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HomeMy WebLinkAboutStaff Report 294-05City of Palo j City Manager's Report TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: HUMAN RESOURCES DATE: JUNE 20, 2005 CMR: 294:05 SUBJECT: APPROVAL OF RESOLUTION DELEGATING AUTHORITY TO THE CITY MANAGER AND THE DIRECTOR OF HUMAN RESOURCES ON BEHALF OF THE CITY WITH REGARD TO DISABILITY RETIREMENTS FOR CITY EMPLOYEES AND ESTABLISHING A PROCEDURE FOR INDUSTRIAL DISABILITY RETIREMENT DETERMINATIONS OF LOCAL SAFETY OFFICER EMPLOYEES WHO ARE MEMBERS OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM RECOMMENDATION Staff recommends Council approve the attached resolution delegating authority to the City Manager and the Director of Human Resources to act on behalf of the City with regard to disability retirements of city employees; establishing a procedure for industrial disability retirement determinations of local safety officer employees who are members of the Public Employees' Retirement System (PERS); and rescinding Resolution No. 7157. BACKGROUND Article 5, Division 5, Title 2 of the California Government Code establishes the circumstances under which an employee who is a member of PERS may be granted a disability retirement. Procedures for the consideration of applications for disability retirement of City employees who are local safety members require the Director of Human Resources to make a determination whether the employee is incapacitated from performing the usual duties of their position, and whether the incapacity is a result of industrial disability. The City adopted the original procedure in 1973. It was amended with minor changes in 1992. Due to a recent 2004 California Supreme Court decision, Steven W Nolan v. City of Anaheim, public agencies are now required to include in their resolutions additional information that reflects the holding of the Nolan case. In Nolan, the court required the City of Anaheim to determine not only the level of incapacity or disability, but also whether an employee who was substantially incapacitated from performing his or her current position and duties would be eligible for a similar available position in another California agency. In addition, the relevant Government Code sections relating to disability retirement have been renumbered since 1992, when the City's disability policy was last amended. This resolution includes the updated code sections. CMR: 294:05 Page 1 of3 DISCUSSION Following the filing of an application for disability retirement of a City local safety officer employee, the Director of Human Resources will determine whether the employee is substantially incapacitated from performing the usual duties of their position. As a result of the Nolan case the State Supreme Court concluded that to qualify for a disability retirement, a PERS member must now be substantially incapacitated to perform the usual duties of their current position and also substantially incapacitated to perform the usual duties of a similar position for other California public agencies in PERS. An employee who is incapacitated from his or her position at the current agency will be denied disability retirement if the agency finds that there is a similar position available in another public agency for which the employee is able to perform the usual duties of that position. A qualifying similar position would include similar duties, pay, benefits, and advancement opportunities. This resolution adds consideration of the Nolan requirements to the City's disability procedure. RESOURCE IMPACT There will not be a resource impact. - POLICY IMPLICATIONS The existing City procedure for determining industrial disability retirements will be changed to include the new requirements. ENVIRONMENTAL REVIEW This is not a project under the California Environmental Quality Act (CEQ A). ATTACHMENTS Attachment 1 - PREPARED BY: Resolution of the Council of the City of Palo Alto delegating authority to the City Manager and the Director of Human Resources to act on behalf of the City with regard to disability retirements of city employees; establishing a procedure for industrial disability retirement determinations of local safety officer employees who are members of the Public Employees' Retirement System; and rescinding Resolution No. 7157. Sandra T.R. Blanch, Risk and Benefits Manager \~ __ C2Q~,_ .. ~ _ DEPARTMENTHEAD: ________________________________ ~ RUSS CARLSEN ~irect of Human Reso~ CITY MANAGER APPROVAL:~ Ii... A. ~ E . HARRISON Assistant City Manager CMR: 294:05 Page 2 of2 L ) ., NOT YET APPROVED RESOLUTION NO. ____ __ RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO AUTHORIZING THE CITY MANAGER AND THE DIRECTOR OF HUMAN RESOURCES TO ACT ON BEHALF OF THE CITY OF PALO ALTO WITH REGARD TO DISABILITY RETIREMENTS OF CITY EMPLOYEES i ESTABLISHING A PROCEDURE 'FOR INDUSTRIAL DISABILITY RETIREMENT DETERMINATIONS OF LOCAL SAFETY OFFICER EMPLOYEES WHO ARE MEMBERS OF THE PUBLIC EMPLOYEES I RETIREMENT SYSTEMi AND RESCINDING RESOLUTION NO. 7157 WHEREAS, Article 5 (commencing with section 21150) of Division 5 of Title 2 of the California Government, Code establishes the circumstances under which an employee who is a member of the Public Employees I Retirement System (" PERS") may be granted a disability retirementi and WHEREAS, pursuant to said Article 5, the City is charged with the duty to determine, with respect to an application for disability retirement, whether a City employee who is a local safety member of PERS is incapacitated for the performance of duty and whether such incapacity is the result of an "industrial" disability under the PERS lawi and WHEREAS, pursuant to Resolution No. 7157, adopted November 23, 1992, the City Council delegated authority for making determ:Lnations with respect to disability retirements for local safety members of PERS and established a procedure for the consideration of applications for disability retirement of City employees who are local safety members of PERSi and WHEREAS, because the Government Code sections pertaining to disability retirement have been renumbered and changed since the adoption of Resolution No. 7157, and the California Supreme Court outlined new considerations for disability retirement determinations in the 2004 decision of Nolan v. City of Anaheim, the City Council finds it desirable to establish a revised procedure for consideration of applications for disability retirement of City employees who