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Home My WebLink About2008-89 - RESCINDED SEE 2015-100; Disability RetirementsRESOLUTION NO. 2008- 89 RESOLUTION OF THE COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE CITY MANAGER TO ACT ON BEHALF OF THE CITY OF NEWPORT BEACH 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. 2006-27 WHEREAS, Article 6 (commencing with section 21150) of Chapter 12 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' Retirement System ( "PERS ") may be granted a disability retirement; and WHEREAS, pursuant to said Article 6, 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 law; and WHEREAS, pursuant to Resolution No. 2006 -27, adopted April 11, 2006, the City Council delegated authority for making determinations with respect to disability retirements for local safety members of PERS; and WHEREAS, because the government Code sections pertaining to disability retirement have been renumbered and changed since the adoption of Resolution No. 2006 -27, and the California courts have outlined new considerations for disability retirement determinations in light of the reversal of 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. 2006 -27; 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 Newport Beach does RESOLVE as follows: SECTION 1. Pursuant to California Government Code section 21173, the City Council hereby delegates to the City Manager the authority to act on behalf of the City of Newport Beach 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 disability 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 substantially incapacitated for the performance of duties of the position. 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 City Manager or such other person as the City Manager may 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 that the incapacity is as the result of an industrial disability; 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 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 industrial. 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. 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 City Manager, 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 section 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 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 and shall be held within ninety calendar days from the date the City's letter of determination was sent by certified mail to the member. 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, within thirty calendar days of receipt of the Administrative Law Judge's report, the City Manager or his or her designee shall review the administrative record and 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 Orange 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. SECTION 3. Resolution No. 2006 -27, adopted April 11, 2006, is hereby rescinded. BE IT FURTHER RESOLVED that the City Clerk is authorized and directed to transmit a certified copy of this Resolution to the Public Employees' Retirement System, P.O. Box 942704, Sacramento, Californi ADOPTED this 28th day of Octob ATTEST: /<I ►�..�__ !ice City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2008 -89 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of October 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Rosansky, Daigle, Webb, Curry, Gardner, Mayor Selich Noes: None Absent: Henn Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of October 2008. (Seal) City Clerk Newport Beach, California