San José Municipal Code § 3.04.1500 Disciplinary action.
3.04.1500 - Disciplinary action.
This section is applicable to each employee of the city holding a regular position in the classified service, other than persons holding such positions by virtue of emergency or provisional appointments, who has satisfactorily served his or her probationary period of service in such position; hereinafter referred to as "covered employees."
A. No covered employee may be suspended without pay, demoted or dismissed from his or her position in the classified service, except for cause such as, but not limited to:
1. Malfeasance;
2. Misconduct;
3. Incompetence;
4. Insubordination;
5. Inefficiency;
6. Failure to satisfactorily perform the duties of his or her position;
7. Failure to satisfactorily observe applicable rules and regulations; or
8. Failure to cooperate reasonably with his or her superior or fellow officers or employees.
B. Any such covered employee shall be given a written notice of his or her suspension, demotion or dismissal, in the manner and within the time specified in the civil service rules, not to exceed seventy-two hours from the time of such reduction in pay, suspension, demotion or dismissal. The notice shall contain a statement of the specific reason or reasons for the suspension, demotion or dismissal.
C. The covered employee may appeal to the civil service commission for a review of the suspension, demotion or dismissal by filing a written notice of appeal with the secretary of the commission within the time specified in the civil service rules, not to exceed thirty days from the date he or she is given the written notice. The notice of appeal shall contain such answer as the covered employee may have to the charges made against him or her. The secretary of the commission shall immediately transmit a copy of the notice of appeal, including the answer, to the appointing authority.
D. A hearing on the appeal, at which the commission or a hearing officer designated, as the commission may determine as hereinafter specified, shall be held to review the action of suspension, demotion or dismissal. The hearing shall be held within forty-five days from the date on which the notice of appeal is filed, or at such other time as may be agreed to by the covered employee and the civil service commission. If the appeal is to an action of dismissal, the hearing may be held by a hearing officer only with the express consent of the covered employee.
E. If the commission determines that the hearing shall be held by a hearing officer, it shall note such order in its minutes, and the clerk of the commission shall notify the parties of such order; within not less than ten days before the date of hearing. If the appellant and the appointing authority are otherwise unable to agree upon the person to act as hearing officer, each shall designate the names of five proposed hearing officers. The names on the list shall be stricken individually in succession by the parties alternately commencing with the appointing authority or his or her representative, until only one name remains on the list. If the commission approves the person so designated, he or she shall be appointed by the commission as the hearing officer to hear the appeal. If the commission does not approve the person to act as hearing officer in such appeal, the parties shall propose additional names and alternately strike names from the list or lists, until the commission approves a person to be appointed by the commission as the hearing officer to hear the appeal. Reasonable fees and expenses of such hearing officers shall be paid by the city from moneys appropriated for this purpose by the council.
F. At the hearing, both the covered employee and the appointing authority whose action is being reviewed, and their respective representatives, shall have the right to be heard and to present evidence. If an appeal is heard by a hearing officer, he or she shall prepare a proposed decision, in such form as may be adopted by the commission as the decision in the case. A copy of the proposed decision shall be filed by the commission as a public record, and copies shall be furnished to each party within ten days after the proposed decision is filed with the commission. Either the commission or the covered employee may order a transcript of the hearing to be prepared, and the transcript shall be filed with the commission as a public record. If such transcript be ordered by the covered employee, he or she shall pay the cost of the transcript. If a transcript is ordered by the commission, the cost shall be paid from moneys appropriated for this purpose by the council.
G. Within a reasonable time after the proposed decision is filed, the commission shall consider the proposed decision. If the proposed decision is not adopted as recommended by the hearing officer, each party shall be notified of this action. The commission may then decide the case on the record, including the transcript, if any, with or without taking any additional evidence, or may hear the case de novo, or may refer the case to the same or another hearing officer to take additional evidence. If oral evidence in addition to the written record is introduced before the commission, no member of the commission may vote unless he or she has heard the additional oral evidence. If the case is assigned to a hearing officer, he or she shall prepare a proposed decision as provided above upon the additional evidence and the transcript, if any, and other papers which are part of the record of the prior hearing. A copy of the proposed decision shall be furnished to each party and filed by the commission as provided in this section. Either the commission or the appellant covered employee may request a transcript of such additional evidence to be prepared, and the transcript shall be filed with the commission as a public record. If the transcript is ordered by the appellant covered employee, he or she shall pay the cost of the transcript. If the transcript is ordered by the commission, the cost shall be paid from moneys appropriated for this purpose by the council.
H. If, after the hearing, the civil service commission concludes that the suspension, demotion or dismissal was without cause, it shall order reinstatement without loss of pay, and the order shall be binding upon the appointing authority, who shall comply with the order. In the event that the civil service commission, after the hearing, concludes that there was cause for disciplinary action but that the type of penalty was not warranted under the circumstances, it may, in its discretion, order reinstatement with loss or partial loss of pay, and such order shall be binding upon the appointing authority, who shall comply with the order. In the event the civil service commission concludes that the officer or employee is unqualified for or unable for other reasons to satisfactorily perform the duties of his or her office or position but is qualified for and can perform the duties and functions of a lower position, it may, in its discretion, order demotion and employment of such officer or employee to and in a lower class of position or employment or may order that the person's name be placed on an eligible list for employment in a lower class of position or employment if and when a vacancy occurs, and the order shall be binding upon the director of human resources and the appointing authority, who shall comply with the order.
I. If, after the hearing, the civil service commission concludes that the suspension, demotion or dismissal was for adequate cause and that the action taken by the appointing authority was warranted, the commission shall affirm the action of the appointing authority.
J. Except when the proposed decision by a hearing officer is adopted in its entirety, the commission shall decide no case provided for in this section without affording the parties an opportunity to present oral and written argument before the commission.
K. In arriving at a decision or a proposed decision in any case provided for in this section, the commission or the hearing officer may consider any prior discipline imposed upon the appellant.
L. The decision of the commission shall be in writing and shall contain findings of fact and the disciplinary action, if any. The findings may be stated in the language of the pleadings or by reference to the pleadings. Copies of the decision shall be delivered to the parties personally or sent to them or either of them by certified mail.
M. Subject to such reasonable limitations and restrictions as may be set forth in the civil service rules, the civil service commission may grant a rehearing if good cause is shown.
(Ord. 25635.)