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HomeMy WebLinkAboutCC RESO 2001 - 195RESOLUTION NO. 2001 - 195 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AFFIRMING THE DECISION OF THE CIVIL SERVICE COMMISSION IN THE MATTER OF THE APPEAL OF RICHARD J. EDWORDS WHEREAS, on September 11, 2001, in National City, California, a hearing was held by the Civil Service Commission of the City of National City upon the request of the appellant, Richard J. Edwords, pursuant to Government Code Section 54957, to consider his appeal of a demotion from Fire Engineer to Firefighter with the City of National City; and WHEREAS, after said hearing, the Civil Service Commission deliberated in private and thereafter rendered a written decision containing its FINDINGS and CONCLUSIONS AND RECOMMENDATIONS; and WHEREAS, the Civil Service Commission certified its findings and decision to the appellant Richard J. Edwords, the appointing authority, and to the City Council on September 28, 2001; and WHEREAS, a copy of the decision of the Civil Service Commission is attached hereto as Exhibit "A"; and WHEREAS, a written request for council review was timely filed with the Personnel Officer after the Commission had certified its findings and decision; and WHEREAS, the Personnel Officer thereafter had a transcript of the hearing before the Civil Service Commission prepared and distributed to the members of the Council, the appellant, and the appointing authority; and WHEREAS, a copy of the record of the proceedings before the Civil Service Commission, including said transcript of the testimony, copies of all documentary evidence and other exhibits were transmitted and made available to the City Council; and WHEREAS, at its regular meeting on December 4, 2001, the City Council then considered the Matter of the Appeal of Richard J. Edwords in open session pursuant to the request of his representative, Thomas Gill, Esq. under Government Code Section 54957, and thereafter deliberated upon said matter in closed session, made its fmdings and hereby announces through adoption of this Resolution in open session that the appeal has been denied. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Council makes the following findings: Resolution No. 2001 -195 December 18, 2001 Page 2 1. That the only issue before the City Council was whether or not the facts and circumstances surrounding the violations of the National City Civil Service Rules as described in the record of the Civil Service Hearing indicated that the decision of the Civil Service Commission should be affirmed, revoked or modified. 2. That appellant was employed by the City as a Fire Engineer with the National City Police Department. 3. That by the testimony and exhibits admitted, and the rulings of the Civil Service Commission, substantial evidence established that Richard J. Edwords, in violation of Department Regulations, had failed to perform at an expected level or standard in a responsible and timely manner, and that his conduct was unacceptable for an employee of his tenure. 3. That appellant committed the acts described above, and no evidence mitigates the seriousness of the violations. 4. That the nature and gravity of the violations is of the most compelling nature, requiring discipline by the Department in that appellant's performance of duty was unacceptable and therefore constitutes misconduct of substantial gravity and repetition to justify the discipline imposed. 5. That the aforementioned conduct of Richard J. Edwords constituted violations of the following Civil Service Rules: a) Rule VIII, Section 802(a). Violation of Department written policy and procedure. b) Rule VIII, Section 802(d). Incompetence, inefficiency or ineffectiveness in the performance of duty. c) Rule VIII, Section 802(h). Failure to perform at expected level or standard in a responsible and timely manner 7. That appellant Richard J. Edwords has been provided reasonable notice and opportunity to respond to the charges against him. 8. That all procedural and substantive requirements of the Civil Service Rules and National City Municipal Code Section 3.28.020 have been met. Resolution No. 2001 -195 December 18, 2001 Page 3 BE IT FURTHER RESOLVED that based on the above findings, the City Council orders that the Decision of the National City Civil Service Commission be affirmed as follows: That appellant Richard J. Edwords be terminated from his employment with the City of National City Fire Department. BE IT FURTHER RESOLVED that the time period within which judicial review of this decision must be sought is governed by Code of Civil Procedure Section 1094.6, and shall commence to run from the date this notice of decision is mailed to him. BE IT FURTHER RESOLVED that the Secretary of the Civil Service Commission shall forthwith serve a certified copy of this Resolution upon the appellant, Richard J. Edwords, and execute a certificate of service to be kept with the official records of the City in connection therewith attesting to the date of service. PASSED and ADOPTED this 18th day of December, 2001. ATTEST: ixia, Micel R. Dall , City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney hvz Illt /" to /L George H. aters, Mayor EXHIBIT "A" Page 1 CITY OF NATIONAL CITY CIVIL SERVICE COMMISSION Statement of Findings and Decision IN THE MATTER OF TERMINATION RICHARD J. EDWORDS, FIREFIGHTER On September 11, 2001, the National City Civil Service Commission ("Commission") met at 5:30 p.m., and established a quorum pursuant to a Notice duly published to hear the appeal from termination in the matter of Firefighter Richard J. Edwords. The following parties were present: Commissioners: Appointing Authority: Appointing Authority Representative: Appellant's Representative: Secretary to the Commission: Legal Advisor: Appellant: Frank Pekarek Rita Helms Georgia Guarano Stephen Torres Richard Hubbard Fire Chief Randy Kimble Tamara Smith, Esq. Thomas R. Gill, Esq. Roger DeFratis Rudolf Hradecky, Esq. Not present The record of proceedings applicable to this appeal shall reflect the following: 1. By letter dated February 20, 2001, appellant Richard J. Edwords was notified of his proposed termination from employment for violation of Civil Service Rules 802(a), (d) and (h) for unsafe and substandard performance of duty,, and failure to follow directions and procedure and his right to appeal the action. City Exhibit "A". 2. A "Skelly" hearing was scheduled for March 13, 2001, and on March 14, 2001, the decision to terminate was upheld_ City Exhibit "B". 