Chapter 2.60
EMPLOYEE DISCIPLINE OR TERMINATION
Section:
2.60.010 Appeals board designated and notice.
2.60.020 Pre-hearing procedures.
2.60.050 Additional hearing procedures.
2.60.070 Burden of proof and standard of review.
2.60.010 Appeals board designated and notice.
(1) The city governing body shall sit as the appeals board for appeals by an eligible employee of discharge, suspension without pay, or involuntary transfer to a position with less remuneration and of such other appeals as the city, by resolution, may designate.
(2) If the mayor and/or a council member has participated in, or been involved sufficiently in, the termination or discipline action such that they may deem it in the best interest of the city to recuse themselves from participation as a member of the appeals board, one member of the council shall be designated as the presiding officer or chairman of the hearing to conduct the hearing and make initial rulings on evidentiary issues, etc., in place of the mayor; the remaining council members shall serve as the appeals board.
(3) When an employee has filed an appeal pursuant to Section 10-3-1106(3)(a), Utah Code Annotated 1953, the municipal recorder shall forthwith deliver a copy of the appeal to the appeals board. The mayor, or other presiding officer of the appeals board, shall set a date for hearing which shall be not more than 45 days from the date the matter was referred to the appeals board, unless the time is extended by agreement of the parties.
(4) As soon as a date for hearing is set, the municipal recorder shall forthwith mail or deliver notice to the appealing employee and the board members of the date, time, and place of the hearing and shall include with the notice a copy of this chapter outlining the procedures to be followed in the hearing. The notice shall advise the employee that any request for a continuance must be approved by the city and must be requested not less than three business days prior to the date of the scheduled hearing.
(5) If the employee fails to appear at the time and place set for the hearing, the default of the employee shall be entered and the previous action taken shall be affirmed. A copy of the order of default shall be mailed to the employee.
(6) A defaulted employee may seek to have the appeals board set aside the default order for good cause shown by following the procedures outlined in the Utah Rules of Civil Procedure. A motion to set aside a default and any subsequent order shall be decided by the presiding officer.
(7) In the event less than three members of the governing body are qualified to sit as an appeals board in any given matter, the mayor, with the advice and consent of the city council, shall appoint qualified elector(s) of the city of sound judgment and good character as temporary appeals board member(s) to provide an appeals board consisting of at least three individuals.
(8) The city attorney shall act as an impartial aid to the appeals board in outlining facts and issues. The city prosecutor may represent the city in presenting evidence to the appeals board.
(9) All proceedings of the appeals board hearing shall be recorded by the city and the record shall be preserved until all appeals and procedures have been resolved or for four years, whichever is later. [Ord. 13-155 § 1, 2013.]
2.60.020 Pre-hearing procedures.
(1) An outline of the hearing procedures shall be provided to the employee/appellant within three days after receiving the notice of appeal.
(2) The hearing shall be held within 45 days after receiving the notice of appeal, unless extended by agreement of the parties.
(3) The parties shall exchange copies of documentary evidence and witness lists at least three business days prior to the scheduled hearing.
(4) The hearing shall be conducted as an administrative proceeding and the rules of evidence used in court proceedings need not be strictly observed. However, only those items of evidence which are relevant and which are inherently reliable shall be received and considered; the decision must be made on competent evidence presented at the hearing. The residuum rule applies.
(5) Prior to the hearing, the employee and the appeals board shall be provided with copies of:
(a) Notice of pre-disciplinary hearing given to appellant.
(b) Notice of termination/discipline.
(c) Notice of appeal submitted to the city. [Ord. 13-155 § 2, 2013.]
2.60.030 Hearings.
(1) At the time and place set for the hearing, the chairperson/presiding officer shall identify board members, establish the existence of a quorum, and state for the record the date, matter to be considered, and shall identify the parties and counsel present. The employee shall be notified of the right to be represented by counsel and counsel, if any, shall be identified.
(2) The chairperson/presiding officer shall state the purpose of the hearing and outline the procedures to be followed.
(3) The presiding officer shall regulate the course of the hearing to obtain full disclosure of relevant facts and to afford all the parties reasonable opportunity to present their positions.
(4) On his own motion, or upon objection by a party, the presiding officer may:
(a) Exclude evidence that is irrelevant, immaterial, or unduly repetitious;
(b) Exclude evidence privileged in the courts of Utah;
(c) Receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document;
(d) Take official notice of any facts that could be judicially noticed under the Utah Rules of Evidence, of the record of other proceedings before the city or any court and of technical or scientific facts within the knowledge of the board.
