Subject: 21194/AdoptAdminRegs/EmployeeDiscHrgs Date: Thu, 4 May 1989 09:49:48 -0500 RESOLUTION NO. 21194 A RESOLUTION ADOPTING ADMINISTRATIVE REGU- LATIONS FOR CONDUCT OF EMPLOYEE DISCIPLINARY HEARINGS. ___________________________ BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHATTANOOGA, TENNESSEE, That there be and is hereby adopted Administrative Regulations for Conduct of Employee Disciplinary Hearings, said policy attached hereto and incorporated herein by reference. ADOPTED: November 12, 1996 RLN/MAM:cjc 0C ADMINISTRATIVE REGULATIONS FOR CONDUCT OF EMPLOYEE DISCIPLINARY HEARINGS 1. Imposition of Discipline Procedure The Mayor, Department Head, or their designee (hereafter referred to as "Executive") shall provide a pre-disciplinary hearing prior to a dismissal, demotion, or suspension of an employee for cause. When the Executive concludes that such discipline is warranted, the employee shall be notified in writing that demotion, termination, or suspension is being imposed. The letter shall advise the employee of their right, when applicable, to appeal the dismissal to the City Council. 2. Request for Hearing and Scheduling An employee appealing from a dismissal, demotion, or suspension shall file a written request for a hearing with the Clerk of the City Council within fifteen (15) days following the action taken against the employee. In the event that the employee requests a hearing, the Chair of the City Council (hereafter referred to as "City Council Chair") shall schedule a hearing as soon as practicable considering any pending criminal charges, the availability of counsel, the convenience of the City Council, and other facts bearing upon scheduling. Once an appeal is scheduled it can not be dismissed later than fourteen (14) days prior to the scheduled hearing. No hearing shall be rescheduled without good cause and the employee shall only be permitted to reschedule the case once for cause. A request to reschedule a hearing shall be made to the Chair of the hearing committee (hereafter referred to as "Chair") as soon as possible. Should the department or employee fail to appear at and participate in a scheduled hearing, the City Council may in its discretion take such action as is warranted by the circumstances, including dismissal of the appeal, reversal of the disciplinary action, or to adjourn the proceedings to a future date. 3. City Council or Committee. The City Council is authorized to establish from among its members a committee or committees to hear such appeals or, if no such committees are established, shall hear such appeals itself. The committees shall have the right to determine whether such discharge shall be effective, the discharged person be reinstated or to otherwise modify the order of discharge or disciplinary action. The committees shall consist of no less than three (3) members of the City Council. It shall require a majority of the City Council or committee hearing the employee disciplinary appeal to make findings of fact, to overturn the decision of the Executive, to establish an alternate punishment, or take other affirmative action. 4. Duties of the Chair The Chair shall preside at such hearing. The Chair shall issue subpoenas for witnesses, rule upon questions of the admissibility of evidence upon advice of counsel, and otherwise conduct the hearing to insure that the proceedings are carried out in accordance with the City's Charter and other applicable law. The Chair shall, upon motion of either party or upon its own motion, rule upon procedural question of law prior to the hearing date. The Executive who initiated the discipline shall be considered a party to the disciplinary hearing. The Chair shall regulate the course of the proceeding. The Chair shall arrange for an attorney to be present during the proceeding to advise the City Council with respect to legal matters. A list of attorneys willing to serve in this function will be maintained, and the Chair shall designate an attorney from the list. In the absence of or the inability of the Chair to act, the hearing committee or the City Council Chair or in his absence the City Council Vice-Chair shall appoint another member of the hearing committee to serve as Chair pro tempore. 5. Subpoena for Witnesses Upon request of any party, and to the extent permitted by law, the Chair shall issue subpoenas (subpoena forms attached as Exhibit No. 1) as directed to persons to attend and give testimony at the hearing. A subpoena may be issued for deposition for proof when authorized by these policies. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other tangible things designated therein; but the Chair, upon motion shall promptly but in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or repressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable costs of producing the books, papers, and documents or other tangible things. The subpoena will be issued to the person requesting the subpoena for service by any person authorized to serve process, or the witness may acknowledge service in writing upon the subpoena. Delivery may be made by mail with proof of service being a return receipt or an affidavit made by the person mailing the subpoena. A proper return showing proof of service shall be made upon the subpoena or by separate affidavit. 