HomeMy WebLinkAbout05 - Disability Retirement and Reinstatement Determinations and Appeals for Local Safety Members Under the Public Employees Retirement LawTO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
November 24, 2015
Agenda Item No. 5
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Barbara Salvini, Human Resources Director - 949-644-3300,
bsalvini@newportbeachca.gov
PREPARED BY: Sheri Anderson, Risk Manager
PHONE: 949-644-3307, candersonC@newportbeachca.gov
TITLE: Resolution of the City Council of the City of Newport Beach
Regarding Disability Retirement and Reinstatement Determinations
and Appeals for Local Safety Members Under the Public Employees
Retirement Law; Delegating Authority for Local Public Safety
Member Disability Retirement and Reinstatement Determinations
and Rescinding Resolution No. 2008-89
ABSTRACT:
The Public Employees' Retirement Law (PERL) requires the governing bodies of local
agencies to make determinations regarding industrial disability retirements on behalf of
its safety members Adoption of Resolution No. 2015-100 authorizes the City to
continue with its current procedure for the consideration and determination of
applications by local safety member employees for disability retirement and reflects the
City's intent to re-evaluate disability retirees under the minimum age for voluntary
retirement on an annual basis to determine if they are eligible for reinstatement.
RECOMMENDATION:
Adopt Resolution No. 2015-100, A Resolution of the City Council of City of Newport
Beach, California, Regarding Disability Retirement and Reinstatement Determinations
and Appeals for Local Safety Members Under the Public Employees Retirement Law,-
Delegating
aw,Delegating Authority for Local Public Safety Member Disability Retirement and
Reinstatement Determinations and Rescinding Resolution No. 2008-89.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding to carry out the process.
Re-evaluations will be expensed to the Workers' Compensation fund, other expenses
account 75000750-891035.
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Industrial Disability Retirement Resolution
November 24, 2015
Page 2
DISCUSSION:
Backqround:
The Public Employees' Retirement Law (PERL) requires the governing bodies of local
agencies to make determinations regarding industrial disability retirements on behalf of
its safety members. Under Government Code section 21173 the City Council, through
resolution, may delegate this determination. Since 1982, the City Council has delegated
its authority to make these determinations; the current authority rests with the City
Manager. In accordance with State law, the City Manager determines whether local
safety members are incapacitated from performing the usual duties of their positions
and whether the incapacities are industrially (work) related. The City Manager often
obtains the advice of the Risk Manager, Human Resources Director and the City
Attorney's office in making these determinations.
The City Council has adopted resolutions related to the delegation of authority, the
process by which industrial disability determinations will be made, and the appeal
process from time to time based on changes in PERL and its regulations. Resolution
No. 2008-89 (Attachment B) is the most recently adopted resolution on the subject.
Following the filing of an application for an industrial disability retirement of a City safety
employee, the City Manager receives evidence -based medical status reports from the
physician(s) who treated and examined the employee, including reviewing any
necessary supporting documents from the Risk Management Division. The City
Manager reviews all pertinent documents prior to making his determination as to
whether or not the employee is substantially incapacitated from performing the usual
duties of his or her position. The proposed resolution (Attachment A) references the
applicable law, including Government Code Section 21154, which authorizes the City to
file an application for disability retirement and to obtain a medical evaluation to
determine whether the employee is substantially incapacitated; and Government Code
Section 21192, which authorizes the City to require recipients of disability retirements to
undergo medical examinations if they are under the minimum age for voluntary
retirement.
The City has awarded a number of industrial disability retirements to safety employees
over the last five years. The recipients range in age from 25 to 49. It is estimated that
each early retirement costs the City a minimum of $500,000 to $750,000. The proposed
resolution reflects the City's intent to exercise its authority to re-evaluate industrial
disability retirement recipients on an annual basis to determine if they remain
incapacitated, or if they can be reinstated while they are under the voluntary retirement
age.
