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Transmittal -ERIN MENDENHALL Mayor OFFICE OF THE MAYOR CITY COUNCIL TRANSMITTAL _______________________ Date Received: 11/2/2020 Rachel Otto, Chief of Staff Date sent to Council: 11/3/2020 __________________________________________________________________ TO: Salt Lake City Council DATE: November 2, 2020 FROM: Rachel Otto, Chief of Staff SUBJECT: Ordinance repealing City Code Chapter 2.16 (Civil Service Commission) and amending Chapter 2.24 (Employee Appeals Board) and replacing both boards with a disciplinary appeal hearing officer; Ordinance adopting competitive merit- based recruitment and promotion processes for full-time non-appointed positions in the Fire Department and the Police Department. STAFF CONTACTS: Rachel Otto, Chief of Staff DOCUMENT TYPE: Ordinances RECOMMENDATION: The Administration recommends that after discussion at a Council work session, the City Council adopt the attached ordinances. BUDGET IMPACT: N/A BACKGROUND/DISCUSSION: Under Utah law, certain Salt Lake City Corporation employees have the right to appeal certain final disciplinary decisions (i.e. discharge, suspension without pay for more than two days, or involuntary transfer from one position to another with less remuneration) to an appeals board or hearing officer. The City currently handles these appeals through two separate bodies created under Salt Lake City Code: the Civil Service Commission (Salt Lake City Code 2.16) and the Employee Appeals Board (Salt Lake City Code 2.24). Specifically, the Civil Service Commission adjudicates all disciplinary appeals filed by eligible employees in the Police Department and Fire Department, and the Employee Appeals Board adjudicates all disciplinary appeals filed by eligible employees in all other departments. The Administration recommends that the appeal process for all eligible employees be uniform and be handled by a hearing officer qualified to hear employment appeals. For that reason, the Administration is recommending repeal of City Code 2.16 (the Civil Service Commission ordinance) and revision of City Code 2.24 (the Employee Appeals Board ordinance) and replacement of both the Civil Service Commission and the Employee Appeals Board with a qualified hearing officer. The Administration also recommends that the Council adopt an ordinance establishing competitive merit-based recruitment and promotion processes for full-time non-appointed positions in the Fire Department and the Police Department. PUBLIC PROCESS: City Council public work session. 1 SALT LAKE CITY ORDINANCE 1 No. ___ of 2020 2 (Adopting competitive merit-based recruitment and promotion processes for full-time 3 non-appointed positions in the Fire Department and the Police Department.) 4 5 WHEREAS, the Salt Lake City Council has determined that the adoption of 6 competitive merit-based recruitment and promotion processes for full-time non-appointed 7 positions in the Fire Department and the Police Department is in the best interests of Salt 8 Lake City; 9 NOW, THEREFORE, BE IT ORDAINED by the City Council of Salt Lake City 10 as follows: 11 SECTION 1. PURPOSE. The purpose of this ordinance is to adopt competitive 12 merit-based recruitment and promotion processes for full-time non-appointed positions in 13 the Fire Department and the Police Department. 14 SECTION 2. DEFINITIONS. 15 A. Recruitment: The process by which an applicant is selected for a full-time non-16 appointed position in the Fire Department or the Police Department. 17 B. Promotion: The process by which an applicant is selected for a full-time, non-18 appointed, non-entry level position in the Fire Department or the Police Department. 19 C. Examination: The process by which, through a competitive job-related assessment 20 (or series of job-related assessments), an applicant’s qualifications for recruitment or 21 promotion are evaluated. 22 SECTION 3. GENERAL PRINCIPLES/ADMINISTRATIVE OVERSIGHT. 23 24 A. The Human Resources Department shall oversee the administration of the recruitment 25 and promotion processes for full-time non-appointed positions in the Fire Department 26 2 and the Police Department. In overseeing the administration of these recruitment and 27 promotion processes, the Human Resources Department shall adhere to the following 28 general principles: 29 1. Open merit-based competition, which will include preference being given to 30 current employees of Salt Lake City Corporation. 31 2. Diversity and inclusivity. 32 3. The establishment of objective job-related minimum qualifications for each full-33 time non-appointed position and a requirement that applicants meet such 34 minimum qualifications to be considered for recruitment or promotion. 35 4. Promotional examinations that ensure each applicant is qualified for the position 36 sought, consider the qualifications of each applicant, and result in a rank-ordered 37 list of qualified applicants. 