HomeMy WebLinkAboutORD874ORDINANCE NO.874
AN ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,AMENDING THE PERSONNEL POLICIES,CITY OF APACHE
JUNCTION,TABLE OF CONTENTS;RULE I,DEFINITION OF TERMS;RULE XIX,
SEXUAL HARASSMENT;RULE XX,ADMINISTRATIVE REVIEW AND GRIEVANCE
PROCEDURES;RULE XXI,HEARING OFFICER;AND RULE XXII,RULES OF
APPEAL TO THE HEARING OFFICER; REPEALING ANY CONFLICTING PROVISIONS;
PROVIDING FOR SEVERABILITY;AND DECLARING AN EMERGENCY.
BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,AS FOLLOWS:
SECTION I .IN GENERAL
That Section 21 of Rule I ,Rule XIX,Rule XX,Rule XXI,and Rule XXII of the
Personnel Policies,City of Apache Junction,Arizona be revised and amended to
read as follows:
TABLE OF CONTENTS titles be revised to read:Rule XX,Administrative Review and
Grievance Procedure;Rule XXI Hearing Officer;and Rule XXII,Rules of Appeal to
the Hearing Officer.
RULE I.DEFINITION OF TERMS
Section 21."Personnel Officer":The Assistant City Manager shall be the
Personnel Officer unless otherwise designated by the City Manager.The Personnel
Officer shall administer all the provisions of the Personnel Policies not
specifically reserved to the City Council,the City Manager,or the Hearing
Officer.The Personnel Officer shall be responsible for the administration of
the merit system.This includes,but is not limited to interpreting personnel
rules and regulations,possessing authority to review hiring,firing,
transferring,promoting,demoting,suspending,and reinstating employees,and
maintaining employee records.
RULE XIX.SEXUAL HARASSMENT
Section 1.Sexual Harassment Defined
Sexual Harassment is defined as any unwelcome sexual advances;requests for
sexual favors;and all other verbal or physical conduct of a sexual or otherwise
offensive nature,especially where:
Submission to such conduct is made either explicitly or implicitly a term
or condition of employment;
Submission to or rejection of such conduct is used as the basis for
decisions affecting an individual's employment;or
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-Such conduct has the purpose or effect of creating an intimidating,
hostile,or offensive working environment.
Some examples of sexual harassment are obscene or sexually oriented photographs
or drawings,offensive comments,jokes,innuendos,and other sexually oriented
statements.
Section 2.Policy
Sexual harassment,as defined in Section 1,is prohibited.
The Personnel Office shall be responsible for formally notifying all employees,
division heads,and department heads of the 'existence of this policy.
Each member of the management team is responsible for creating an atmosphere free
of discrimination and harassment and in which sexual harassment is completely out
of place,and for taking immediate and appropriate corrective action in response
to any violation of this policy.Further,employees are responsible for
respecting the rights and sensitivities of their co-workers.
The Personnel Officer and department directors are responsible for taking
immediate and appropriate corrective action in response to any confirmed
violation of this policy and for assuring that no reprisals are taken against
either those who complain or those who may be witnesses.
The Personnel Officer is responsible for auditing the operation of this policy,
providing advice,and resolving any unsettled questions which may arise from this
policy.
Section 3.Initiating a Complaint
Employees who feel they have been sexually harassed should attempt to advise the
alleged harasser of their discomfort.If the offended employee does not feel
sufficiently empowered to directly address the situation with the offender,or
if the offending employee does not appear to take the concern seriously,or i f
the offensive behavior continues,the harassment shall be reported to the
aggrieved employee's immediate supervisor.The immediate supervisor shall
promptly notify their department director.
If the worker's immediate supervisor, a division director, or department director
is the source of the alleged harassment,or i f the employee is uncomfortable
reporting the problem to the immediate supervisor,division director,or
department director,the employee should report the problem directly to the
Personnel Officer.An investigation into the complaint will then be initiated.
I f the Assistant City Manager/Personnel Officer is the source of the alleged
harassment,the employee should report the problem to the City Manager.If the
source of the harassment is a position appointed by the City Council (including,
but not limited to,the City Attorney,City Manager,City Prosecutor,or a City
Magistrate),the employee should report the problem directly to the Personnel
Officer.The Personnel Officer shall then advise the Mayor and City Council that
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a sexual harassment complaint has been filed.All other sources of alleged
harassment should be reported to the Personnel Officer.