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Industrial Disability Retirement Resolution
November 24, 2015
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution
Attachment B — Resolution No. 2008-89
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RESOLUTION NO. 2015 -XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH REGARDING DISABILITY RETIREMENT AND
REINSTATEMENT DETERMINATIONS AND APPEALS FOR LOCAL
SAFETY MEMBERS UNDER THE PUBLIC EMPLOYEES RETIREMENT
LAW; DELEGATING AUTHORITY FOR LOCAL SAFETY MEMBER
DISABILITY RETIREMENT AND REINSTATEMENT
DETERMINATIONS; AND RESCINDING RESOLUTION NO. 2008-89
WHEREAS, the City of Newport Beach is a contracting agency of the Public
Employees Retirement System ("PERS"); and
WHEREAS, California Government Code Sections 21150, et seq. and 21190, et
seq. require that a contracting agency make determinations relating to disability
retirement applications for its local safety member employees, as well as reinstatement
of such retirees; and
WHEREAS, the Public Employee Retirement Law ("PERL") requires that a
contracting agency determine whether an employee of such agency in which he/she is
classified as a local safety member is disabled for the purposes of the PERL and
whether such disability is industrial within the meaning of such law; and
WHEREAS, California Government Code Section 21173 allows the governing
body of a contracting agency to delegate any of its authority to make determination
regarding disability under the PERL.
NOW, THEREFORE, the City Council of the City of Newport Beach does
RESOLVE as follows:
SECTION 1. Pursuant to 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 consult with medical and/or occupational experts, make
determinations for disability retirement of employees classified as local safety members,
determine whether such disability is industrial, initiate requests for reinstatement of local
safety members previously retired for disability, and to certify such determinations and
all other necessary information to PERS.
SECTION 2. In the event of a dispute regarding retirement or reinstatement of
sworn local safety member, where a determination of incapacity is necessary, the City is
required by California Government Code Sections 21156 and 11512, as well as the
holdings in Usher v. County of Monterey (1998) 65 Cal.App.4th 210 and Langan v. City
of EI Monte (2000) 79 Cal.App.4th 608, to have the hearing conducted by an
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ATTACHMENT A
Administrative Law Judge ("ALJ") from the Office of Administrative Hearings ("OAH")
alone, who will then submit a proposed decision to the Council upon which it may act.
The appeal hearing is required to be conducted consistent with the provisions of the
Administrative Procedures Act ("APA"), California Government Code Section 11500, et
seq.
SECTION 3. Appeals taken by employees of disability retirement determinations
for local safety members under the PERL and for reinstatement of local safety members
who are retired on account of disability under the PERL shall be governed by the
provisions of the Administrative Procedures Act (California Government Code Section
11500, et seq.).
SECTION 4. Pursuant to California Government Code Section 11517, the City
shall retain the statutory right to review the proposed decision of the Administrative Law
Judge from the Office of Administrative Hearings and to adopt, modify or reject that
proposed decision. The City will follow and comply with all procedural requirements set
forth in California Government Code Section 11517.
SECTION 5. In the absence of judicial review that may be brought by the
employee, the City Manager's final decision shall be certified by the City to PERS in the
manner and within the time provided by law.
SECTION 6. To the extent the City Manager determines that a local safety
member is eligible for disability retirement, but is not eligible for industrial disability
retirement, the employee's appeal of the City Manager's decision that the disability
retirement is not industrial shall be conducted and heard by the Workers' Compensation
Appeals Board (WCAB).
SECTION 7. In the event that the City of Newport Beach has not yet rendered a
determination on whether a local safety employee is substantially incapacitated for the
performance of duty and the employee has yet to undergo an evaluation in accordance
with Government Code Section 21154, the City of Newport Beach may file an
application for disability retirement with PERS in order to obtain said evaluation for
purposes of addressing substantial incapacity. When the evaluation has been received
by the City of Newport Beach, the City of Newport Beach will endeavor to make a
prompt determination on the application.
SECTION 8. Resolution 2008-89, adopted October 28, 2008, is hereby
rescinded.
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ATTACHMENT A
Adopted this day of , 2015.
Mayor of the City of Newport Beach
ATTEST:
City Clerk
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ATTACHMENT B
RESOLUTION 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
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ATTACHMENT B
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 .
ERS:
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 tiles an appeal, the appeal hearing shall be held in
conformity with the Administrative Procedures Act (Chapter 5, commencing with section
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ATTACHMENT B
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, California
ADOPTED this 28th day of Octob+
ATTEST:
ME
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sl1 MEN—=/-.0.City C—lerk
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ATTACHMENT B
STATE OF CALIFORNIA.
COUNTY OF ORANGE
CITY OF NEWPORT BEACH )
1, 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)
r
City Clerk
Newport Beach, California
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