are local safety members of PERS, and to rescind,Resolution No. 7157i and WHEREAS, Government Code section 21173 authorizes the City Council to delegate to a subordinate officer the authority to act on behalf of the City with respect to disability retirements of City employees, including, but not limited to, local safety employees. NOW, THEREFORE, the City Council of the City of Palo Alto does RESOLVE as follows: SECTION 1. Pursuant to California Government Code section 21173, the City Council hereby delegates to the City Manager and the Director of Human Resources, or either of them, 050518 sm 8260097 1 NOT YET APPROVED the authority to act on behalf of the City of Palo Alto to make determinations under Section 21152(c) of the Government Code with respect to disability of employees of the City and whether such disability is industrial, and to certify such determinations and all other necessary information to the Public Employees' Retirement System. SECTION 2. The City Council hereby adopts the following procedure for the consideration and determination of applications for disability retirement of City employees who are local safety members of PERS: 1. Following the filing of an application for disabili ty retirement of a City employee who is a local safety member of PERS ("member"), the Board of Administration of the Public Employees Retirement System ("Board") will request the City to determine whether the member is (1) substantially incapacitated for the performance of duty, and (2) substantially incapacitated from performing the usual duties of the position for 'other public agencies in the California Public Employees' Retirement System. Upon receiving the Board's request, the City shall make an initial determination, upon medical and other available information offered by either the member or the City, to determine whether the 'member is incapacitated for the performance of duty and whether such incapacity is the result of an industrial disability. Unless waived in writing by the member, the City shall make its determination within six months of the date of receiving the Board's request. The initial determination shall be made by the Director of Human Resources or other such person as the City Manager shall designate. a. If the City determines that the member is substantially incapacitated for the performance of the duties of his or her position in the City and in other California public agencies in CalPERS, and that the incapacity is as the result of an industrial disabilitYi or, if the incapacity is' not the result of an industrial disability, if the member has five or more years of service, the City Manager or Director of Human Resources shall certify that determination to PERS on a form prescribed by PERS. A member with less than five years of service whose disability is not industrial is not eligible for disability retirement. b. If the City and the member are not in agreement as to whether the disability is industrial, either the member or the City may petition the Workers' Compensation Appeals Board ( "WCAB") to request a findings of fact determination of whether or not the disability is industr±al. If the WCAB determines that the disability is industrial, the City shall certify to CalPERS, that the member is incapacitated for the performance of duty in the City. c. If the City determines that the member is substantially incapacitated for the performance of his or her usual duties but not substantially incapacitated for other California public agencies in CalPERS, the City Manager or 050518 sm 8260097 2 " NOT YET APPROVED Director of Human Resources shall indicate in the determination to CalPERS whether similar positions with reasonably comparable pay, benefits, and promotional opportunities are or are not available to the member. 2. The City shall notify the member by certified mail (return receipt requested) or by personal service of its intent to certify to PERS its determination as to whether the member is incapacitated for the performance of duty in the City and in other California Public Agencies in CalPERS. The City shall also advise the member that he or she has thirty calendar days within which to appeal the City's determination, in accordance with Government Code section 21156. 3. The member may appeal the City's determination by so advising the Director of Human Resources, or such other person as the City Manager may designate, in writing on or before the date specified in the City's letter of determination. ' 4. If the member files an appeal, the appeal hearing shall be held in conformity with the Administrative Procedures Act (Chapter 5, commencing with sec'tion 11500, of Part 1 of Division 3 of Title 2 of the Government Code, as may from time to time be amended). The City shall notify CalPERS of the request and the Office of Administrative Hearings, which shall set a cause a hearing to be conducted by an administrative law judge of the Office of Administrative Hearings. a. The hearing shall be conducted with the Administrative Law Judge acting as the presiding officer, before the City Manager or his or her designated fact finder, who shall not be the person who made the initial determination on behalf of the City. b. An administrative record shall be generated at the hearing pursuant to the Administrative Procedures Act. A certified Shorthand Reporter shall record all testimony. c. Following the hearing, the City Manager or his or her designated fact finder shall make a decision and findings of fact regarding the issue of whether the member is incapacitated for the performance of duty. The City shall serve the decision and findings on the member by certified mail. The City shall also certify its determination to PERS. d. The City's decision and findings shall also advise the member of the right to seek judicial review of the decision within thirty calendar days by filing a Petition for Writ of Mandate in the Superior Court of Santa Clara County. The City shall notify CalPERS upon receipt of notice that the member has filed a Petition for Writ of Mandate, or upon the expiration of thirty calendar days where the member has not filed a Petition for Writ of Mandate. 050518 sm 8260097 3 NOT YET APPROVED SECTION 3. Resolution No. 7157, adopted November 23, 1992, is hereby rescinded. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney 050518 sm 8260097 4 APPROVED: Mayor City Manager . Director of Administrative Services Director of Human Resources