Section 4.Investigation Procedure
Upon receipt of a complaint alleging sexual harassment the department director
will promptly notify the Personnel Officer.The department director and the
Personnel Officer are responsible for a thorough investigation and resolution of
the complaint.The Personnel Officer will work with the department to obtain and
evaluate all relevant evidence with respect to what has occurred.With the
advice of the Personnel Officer, the department director will then implement,i f
appropriate, specific remedial and disciplinary actions.The complainant and the
party charged will be notified of the findings.
Section 5.Discipline
The type of discipline to which an employee will be subject for sexually
harassing another employee will depend on the severity of the finding.
Discipline may range from verbal counseling to dismissal.Any employee subject
to disciplinary action as a result of a finding of sexual harassment shall have
due process rights through either the administrative review or the formal
grievance procedure, whichever is appropriate to the level of discipline imposed.
(See Rule XX,Grievance Procedures.)
Section 6.Appeal of Determination
I f the complaining employee is dissatisfied with the outcome of a sexual
harassment complaint she or he may appeal the determination directly to the City
Manager and then subsequently have access to other appeals as set forth in the
formal grievance procedure,Rule XX,Section 5,and Rule XXII,Section 1,of
these policies.
Section 7.Reprisals Prohibited
The City of Apache Junction prohibits any form of retaliation against any
employee for filing a complaint under this policy or for assisting in the
investigation of a complaint.However,if,after investigating any complaint of
sexual harassment or unlawful discrimination,the City determines that an
employee deliberately provided false information regarding the complaint,
disciplinary action maybe taken against the individual who maliciously filed the
complaint or who deliberately gave false information.
RULE XX.ADMINISTRATIVE REVIEW AND GRIEVANCE PROCEDURES
Section I.Purpose of Administrative Review and Grievance Procedures and
Matters Subject to Such Reviews
The purpose of creating Administrative Review and Grievance Procedures is to
provide employees with a just,effective,timely,and equitable method for the
resolution of a problem(s)without discrimination,coercion,restraint,or
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reprisal against the employee when the employee either submits or is involved
in a grievance.The procedure establishes uniform policies and procedures in
handling those informal employee complaints and formal employee grievances
where appeal or hearing is not provided by other regulations.It outlines the
respective rights and obligations of all employees in hearing and resolving
complaints and grievances on matters for which an appeal or hearing is not
provided by other regulations.
Permanent employees in the classified service shall have the right to appeal a
decision affecting their employment over which the City Manager has partial or
complete jurisdiction.The formal grievance procedure may be used for
interpretations of City policy or personnel actions such as suspensions,
demotions,reductions in pay,or dismissals.All other complaints shall be
handled through the Administrative Review Procedures.
Questions of whether a matter is subject to the Administrative Review
Procedure or to the Formal Grievance Procedure shall be decided upon by the
Personnel Officer and such decision shall be final.
Any contention that the City has failed to comply with any obligation i t has
made to an employee through its ordinances,Personnel Policies,or any other
written or verbal commitments,must be raised pursuant to the administrative
review and grievance procedures,and these procedures provide the exclusive
remedy for any such claim.
Section 2.Disciplinary Actions Subject to the Administrative Review
Procedures
The following are types of disciplinary actions which are appealable up to the
Personnel Officer through the Administrative Review Procedures.
A Counseling Interview is a notification to an employee of job skill
deficiency or misconduct and of the City's level of expectations.A
Counseling Interview is used to clarify and remedy the problem early and avoid
the need for formal disciplinary action.The supervisor shall document the
date and nature of the counseling interview on a "Record of Counseling
Interview"form as provided through the Personnel Office and retained in
departmental files.The immediate supervisor is usually responsible for
counseling interviews.
A Written Reprimand is an official notification to an employee that there is a
cause for dissatisfaction with the employee's job performance or that there is
misconduct.The written reprimand is documented on the "Record of Written
Reprimand"as provided through the Personnel Office and placed in the
employee's personnel file in the Personnel Office.
Administrative Review Leave is the leave of an employee with pay to permit an
investigation into matters concerning possible disciplinary action.During
the period of the investigation,generally the employee is considered to be on
full duty and available to participate and aid in the investigation.However,
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in the event the department director believes the employee's presence may
hinder the investigation or is detrimental to the public interest or the
continued efficient operation of the City,then the employee is considered to
be on leave with pay in a non -active duty status.Administrative Review
Leaves are subject to the approval of the department director.
