Resolution 13135CITY OF ALAMEDA RESOLUTION NO. 1313 5
AMENDING PROCEDURES FOR
DISABILITY RETIREMENT DETERMINATIONS
OF LOCAL SAFETY EMPLOYEES OF
THE PUBLIC EMPLOYEES RETIREMENT SYSTEM
WHEREAS, the City of Alameda is a contracting agency of the Public Employees'
Retirement System ( "PERS "); and
WHEREAS, the Public Employees' Retirement Law requires that the contracting agency
determine whether an employee of such agency in which he /she is classified as a local safety
member, is disabled for purposes of the Public Employees' Retirement Law and whether such
disability is "industrial" within the meaning of such law; and
WHEREAS, PERS mandates specific procedures within the Administrative Procedures Act
( "APA ") as pertaining to local safety officers; and
WHEREAS, pursuant to City Council Resolution No. 12063, in January, 1991, the Council
adopted a procedure for determination of industrial disability retirement claims for public safety
officers; and
WHEREAS, recent case law has held that appeals of PERS disability rulings for local safety
officers must be conducted by an Administrative Law Judge pursuant California Government Code
section 21156; and
WHEREAS, the City Council of the City of Alameda has delegated authority to the City
Manager or his /her designee,parsuant to Government Codes § 21173; and
WHEREAS, the Council of the City of Alameda hereby amends the procedures for industrial
disability retirement claim appeals for local safety officers to comply with current law.
NOW, THEREFORE', BE IT RESOLVED that the following procedure shall apply in
making determinations for disabiliiy retirement of a local safety employee under the Public
Employees Retirement System ( "PERS "):
I. CITY MAKES DETERMINATIONS
An initial determination will be made by the City upon medical and other available evidence
offered by either the applicant or the City to determine whether the applicant is incapacitated from
the performance of duty and whether the cause of the claimed condition is industrial or nonindustrial.
Those determinations shall be made no later than six (6) months from the date of the application
unless this time requirement is waived in writing by the applicant. Said determination shall be made
by the Human Resources Director, as the designee of the City Manager.
(1) Employee Files Application for Disability Retirement
A. If it is determined by the City that the applicant is incapacitated, and the incapacity
is industrial, the City Manager or his /her designee will so certify to PERS
B. If the City determines that the applicant is incapacitated but the cause of the
incapacity is determined to be nonindustrial, the City Manager, or his /her designee,
will notify the applicant of this decision. If the applicant does not give the City
Manager, or his/her designee, written notice of disagreement with these
determinations within 30 calendar days, the City will certify these determinations to
PERS.
C. If the applicant gives the City Manager, or his/her designee, written notice within 30
calendar days of disagreement with the City's determination that the cause of the
incapacity is nonindustrial and wishes to appeal this decision to the Workers'
Compensation Appeals Board ( "WCAB "), the City will certify to PERS the
determination of incapacity and will inform PERS that the applicant intends to appeal
to the WCAB for a determination whether the incapacity is industrial or nonindustrial
pursuant to Government Code Section 21126.
D. Following the decision by the WCAB, either party may seek rehearing or review of
the WCAB finding in accordance with Government Code sections 21168 by filing
a Petition for Reconsideration and Petition for Writ of Review.
E. If, in its initial determination, the City determines that the applicant is not
incapacitated from the performance of duty, it shall notify the applicant by certified
mail (return receipt requested), or personal service, of its intent to so certify to PERS.
The applicant will be advised that he or she has thirty (30) calendar days to advise
in writing the City Manager, or his/her designee, that he or she requests a hearing of
this determination. The applicant may concurrently appeal to the WCAB any
determination on the nonindustrial causation of the claimed condition, as outlined in
(1) C and (1) D, if he or she contests the determination. If the applicant requests a
hearing, the City will certify its initial determination to PERS and will inform PERS
that applicant has requested a hearing.
