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19780627 1978-12ORDINANCE No. 1978-12 ORDINANCE AMENDING ARTICLE VIII OF CHAPTER 2 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA BE IT ORDAINED by the City Council of the City of Fairfax, Virginia, that Article VIII of Chapter 2 of the Code of the City of Fairfax, Virginia, be, and the same hereby is, amended as follows: 1. The definition of "Overtime" as set forth in section 2-39 is hereby amended by deleting the same in its entirety and substituti~ in its place and stead the following: Overtime. Time worked by an employee during a single day in excess of such employee's normal work day or during a calendar week in excess of such employee's normal work week. An employee's normal work day and normal work week shall be as more particularly defined in administrative regulations as promulgated by the City Manager from time to time. 2. Subsection (d) of section 2-43 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: (d) Responsibilities and duties. The board shall represent the public interest in the improvement of personnel administration in the City service and shall hear employee grievances as provided in section 2-48 of this Article. 3. Subsection (e) of section 2-43 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: (e) Secretary. When the board is hearing an employee grievance, the City Clerk shall serve as secretary to the board, unless objected to by the City or the employee. In the event that an objection is made, the board shall appoint another 1978-12 individual not otherwise interested in the grievance. 4. Subsection (f) of section 2-46 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: (f) Overtime. Employees in the Career Service who perform necessary overtime work shall be given compensatory leave as provided in section 2-47(d) or overtime pay in the discretion of the department head. Compensation for overtime work shall be at the rate of one and one-half times the regular rate for the positi Ail overtime pay must be approved by the appropriate depart- ment head. It shall normally be limited to employees in pay grade 17 and below; exceptions to these categories must be approved in advance by the City Manager. Employees in pay grades above 17, except department heads, are entitled to compensatory leave for required overtime work as provided in section 2-47(d). When a holiday, as set forth in section 2-47(a), falls on the normal day off of an employee who works on a rotating shift, the employee shall be given an extra day's pay for that pay period. 5. Subsection (a) of section 2-47 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: (a) Holidays. The following holidays shall be observed by the City and shall be granted to all employees without charge to leave: New Year's Day Washington's Birthday Memorial Day Independence Day Labor Day Columbus Day Veteran's Day Thanksgiving Day Christmas Eve Christmas Day Inauguration Day January 1 3rd Monday in February Last Monday in May July 4 1st Monday in September 2nd Monday in October November 11 4th Thursday in November 1/2 day on December 24 December 25 January 20 (every 4th year) 1978-12 In addition, the City Manager shall annually designate one additional holiday, on such date as he, in his discretion, may choose, to be observed by the City and granted to all employees without charge to leave. The City Manager may substitute another day as a holiday in lieu of one of the days listed above. Holidays falling on Saturdays or Sundays shall be taken on Fridays or Mondays respectively. Compensatory leave or overtime pay shall be granted for work done on holidays as provided in sections 2-46(f) and 2-47(d). 6. Subsection (b)(2) of section 2-47 is hereby amended by delet- ing the same in its entirety and substituting in its place and stead the following: (2) Sick leave. Sick leave shall be accrued by full-time employees on a basis of four hours for each two week pay period. It is the policy of the City to grant sick leave to employees for illness or injury of sufficient seriousness to prevent the employee's attendance for duty. The City Manager may, in his discretion, grant sick leave to an employee for emergencies affecting the employee's immediate family which prevent the employee's attendance for duty. Sick leave is only to be used when actually warranted. When there is reason to believe sick leave is being abused, a licensed physician's certificate or written explanation may be required of the employee by his super- visor, his department head or the City Manager for the period of absence. In each case in which an employee is unable becuase of per- sonal injury or illness to report to duty, it shall be his responsibility to inform, or have someone inform his responsible supervisor prior to the time he is due at work on the initial day of his incapacity. Failure to inform the responsible supervi- sor, without reasonable extenuating circumstances, shall result in.the absence being classified as Unauthorized Leave. -3- ' ' 1978-12 No payment will be made for accrued sick leave upon separa- tion or retirement from City Service. 