Disciplinary Suspension is the temporary separation of an employee from City
service for a period of 32 hours of employment or less without compensation.A
suspended employee receives written notification listing the specific
charge(s)and period of suspension.A classified employee has the right to
an Administrative Review prior to being suspended.The department director
shall immediately provide a copy of the suspension notice to the Personnel
Officer.Disciplinary suspensions are subject to the approval of the
department director and the City Manager.
Employees may not use accrued vacation or sick leave against the period of
suspension.Suspensions of 32 hours of employment or less are not appealable
to the Personnel Board.
Section 3.Disciplinary Actions Subject to the Formal Grievance Procedure
The following are types of disciplinary actions which are appealable up
through the Personnel Officer to the City Manager and,if not resolved,to the
Hearing Officer through the formal grievance procedure:
Disciplinary Suspension longer than 32 hours of employment is the temporary
separation of an employee from City service without compensation.An employee
to be suspended shall receive written notification listing the specific
charge(s),period of suspension,and administrative review and appeal rights,
if any.The department director shall immediately provide a copy of the
suspension notice to the Personnel Officer.No employee may be suspended for
more than four calendar weeks at any one time for any one offense.A
classified employee has the right to an Administrative Review prior to being
suspended.Disciplinary suspensions are subject to the approval of the
department director and the City Manager.
Employees may not use accrued vacation or sick leave against the days of
suspension.
Disciplinary Pay Reduction is the reduction of an employee's salary not to
exceed 10%.The reduction may be permanent or temporary.The disciplined
employee shall receive written notice listing the specific charge(s),period
of pay reduction and amount,and right of administrative review and appeal.
Classified employees have the right to an Administrative Review prior to
receiving a disciplinary pay reduction.Disciplinary pay reductions are
subject to the approval of the department director and the City Manager.
Involuntary demotion is the movement of an employee from one class to another
class of a lower range in the classification plan.An involuntary demotion
may be either permanent or temporary.The disciplined employee shall receive
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written notice listing the specific charge(s),Administrative Review and
appeal rights.Classified employees have the right to an Administrative
Review prior to the demotion.If the employee is demoted for disciplinary
reasons,the reduction in pay shall not be less than 5%.Involuntary
demotions are subject to the approval of the department director and the City
Manager.
Dismissal is the discharge for cause of an employee from City service.The
employee shall receive written notice listing the specific charge(s),
Administrative Review and appeal rights.Classified employees are allowed to
refute any allegations in an Administrative Review before the final decision
is made by the department director and the City Manager.
Section 4.Administrative Review Procedures
An employee with a problem,complaint,or grievance should first try to get i t
settled through either written or verbal communication with the employee's
immediate supervisor.The immediate supervisor has ten (10)working days to
process and act on the problem if it is submitted verbally,five (5)if it is
written.
Having received the immediate supervisor's decision,or if no answer has been
received within ten (10)working days,the employee may present the concern in
writing through their immediate supervisor to the department director within
five (5)working days.Failure of the employee to take further action within
five (5)working days will constitute a dismissal of the problem,complaint,
or grievance.
The department director receiving the appeal shall review it,render a
decision and comments in writing,and return them to the employee within five
(5)working days after receiving the appeal.If the employee does not agree
with the decision or if no answer has been received within five (5)working
days,the employee may present the appeal in writing to the Personnel Officer.
Failure of the employee to take further action within five (5)working days
after receipt of the decision is rendered by the department director,or after
the time for the decision from the department director has expired,will
constitute a dismissal of the appeal.
Upon receiving the appeal,the Personnel Officer shall discuss the appeal with
the employee,the employee's representative,if any,and with other
appropriate persons.The Personnel Officer may designate a fact-finding
committee of employees not in the normal line of supervision to advise the
Personnel Officer concerning the appeal.The Personnel Officer shall render a
decision in writing to the employee within fifteen (15)working days after
receiving the appeal.
The decision of the Personnel Officer for Administrative Reviews is final and
is not appealable further,unless Formal Grievance Procedures are an available
remedy pursuant to Section 3 herein.
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Section 5.Procedure for Formal Grievances
Formal grievances must first receive an Administrative Review as described in
Section 2 above.That is,the review by the supervisor,department director,
and Personnel Officer must first occur before the matter is considered by the
City Manager.Failure of the employee to take further action within five (5)
working days after receipt of the decision by the Personnel Officer will
constitute a dismissal of the grievance.
