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ORD CC 1980-05 - Amending Code Ch 2 - Administrationa' • ORDINANCE NO. $0 -5 AN ORDINANCE AMENDING ARTICLE I ENTITLED "IN GENERAL" OF CHAPTER 2 ENTITLED "ADMINISTRATION," OF THE CODE OF ORDINANCES OF THE CITY OF HUNTSVILLE BY ADDING A NEW SECTION TO BE KNOWN AS SECTION 2 -2 ENTITLED "EMPLOYEE GRIEVANCE APPEALS HEARING PROCEDURES BEFORE THE HUNTS - VILLE CITY COUNCIL "; PRESCRIBING AND DETAILING NOTIFI- CATION, METHOD OF OPERATION, COMPOSITION OF HEARING BOARD PRESIDING'OFFICER BURDEN OF PROOF AND REBUTTAL; DEFINING GRIEVANCE; PROVIDING FOR ITS REVIEW, RECEIPT OF EVIDENCE, INVESTIGATIVE AND DECISION - MAKING AUTHO- RITY, DISMISSAL, WITNESSES, WITNESS RULE, POWER TO ADMINISTER OATHS, SUBPOENA WITNESSES, COMPEL EVIDENCE, PROVIDING A PENALTY FOR CONTEMPT, PRE - FILING OF DOCUMEN- TARY EVIDENCE, LEGAL REPRESENTATION, CROSS EXAMINATION, FINAL ARGUMENT, JUDGEMENT, RECORDING, DECORUM, BAILIFFS, COMBINATION HEARINGS, POWER OF AMENDMENT; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Huntsville City Council wishes to present a detailed procedure for the employees of the City of Hunts- ville to follow in regard to a grievance appeal. Council desires that appeals before the City of Huntsville City Council pursuant to the City's Grievance Procedure shall be informal administrative proceedings wherein the Council serves as a quasi - judicial body with the rules of evidence relayed from strict judicial practice; however, certain rules, policies and procedures are to be adopted by the City Council to conduct such hearings, which rules, policies and procedures are set out below. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS, THAT CHAPTER 2 OF THE CODE OF ORDINANCES OF THE CITY OF HUNTSVILLE, TEXAS, BE AMENDED BY THE ADDITION OF THE FOLLOWING SECTION TO ARTICLE I, TO BE EFFECTIVE UPON PASSAGE. Section 1. Article 1, Chapter 2, Section 2 -2 of the Code of Ordinances of the City of Huntsville shall hereafter read as follows: "Section 2 -2. Employee Grievance Appeals Hearing Procedures. (a) The appeals hearing will be commenced promptly on the date and time scheduled, Each party will be notified in writing by the City Secretary as to such date and time. • • (b) Any questions or other preliminary matters should be directed to the Mayor, but may be administratively delegated and handled by the City Secretary or a designated surrogate. The City Secretary shall be responsible for the proper and efficient operation of the grievance procedure. (c) At least six council members, qualified and voting, must be present at all hearings. Final determinations shall be made only by majority vote of the Mayor and members of Council present and voting; provided however, that no member of City Council (including the presiding officer) may participate in the executive deliberations or have a vote on a grievance in which any such Council member has a personal conflict of interest, whether direct or indirect. When any such conflict of interest arises, the affected Council member shall be excused from any involvement in the subject grievance. In the event three (3) or more members of Council are disquali- fied pursuant to this provision, the Mayor shall have authority to appoint replacement persons each of whom shall be unbiased citizens of the City of Huntsville, which replacement persons shall serve in the same capacity as the respective Council members being replaced for the hearing on which the conflict exists only. (d) The Mayor or Mayor Pro Tempore shall be the presiding officer at all hearings and delibera- tions. In the event that both of the foregoing are either unavailable or disqualified, the remaining Council members shall select a presiding officer from among themselves by majority vote. Any such elected presiding officer shall be the permanent presiding officer, but for that grievance hearing only. (e) The parties to the appeal shall be the aggrieved employee and the City of Huntsville. The original burden of proof shall be upon the City, to establish, that the disciplinary or dismissal decision on behalf of the City is supported by just cause; once a prima facie case has been established by the City, the -2- burden of proof shall shift to the employee to show that the disciplinary or dismissal decision is not supported by just cause. Rebuttal evidence may be allowed upon approval by the Council, but new areas may not be opened once the respective cases-in-chief have been closed. The standard of proof for the foregoing shall be "by a preponderance of the evidence." (f) A grievance, for purposes of definition under the City's Grievance Procedure and under these hearing procedures, shall be defined as personnel matter relating to promotions, demotions, disciplinary actions or terminations after a proper appeal for relief to and a subsequent decision by the City Manager. The City Council shall review each grievance submitted for a Council hearing to determine whether the employee complaint is a grievance over which the City Council has appellate jurisdiction. The City Council may request and receive evidence, in a formal hearing or by written submission with copies to all parties, on this single issue prior to con- sidering the appeal on its merits. The question of jurisdiction may be raised