7. Subsection (d) of section 2-47 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: (d) Compensatory leave. Compensatory leave for necessary overtime work must be authorized in advance by the appropriate department head. It is granted on a basis of one and one-half hours credit for each hour worked, calculated to the nearest one- half hour. Credit will not be given for less than a half hour. Employees shall use compensatory leave as soon as possible after it is earned. No more than eighty hours may be carried over from one fiscal year to the next. When it is not convenient to use accumulated compensatory leave, as determined by the appropriat department head, the City Manager may, in his discretion, approve the conversion of that amount in excess of eighty hours at the end of the fiscal year, or a portion thereof, to the employee's annual leave account. 8. Article VIII is hereby amended by adding a new section 2-47.1 to read in its entirety as follows: Sec. 2-47.1 Procedural guarantees for Law-Enforcement Officers The procedures established pursuant hereto shall apply to non- probationary members of the police department of the City of Fair Virginia, in addition to such other procedures as may be set forth in this Article. (a) Definitions. For the purposes of this section, the following words and phrases shall have the meanings respectively ascribed to them by this subsection: -4- 1978-12 Chief of Police. The chief of the police department of the City of Fairfax, Virginia. Department. The police department of the City of Fairfax, Virginia. Officer. A person who, in his official capacity, is authorized by law to make arrests and who is a nonprobationary member of the department. Investigating Officer. An officer designated by the chief of police to investigate matters which could lead to the dismissal, demotion, suspension or transfer of an officer for disciplinary reasons. (b) Conduct of Investigation. Whenever an investigation by the department focuses on matters which could lead to the dis- missal, demotion, suspension or transfer of an officer for discip reasons, the following shall be complied with: (1) Any questioning of the officer shall take place at a reasonable time and place designated by the investigating offic preferably when the officer under investigation is on duty and at department headquarters, unless circumstances dictate otherwise. (2) Prior to the officer being questioned, he shall be informed of (i) the name and rank of the investigating officer and of any individual to be present during the questioning, and (ii) the nature of the investigation. (c) Personal Assets of Officers. No officer shall be required or requested to disclose any item of his property, incom assets, source of income, debts, or personal or domestic expendit~ including those of any member of his family or household, unless (i) such information is necessary in investigating a possible conflict of interest with respect to the performance of his official duties, or (ii) such disclosure is required by law, or (iii) such information is related to an investigation. Nothing it this subsection shall preclude the department from requiring such 1978-12 officer to disclose any place of off-duty employment and where he may be contacted at such place of employment. (d) Notice of Charges. Before any dismissal, demotion, suspension without pay or transfer for disciplinary reasons may be imposed, the following shall be complied with: (1) The officer shall be notified in writing of the charges, the basis therefor, and the action which may be taken; (2) The officer shall be given an opportunity, within five (5) calendar days after the date of the written notice pro- vided for in subsection (1), to respond orally and in writing to the charges. In making his response, the officer may be assisted by counsel at his expense. (e) Hearing. (1) Whenever an officer is dismissed, demoted, sus- pended or transferred for disciplinary reasons, he may, within ten (10) calendar days following such action, request a hearing. Such request shall be filed with the chief of police. If such request is timely made, a hearing shall be held no earlier than five (5) calendar days but no later than fourteen (14) calendar days following the date of the request, unless an earlier or later date is agreed to by the officer and the department. At the hearing, the officer and the department shall be afforded the opportunity to present evidence and to examine and cross-examine witnesses. Neither the officer nor the department shall be represented by legal counsel at such hearing. The panel conducting the hearing shall rule on the admissibility of evidence. A record shall be made of the hearing. (2) The hearing shall be conducted by a panel, comprised of one member from within the department selected by the officer, ,ne member appointed by the chief of police from within the depart- lent of equal rank of the officer but not more than two ranks above the officer, and a third member from within the department -6- 1978-12 to be selected by the other two members of the panel. In the event the two members cannot agree upon their