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HomeMy WebLinkAboutCC RESO 15,844RESOLUTION NO. 15,844 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY MODIFYING THE DECISION OF THE CIVIL SERVICE COMPMISSION IN THE MATTER OF THE APPEAL OF ALAN BAILEY WHEREAS, on September 20, 27, October 4, and 11, 1988, in City Hall, Main Conference Room, 1243 National City Boulevard, National City California, a closed hearing was held by the Civil Service Commission of the City of National City, to consider the appeal of Alan Bailey of the termination of his position as a police officer with the City of National City, effective August 25, 1988; and WHEREAS, after said closed hearing, the Civil Service Commission deliberated in private and thereafter rendered a written decision containing its FINDINGS and CONCLUSIONS AND RECOMMENDATIONS. WHEREAS, the Civil Service Commission certified its findings and decisions to the appellant Alan Bailey, the appointing authority, and the City Council on October 18, 1988; and WHEREAS, a copy of the decision of the Civil Service Commission is attached hereto as Exhibit "A." WHEREAS, a written request for council review was filed with the Personnel Officer within ten (10) days after the Commission had certified its findings and decision; to wit, the appellant Alan Bailey by and through his attorney Everett Bobbitt appealed that portion of the written decision of the Civil Service Commission contained in Paragraph 4 of the Commissions's CONCLUSIONS AND RECOMMENDATIONS, to wit: 4. That appellant's accumulated vacation balance of 514.07 hours be restored and he repay the City $8,405.04 which was paid to him as terminal vacation pay under the provisions of Section 604(h) of the Civil Service Rules of the City of National City. If the appellant does not wish to repay the terminal vacation pay that he received, he may elect to be placed on paid vacation status effective August 25, 1988 in which case the money paid in terminal vacation pay will be converted to hours of paid vacation credits. If this option is elected by the appellant, then the unpaid suspension indicated in Paragraph #2 above would be postponed and go into effect at the end of the paid vacation. If this option is elected by the appellant, the effective date of the reduction in salary step, also, would be at the end of the period of paid vacation. Finally, in order to meet requirements of the Public Employees' Retirement System, if this option is selected, the appellant would receive retirement credits for the period of paid vacation retroactive to August 25, 1988, and have to pay that portion of the retirement costs for that period that is not paid by the City. This would amount to $168.10. If the appellant wishes to exercise the option described in this paragraph, he must submit his request to do so in writing to the Personnel Officer within ten (10 days of receipt of this decision. WHEREAS, a written request for council review was filed with the Personnel Officer within ten (10) days after the Commission had certified its findings and decision; to wit, the appointing authority, the National City Police Department appealed the decision of the Civil Service Commission contained in their CONCLUSIONS AND RECOMMENDATIONS, in total. WHEREAS, thereafter the Personnel Officer had a transcript of the hearing before the Civil Service Commission prepared and distributed to the members of the Council, the appellant Alan Bailey and the appointing authority; and WHEREAS, authority appealed which were: neither the appellant nor the appointing the FINDINGS of the Civil Service Commission 1. The evidence establishes that the appellant violated Section 3.5 of the National City Police Department rules and regulations "Outside Employment." 2. The evidence establishes that the appellant violated Section 3.0A(1) of the National City Police Department rules and regulations "Abuse of Position." 3. The evidence establishes that the appellant violated Section 1.6 of the National City Police Department rules and regulations "Obedience of Lawful Orders." 4. The evidence establishes that the appellant violated Section 3.3 of the National City Police Department rules and regulations "Personal Associations." WHEREAS, Rule 810 of the Civil Service Rules of the City of National City provides that within sixty (60) days after submittal of a written request for Council review, the Council shall affirm revoke or modify the Commission's action, such Council action to be final and conclusive; 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 13, 1988, the City Council considered the Matter of the Appeal of Alan Bailey and deliberated upon said matter in closed session. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of National City that the Council makes the following findings: 1. That the only issue before the City Council is whether or not the facts and circumstances surrounding the four violations enumerated above as described in the record of the Civil Service Hearing indicate that the decision of the Civil Service Commission should be affirmed, revoked or modified. 2. That in July of 1987 while a National City Police Officer, appellant Alan Bailey was employed by a private attorney Lawrence Jacobs, to complete an accident reconstruction, and further employed to testify regarding that reconstruction at an arbitration hearing. That appellant engaged in these outside employment activities for personal financial gain. 3. That since February of 1988, while a National City Police Officer, appellant Alan Bailey has been employed by the A. L. Williams Company, a private financial services organization. That appellant engaged in this outside employment activity for personal financial gain. 4. That appellant engaged in both of these outside employment activities described in Paragraphs 2 and 3 above without securing permission to do so as required by Section 3.5 of the National City Police Department Rules and Regulations. 