38 5. Recognition of the equivalency of merit examination processes administered by 39 other fire protection and law enforcement agencies, for the purpose of recruiting 40 qualified external applicants for non-entry level positions. 41 6. The establishment of probationary periods. 42 7. The establishment of requirements and time limitations pertaining to employees 43 designated to serve in an “acting” capacity. 44 8. The establishment of a process by which a current employee of Salt Lake City 45 Corporation who is not selected for promotion may appeal that decision. 46 47 48 49 3 SECTION 4. RULES, REGULATIONS, AND/OR PROCEDURES. 50 The Mayor, or the Chief Human Resources Officer at the direction of the Mayor, shall 51 adopt and publish rules, regulations, and/or procedures governing competitive merit-52 based recruitment and promotion processes for full-time non-appointed positions in the 53 Fire Department and the Police Department that are consistent with and further the 54 objectives of this Chapter. 55 SECTION 5. This ordinance shall become effective upon first publication. If a 56 petition filed pursuant to Chapter 4-2-13 of the Salt Lake City Civil Service Commission 57 Rules and Regulations is pending before the Salt Lake City Civil Service Commission 58 prior to the date of first publication of this ordinance, the petitioner has the right to have 59 his/her petition heard and adjudicated: i) by the Salt Lake City Civil Service Commission 60 in accordance with that entity’s existing governing ordinances, rules, regulations, and 61 procedures or ii) via the appeal process established in accordance with the provisions of 62 this Chapter. 63 Passed by the City Council of Salt Lake City, Utah this _____ day of 64 _______________, 2020. 65 66 67 CHAIRPERSON 68 69 70 71 72 73 74 75 76 77 78 79 Approved as to Form: Salt Lake City Attorney’s Office ________________________________ Katherine N. Lewis, City Attorney ________________________________ Date November 2, 2020 4 ATTEST: 80 81 82 _______________________________ 83 CITY RECORDER 84 85 86 Transmitted to Mayor on _______________________. 87 88 89 Mayor's Action: _______Approved. _______Vetoed. 90 91 92 93 MAYOR 94 95 96 ________________________________ 97 CITY RECORDER 98 (SEAL) 99 100 Bill No. _________ of 2020. 101 Published: ___________________. 102 1 SALT LAKE CITY ORDINANCE 1 No. ___ of 2020 2 (Repealing Chapter 2.16 and amending Chapter 2.24 of the Salt Lake City Code 3 pertaining to the Civil Service Commission and Employee Appeals Board, respectively.) 4 5 WHEREAS, Section 10-3-1106 of the Utah Municipal Code provides that eligible 6 Salt Lake City Corporation employees have the right to appeal certain final disciplinary 7 decisions (i.e. discharge, suspension without pay for more than two days, and involuntary 8 transfer from one position to another with less remuneration) to an appeal board or 9 hearing officer; and 10 WHEREAS, Section 10-3-1106(7)(a) of the Utah Municipal Code provides that 11 “[t]he method and manner of choosing a hearing officer or the members of the appeal 12 board, the number of members, the designation of a hearing officer’s or appeal board 13 member’s term of office, and the procedure for conducting an appeal and the standard of 14 review shall be prescribed by the governing body of each municipality by ordinance;” 15 and 16 WHEREAS, the Salt Lake City Civil Service Commission, established pursuant 17 to Chapter 2.16 of the Salt Lake City Code, currently adjudicates all disciplinary appeals 18 filed by eligible employees in the Police Department and Fire Department, while the Salt 19 Lake City Employee Appeals Board, established pursuant to Chapter 2.24 of the Salt 20 Lake City Code, currently adjudicates all disciplinary appeals filed by eligible employees 21 in all other departments; and 22 WHEREAS, the Salt Lake City Council finds that the appeal process required by 23 Section 10-3-1106 of the Utah Municipal Code should be uniform for all eligible Salt 24 Lake City Corporation employees; and 25 2 WHEREAS, the Salt Lake City Council finds that the appeal process required by 26 Section 10-3-1106 of the Utah Municipal Code is intended to promote efficient resolution 27 of appeals while providing due process; and 28 WHEREAS, the Salt Lake City Council has determined that the following 29 ordinance enacting a uniform disciplinary appeals process for all eligible Salt Lake City 30 Corporation employees promotes these purposes and is in the best interests of Salt Lake 31 City; 32 NOW, THEREFORE, BE IT ORDAINED by the City Council of Salt Lake City 33 as follows: 34 SECTION 1. That Chapter 2.16 (Civil Service Commission) of the Salt Lake 35 City Code is hereby repealed in its entirety. 