(5) The presiding officer may allow reliable evidence.
(6) The presiding officer shall afford to all parties the opportunity to present evidence, argue, respond, conduct cross-examination, and submit rebuttal evidence.
(7) All testimony presented at the hearing, if offered as evidence to be considered in reaching a decision on the merit, shall be given under oath.
(8) Any party at its expense may have a person, approved by the city, prepare a transcript of the hearing.
(9) All hearings shall be open to all parties, however the presiding officer may take appropriate measures necessary to preserve the order and integrity of the hearing, and may order anyone disrupting the proceedings to leave.
(10) Employee/appellant is entitled to confront the witnesses whose testimony is to be considered and to examine the evidence to be considered by the appeals board, and to have a public hearing if requested. [Ord. 13-155 § 3, 2013.]
2.60.040 Hearing procedures.
The hearing shall generally be conducted according to the following procedure:
(1) City position statement (opening statement – 10 minutes).
(2) Employee/appellant position statement (opening statement – 10 minutes).
(3) Chair identify and give oath to witnesses.
(4) City call and examine witnesses and present evidence.
(5) Employee/appellant cross-examine each witness after testimony/city may redirect, etc.
(6) Employee/appellant call and question witnesses and present evidence.
(7) City cross-examine each witness following testimony/redirect.
(8) City rebuttal witnesses.
(9) Appellant rebuttal witnesses.
(10) City summarize/closing statement (15 minutes).
(11) Employee/appellant summarize/closing statement (15 minutes).
(12) Rebuttal closing statement by city (seven minutes).
(13) Appeals board voting by sealed ballot. (Reminder by chairman that board must make decision based only upon evidence and testimony presented at hearing.)
(14) Tabulate votes and certify results to city recorder within 15 days from date that matter is heard by the appeals board, unless time is extended pursuant to Section 10-3-1106(5), Utah Code Annotated 1953.
(15) After reaching a decision, the appeals board may issue a written decision including findings of fact. If a written order is to be prepared, the employee shall first be notified of the results of the vote and, thereafter, the written order shall forthwith be prepared and provided to the employee. If a written order is prepared, the 30 days time for filing notice of appeal to the Utah Court of Appeals shall not begin to run until the written order is signed and sent to the employee.
(16) A finding of fact that is contested may not be based solely on hearsay evidence unless that evidence is admissible under the Utah Rules of Evidence.
(17) In the event the appeals board upholds the discharge or discipline, notice shall be given to the employee/appellant that they have 30 days to appeal to the Utah Court of Appeals. [Ord. 13-155 § 4, 2013.]
2.60.050 Additional hearing procedures.
(1) The hearing shall be public unless a private hearing is requested by the employee and agreed upon by the city.
(2) At the request of either party, witnesses may be excluded prior to their testimony.
(3) All witnesses shall be administered the oath prior to testifying.
(4) The proceedings shall be tape recorded and the tape preserved in a manner to assure completeness and accuracy. Stenographic recording shall not be required.
(5) The city shall make available current city employees, if needed, as witnesses for either party. [Ord. 13-155 § 5, 2013.]
2.60.060 Reconsideration.
(1) Within 20 days after the date that the order is issued, the employee may file a written request for reconsideration, stating the specific grounds upon which relief is requested. A request for reconsideration shall be filed with the city recorder and one copy shall be mailed by the employee to each member of the board of appeals that sat on the matter. The request for reconsideration must be based upon those facts and factors which would constitute a basis for a new trial under the Utah Rules of Civil Procedure. The chairperson/presiding officer shall confer with the other members of the appeals board and notify the employee within five business days if a reconsideration or re-hearing will be granted. The decision to grant or deny reconsideration shall be at the sole discretion of the presiding officer/chairperson after consultation with the hearing board members and shall not be subject to judicial review. A motion for reconsideration which is not granted within five business days shall be deemed denied.
(2) The filing of a motion for reconsideration or new hearing shall not extend the time for appeal unless the motion is granted. [Ord. 13-155 § 6, 2013.]
2.60.070 Burden of proof and standard of review.
The standard of proof shall be preponderance of the evidence. Upon judicial review, the standard of review shall be abuse of discretion. [Ord. 13-155 § 6, 2013.]