selection of a third member for the panel, the chief judge of the circuit court of the county shall choose such third member. (3) The recommendations of the panel, and the reasons therefor, shall be in writing and shall be transmitted promptly to the officer and to the chief of police. Such recommendations shall be advisory only, but shall be accorded significant weight. (f) Appeal. If the officer is not satisfied with any action taken by the chief of police relative to the recommenda- tions of the panel, the officer may file a written notice of appeal to the City Manager as provided in section 2-48(d)(3)(iii) of this Article. In the event of such appeal, the record of the hearing shall be transmitted to the City Manager. Thereafter, all procedures relative to such appeal shall be in conformity with sections 2-48(d)(3)(iii) et seq. of this Article. (g) Immediate Suspension. Nothing in this section shall prevent the immediate suspension without pay of any officer whose continued presence on the job is deemed to be a substantial and immediate threat to the welfare of the department or the public, nor shall anything in this section prevent the suspension of an officer for refusing to obey a direct order issued in conformance with the department's written and disseminated rules and regulatior In such a case, the officer shall, upon request, be afforded the rights provided for under subsections (e) and (f). (h) Oral Reprimand Not Prohibited. Nothing in this section shall be construed to prohibit the informal counseling of an officer by a supervisor in reference to a minor infraction of policy or procedure which does not result in disciplinary action being taken against the officer. -?- 1978-12 9. Section 2-48 is hereby amended by deleting the same in its entirety and substituting in its place and stead the following: Sec. 2-48. Discipline and Grievances. (a) Kinds of disciplinary actions. If an employee's work performance or behavior is unsatisfactory, the following kinds of disciplinary action may be taken, depending upon the circumstance oral admonishment, official reprimand, withholding of anniversary pay increase, suspension, reduction in pay or dismissal. (b) Authority to discipline. A supervisor has the respon- sibility for oral admonishment and official reprimands and for recommending other action. A department head may suspend an employee up to a maximum of twenty working days. Suspension for a longer period, reduction in pay, withholding of anniversary pay increase and dismissal can only be made by the City Manager. (c) Notification. An employee shall be given written notice before any disciplinary action, other than oral admonishment or official reprimand, is executed. Disciplinary action, other than oral admonishment or official reprimand, which is the result of unsatisfactory behavior, may be effected immediately upon giving written notice of such disciplinary action to the employee. Dis- ciplinary action, other than oral admonishment or official reprimand, which is the result of unsatisfactory work performance will not be effected until a second written notice of such action is given the employee. No written notice shall be required prior to effecting an oral admonishment or official reprimand. The official personnel file of each employee shall be available for h inspection during normal working hours. (d) Grievances. (1) Definition. A grievance is a complaint or dispute by an employee relating to his employment, including (i) discipli nary actions, involving dismissals, demotions and suspensions, (ii) concerns regarding the application, meaning or interpretatio -8- 1978-12 of personnel policies, procedures, rules and regulations, (iii) acts of reprisal as the result of utilization of the grievance procedure, and (iv) complaints of discrimination on the basis of race, color, creed, or sex. Complaints shall be nongrievable whe they involve (i) establishment and revision of wages or salaries, position classifications or general benefits, (ii) work activity accepted by the employee as a condition of employment or work activity which may be reasonably expected to be a part of the job content, (iii) the contents of ordinances, statutes or establishe. personnel policies, procedures, rules and regulations, (iv) failu to promote except where the employee can show that established promotional policies or procedures were not followed or applied fairly, (v) the methods, means and personnel by which such work activities are to be carried on, or (vi) discharge, layoff or suspension from duties because of lack of work, reduction in work force, or job abolition. A grievance shall not be interpreted to mean negotiations of wages, salaries or fringe benefits. (2) Determination of a grievance. Decisions regarding whether a matter is grievable shall be made by the City Manager at the request of the grievant or the City and such decision shall be made within ten days of such request. Decisions of the City Manager may be appealed by the grievant to the circuit court of the county for a hearing de novo on the issue of grievability. Proceedings for review of the decision of