3. On March 19, 2001, a letter was sent by Mr. Edwords' agent Marcia Gascoigne stating that he was "incapacitated" and unable to make a choice whether to appeal to the Commission or not. The letter referred to a letter from Dr. Kalish dated February 22, 2001, that stated Edwords was "presently disabled from his usual and customary duties as a firefighter". Commission Exhibits 1 and 2. EXHIBIT "A" Page 2 Statement of Findings and Decision - Termination of Firefighter Richard J. Edwords Page Three On September 11, 2001, the Commission met. Attorney Gill then requested a further continuance of 30 days. Attorney Gill did not present any current medical documentation to substantiate his request for continuance. He represented that Mr. Edwords was still unable to assist him, and that he would update Dr. Kalish's letter of June 19, 2001, during the period of proposed additional continuance. The Appointing Authority's representative stated that she believed the previous medical report from Dr. Kalish is insufficient to establish that the appellant is still unable to participate in the appeal, and that further delays need not be allowed. Counsel also noted that this -was an administrative appeal and not a criminal defense case. The Commission was advised by its legal advisor, that because this is an administrative hearing, the appellant may appear through a representative and need not be present. Following argument by counsel for the Appointing Authority and the Appellant, the Commission ruled that the appeal hearing was to proceed The Appointing Authority announced it was ready to proceed. Copies of the Adverse Action form with exhibits documenting the reasons for the discipline were made available to the Commission and marked as City Exhibit "A". Attorney Gill then announced he would participate no further, and asked that letters dated August 7, 2001 and July 26, 2001, and a letter dated June 19, 2001 be included in the record as Appellate exhibits. He thereupon exited the hearing and did not participate further. Copies of those exhibits are marked Appellant's Exhibits 1. Included also shall be Appellant's Exhibit 2 offered by Attorney Gill at the hearing of June 6, 2001. The Commission directed the Appointing Authority to proceed with its preselitation. Captain Larry Beck and Platoon Commander Craig Potter were then sworn in and each testified about their observations of Firefighter Edwords' behavior, substantially as is set forth in their respective letters of February 15, 2001, which accompanied the Notice of Intention to Impose Disciplinary Action, dated February 20, 2001. A copy of that Notice was accepted into evidence as City Exhibit "A". Each affirmed that their observations are substantially as set forth in City Exhibit "A". Captain Beck further testified that he has known the appellant for many years, and that Edwords' behavior endangered himself, other firefighters and the public. He further stated that he felt some of Edwords' behavior was deliberate. Platoon Commander Potter stated that there was no place in the fire department for a person who demonstrated such unsafe and unsatisfactory performance and disregard for procedures and practice. Captain Beck testified that he had completed two performance appraisals on appellant, and that his performance had deteriorated and was completely lacking. He failed to follow basic standard operations on medical aids and was a danger to people he was treating. He could not take blood pressures correctly. He put an oxygen mask on an elderly patient upside down. Other crewmembers had to take over patient care from him. He would stand by at accidents in traffic, daydreaming. He would forget to bring tools with him causing delays at incidents. Statement of Findings and Decision - Termination of Firefighter Richard J. Edwords Page Four EXHIBIT "A" Page 3 Captain Beck met with Edwords on several occasions and counseled him on his performance. All of this is documented in his reports, and that there are between thirty to fifty repeated rule violations or safety infractions. Beck also testified that he referred Edwords to the Employees Assistance Program (EAP); Edwords told him "it wasn't worth going, it was a waste of his time." Beck then stated that he forwarded his report to Chief Kimble, which report is contained in City Exliibit "A". Battalion Commander Potter affirmed that he concurred with Captain Beck and reviewed the materials. He further stated that he believed that Edwords should not return to the department because he poses a danger to himself other crewmembers and the public. The Appointing Authority then rested its case, requesting that the decision to terminate be upheld. A copy of the Notice of Discipline, dated March 14, 2001, which upheld Richard J. Edwords' termination, was admitted as City Exhibit "B". City Exhibit "C" is the Notice of Hearing. The Commission directs that all correspondence pertaining to this discipline and termination be included in the administrative record. The Commission unanimously find as follows: 1. There is substantial evidence to support appellant's termination. 2. That Attorney Thomas R. Gill was designated by Richard J. Edwords as the appellant's legal representative in the matter of this appeal. 3. The appellant has had proper notice of the hearing and adequate opportunity to participate, and the withdrawal of his representative constitutes an election not to participate by representative or otherwise in the appeal. 4. Appellant's election not to participate in the hearing constitutes a waiver of his right to a hearing and to cross-examine evidence. The Commission further certifies: • That substantial evidence justifies the termination of Firefighter Richard J. Edwords for violation of Civil Service Rule 802, Section (a), (d) and (h), and the termination is therefore affirmed. • That the requirements of National City Municipal Code Section 3.28.020 have been met; • That the appellant has been provided reasonable notice and adequate opportunity to respond to the charges and has forfeited the appeal; • That all requirements of the Civil Service Rules have been met. Dated: / - Z(—C) , 2001. c„„..z Pa„.„,c Frank L Pekarek, Chair National City Civil Service Commission EXHIBIT "A" Page 4 NOTICE TO APPELLANT RICHARD J. EDWORDS Pursuant to Civil Service Rule 810, this decision is final unless you file a written request for a City Council review of this decision within fifteen (15) calendar days from the date this certified decision and notice was placed in the mail, addressed to you at your last known address on file in the City Personnel Department. Any request for review mist be mailed to the Personnel Director, City of National City, 1243 National City Boulevard, National City, CA 91950-4301. You are further advised that you have ninety (90) calendar days from the date this decision becomes final in which to file for judicial review pursuant to Code of Civil Procedure Section 1094.6 or be forever barred thereafter.