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HomeMy WebLinkAbout15 MOU TPOA 02-22-94E N DA_____ NO. 15 2-22-94 lntor-Com DATE: FEBRUARY 16, 1994 TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER PERSONNEL SERVICES APPROVAL OF MEMORANDUM OF UNDERSTANDING WITH TUSTIN POLl_CE O__IZFI_CE_RS ASSOCI_AT_ION- NON-_MANAGE ._N~_~.NT RECOMMENDATION: That the City Council authorize the City Manager to sign and execute the' attached Memorandum of Understanding with the Tustin Police Officers Association, non-management unit. FISCAL IMPACT: The proposed 2.5 percent increase will cost the city approximately $73,965 for the 1994 calendar year. The proposed increase of $23 in flexible dollars for employees on the second tier designated for those needing insurance coverage for employee and one dependent will amount to approximately $3,864. The only other economic change is an increase in tuition reimbursement from $250 to $500 per year. The cost on increase of tuition reimbursement is difficult to predict since it depends on how many Police Officers will enroll in college courses. From past experience, however, the additional cost is not expected to exceed $2000. The total package should be approximaely $79,829. DISCUSSION: The City and the Tustin Police Officers Association met and conferred from November to January, A new Memorandum of Understanding (MOLD was drafted to replace the expiring ~on December 31, 1993. The new MOU is a one year agreement effective December 24, 1993 to December 31, 1994. Bettie Correa Senior Personnel Analyst BMC2:POA94CNC.RPT MEMORANDUM OF UNDERSTANDING .TUSTIN POLICE OFFICERS ASSOCIATION CITY OF TUSTIN TERM: JANUARY 1, 1994 TO DECEMBER 31, 1994" I~ff2VIORANDUM OF UNDERSTANDING CITY OF TUSTIN AND TUSTIN POLICE OFFICERS ASSOCIATION WHEREAS, in accordance with the provisions of the California Government Code Sections 3500 et.seq, and Section 17 of the Personnel Rules and Regulations of the City of Tustin, the City's employee representatives have met and conferred in good faith with the representatives of the Tustin Police Officers Association pertaining to the subject of wages, benefits and conditions of employment for the non-administrative and non-management police employees of City; and ~VHEREAS, the meeting between Tustin Police Officers and the City representatives has resulted in an agreement and understanding to recommend that the employees represented by the Tustin Police Officers Association accept all of the terms and conditions as set forth herein and that the City representatives recommend to the City Council that it adopt by resolution or resolutions the changes and additions to the wages, hours and conditions of employment for the non-administrative and non-management police officers of City set forth herein. WITNESSETH Article 1. RECOGNITION The City has previously recognized Tustin Police Officers Association as the majority representative of all non-administrative and non-management police employees of City for the purpose of representation on issues of wages, hours and other terms and conditions of employment. The non-administrative and non-management employees represented by the Association are the Police Recruit and Police Officer classifications. As majority representative, the Tustin Police Officers Association is empowered to act on behalf of all non-administrative and non-management police employees of City, whether or not they are individually members of the Tustin Police Officers Association. The Classifications covered by this agreement are Police Recruit and Police Officer. Article 2. Cost of Livin£ Adjustment Effective on the beginning of the pay period closest to January 1, 1994 the salad.~ ranges for Police Recruit and Police Officer shall be increased by 2.5%. Article 3. Retirement Plan. The City shall continue to "pick up" and pay-on behalf of each employee the employee's required contribution to the Public Employees Retirement System (PERS) in the amount equal to nine percent (9%) of the employee's "compensation earnable". Employees serving in a Classification covered by this Agreement shall have a vested right to receive all of the retirement benefits entitled them as of the effective date of this Agreement. Article 4. Bereavement Leave. The City shall allow up to three (3) days with pay for the purpose of bereavement leave for all non-administrative and non-management police employees of the City in the event of a death in the immediate family. "Immediate Family" shall be defined as including the spouse, mother, father, brother, sister, child, grandparent, and grandchild of the employee or the employee's spouse. Article 5. Bilingual Compensation. The City shall pay seventy-five dollars ($75.00) per month for all non-administrative and non-management police employees who can demonstrate a skill in Spanish at the conversational level, or another language which the Chief of Police and City Manager have approved as being needed in police work. In order to receive such bilingual compensation, an employee shall make application to the Personnel Department and satisfactorily complete a conversational fluency test in such language administered by a qualified person. The bilingual compensation shall commence effective the start of the next pay period following the certification of the test results and notification of the Finance Department by the Personnel