36 SECTION 2. That Chapter 2.24 (Employee Appeals Board) of the Salt Lake City 37 Code is hereby amended to read as follows: 38 Chapter 2.24 39 EMPLOYEE DISCIPLINE APPEALS PROCESS 40 41 2.24.010: DEFINITIONS 42 43 A. Eligible City Employee: An employee of Salt Lake City Corporation, unless the 44 employee is: 45 1. An appointed employee as defined by the Utah Municipal Code; 46 2. The Police Chief, a Deputy Police Chief, or an Assistant Police Chief; 47 3. The Fire Chief, a Deputy Fire Chief, or an Assistant Fire Chief; 48 4. A department director or deputy department director; 49 5. A division director or deputy division director; 50 6. A superintendent; 51 3 7. A probationary employee; 52 8. A part-time employee, including a paid call firefighter; 53 9. A seasonal or temporary employee; 54 10. An individual who works in the office of the Mayor or the City Council; 55 11. A secretarial or administrative assistant whose position is specifically 56 designated to assist an elected official, a department director, or a deputy 57 department director; 58 12. The City Engineer; 59 13. The City Recorder; 60 14. The City Treasurer; 61 15. The City Attorney; 62 16. An employee who has acknowledged in writing that their employment status 63 is appointed or at-will; or 64 17. An employee who has voluntarily waived the disciplinary appeal procedure 65 provided for in the Utah Municipal Code. 66 B. Final Appealable Disciplinary Decision: A disciplinary decision that, at the 67 conclusion of all applicable internal grievance procedures, results in an eligible City 68 employee’s discharge, suspension without pay for more than two working days, or 69 involuntary transfer from one position to another with less remuneration. 70 2.24.020: CREATION OF DISCIPLINARY APPEALS PROCESS: 71 In accordance with the provisions of this Chapter, disciplinary appeals hearing officers 72 shall hear and adjudicate appeals filed by eligible City employees seeking to overturn 73 final appealable disciplinary decisions. 74 4 2.24.030: SELECTION AND TERM OF DISCIPLINARY APPEALS HEARING 75 OFFICER: 76 A. Selection: The Mayor shall select one or more disciplinary appeals hearing officers 77 with the advice and consent of the City Council. 78 B. Term: Each disciplinary appeals hearing officer will serve a two-year term, with a 79 maximum of five (5) consecutive terms or ten (10) total years of service. 80 C. Qualifications: Each disciplinary appeals hearing officer shall be an attorney licensed 81 to practice law in the State of Utah who has significant professional experience in 82 employment law. A disciplinary appeals hearing officer may not currently be 83 employed by Salt Lake City Corporation nor hold public office nor be a candidate for 84 public office during his/her term. 85 D. Conflict of Interest: A disciplinary appeals hearing officer may not hear and 86 adjudicate appeals in which the disciplinary appeals hearing officer has a conflict of 87 interest prohibited by Chapter 2.44 of the Salt Lake City Code. 88 2.24.040: AUTHORITY OF DISCPLINARY APPEALS HEARING OFFICER: 89 A disciplinary appeals hearing officer selected pursuant to this Chapter may hear and 90 adjudicate an appeal filed by an eligible City employee seeking to overturn a final 91 appealable disciplinary decision to: 92 A. Discharge the employee; 93 B. Suspend the employee without pay for more than two working days; or 94 C. Involuntarily transfer the employee from one position to another with less 95 remuneration. 96 5 All other personnel actions (including, but not limited to, suspensions without pay of two 97 working days or less, written warnings, written or oral coach-and-counsels, non-98 disciplinary discharges or involuntary transfers, layoff designations, or reassignments due 99 to reorganizations) are not subject to appeal to a disciplinary appeals hearing officer. 100 2.24.050: PROCEDURE: 101 The following procedure shall apply to appeals filed by eligible City employees seeking 102 to overturn final appealable disciplinary decisions: 103 A. Filing of Appeal: All appeals must be: i) filed by an eligible City employee and ii) 104 submitted in writing to the Salt Lake City Recorder within ten (10) calendar days of 105 the date the final appealable disciplinary decision was issued. The appeal shall 106 identify the disciplinary decision being appealed and the specific reason(s) why the 107 employee believes the disciplinary decision should be overturned. An eligible City 108 employee who is the recipient of a final appealable disciplinary decision is the only 109 individual who may appeal that decision to a disciplinary appeals hearing officer. 110 B. Assignment of Disciplinary Appeals Hearing Officer: A single disciplinary appeals 111 hearing officer shall be assigned to hear and adjudicate each appeal of a final 112 appealable disciplinary decision. 