2019 - 2023 WCEMemorandum of Understanding: Article 31: Discipline Notice and Hearing - Water Agency

Western Council of Engineers

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31.1 General Provision

The General Manager may take disciplinary action against any employee of the Water Agency.

31.2 Definitions - Full-Time / Part-Time Employees

For purposes of this Article, full-time employee means a full-time employee as defined in this Memorandum who has completed six (6) months of satisfactory full-time service (1,040 hours) in an allocated position. For purposes of this article, a part-time employee means a part-time employee defined in this Memorandum who has completed 1,040 hours of satisfactory service in an allocated position.

31.3 Other Than Full / Part-Time Employees

All employees other than full-time or part-time employees, as described above in Section 31.2, serve at the pleasure of the General Manager of the Water Agency.

31.4 Discipline Process

The General Manager may dismiss, suspend or involuntarily demote a full-time or part-time employee only for cause.

If the General Manager proposes to dismiss, suspend or involuntarily demote a full-time or part-time employee, the General Manager shall provide the employee with written notice of the charge or charges and materials upon which the proposed action is based prior to any final disciplinary action being taken. The employee may waive the right to respond. Responses, if made, may be oral or in writing and shall be communicated to the General Manager within three (3) working days following the date of service of notice.

If no response or request for extension of time to respond is received by the General Manager within such three (3) days, the right to respond will be deemed waived. The General Manager may place the affected employee on leave of absence with pay during the three (3) day response period. On written request within such three (3) days by the employee showing good cause therefore, the General Manager may extend the time for response for a reasonable period if mutually agreed to, may place the employee on leave with pay during the extended response period. The General Manager shall consider the response, if any, of the employee in determining the propriety and nature of disciplinary action.
If the General Manager determines to dismiss, suspend or involuntarily demote a full-time or part-time employee, the order of the General Manager shall be in writing and shall state specifically the reason for the action. The employee may appeal a decision of the General Manager to dismiss, suspend or involuntarily demote the employee by filing a petition for hearing with the Board of Directors within ten (10) working days of receipt of the order. The petition shall state whether the employee requests an open or closed hearing.
Within thirty (30) days of receipt of a petition, the Human Resources Director shall begin the Board of Directors hearing process on the order and appeal by holding a prehearing conference.
Prehearing Conferences
1. Each party appearing in any case shall attend the prehearing conference with their respective counsel or union representative, if any, and shall have a thorough knowledge of the case, be prepared to discuss it to make stipulations or admissions where appropriate, and to attempt to resolve the appeal if possible.
2. The parties, or their respective representatives, are encouraged to confer in person or by correspondence before the date assigned for the prehearing conference to reach agreement upon as many matters as possible.
3. At the prehearing conference, each party shall attempt to identify, to the other party and to the Secretary of the Board, the documents which they will seek to introduce at the time of the hearing, as well as a tentative witness list.
4. At the time of the conference, the parties will try to simplify the actual and legal issues involved in the appeal. The
5. The failure of any person to prepare reasonably for, appear at, or participate in good faith in a prehearing conference as required by this Section, unless good cause is shown for that failure, is in
6. If there is no resolution as a result of this pre-hearing conference, within thirty (30) working days thereafter, the matter shall be placed on the agenda of the Board of Directors for purposes of setting a hearing date, or referred to a hearing officer as described in Section 31.4(e) and (f).
The Board of Directors may, in its discretion, appoint a hearing officer to hear the appeal. If all parties mutually agree, the hearing will be conducted by a member of the California Bar Association, or an Administrative Law Judge or a hearing officer (collectively referred to as “hearing officer”) selected from a list provided by the State Mediation and Conciliation Service. If no agreement is reached, the Board of Directors will select a hearing officer from the above list, or at its discretion, may hear the appeal. The hearing shall be conducted in the manner of hearings conducted under the Administrative Procedure Act. The hearing officer or the Board may affirm, modify or revoke a decision of the General Manager. The decision of the hearing officer or the Board shall be final.
At a hearing before the Board of Directors or hearing officer, witnesses shall testify under oath and there shall be a right to cross-examination. There shall be no right to discovery. The hearing need not be conducted according to technical rules relating to evidence and witnesses. The rules of evidence and the manner of producing evidence shall be those rules set forth in Section 11513 of the Government Code for the conduct of hearings under the Administrative Procedure Act.
At either a hearing before a hearing officer or before the Board of Directors, the appointing authority shall have the burden of proving the charges by a preponderance of the evidence. The appointing authority shall open the case and present its evidence. The employee shall then present the employee’s defense. Thereafter, each side may present rebuttal evidence.
Any decision made by the Board of Directors pursuant to this Article is a personnel matter and the Board may hear and consider the matter in closed session.
Costs of a hearing officer shall be shared by the parties. If a party requests a court reporter, it shall bear the costs associated therewith, and shall provide a copy of the transcript to the other party and the hearing officer without charge.
This Article shall not be construed to create any property right that would give rise to procedural due process beyond that specifically described herein.
This Article is not subject to grievance or arbitration under the procedures in this Memorandum or pursuant to any other procedure or policy of the County.