Department. Article 6. Retirement Survivor Benefit. The City shall provide the 1959 Survivors Benefit option of the Public Employees Retirement System for all non-administrative and non- management police employees, at employee cost. If there is no cost to the City, the City's contract with the PERS will be amended to provide for the Fourth Level of 1959 Survivor Benefit. Article 7. General Leave. The City shall provide General Leave Accrual rates for all non- administrative and non-management police employees according to the following formula: Years of Service General Leave Hours Per Year 0-5 168' 6-10 208 Over 10 248 * 160 hours for employees hired after October 1, 1993. Article 8. Uniform Allowance. The City will provide a uniform allowance of one hundred and sixty-two dollars and fifty cents ($162.50) semi-annually, as well as continually pay for special motor officer gear and officer public safety leather gear. Article 9. Standby Duty, Standby duty shall be compensated at the rate-of two (2) hours straight time for each eight (8) hours required, including holidays. Standby duty for scheduled court appearances on behalf of the City shall be compensated at a rate of two (2) hours straight time for morning (a.m. hours) appearances and one (1) hour straight time for afternoon (p.m. hours) appearances. Call back compensation is provided in Article 10. Compensation for, call back to, or actual appearance in court is provided in Article 12. Article 10. Call-Back Duty. In addition to standby compensation, if any, officers shall receive a minimum of two (2) hours overtime compensation, as described in Article 13, for any call which required them to return to duty. Article 11. Deferred Compensation. The City shall contribute $37.00 per pay period, per employee, in a deferred compensation program or vehicle currently offered by the City. It is the responsibility of all employees to complete the necessary paperwork and take all required steps to enroll in the program. Should employees fail to enroll, the City is under no obligation to make retroactive contributions on behalf of said employee or employees. Employees hired into the bargaining unit shall be provided with a notification of the deferred compensation program, including the amount of employer contributions, during employee orientation. Article 12. Court Pay Provisions. The City shall pay actual time at a rate of time and one- half for employees who are required to appear in court during their off-duty hours in connection with City business with a minimum of two (2) hours of such compensation for court appearances scheduled in the morning (a.m. hours) and two (2) hours of such compensation for court appearances scheduled in the afternoon (p.m. hours). Article 13. Overtime Compensation. The City shall pay all non-administrative and non- management sworn police employees premium pay of time and one-half for all approved overtime hours worked in excess of (1) regularly scheduled hours per shift; (2) hours worked on a day the employee is not regularly scheduled to work; or (3) hours worked in excess of the prescribed hours during the applicable work cycle described in Article 43 (i.e. (a) 10 hours in a 7-day work cycle for employees on the 4/10 work schedule; (b) 160 hours in a 28-day cycle for employees on the 3/12.5 work schedule; and (c) 80 hours in a 14-day work cycle for employees on the 9/80 work schedule). General leave, compensatory time and holiday hours shall be regarded as hours worked in these calculations; provided however, that standby time shall not be considered in determining entitlement to premium pay. In lieu of receiving cash payment for overtime, an employee may elect the option of accruing compensatory time at the rate of time and a half, and shall have a cap of forty (40) hours placed on the accrual of compensatory time off. The time during which an employee may take his/her compensatory time shall be subject to approval by the appointing authority or his/her designee with due regard for the wishes of the employee and for the needs of the service. Should this provision be found invalid by an arbitrator, court of competent jurisdiction or the Department of Labor, the accrual of compensatory time shall cease and all accrued compensatory time shall be paid-at the employee's current straight time rate. Upon separation from City service, an employee shall be compensated for all accrued compensatory time of forty (40) hours or less at his/her straight time hourly base rate. Article 14. Employee Life Insurance. The City will provide life insurance on the life of each regular, permanent full-time, non-administrative, non-management sworn police employee of the City and pay the premiums thereof. The death benefit of said police shall be one hundred percent (100%) of the employee's base annual salary to the nearest multiple of $1,000.00. The City shall also make available, at the employee's option, a supplemental life insurance policy, the death benefit of which shall be $18,000.00. The premium of said supplemental policy shall be paid by the employee. Article 15. Flexible Benefits Plan. Effective on or before January 1, 1994 the City will establish a Flexible Benefits Plan in accordance with the following: A. Flexible Benefits Contribution per month per eligible employee. Employee Only Employee + 1 Dependent Employee + 2 or more Dependents $267 $327 $478 $350 (Effective 8/1/94) .B. The Flexible Benefits contribution consists of mandatory and discretionary allocations which may be applied to City sponsored programs. Employees are required to take employee only dental insurance with premiums to be paid out of their contribution and $16.00 of the contribution constitutes the City payment towards employee medical insurance. Employees may allocate the remaining amount among the following City sponsored programs: . e 3. 