6. Ex Parte Communication Unless required for disposition of procedural questions, neither the Chair nor any member of the City Council shall communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any person without notice and opportunity for all parties to participate in the communication. No party to a contested case, and no other person shall communicate directly or indirectly, in connection with any issue in that proceeding, while the proceeding is pending, with any City Council member, without notice and opportunity for all parties to participate in the communication. Any City Council member who receives an ex parte communication in violation of this section shall place in the record of the pending matter all written communications received, written responses to communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the person received ex parte communication, and shall advise all parties that these matters have been placed on the record. 7. Pre-Hearing Conference The Chair may upon his or her own motion, or upon motion of one of the parties or their qualified representative, direct the parties and/or the attorneys for the parties to appear for a conference to consider: a. Simplification of the issues; b. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; c. Provide for pre-hearing dissemination of pertinent personnel file documents maintained by the City Personnel Office in the ordinary course of business. The employee or the Executive may object to the pre-hearing dissemination of particular documents on grounds other than hearsay, and the Chair with such advice of counsel as warranted may rule on such objections; d. Provide for the dissemination of documents relating to the grounds for dismissal upon agreement of the parties; e. Provide for written preliminary statements of the parties stating their positions as to facts and law relating to the disciplinary action; f. Possible limitation of redundant witnesses or proof; and g. Such other matters as may aid in the disposition of the action. In the event of such a hearing, the Chair shall make an order which shall recite the action taken at the conference and the agreements made by the parties as to any matters considered, and any limitation upon proof to be received at said hearing. Such pre-hearing conferences may be conducted by telephone or other electronic means. 8. Depositions No discovery depositions are available. A deposition may be taken for proof to perpetuate the testimony of any person who is not available to testify in person. The party desiring to perpetuate the testimony of such a witness shall give five (5) days' notice to the other party of the date and time of the taking of the deposition, which shall be taken in Hamilton County, Tennessee; all of which is subject to waiver by the other party or procedural order by the Chair. Such depositions may be taken by telephone in substantial accord with Rule 30.02, Tennessee Rules of Civil Procedure. 9. Discovery of Records Any party to a contested case shall have the right to inspect the ordinary business records and files of the City of Chattanooga with respect to the matter at issue and copy therefrom, except that records may not be inspected or copied the confidentiality of which is protected by statute or rule of law. The parties shall exchange at least seven (7) days prior to the hearing the names and addresses of witnesses, documents or other tangible evidence which is to be offered at the hearing, except rebuttal witnesses, documents or evidence. 10. Order of Proof The parties shall be afforded the opportunity to make either written or oral opening arguments. The Executive shall first go forward with his proof and shall bear the burden of proof by a preponderance of the evidence on the issue of cause for the disciplinary action and compliance with Charter provisions relating to discipline based upon impermissible political or religious reasons]. The employee shall bear the burden of proving by a preponderance of the evidence that the punishment administered is disproportionate to the offense with due consideration given to the employee's prior disciplinary and performance record. Upon the conclusion of the Executive's proof, the employee shall have the opportunity to call witnesses and present proof. Following their direct examination of witnesses, they shall be cross-examined by the other party, and the witness shall be subject to re-direct and re-cross. The City Council members may ask the witnesses such questions as are necessary to clarify their testimony, but shall not inquire into matters not presented by either party. 