at any time during the hearing process. (g) The City Council shall be vested with authority to investigate all relevant facts involved with the grievance, including the right to call its own witnesses and subpoena documents before or after the parties have rested; provided however, that any such Council initiated proceedings shall be held in the presence of all parties and shall be public if the hearing is public. If Council find and determines that the employee (or employees) who is (are) the subject of the hearing is (are) entitled to relief, it shall make such appropriate Order(s) as will grant the relief to which the employee(s) is (are) entitled. The City Council shall have broad authority to affirm, reverse, set aside, reduce or modify any disciplinary or dismissal action previously taken or proposed. City Council shall in no case enhance the disciplinary action previously taken or proposed. The City Council shall further have authority to -3- • • order reinstatement, with or without back pay, retroactive seniority and/or retroactive job benefits if, in the Council's discretion, one or more of the foregoing forms of relief is appropriate and necessary to do justice under the facts as determined by the hearing. (h) The City Council shall base its decision solely upon evidence which is adduced during the hearing or which is pre-filed as outlined in these rules. No evidence of any type may be offered, received, or considered after the hearing is closed. (i) The evidence shall be limited to relevant testimony, under oath, which deals with the employee's grievance. In the case of dismis- sal, the evidence shall be limited to the matters contained in the written statement of dismissal which was given to the employee at or about the time of termination. A copy of the written statement of dismissal shall be supplied to every City Council member prior to each grievance hearing involving a dis- missal. The Council may accept reliable hearsay evidence but may not accept irrele- vant, immaterial, redundant or cumulative evidence. Only relevant evidence in existence at the time of the disciplinary action shall be admitted. (j) Character witnesses may be allowed by the City Council, but the number of character witnesses, if any are allowed, may be limited by the City Council in its discretion. (k) No party shall be required to provide its work product or attorney work product (includ- ing written statements or other written communications) to any opposing party provided that such work product was made or prepared subsequent to the occurrence(s) or transaction(s) which gave rise to the grievance and was made or prepared in connection with the prosecution, investigation or defense of such grievance or the circumstances out of which same arose. (1) Any party may invoke the "Witness Rule"; provided, however, that each party shall be entitled to one (1) representative who shall be so designated, and who shall be exempt from the Rule. The City Council may unilaterally -4- • • invoke the Rule. (m) Pursuant to Section 4.05 of the Home Rule Charter for the City of Huntsville, the City Council shall have power to administer oaths, subpoena witneses and compel the production of books, papers and other evidence material to the hearing. All subpoenas shall be on a form approved by the City Council and shall be served in person upon the individual to be subpoenaed. Every subpoena shall indicate the date, time and place to which the sub- poenaed witness is to report to give testimony and/or provide other evidence. Any witness who, except for good cause shown, fails or refuses to appear and/or produce evidence as ordered in the City Council subpoena, may, after proper notice, be punished for contempt of City Council. Any such contemptuous conduct shall be a misdemeanor, which, upon conviction, shall be punishable by a fine of up to $200.00 per day. Each day the contempt- uous conduct continues shall be a separate offense. (n) Any party may pre-file documentary evidence with the City Council. All such documentary evidence must be filed at least one (1) week in advance of the hearing and copies must be forwarded by certified mail, return receipt requested, to all other parties either directly or through the attorney(s) of record. Pre-filed materials must be submitted to the Mayor through the City Secretary by delivering same at the Huntsville City Hall or by mailing same to the City Secretary of the City of Huntsville, P. 0. Box 839, Huntsville, Texas 77340. It shall be the duty of the City Secretary to disseminate all pre-filed materials to each Council member prior to the hearing for which the materials have been pre-filed. (o) All parties may be represented by counsel, by a representatitive or may choose to be self- represented; provided, however, in the case of attorneys, only attorneys licensed to practice law in the State of Texas may represent an aggrieved employee before the City Council; and provided further, in the case of a represen- tative, such representative must have disclaimed the right to strike. The term representative as used herein shall be defined consistent with Article 5154(c) S5, V.T.C.S. -5- • • (p) Witnesses appearing before the City Council shall be sworn and shall be subject to cross examination by the opposing party. Council