4. 5. 6. Medical insurance offered under the Public Employees' Medical and Hospital Care Act Program. Dependent Dental Insurance Additional Life Insurance Vision Insurance Deferred Compensation Section 125 Program Discretionary allocations are to be made in accordance with program/City requirements including restrictions as to the time when changes may be made in allocations to the respective programs. C~ Employees who do not take medical insurance through the program offered by the City shall receive $120.00 per month in lieu. of the flexible benefits contribution. As a condition of recei,Ang such amount, the employee must provide evidence, satisfactory to the City, that he/she has medical insurance coverage comparable to coverage available through the City program. D. Section 125 Program A Section 125 Program will be implemented on or before January 1, 1994 and include such options as may be available. The Program shall be administered through Colonial Life provided that the City retains the right to change administrators for muse. Participation in the Program is voluntary and such costs as may attend participation are to be paid by the employee. Article 16. Educational Incentive Pay. The City shall provide educational incentive pay as an incentive for employees to improve their level of education in relevant fields beyond the expected level for their position. Degree in Related Field Police Officer AA Degree or its equivalent Bachelor's Degree $ 65/mo. 125/mo. An equivalent to an A.A. Degree shall include continuing active enrollment in a Bachelor's curriculum with over half the course work completed. A reasonable interpretation of the related nature of the degree fields shall be made by the Personnel Director. Article 17. Tuition Reimbursement. Employees shall be encouraged to further their academic education and training in those areas of benefit both to the employee and to the City. Full-time employees will be eligible for reimbursement by the City of tuition for professional technical courses subject to the following conditions and related Council Policy statements: he Be Ce De Department Head and City Manager approval must be obtained before enrollment in the course. Reimbursement shall be made of tuition fees, textbooks, lab fees, or required supplies, upon completion of the course with a satisfactory grade and after the completion of the initial probationary period. Tuition reimbursement shall not be made if the employee is drawing veteran's education benefits or any other reimbursement for the same course. Reimbursement for up to five hundred dollars ($500.00) in any calendar year will be paid upon receipt by the Personnel Department of proof of successful completion of the course and proof that payment of fees has been made. Article 18. Holidays. The following nine (9) full and two (2) half (1/2) days shall be observed as paid holidays by all full-time regular and probationary employees in permanent positions, except Police personnel, as shown below: January 1 Third Monday in February Last Monday in May July 4 First Monday in September November 11 New Year's Day Washington's Birthday Memorial Day Independence Day Labor Day Veteran' s Day The Thursday in November designated by the President or Governor as Thanksgiving Day The day following the Thursday in November designated as Thanksgiving Day Afternoon before the Christmas Day Holiday December 25 Afternoon before the New Year's Day Holiday Thanksgiving Day Day after Thanksgiving Day Christmas Holiday Eve Christmas Day New Year's Holiday Eve When a holiday occurs on a Sunday, the following Monday will be observed instead. holiday occurs on a Saturday, the preceding Friday will be observed instead. When a On December 1 of each year, an employee may designate any portion of his/her holiday credit for the following year which he/she would like to be paid for in lieu of having time off. This notification shall be in writing and is irrevocable. Payment for the holiday time shall be made in January of each. year. In the event that an employee separates from service and has used and/or been paid for holidays in excess of the pro-rata earned hours per month, the employee shall reimburse the City for the overage. For each designated holiday not cashed out full-time regular and probationary Police personnel on shifts will receive General Leave at the rate of eight (8) hours for each full holiday and four (4) hours for each half holiday. Full-time regular and probationary Police personnel not assigned to shifts will receive General Leave at the rate of eight (8) hours for each full holiday and four (4) hours for each half holiday or equivalent paid time off. If a non-shift employee's scheduled day off falls on the day of the holiday, he/she shall be credited with General Leave at the rate of eight (8) hours for each full holiday and four (4) hours for each half holiday. It is permissible