Upon receiving the appeal through the Personnel Officer,the City Manager
shall render a decision in writing to the employee within ten (10)working
days.The decision of the City Manager may be appealed to the Hearing Officer
as provided in Rule XXII.Failure of the employee to appeal to the Hearing
Officer through the Personnel Officer within five (5)working days after
receipt of the decision of the City Manager will constitute a dismissal of the
formal grievance.
Section 6.Conduct of Administrative Reviews and Formal Grievance Procedures
The time limits specified above may be extended to a definite date by mutual
agreement of the employee and the reviewer concerned.The agreement to extend
time limits shall be reduced to writing prior to expiration of the applicable
time limit.I t shall provide for a date certain,and be signed and dated by
both parties.
The employee may request the assistance of another person of the employee's
own choosing provided,however,such person requested is not a member of the
Personnel Office,has not been involved in the grievance in any way,or is not
a member of the Personnel Board.The employee and the employee's
representative may be privileged to use a reasonable amount of work time as
determined by the appropriate department director in conferring about and
presenting the appeal.
An appeal,once dropped through action by the employee,or through failure on
the employee's part to pursue the grievance,cannot be reinstituted.
The City of Apache Junction prohibits any form of retaliation against any
employee for seeking an Administrative Review or involving Formal Grievance
Procedure under these policies.
RULE XXI.HEARING OFFICER
Section I:Hearing Officer
The Personnel Officer shall retain a Hearing Officer.The Hearing Officer
shall not be an employee of the City.
The Personnel Officer shall administratively develop and utilize a selection
method for Hearing Officers.This method shall provide for such contingencies
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as the Hearing Officer having a conflict of interest or otherwise being
unable to serve.
RULE XXII.RULES OF APPEAL TO THE HEARING OFFICER
SECTION I.Right of Appeal
Any employee shall have the right to appeal to the Hearing Officer any
disciplinary action,interpretation,or alleged violation of these rules
pursuant to Rule XX,Sections 3 and 5,as well as Rule XIX,Section 6,after
first having followed the procedures outlined in Rule XIX and/or Rule XX.
Instances where the right of appeal is specifically prohibited shall not be
considered by either the Hearing Officer.
SECTION 2.Method of Appeal.Hearing Officer
Failure of the employee to take further action within five (5)working days
after receipt of the decision of the City Manager will constitute a dismissal
of the formal grievance.
Within the five-day appeal period,the employee involved may file such notice
of the appeal by giving written notice of appeal to the Personnel Officer.The
appeal shall be a written statement addressed to the Hearing Officer
explaining the matter appealed and setting forth therein a statement of action
desired by the appealing employee,with the reasons therefore.The statement
shall be signed by the appealing employee.The formality of a legal pleading
is not required.
The Personnel Officer shall contact the Hearing Officer and schedule a time
for an appeal hearing before the Hearing Officer.The hearing shall be not
less than ten (10)working days,nor more than thirty (30)working days,from
receipt by the Personnel Officer of the employee's appeal of the City
Manager's decision.All interested parties shall be notified in writing of
the date,time,and place of the hearing at least five (5)working days prior
to the hearing.
Pursuant to Title 12,Article 2,Chapter 13,Arizona revised Statutes,the
Hearing Officer may issue subpoenas,compel attendance of witnesses and
production of evidence,administer oaths and cause depositions to be taken.
The subpoena shall be issued in the same manner as provided for issuance of
subpoenas in the Superior Court of Arizona.Failure to comply with a subpoena
issued by the Hearing Officer shall result in a proceeding before the Superior
Court of Arizona in the same manner as if the subpoena has been initially
issued by the Superior Court.
The appealing employee shall appear personally,unless physically unable to do
so,before the Hearing Officer at the time and place of the hearing.The
appealing employee may be represented by an attorney or any person other than
a member of the Personnel Office,the City Manager's Office,the Personnel
Board,or the City Council.
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All hearings before the Hearing Officer shall be closed.The hearing need not
be conducted in accordance with technical rules relating to evidence and
witnesses but hearings shall be conducted in a manner most conducive to
determination of the truth.Any relevant evidence may be admitted if it is
the sort of evidence on which responsible 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 pursuant to the
Arizona Rules of Evidence.The rules of privileges shall be effective to the
same extent that they are now or hereafter may be recognized in civil actions,
and irrelevant and unduly repetitious evidence may be excluded.Decisions
made by the Hearing Officer shall not be invalidated by any informality in the
proceedings,and the Hearing Officer shall not be bound by technical rules of
evidence.
