not be treated as a demotion under this section.

(j) The personnel board may adopt procedural rules to govern the conduct of its hearings.

(Ord. No. NS-1659, § 9, 11-15-82; Ord. No. NS-2208E, § 1, 11-15-93; Ord. No. NS-2208, § 1, 12-6-93; Ord. No. NS-2232, § 1, 9-19-94; Ord. No. NS-2285, § 9, 5-6-96; Ord. No. NS-2946, § 3, 6-5-18)

Editor's note— Section 2 of Ord. No. NS-2208E, adopted November 15, 1993, made the changes codified in § 9-118 by § 1 of Ord. No. NS-2208E (concerning the Fair Labor Standards Act) retroactive to April 15, 1986.

No employee holding a position in the civil service who has served a probationary period for the position held by such employee shall be subject to suspension, demotion or dismissal, unless prior thereto such employee has received:

(1) Notice of the proposed action and of the grounds for such action;

(2) A written copy of the charges, which charges shall be separately stated, and grounds for such charges;

(3) A reasonable time, not to exceed ten (10) days, unless the appointing authority authorizes a longer time, to answer the charges;

(4) A written decision on the answer at the earliest practicable date.

Examination of witnesses, trial, or hearing is not required, but may be provided in the discretion of the appointing authority. Copies of the charges, the notice of the action, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for the actions taken shall be made a part of the records of the city, and, on request, shall be furnished to the individual affected and to the personnel board.

(Ord. No. NS-1319, § 1, 11-15-76; Ord. No. NS-1659, § 10, 11-15-82; Ord. No. NS-2232, § 1, 9-19-94)

Except as provided in section 9-118.4, infra, an employee against whom disciplinary action is pending is entitled to reasonable advance written notice stating any and all reasons, specifically and in detail, for the proposed action. The material on which the notice is based and which is relied upon to support the reasons in that notice, including, but not limited to, statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and made available to the employee for his or her review and copying. The notice shall inform the employee when and where he or she may review such material. Material which cannot be disclosed to the employee may not be used to support the reasons in the notice.

(Ord. No. NS-1319, § 2, 11-15-76; Ord. No. NS-1659, § 11, 11-15-82; Ord. No. NS-2232, § 1, 9-19-94)

Except as provided in section 9-118.4, infra, an employee is entitled to a reasonable time, not to exceed ten (10) days unless the appointing authority authorizes a longer time, to answer a notice of proposed disciplinary action. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the appointing authority to support the reasons in the notice and to prepare an answer. If the employee answers, the appointing authority shall consider the answer in reaching a decision. The employee is entitled to answer personally, in writing, or both personally and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision in his or her case. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear the answer. The representative or representatives designated to hear and answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made. As used herein, the noun "answer" shall be deemed to include such statements, affidavits, declarations, or other evidentiary matter as the employee may wish to submit.

(Ord. No. NS-1319, § 3, 11-15-76; Ord. No. NS-2232, § 1, 9-19-94)

Advance written notice and opportunity to answer are not necessary in the case of suspension, dismissal or demotion of an employee for any reason other than those grounds for disciplinary action that are specified in section 9-118.

(Ord. No. NS-1319, § 4, 11-15-76; Ord. No. NS-1659, § 12, 11-15-82; Ord. No. NS-2232, § 1, 9-19-94)

Except as otherwise provided herein, an employee against whom disciplinary action is proposed is entitled to be retained in an active duty status during the notice period. When circumstances are such that the retention of the employee in an active duty status in his position may result in damage to city property or may be detrimental to the interests of the city or injurious to the employee, other workers or the general public, the appointing authority may temporarily assign the employee to duties in which these conditions do not exist or place him or her on administrative leave.

(Ord. No. NS-1319, § 5, 11-15-76; Ord. No. NS-2232, § 1, 9-19-94)

Each employee against whom disciplinary action is pending is entitled to notice of the appointing authority's decision at the earliest practicable date. The appointing authority shall deliver the notice of decision to the employee at or before the time when the action will be effective. The notice shall be in writing, be dated, and inform the employee of the following:

(1) Which of the reasons in the notice of proposed adverse action have been sustained and which have not been sustained.