for a non-patrol officer to work at his/her regular assignment on a holiday for which he/she has been paid if she/he elects to do so. However, the department maintains the right to assign officers to any function when extraordinary circumstances arise. If the number of regularly scheduled paid hours in a work period is less than that prescribed in Article 42, the employee may use accrued compensatory time or general leavo-to ensure that the prescribed hours will be paid in that period. Article 19. Management Riehts Clause._ Except as otherwise specifically provided in this memorandum, the Personnel Rules & Regulations and Departmental Regulations, and amendments and revisions thereto, will remain in force and effect, whether exercised or not, and they are the sole and exclusive right and functions of management including, but not limited to: The right to contract or subcontract construction, services, maintenance, distribution or any other work with outside public or private entities. The right to suspend provisions of this agreement in the event of, and for the duration of, an emergency as determined by the City Council, and/or by county, State or Federal action upon notification to the association regarding the nature and expected duration of the emergency. , The right to determine staffing and to direct the work force, including the right to hire, promote, demote, evaluate, transfer, lay-off or discharge any employee. The right to take such further action as may be necessary to organize and operate the City in the most efficient and economical manner to serve the public interest. Nothing contained herein shall be construed as a waiver by the Tustin Police Officers Association of any right to meet and confer and/or represent its members pursuant to the Meyer- Milias-Brown Act on any other applicable State or Federal law. Article 20. Scope of Renegotiation at Conclusion of Contract. All provisions of this agreement and otl~er conditions of employment appropriate to-the meet and confer process shall be subject to renegotiation at the conclusion of the contract period and may thereafter be included in the meet and confer process at the request of either party. Article 21. Administrative Regulations. The City Manager may issue written administrative personnel regulations designed to augment or clarify the provisions of this memorandum. Article 22. Application of Agreement. The parties agree that the term "employee" whenever used herein, whether singular or plural, means and applies only to. those employees of the City included within the representative unit, represented by Tustin Police Officers Association, and that this memorandum covers only said employees. It is not solely limited to the members of the Tustin Police Officers Association. Article 23. Gender. Words used in this memorandum in the singular include the plural, and the plural include the singular. Words appearing in the male gender include the female gender and the female gender include the male gender. Article 24. Retiree's Health Insurance The City will contribute a maximum of $150.00 per month towards the payment of medical insurance premiums for employees who retire from the City of Tustin after October 1, 1993. Such contribution is supplemental to the $16.00 per month City contribution to be made for eligible retirees under the Public Employees' Medical and Hospital Care Act Program and subject to the same conditions applicable to the PERS City contribution. Article 25. Severability. If any part of this memorandum is rendered or declared invalid by reason of any existing or subsequently-enacted legislation, governmental regulation or order or decree of court, the invalidation of such part of this memorandum shall not render invalid the remaining part hereof. Article 26. Binding on Successors, This memorandum shall be binding on the successors and assigns of the parties hereto and no provisions, terms or obligations herein contained shall be affected or changed in any way whatsoever by the consolidation, merger, sale, transfer or assignment of either party hereto. Article 27. Ratification, This memorandum contains all the terms and conditions agreed to between the parties. This memorandum shall be of no force or effect unless or until duly approved adopted, ratified, and agreed to by the City Council of City, or in the alternative, that all of the substantive provisions contained herein are adopted by resolution of the City Council. Article 28. Amendments. This memorandum can be altered or amended only by written agreement between the parties hereto. Article 29. Notices. Notices hereunder shall be in writing and, if to Tustin Police Officers Association, shall be mailed to President, Tustin Police Officers Association, Post Office Box 1516, Tustin, Ca 92680; and, if to City, shall be mailed to City Manager, City of Tustin, 300 Centennial Way, Tustin, California 92680. Article 30. Term of Agreement. This Agreement shall be and remain in effect from January 1, 1994, to and including December 31, 1994. All provisions set forth herein shall be effective as to non-administrative and non-management sworn police employees of the Tustin Police Department as of January 1, 1994, unless otherwise specifically provided. Article 31. Conclusion of Agreement. This agreement shall contain all of the covenants, stipulations and the provisions agreed upon by