The Hearing Officer shall rule on the admission or exclusion of evidence.The
proceedings before the Hearing Officer may be recorded by a court reporter or
by audio or videotape,the original tape or recording,or a copy certified by
the Hearing Officer,shall be a part of the record of any appeal.
Each party shall have these rights:To be represented by legal counsel or
other person of choice;to call and examine witnesses;to introduce evidence;
to cross-examine opposing witnesses on any matter relevant to the issues;to
impeach any witness regardless of which party first called for testimony;and
to rebut the evidence.If the respondent does not testify in his/her own
behalf,(s)he may be called and examined as if under cross-examination.
Oral evidence shall be taken only on oath or affirmation.
The hearing shall proceed in the following order,unless the Hearing Officer
for special reason,otherwise directs:
1.The party imposing discipline shall be permitted to make an
opening statement.
2.The appealing party shall be permitted to make an opening
statement.
3.The party imposing disciplinary action shall produce the evidence
on his/her part.
4.The party appealing from such disciplinary action may then open
for defense and offer evidence in support thereof.
5.The parties may then,in order,respectively offer rebutting
evidence only,unless the Hearing Officer for good reason,permits
them to offer evidence upon their original case.
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6.Arguments shall be permitted at the discretion of the Hearing
Officer.
The Hearing Officer shall determine relevancy,weight,and reliability of
testimony and evidence,and shall base findings on the preponderance of
evidence.
During the examination of a witness,all other witnesses,except the parties,
shall be excluded from the hearing upon motion of either party.
No still photographs,moving pictures,or television pictures shall be taken
in the hearing chamber during a hearing.
The Hearing Officer,prior to or during a hearing,may grant a continuance for
any reason the Hearing Officer believes to be important to reaching a fair and
proper decision.
The Hearing Officer shall render findings of fact,conclusions of law,and
recommended action(s)as soon after the conclusion of the hearing as possible,
and in no event,later than twenty (20)working days after conducting the
hearing unless otherwise stipulated by the parties.The Hearing Officer's
decision shall set forth the findings as to each of the charges and the
reasons therefore.
The Hearing Officer may sustain or reject of any or all of the charges filed
against the employee.The Hearing Officer may sustain,reject,or modify the
disciplinary action invoked against the employee.
The decision of the Hearing Officer shall be final and binding upon both the
employee and the City,and therefore not appealable to any office or body of
the City or to any other forum,administrative or judicial.The decision shall
be filed with the employee,the department director,the Personnel Officer,
and the City Manager,and shall set forth all the findings of fact,
conclusions of law,and determination.
SECTION II.REPEALING ANY CONFLICTING PROVISIONS
All ordinances and parts of ordinances in conflict with the provisions of this
ordinance or any part of the code adopted herein by reference are hereby
repealed.
SECTION III.EFFECTIVE DATE OF AMENDMENTS
The amendments to the Personnel Policies shall take effect on the effective
date of this ordinance and shall govern any personnel matter or decision which
was not formally appealed to the Personnel Board of the City of Apache
Junction as of the effective date of this ordinance.Any matter which was
formally appealed to the Personnel Board prior to the effective date of this
ordinance shall proceed pursuant to the previous Rules XX,XXI,and XXII of
the Personnel Policies of the City of Apache Junction.
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SECTION IV.PROVIDING FOR SEVERABILITY
If any section,subsection,sentence,phrase,clause or portion of this
ordinance or any part of the code adopted herein by reference is,for any
reason,held to be invalid or unconstitutional by any court of competent
jurisdiction,such decision shall not affect the validity of the remaining
portions thereof.
SECTION V.EMERGENCY CLAUSE
It being necessary for the preservation of the peace,health,and safety of
the City of Apache Junction,Arizona,that this ordinance become effective
immediately,an emergency is hereby declared to exist and this ordinance shall
be effective immediately upon its passage and adoption.
APPROVED AND ADOPTED THIS 2ND DAY OF NOVEMBER,1993,BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA.
SIGNED AND ATTESTED TO THIS 3RD DAY OF NOVEMBER,1993.
L /117AciEeof,
JEAN RKINS
May
ATTEST:
KATHLEEN CONNELLY
City Clerk
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lift •••ran."AiLtNN bkI1tiUI,city Attorney
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