(2) The right to appeal to the personnel board.

(3) The time limit for appealing to and requesting a hearing from the personnel board.

(Ord. No. NS-1319, § 6, 11-15-76; Ord. No. NS-2232, § 1, 9-19-94)

For purposes of section 1000 of the Charter of the City of Santa Ana, the term "reasonable and sufficient cause" for suspension, demotion or dismissal shall include, but not be limited by, each of the following causes:

(a) Fraud in securing appointment.

(b) Incompetency.

(c) Inefficiency.

(d) Inexcusable neglect of duty.

(e) Insubordination.

(f) Dishonesty.

(g) Drunkenness on duty.

(h) Intemperance.

(i) Addiction to the use of, or abuse of, controlled substances.

(j) Unauthorized absence from duty.

(k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude. A plea of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this subsection.

(l) Immorality.

(m) Discourteous treatment of the public or other employees.

(n) Improper political activity.

(o) Willful disobedience.

(p) Misuse of city property.

(q) Violation of any city departmental or agency rule.

(r) Violation of section 9-16 of the Santa Ana Municipal Code relating to outside employment.

(s) Other failure of good behavior, either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the city.

(t) Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, physical handicap, marital status, sex or age, against the public or other employee(s) while acting in the capacity of a city employee.

(Ord. No. NS-2034, § 27, 1-2-90; Ord. No. NS-2232, § 1, 9-19-94)

All layoffs within the competitive service occasioned by the abolishment of a position, the combination of duties of two (2) or more positions, or the reduction in number of employees in a given class shall be governed by seniority in service and performance. Reemployment shall be in the reverse order of layoffs.

(Ord. No. NS-1659, § 13, 11-15-82; Ord. No. NS-2232, § 1, 9-19-94)

(a) The appointing authority may at any time require an employee to submit to a medical examination by a physician or physicians designated by the appointing authority to evaluate the fitness or capacity of the employee to perform the work of his or her current position. Prior to requiring such medical examination, the appointing authority shall, in writing, state the reasons for seeking an evaluation. The employee may be placed on administrative leave with pay until medical clearance is obtained.

(b) Fees for the examination and for the services of medical specialists or technicians, if necessary, shall be paid by the city. The employee may submit medical or other evidence to the examining physician or to the appointing authority. The examining physician shall make a written report of the examination to the appointing authority. The appointing authority shall provide a copy to the employee or to the physician designated by the employee.

(c) When the appointing authority, after considering the conclusions of the medical examination and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, but is able to perform the work of another position, the appointing authority may demote or transfer the employee to another position within the same classification or offer the employee a voluntary demotion, provided there is a vacant position in a lower level classification within the classification series. Any voluntary demotion will be according to section 9-110. The employee demoted or transferred pursuant to this section shall receive the maximum of the salary range of the class to which he or she is demoted or transferred, provided that the salary is not greater than the salary he or she received at the time of his or her demotion or transfer.

(d) When the appointing authority, after considering the conclusions of the medical examination provided for by this section or medical reports from the employee's physician and other pertinent information, concludes that the employee is unable to perform the work of his or her present position, or any other vacant position within the classification series in the agency, and the employee is not eligible or waives the right to retire for disability, the appointing power may take action to suspend or dismiss the employee.

(e) The appointing authority may demote, transfer, suspend or dismiss an employee under this section without requiring the employee to submit to a medical examination, when the appointing authority relies upon a written statement submitted to the appointing authority by the employee as to the employee's condition or upon medical reports submitted to the appointing authority by the employee.

(f) Upon the petition of the employee who was dismissed, demoted or transferred in accordance with this section, the employee shall be placed on the reappointment list for his or her previously held position in accordance with section 9-114 if it is determined by the director that the employee is no longer incapacitated for duty in such position. The employee shall provide satisfactory proof to the appointing authority of fitness for duty prior to being placed on a reappointment list.

(g) Nothing in this section shall be deemed to affect any right to appeal to the personnel board as provided in section 9-118.

(Ord. No. NS-2190, § 1, 4-5-93; Ord. No. NS-2232, § 1, 9-19-94)