(2) City Files Application for Disability Retirement
A. If the City makes a determination of incapacity from the performance of duty based
upon medical and other available evidence and an application has not been filed with
PERS, the City Manager, or his/her designee, will make application on behalf of the
City for disability retirement of a' local safety employee. The employee shall be
notified that an initial determination of incapacity from the performance of duty has
been made, that an application for disability retirement has been submitted to PERS
by the City, and whether the condition is determined industrial or nonindustrial.
B. If the employee disputes the City's determination with respect to incapacity, the
employee shall be advised that he or she has thirty (30) calendar days to advise in
writing the City Manager, or his/her designee, that he or she requests a hearing before
the City.
C. If the employee disputes the City's determination with respect to industrial
causation, the employee shall be advised that he or she has thirty (30) calendar days
to file Petition for Finding of Fact pursuant to Government Code Section 21166.
D. If an employee requests a hearing on incapacity or applies to the WCAB for a
determination on industrial causation, the City will certify to PERS the initial
determinations and will inform PERS that employee has requested a hearing on
incapacity or has applied to the WCAB for a determination on industrial causation.
II. ADMITIISTRATIVE JUDGE HEARS APPEALS
If the applicant requests a hearing, said hearing shall be held in conformity with
Government Code Section 21156 and the Administrative Procedures Act (Government Code section
11500 et seq.). When an applicant requests an appeal hearing, the City will notify the Office of
Administrative Hearings and will request a hearing date and a pre- hearing conference with an
Administrative Law Judge. The applicant will be informed that the hearing will be held at the time
and place designated by the Office, of Administrative Hearings which shall set a hearing date and
pre- hearing conference. The hearing will he held within six (6) months of the request for a hearing
and will be based upon the evidence which is available at the time of the hearing unless this time
limit is waived by the City and the applicant.
A. The pre- hearing conference may address the following points:
1. Settlement prospects
2. Stipulations
3. Clarification and narrowing of issues
4. Trial date
5. Discovery schedule
6. Briefing schedule
7. Scope of evidence
8. Procedural matters
9. Other matters that bear upon the issues presented
The hearing shall be presided over by an Administrative Law Judge. The
Administrative Law Judge alone shall exercise all powers relating to the conduct of
the hearing. The Administrative Law Judge also shall rule on all factual and
evidentiary issues and make a determination accordingly.
C. An administrative record shall be generated at the hearing pursuant to the
Administrative Procedures Act. All testimony shall be recorded by a Certified
Shorthand Reporter.
D. Within 30 days following the hearing, the Administrative Law Judge shall issue the
findings and proposed decision to the Pension Board. The Pension Board may adopt
the decision in its entirety, reject it and decide the matter itself on the basis of the
administrative record, or refer the matter back to the Administrative Law Judge to
take additional evidence.
E. The proposed decision of the Administrative Law Judge shall be deemed adopted by
the Pension Board 100 days after issuance of the proposed decision, unless within the
time, the Pension Board notifies the parties that it will decide the case itself upon the
administrative record or submit the matter back to the Administrative Law Judge for
additional evidence. If the Pension Board elects to decide the matter itself upon the
administrative record, the 100 days begins upon delivery of the transcript of the
administrative record.
F. The decision of the Pension Board is final. The decision and findings will be served
on the applicant by Certified Mail, return receipt requested. Such letter will further
provide that each party has 30 calendar days within which to seek judicial review and
to notify the opposing party of its intention to seek review. Such review is by means
of filing a Petition for Writ of Mandate in the Superior Court of Alameda County.
G. The final determination of the Pension Board will be certified to the PERS. If the
applicant has appealed to the WCAB the determination on causation of the claimed
condition or either party has sought review in the Superior Court, PERS will be so
informed.
I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly
adopted and passed by the Council of the City of Alameda in regular meeting assembled on
the 7th day of September , 1999, by the following vote to wit:
AYES: Councilmembers Daysog, DeWitt, Johnson, Kerr and
Mayor Appezzato - 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed Lhe official seal of said City this
8th day of September , 1999.
Diane Felsch, City Clerk
City of Alameda