members may, at their discretion, question any witness or any party. (q) The City Council may provide each party with a reasonable time for final argument and summation. The City, having the burden of proof, shall have the right to open and close. Final argument may be waived by the parties. (r) Upon the close of the hearing, after all parties have finally rested, the City Council may retire into confidential executive session in order to deliberate as to the outcome of the case. No Council member, in the absence of a court order to the contrary, shall ever disclose any aspect of the City Council employee grievance confidential deliberations save and except the final outcome. (s) The City Council's decision is to be issued with ten (10) days after the conclusion of the hearing or as soon thereafter as practi- cable. The final order shall be in writing, signed by all City Council members present and voting and shall include findings in support of the decision. Orders of the City Council shall be final and binding upon all parties. If there are one or more dissenting votes, each such dissent shall be noted in the final Order above the signatures of any dissenting Council member. (t) If the aggrieved employee so opts, the hear- ing shall be public; provided, however, that no cameras or other photographic equipment, no television cameras or lights of any kind or character shall be allowed in the hearing room while the hearing is in session. Media personnel are welcome to attend all public hearings. Notwithstanding the foregoing, in the case of dismissal grievances, the hearing shall be transcribed on behalf of the parties by a court reporter whose selection shall be authorized and approved by the City Council. If City Council deems it necessary, any non - dismissal case may be electronically tape recorded or otherwise preserved by a person -6- • • or persons selected by and at the direction of City Council. Each party shall be respon- sible for the cost of the statement of facts if same is ordered from the Court Reporter. (u) The presiding officer shall, at all times during the hearing, maintain decorum in the hearing room. Any person or persons who disrupt the hearing in any fashion shall not be allowed to remain in the hearing room. One or more bailiffs, each of whom shall be certified peace officers of the State of Texas, shall be present at all times during the hearing to assist the presiding officer, call witnesses, enforce the orders of the presiding officer when so requested, and otherwise assist where needed at the direction of the presiding officer. (v) All evidence shall remain under the City Council's sole control, not subject to public dissemination, until after the hearing has concluded. In the case of non-public hearings, all evidence, exhibits and documents, including the transcript and statement of facts, if any, shall be considered confidential personnel records. (w) When multiple grievance appeals involving common facts are pending before City Council, Council may: (a) order a combined hearing of any or all of the matters in issue in the respective appeals; (b) order all of the appeals consolidated; and/or (c) make such other and further orders as may tend to avoid unnecessary costs or delay. (x) City Council may, in furtherance of convenience or to avoid prejudice, order a separate hearing of grievances filed together by more than one employee or of certain issues which overlapp in combined grievances pending before City Council. (y) City Council shall be empowered to employ independent counsel to seek guidance as to substantive or procedural issues associated with any grievance or with any aspect of these procedures. City Council may authorize -7- • • its independent attorney to attend any hearing and may seek guidance and advice from said attorney during the hearing through the presiding officer. (z) The City Council may promulgate and adopt such other and additional rules, policies or procedures as may be required to serve the interests of justice and to avoid unnecessary costs or delay. Any such additional rules, policies or procedures shall be in writing, shall be approved by a majority vote of City Council and shall be accomplished by ordinance prior notice of which has been posted pursuant to law." Section 2. Severability Clause. If any provision, section, subsection, sentence, clause or phrase of this ordinance or the application of same to any person or set of circumstances is for any reason held to be unconstitutional, void or invalid, the validity of the remaining portions of this ordinance, or their application to other persons or sets of circum- stances, shall not be affected thereby, it being the intent of the City Council in adopting this ordinance that no portion thereof or provision or regulation contained therein shall become inoperative or fail by reason of any unconstitutionality of any other portion thereof and all provisions of this ordinance are declared to be severable for that purpose. PASSED AND APPROVED by unanimous vote of the Huntsville City Council on this the 12th day of February, A. D., 1980, to be effective, pursuant to the City Charter on the date of passage. THE CITY OF HUNTSVILLE, BY: Morris I. Waller, Mayor APPROVED AS TO FORM: Alan F. Levin, Spec al Legal Counsel to the