113 C. Appeal Hearing: Upon receipt of an appeal of a final appealable disciplinary 114 decision, the assigned disciplinary appeals hearing officer shall schedule a hearing to 115 fully hear and adjudicate the appeal. Although an eligible City employee has the 116 right to have an open and public appeal hearing, the disciplinary appeals hearing 117 officer retains discretion to close any portion of the appeal hearing in accordance with 118 applicable law. 119 6 D. Standard of Review/Burden of Proof: The eligible City employee bears the burden of 120 proving that the final appealable disciplinary decision should be overturned. With 121 respect to the question of whether the facts support a conclusion that the eligible City 122 employee’s conduct violated policy, the standard of review is “substantial evidence” 123 and, to prevail, the eligible City employee must demonstrate that the conclusion is not 124 supported by substantial evidence. With respect to the question of whether the 125 specific disciplinary sanction is proportional and consistent, the standard of review is 126 “abuse of discretion” and, to prevail, the eligible City employee must demonstrate 127 that the disciplinary sanction constitutes an abuse of discretion. 128 E. Representation/Confrontation of Witnesses/Examination of Evidence: At an appeal 129 hearing, an eligible City employee may: 130 1. Appear in person and be represented by counsel; 131 2. Confront any witness whose testimony may be considered by the disciplinary 132 appeals hearing officer; and 133 3. Examine any evidence that may be considered by the disciplinary appeals hearing 134 officer. 135 F. Evidence: With the exception of evidence pertaining to the proportionality and/or 136 consistency of the specific disciplinary sanction, a disciplinary appeals hearing officer 137 may only consider evidence that was previously presented during the disciplinary 138 process (including any applicable internal grievance procedure) that resulted in the 139 final appealable disciplinary decision. 140 G. Written Decision: A disciplinary appeals hearing officer shall certify his/her written 141 decision with the Salt Lake City Recorder no later than fifteen (15) calendar days 142 7 after the day on which the appeal hearing concludes. A disciplinary appeals hearing 143 officer may only affirm or overturn the final appealable disciplinary decision and 144 must explain the factual and legal basis for his/her determination. For good cause, a 145 disciplinary appeals hearing officer may extend the fifteen (15) day certification 146 period referenced above to a maximum of sixty (60) calendar days, if the employee 147 and Salt Lake City Corporation both consent to such an extension. 148 H. Audio Recording of Appeal Hearing: The proceedings of each appeal hearing shall 149 be recorded on audio equipment. 150 I. Rules, Regulations, and/or Procedures: The Mayor, or the Chief Human Resources 151 Officer at the direction of the Mayor, shall adopt and publish rules, regulations, 152 and/or procedures governing the employee discipline appeals process that are 153 consistent with and further the objectives of this Chapter. 154 2.24.060: APPEAL OF DECISION OF DISCIPLINARY APPEALS HEARING 155 OFFICER: 156 A final written decision of a disciplinary appeals hearing officer may be appealed by 157 either party to the Utah Court of Appeals within thirty (30) calendar days of the date the 158 decision was certified with the Salt Lake City Recorder. 159 2.24.070: STAY OF DECISION OF DISCIPLINARY APPEALS HEARING 160 OFFICER: 161 If a final written decision of a disciplinary appeals hearing officer is appealed, the 162 disciplinary appeals hearing officer may, in the exercise of his/her discretion or at the 163 request of the eligible City employee or Salt Lake City Corporation, stay the effect of the 164 decision until the appeal has been adjudicated. 165 8 SECTION 3. This ordinance shall become effective upon first publication. If a 166 disciplinary appeal is pending before the Salt Lake City Civil Service Commission or the 167 Salt Lake City Employee Appeals Board prior to the date of first publication of this 168 ordinance, the appellant has the right to have his/her appeal heard and adjudicated by 169 either: i) the Salt Lake City Civil Service Commission or the Salt Lake City Employee 170 Appeals Board (whichever entity is applicable) in accordance with that entity’s existing 171 governing ordinances, rules, regulations, and procedures or ii) a disciplinary appeals 172 hearing officer in accordance with the provisions of this Chapter. 173 Passed by the City Council of Salt Lake City, Utah this _____ day of 174 _______________, 2020. 175 176 177 CHAIRPERSON 178 179 180 181 182 183 184 185 186 187 188 ATTEST: 189 190 191 _______________________________ 192 CITY RECORDER 193 194 195 Transmitted to Mayor on _______________________. 196 197 198 199 200 201 Approved as to Form: Salt Lake City Attorney’s Office ________________________________ Katherine N. Lewis, City Attorney ________________________________ Date November 2, 2020 9 Mayor's Action: _______Approved. _______Vetoed. 202 203 204 205 MAYOR 206 207 208 ________________________________ 209 CITY RECORDER 210 (SEAL) 211 212 Bill No. _________ of 2020. 213 Published: ___________________. 214