the parties. It is understood that all items relating to employee wages, hours and other terms and conditions of employment not covered in this agreement are covered by existing ordinances, resolutions, policies and practices of the City as well as the Personnel Rules & Regulations presently in effect. Therefore, for the life of this agreement, neither the City or TUstin Police Officers Association shall be compelled to meet and confer concerning any mandatory bargaining or meet and confer issue, whether specifically met and conferred about prior to the conclusion of this agreement or which may have been omitted in the meeting and conferring which led up to the conclusion of this agreement, except by mutual agreement of the parties. Article 32. No Change of Benefits. During the life of this agreement there shall be no change of benefits or privileges contained in existing resolutions and rules not specifically revised by the provisions of this agreement, except after compliance with applicable laws. Article 33. Performance Evaluations. An employee may not.appeal or grieve a performance evaluation unless said evaluation results in the denial of a merit increase. Nothing herein shall serve to restrict an employee from having a written rebuttal attached to a performance evaluation with which the employee disagrees. Article 34. Probationary Period. Resolution No. 88-103, Section 7, is modified to include a probationary period of not less than eighteen (18) months for new hire police officers. This extended probation period shall not affect an employee's entitlement to periodic merit increases (Resolution No. 88-103, Section 5 (E)). Article 35. Probationary Rejection. A probationary employee, rejected for failure to meet standards or pass probation, shall not be eligible for any internal grievance or appeal procedure pursuant to Swift vs. County of Placer. Article 36. Long-Term Disability (LTD) Plan. me Attachment "A" is a master policy for an employee Long-Term Disability Insurance Plan. This policy contains the primary components, of a plan to be offered employees by the Canada Life Assurance Company as soon as possible but not later than January 1, 1994. Parties to this M.O.U. are in agreement with the master policy but retain the right to meet and confer on any provisions of the final Policy which are considered inconsistent with the intent of the parties. Bo The "Bank of Hours" program referenced in the Long-Term Disability Plan, adopted by reference to Attachment "A" in the current M.O.U., will be abolished upon the effective date of the Plan in A. above. Hours in the bank will be distributed equally to the general leave accounts of employees, provided that if such distribution results in the employee's account exceeding the authorized maximum accumulation, such excess will be paid at the employee's then current hourly rate. Ce E. It is understood that extant liabilities of the City administered LTD Plan are to be satisfied as a condition to implementation of the Canada Life Assurance Company Plan. Funds on deposit which may not be needed to satisfy such liabilities will be applied to costs of the Canada Life Plan. In addition to provisions of the Long-Term Disability Insurance Plan, the City agrees to pay the same salary benefit paid by the Plan for disability leave which occurs after the employee has used eighty (80) consecutive hours of general leave during the 30 day period beginning with the 1st day of the leave. Flexible benefits will be continued for three (3) months of a disability leave and such time will be counted towards satisfying Federal FMLA and State of California FRA requirements. I0 .Article 37. Field Training Officer Employees assigned to serve in the capacity of Field Training Officer (FTO) shall receive, in addition to their regular compensation, premium pay in the amount of two and one half percent (2 1/2%) of base salary during the entire period of such assignment2 The City shall have the absolute discretion regarding the assignment and reassignment of individuals as FTO's. Any such assignment is not vested and may be revoked at any time without cause, and without any right to challenge such action pursuant to the City's grievance or appeal proc~ure or pursuant to section 3304(b) of the California Government Code. Article 38. Physical Fitness ProRram. The City and T.P.O.A. agree to meet and discuss physical fitness standards and programs during the term of the M.O.U. Absent mutual agreement of the parties, no such standards or programs may be implemented. Article 39. Minimum Hiring. The minimum hiring age shall be changed from eighteen (18) years to twenty-one (21) years. ..Article 40. Substance Abuse Testing. The City and T.P.O.A. agree to meet and discuss substance abuse testing during the term of the M.O.U. Absent mutual agreement of the parties, no such testing may be implemented. .Article 41. Disciplinary_ Appeals Resolution No. 88-103, Sections 12 (C) and (D), is superseded by the "Third Party Advisory Process for Disciplinary Appeals" attached as Exhibit B. Article 42. Work Schedules. Ae Department work schedules include the 4/10 work schedule; (in a 7-day work cycle the employee works four 10-hour days where the scheduled work shift commences and ends at the same time each day, with three consecutive days off) and the 3/12.5 work schedule, (in a 28-day work cycle the employee works three 12.5 hour days where the scheduled work shift commences and ends at the same time each day, with 4 consecutive days off, in each seven (7) calendar day period, except that the employee must work one additional 10-hour shift during the work cycle) as follows: 4/10 3/12.