5. That appellant was aware of the requirement to secure permission before engaging in outside employment and therefore willfully and knowingly violated said section in engaging in the activities described in Paragraphs 2 and 3 above. 6. That on July 17, 1987 appellant appeared at the arbitration hearing described in Paragraph 2 above wearing a National City Police uniform for the purpose of testifying, a service for which appellant was paid. 7. That appellant wore his uniform for the specific purpose of bolstering the credibility of his testimony at the hearing described in Paragraph 2 above. 8. That in engaging in the activities described in Paragraph 2 appellant thereby used the visible indicators of his official position for personal financial gain, thereby wilfully violating Section 3.0A(1) of the National City Police Department Rules and Regulations. 9. That on November 11, 1987 appellant sent a letter to Superior Court Judge William Kennedy, using National City Police Department letterhead, urging the Court to grant one Eddie Smith probation or community service in lieu of a jail sentence. 10. That on December 20, 1987, appellant was informally counselled by his immediate supervisor, Sgt. Timothy Darton, with respect to the conduct described in Paragraph 9 above, that said conduct was unauthorized and an inappropriate use of official letterhead. 11. That on December 20, 1987 appellant was further informally counselled by Sergeant Darton with respect to personal associations, to wit Eddie Smith, who was a convicted felon. 12. That on December 20, 1987 appellant was ordered to read the rules and regulations pertaining to the prohibited conduct and was directly told by Sgt. Darton to disassociate himself from Eddie Smith, and further told that Eddie Smith was a convicted felon. 13. That thereafter appellant continued his contact with Eddie Smith and specifically on May 18, 1988, assisted Eddie Smith in making contact with National City Police Officer Darryl Silva regarding the arrest Silva had made of Eddie Smith's wife, Octavia Smith. 14. That by continuing an association with Eddie Smith, a convicted felon, after being ordered by his superiors not to do so, appellant knowingly and willfully violated Section 1.6 of the National City Police Department Rules & Regulations by disobeying - 4 - a lawful order from a superior, and Section 3.3 of the National City Police Department Rules and Regulations by associating with a convicted felon. 15. That the informal counselling provided on December 20, 1987 was an attempt at progressive discipline of appellant. 16. That thereafter appellant intentionally, knowingly and willfully violated direct orders and Departmental Rules and Regulations. 17. That the appellants's inability to accept discipline was documented on a performance report covering the period October 1985 to October 1986. 18. That appellant intentionally committed all of the acts described above, and provides no explanation to mitigate the seriousness of these violations. 19. That the nature and gravity of these violations is of the most compelling nature, requiring the most serious discipline by the Department, inasmuch as appellant's conduct jeopardizes the image and effectiveness of the Department in the community, as well as the internal chain of command structure within the Department. 20. That the aforementioned conduct of Alan Bailey constituted violations of the National City Police Department Rules and Regulations: Section 3.5 "Outside Employment." Section 3.0A(1) "Abuse of Position." Section 1.6 "Obedience to Lawful Orders." Section 3.3 "Personal Associations." 21. That appellant Alan Bailey has been provided reasonable notice and opportunity to respond to the charges against him. 22. That all procedural requirements of the Civil Service Rules have been complied with. BE IT FURTHER RESOLVED that based on the above findings, the City Council orders that that portion of the October 18, 1988 - 5 - i Decision of the National City Civil Service Commission designated as "CONCLUSIONS AND RECOMMENDATIONS" is modified to read as follows: 1. That appellant Alan Bailey be terminated from employment with the City of National City Police Department effective August 25, 1988. 2. That CONCLUSIONS AND RECOMMENDATIONS Nos. 1, 2, 3, 4, and 5 be deleted. 3. With the exception of the foregoing items the October 18, 1988 decision of the Civil Service Commission is affirmed. 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. PASSED and ADOPTED this 204" day of December, 1988. ATTEST: ah/K-e._. Pp Lo i Anne Peo les p14-4 ity Clerk APPROVED AS TO FORM: George H. Eiser, III, City Attorney GEORGE g. WATERS, Mayor City of National City Civil Service Commission 1243 National City Boulevard National City, California 92050-4397 (619) 336-4309 CITY OF NATIONAL CITY CIVIL SERVICE COMMISSION In the Matter of the Appeal DECISION of Alan L. Bailey On September 20, September 27, October 4, and October 11, 1988, in the National City Civic Center, 1243 National City Boulevard, National City, California, a private hearing was held by the Civil Service Commission of the City of National City, to consider the appeal of Alan L. Bailey from his discharge from his position as Police Officer with the National City Police Department, effective August 25, 1988. At said hearing Mr. Bailey appeared represented by