11. Rules of Evidence - Affidavits - Official Notice To the extent necessary for full disclosure of all relevant facts and issues, the parties shall be afforded the opportunity to present relevant evidence, the opportunity to conduct cross-examination of witnesses and the opportunity to submit rebuttal evidence. The City Council shall admit and give probative effect to evidence admissible in a court and when reasonably necessary to ascertain facts not reasonably susceptible to proof under the rules of the court, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The City Council shall give effect to the rules of privilege recognized by law and to any statutory protection of confidentiality of certain records and shall exclude evidence which in its judgment is irrelevant, immaterial, or unduly repetitious. a. Affidavits In the event a person is not subject to subpoena, a party may upon not less than five (5) days' notice prior to the hearing propose to present that person's proof by affidavit. In the event the opposing party desires to cross-examine the affiant, said party may at its election submit cross-examination questions to be answered in writing or at its election require that a deposition be taken instead. If the affiant does not fully respond to such cross-examination, the affidavit shall not be admitted into evidence. Nothing herein shall preclude the admission of an affidavit not taken in accordance herewith in the event there is no objection thereto or where necessary to prevent injustice. b. Documentary Evidence Documentary evidence otherwise admissible may be received in the form of copies or excerpts, with a copy available upon request, and the parties shall be given an opportunity to compare the copy with the original, if reasonably available. c. Official Notice Official notice may be taken of (a) any fact that could be judicially noticed in the courts of this State; (b) record of other proceedings before the City Council; (c) technical matters within the City Council's specialized knowledge; and (d) codes or standards that have been adopted by an agent of the United States, this State or another State, by the City of Chattanooga, or by a nationally recognized organization or association. If either party shall ask the City Council to take judicial notice, they shall as soon as practicable before the hearing notify the other party of the specific facts or materials to be noticed and the source thereof. The other party shall be afforded an opportunity to contest and rebut the facts or materials so noticed. 12. Argument At the conclusion of the proof each party may present a closing statement or argument to the City Council, subject to reasonable time constraints established by the Chair. 13. Deliberation and Vote The Chair shall conduct such deliberation as the hearing committee deems advisable in open public meeting. Upon proper motion and second, and each hearing committee member having been given the opportunity to express their thoughts with respect thereto, the hearing committee shall vote to affirm, reverse, or modify the action which precipitated the hearing. 0C SUBPOENA STATE OF TENNESSEE ) COUNTY OF HAMILTON ) GREETINGS: You are hereby commanded to summon ____________________, ____________________________, Chattanooga, Tennessee 37____. To appear before the City Council of the City of Chattanooga, City Council Assembly Room, on _____________________, ____________________, 199__, at _______ __.m. next, then and there to testify and give evidence in behalf of _______________________ {employee name or the City of Chattanooga} in regard to an appeal by ___________________ {employee name}. HEREIN FAIL NOT, and have you then and there this Writ. WITNESS, _____________________, Chair of the City Council of the City of Chattanooga, Tennessee, this the ________ day of ______________________, 199__. ____________________________________ Chair, City Council RETURN OF SERVICE Came to hand same day issued and executed by serving the within Subpoena upon __________________ and leaving a copy hereof. THIS _____ day of _____________________, 199__. ____________________________________ {Name of Person Serving Subpoena} ACKNOWLEDGMENT ____________________________ {Name of Person Receiving Subpoena} hereby acknowledges receipt of this Subpoena this _____ day of ____________________, 199__. ____________________________________ {Name of Person Receiving Subpoena} 0C SUBPOENA DUCES TECUM STATE OF TENNESSEE ) COUNTY OF HAMILTON ) GREETINGS: You are hereby commanded to summon ____________________, ____________________________, Chattanooga, Tennessee 37____. To appear before the City Council of the City of Chattanooga, City Council Assembly Room, on _____________________, ____________________, 199__, at _______ __.m. next, then and there to testify and give evidence in behalf of _______________________ {employee name or the City of Chattanooga} in regard to an appeal by ___________________ {employee name} and to bring with you the following:_______________________________________________________ ________________________________________________________________. HEREIN FAIL NOT, and have you then and there this Writ. WITNESS, _____________________, Chair of the City Council of the City of Chattanooga, Tennessee, this the ________ day of ______________________, 199__. ____________________________________ Chair, City Council RETURN OF SERVICE Came to hand same day issued and executed by serving the within Subpoena upon __________________ and leaving a copy hereof. THIS _____ day of _____________________, 199__. ____________________________________ {Name of Person Serving Subpoena} ACKNOWLEDGMENT ____________________________ {Name of Person Receiving Subpoena} hereby acknowledges receipt of this Subpoena this _____ day of ____________________, 199__. ____________________________________ {Name of Person Receiving Subpoena}