~ (1) Traffic and Investigation Divisions, (2) Employees in special assignments [continuation of the schedule is subject to needs of the Department, provided that if the Department desires to discontinue that work schedule, the employee will revert to the 9/80 Patrol g. C. DJ 11 work schedule (in a 14-day work cycle the employee works eight 9-hour days where the scheduled work shift commences and ends at the same time each day, and one eight-hour work day, with one period of 3 consecutive days off and one period of two consecutive days off.) or some other schedule upon mutual agreement of the Department and employee]. Employees assigned to special task forces or regional teams will work the hours that the team works. The Department shall continue the present practices of (1) rotating shift assignments on a regular basis at 6-month intervals; (2) allowing employees to sign up for and select shift assignments based on seniority; and (3) limiting an employee to 12 consecutive months on any shift assignment. Any employee's work schedule may be temporarily changed to accommodate training assignments which are eight (8) or more hours in duration. In witness whereof, the parties hereto have executed this document this day of City of Tustin By William A. Huston City Manager Tustin Police Officers AssoCiation By Joe Stickles, President PAMOU94.FNL Exhibit B THIRD PARTY ADVISORY PROCESS FOR DISCIPLINARY APPEALS Disciplinary actions which may move beyond the Department Head's decision include the actions of termination, suspension, reduction of salary and demotion. The "third party" advisory process is the step between the Department Head's action and the City Manager's final decision. In the Department Head's notice of final disciplinary action (which should be served by registered mail or personal delivery) shall be a statement which clearly informs the employee that he/she has the right, within 10 working days after receipt of the response, to request the next level of appeal. The day the employee receives the Department Head's final notice shall not count as one of the 10 days. The employee's request for the next level of appeal must be addressed to the Administrative Services Director and received in the Personnel Office so that same is date stamped by the Personnel Office within the 10-day period. If, within the 10-day appeal period, the employee involved does not file said appeal, unless good cause for the failure is shown, the action of the Department Head shall be considered conclusive and shall take effect as prescribed. If within the 10-day appeal period, the employee involved files such notice of appeal by giving written notice of appeal to the Administrative Services Director, an appeal hearing shall be established as follows: Ae If a single third party hearing officer cannot be agreed upon by the Administrative Services Director and the employee's representative (or employee alone if unrepresented), the American Arbitration Association shall be requested to submit a list of 7 persons qualified to act as arbiters to the City and employee. Within 10 days following receipt of the list of arbiters, the parties shall meet to select the arbiter. The parties shall alternately strike 1 name from the list of arbiters (the right to strike the first name to be determined by lo0 until 1 name remains, and that person shall be the arbiter. a. Where practicable, the date for the hearing shall not be less than 20 days, nor more than 60 days, from the date of the filing of the appeal with the Administrative Services Director. The parties may stipulate to a longer or shorter period of time in which to hear the appeal. All interested parties shall be notified in writing of the date, time,-and place of heating. Ce All hearings shall be private provided, however, that the arbiter sh-all at the request of~e employee, open the hearing to the public. D. Subpoenas and subpoenas duces tecums pertaining to a hearing shall be issued at the request of either party, not less than 5 working days, prior to the commencement of such hearing. After the commencement of such heating, subpoenas shall be issued only at the discretion of the arbiter. Third Party Advisory Process for Disciplinary Appeals 8/88 Page 2 E. Fe G,, The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely 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. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil and criminal actions, and irrelevant and unduly repetitious evidence shall be excluded. The arbiter shall not be bound by technical rules of evidence. The arbiter shall rule on the admission or exclusion of evidence. Each party shall have these rights: To be represented by legal counsel or other person of his/her choice; to call and examine witnesses; to introduce evidence; to cross-examine opposing wimesses or any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him/her to testify; and to rebut the evidence against him/her. If the respondent does not testify in his/her own behalf, he/she may be called and examined as if under cross-examination. Oral evidence shall be taken only on oath or affirmation. A court reporter will be engaged to record the hearing, unless the parties (City, arbiter, employee/employee representative) mutually agree that same is not necessary. The hearing shall proceed in the following order, unless the arbiter, for special reason, otherwise directs: 1. The party imposing discipline shall be permitted to make an opening statement; 2. The appealing party shall then be permitted to make an opening statement; . The party imposing disciplinary action shall produce the evidence on his/her part; the City bears the burden of proof and burden of producing evidence; . The party appealing from such disciplinary action may then open his/her defense and offer his/her evidence in support thereof; the employee bears the burden of proof and the burden of producing evidence for any affirmative defenses asserted; o The parties may then, in order, respectively offer rebutting evidence only, unless the arbiter for good reason, permits them to offer evidence upon their original case; Third Party Advisory Process for Disciplinary Appeals 8/88 Page 3 . Closing arguments shall be permitted and written briefs may be permitted at the discretion of the arbiter. He The arbiter shall determine relevancy, weight, and credibility of testimony and evidence. He/she shall base his/her findings on the preponderance of evidence. During the examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing unless the arbiter, in his/her discretion, for good cause, otherwise directs. No still photographs, moving pictures, or television pictures shall be taken in the hearing chamber during a hearing. The arbiter, prior to or during a hearing, may grant a continuance for any reasons he/she believes to be important to reaching a fair and proper decision. The arbiter shall render his/her judgement as soon after the conclusion of the hearing as possible and in no event later than 30 days after conducting a heating. His/her decision shall set forth findings of fact and conclusions. The opinion shall be advisory only. I. The arbiter may recommend sustaining or rejecting any or all of the charges filed against the employee. He/she may recommend sustaining, rejecting or modifying the disciplinary action invoked against the employee. He/she may not recommend for discipline more stringent than that invoked by the Department Head. The arbiter's opinion and recommendation shall be filed with the City Manager, with a copy sent to the charged 'employee, and the Administrative Services Director and shall set forth his/her findings and recommendatiOns. If it is a dismissal hearing and a dismissal is not the arbiter's recommendation, the opinion shall set forth the recommended date the employee is recommend to be reinstated and/or other recommended action. The reinstatement date, if appropriate, may be any time on or after the date of disciplinary action. J. Within 30 days of the receipt of the arbiter's findings and recommendations, and transcript (which is optional only in certain cases), whichever date is later, the City Manager shall adopt, amend, modify or reject the recommended findings, conclusions, and/or opinions of the arbiter. Prior to making a decision which modifies or rejects the recommendation of the arbitrator, the City Manager shall order and read the transcript of the Third Party Advisory Process. Prior to making a decision which supports the arbiter, the City Manager may order and read the subject transcript, at his/her option. The City Manager shall not conduct a de~novo hearing. The Cii-y Manager may, at his/her option, allow limited oral arguments and/or may request and review written statements from either side. The decision of the City Manager shall be final and conclusive. Copies of the City Manager's decision, including the arbiter's recommendation(s) shall be filed where appropriate, including the employee's personnel file, unless no discipline is upheld by the City Manager. Third Party Advisory Process for Disciplinary Appeals 8/88 Page 4 Each party shall bear equally the cost of facilities, fees and expenses of the arbiter, including the court reporter and transcripts. If the City Manager orders a transcript for his/her review, the City shall bear the cost of providing the transcript. Each party shall bear its own witness and attorney fees. If either party unilaterally cancels or postpones a scheduled arbitration, thereby resulting in a fee charged by the arbiter or court reporter, then the party responsible for the cancellation or postponement shall be solely responsible for payment of that fee. This process shall not apply to mutual settlements by the parties which result in an arbitration fee. r. In the case of suspension, demotion, reduction in salary, or dismissal prescribed by the City Manager, the time of such suspension, demotion or dismissal shall be effective from the first day after such delivery of said decision or shall relate back to be effective as of the date the employee was suspended from duty pending, hearing before and decision by the City Manager, whichever is applicable. If discipline imposed resulted in loss of pay, the pay loss shall be restored to the employee based on the number of standard work hours lost computed at his/her then base hourly rate. The provisions of Section 1094.6 of the Code of Civil Procedure shall be applicable to proceedings under this Section.