Resolution 12063CITY OF ALAMEDA RESOLUTION NO. 12063
ESTABLISHING PROCEDURES FOR DISABILITY RETIREMENT
DETERMINATIONS OF LOCAL SAFETY EMPLOYEES OF THE
PUBLIC EMPLOYEES RETIREMENT SYSTEM
WHEREAS, all local safety employees are being transferred
to the Public Employees Retirement System (PERS) ; and
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 a contracting agency determine whether an employee of such
agency in employment 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, the City Council may delegate authority under
Section 21034 of the Government Code to make such determinations
to the position of City Manager, or his/her designee; and
WHEREAS, PERS is subject to provisions of the
Administrative Procedures Act ("APA"); and
WHEREAS, recent case law has held that the City acts as
a delegate of PERS and must conduct hearings on applications for
industrial disability retirement in conformity with the APA; and
WHEREAS, the Council of the City of Alameda hereby
establishes procedures for industrial disability retirement claims
for public safety officers; and
NOW, THEREFORE, BE IT RESOLVED that the following
--, procedure shall apply in making determinations for disability
retirement of a local safety employee under the Public Employees
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Retirement System ("PERS"):
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co. CITY MAKES DETERMINATIONS
An initial determination will be made by the City upon
medical and other available evidence offer 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 Personnel
Director, as the designee of the City Manager.
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(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 21026.
D. Following the decision by the WCAB, either party may seek
rehearing or review of the WCAB finding in accordance
with Government Code sections 21026.1 and 21026.2 by
filing a Petition for Reconsideration and a 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 outlines 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.
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(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 21026.
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. -HEARING PROCESS
If the applicant requests a hearing, said hearing shall
be in conformity with the Administrative Procedures Act. When
an applicant requests a hearing, the City will notify the Office
of Administrative Hearings and will request a hearing date and a
perhearing 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 be 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.
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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
B. The hearing shall be conducted before the Pension Board
with the Administrative Law Judge acting as the presiding
officer. The Administrative Law Judge will rule on
evidentiary issues and advise the parties on question of
law, and the Pension Board as Hearing Officer, will make
all factual determinations.
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. The Pension Board may adopt rules and
procedures for the hearing that are not in conflict with
this Resolution and the Administrative Procedures Act.
D. Following the hearing, a decision and findings of fact
will be made by the Pension Board. 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 thirty (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 a Writ of
Mandate in the Superior Court of Alameda County.
E. The final determination of the Pension Board will be
certified to 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.
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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 fifteenth day
of January, 1991, by the following vote to wit:
AYES: Councilmembers Arnerich, Camicia, Thomas,
Withrow and Mayor Corica - 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the
official seal of said City this sixteenth day of January, 1991.
Diane Felsch,`City Clerk
City of Alameda