attorney Everett Bobbitt, and Police Captain Craig Short on behalf of the City appeared represented by Assistant City Attorney Linda K. Harter. Serving as advisor to the Commission was attorney Daniel J. Tobin. The following members of the Commission participated in all sessions of the hearing and the decision: Chairman Lily Martin and Commissioners Leo Arnold, Donna DeMoss, and Dorwin Newman. Section 810 of the Civil Service Rules of the City of National City states the following: "Upon conclusion of a review of disciplinary action, the findings and decision of the Commission shall be set forth in writing and shall state as to each charge whether or not such charge is sustained. The Commission may also set forth in writing any recommendations it may have based upon such findings, and within ten (10) days after concluding the hearing, it shall certify its findings, conclusions and recommendations." "The decision of the Commission shall be final unless a written request for Council review is filed with the Personnel Officer by either the employee or the appointing authority within ten (10) days after the Commission has certified its findings and decisions. Upon receipt of the request for review, the Personnel Officer shall have a transcript of the hearing prepared and distributed to the members of Council, the appellant, and the appointing authority. Within sixty (60) days after the submittal of a written request for Council review, the Council shall affirm, revoke, or modify the Commission's action, such Council action to be final and conclusive." 6/14/ AN AFFIRMATIVE ACTION/CIVIL SERVICE FMPI OYFR i Witnesses having been sworn, and evidence oral and documentary having been presented, and the matter having been argued and submitted for decision, the Civil Service Commission makes the following findings: FINDINGS 1. The evidence establishes that the appellant violated Section 3.5 of the National City Police Department rules and regulations "Outside Employment". 2. The evidence establishes that the appellant violated Section 3.0A (1) of the National City Police Department rules and regulations "Abuse of Position". 3. The evidence establishes that the appellant violated Section 1.6 of the National City Police Department rules and regulations "Obedience of Lawful Orders". 4. The evidence establishes that the appellant violated Section 3.3 of the National City Police Department rules and regulations "Personal Associations". CONCLUSIONS AND RECOMMENDATIONS Based upon the above findings, the Civil Service Commission concludes that the following actions should be implemented: 1. That appellant be reinstated without a break in service to his position as a Police Officer with the City of National City Police Department effective August 25, 1988. 2. That appellant be suspended from duty without pay consistent with the provisions of Section 810 (c) of the Civil Service Rules of' the City of National City for ninety (90) calendar days, commencing August 25, 1988 and ending on November 22, 1988. (Except as otherwise provided in Paragraph #4 of these Conclusions and Recommendations.) 3. That appellant receive a reduction in salary of one step consistent with the provisions of Section 801 (d) of the Civil Service Rules of the City of National City, from Step "D" to Step "C" of the salary range for Police Officer effective August 25, 1988. (Except as otherwise provided in Paragraph #4 of these Conclusions and Recommendations.) 4. That appellant's accumulated vacation balance of 514.07 hours be restored and he repay the City $8,405.04 which was paid to him as terminal vacation pay under the provisions of Section 604 (h) of the Civil Service Rules of the City of National City. If the appellant does not wish to repay the terminal vacation pay that he received, he may elect to be placed on paid vacation status effective August 25, 1988 in which case the money paid in terminal vacation pay will be converted to hours of paid vacation credits. If this option is 1 elected by the appellant, then the unpaid suspension indicated in Paragraph #2 above would be postponed and go into effect at the end of the paid vacation. If this option is elected by the appellant, the effective date of the reduction in salary step, also, would be at the end of the period of paid vacation. Finally, in order to meet requirements of the Public Employees' Retirement System, if this option is selected, the appellant would receive retirement credits for the period of paid vacation retroactive to August 25, 1988, and have to pay that portion of the retirement costs for that period that is not paid by the City. This would amount to $168.10. If the appellant wishes to exercise the option described in this paragraph, he must submit his request to do so in writing to the Personnel Officer within ten (10) days of receipt of this decision. 5. The Commission has concluded that serious disciplinary actions are warranted in this case. However, the Police Department has not provided convincing evidence that the appellant must be terminated for cause. It was the conclusion of the Commission that under the circumstances presented additional progressive discipline and other remedial efforts to bring about improved performance should have been implemented. The Department management should more carefully review recommendations to terminate permanent employees for cause. Also, the Department needs to be more sensitive to the adequacy of documentation of performance problems on a continuous basis and the effectiveness of its efforts to improve employees' performance. City of National City Civil Service Commission /7 L. Martin, C airman t-t) if, iggs. Date