the City Manager shall be instituted by filing a notice of appeal with the City Manager within ten days after the date of the decision and giving a copy thereof to all other parties. Within ten days thereafter, the City Manager shall transmit to the clerk of court a copy of the decision of the City Manager, a copy of the notice of appeal, and any exhibits. The failure of the City Manager to transmit the record within the time allowed shall not prejudice the rights of grievant. The court, on motion of the grievant, may issue a writ -9- 1978-12 of certiorari requiring the City Manager to transmit the record o' or before a certain date. Within ten days of receipt by the cler of such record, the court, sitting without a jury, shall hear th appeal on the record transmitted by the City Manager and such additional evidence as may be necessary to resolve any controvers as to the correctness of the record. The court, in its discretio may receive such other evidence as the ends of justice require. The court may affirm the decision of the City Manager or may reverse or modify the decision. The decision of the court shall be rendered no later than the fifteenth day from the date of the conclusion of the hearing. Such determination of grievability shall be made subsequent to the reduction of the grievance to writing but prior to the hearing before the personnel advisory board as hereinafter provided. The issue of grievability shall be decided prior to the hearing before the board or it shall be deemed to have been waived. (3) Grievance procedure. Employee grievances, whether by an individual or group of employees, shall be processed as follows: (i) Step 1. A grievance must be raised within ten work days after the event giving rise to the grievance, or within ten work days following the time when the employee reasonably should have known of its occurrence. The grievant shall discuss the matter with his immediate supervisor who shall attempt to adjust the matter and must respond within three working days. (ii) Step 2. If the grievance is not settled by the immediate supervisor to the satisfaction of the grievant, he may present his grievance in writing, through his intermediate supervisors, to the appropriate department head. The department head shall hear the appeal and respond in writing within five working days of receipt of the appeal. If the immediate supervis is the department head, steps one and two shall be consolidated into a single step. -10- 1978-12 (iii) Step 3. If the grievant is not satisfied with the decision of the department head, he may file a written appeal to the City Manager, who shall hear his appeal within seven working days and render a decision within an additional seven working days. (iv) Step 4. If the grievant is not satisfied with the decision of the City Manager, he may file a written appeal to the personnel advisory board within ten days of notification by the City Manager of his decision, and the personnel advisory board shall hear the appeal. (v) Step 5. The hearing before the personnel advisory board shall be conducted in accordance with the rules of conduct and procedure for such hearings ~as may be promulgated by the board from time to time. Both the grievant and the City may cai] upon witnesses and be represented by legal counsel or other representatives. In matters involving disciplinary actions, the board shall hear the appeal within twenty days and submit its decision to the City Manager within ten days of the hearing. If the board decides that the disciplinary action was unjust, the employ shall be reimbursed for lost pay to the extent determined by the board. In all other actions, the personnel advisory board shall act upon a written appeal within a reasonable period of time subsequent to its receipt. For this purpose, a reasonable period of time usually will not exceed forty-five days. If due to extenuating circumstances this time limit cannot be met, the grievant will be informed in writing of the reason for the delay and when he can expect the board to act. The decision of the board shall be binding on both parties to the dispute unless either party, within ten days afte receipt of the decision, files a written appeal to the city council. The city council shall request both parties to submit -11- 1978-12 their respective positions to the city council. After considerat of the positions of the parties, the city council may either elec or decline to review the decision of the board. In the event the city council elects to review the decision, it shall render a final and binding decision on the grievance as soon as possible thereafter. In the event the city council declines to review, th decision of the board shall become final and binding. (4) Form of grievance. Ail stages of the grievance beyond step one shall be in writing on forms supplied by the City. Once the employee has reduced his grievance to writing, he must specify on the appropriate form the specific relief he expects to obtain through the use of the grievance procedure. (5) Employee representation. At all steps of the grievance procedure established pursuant to section 2-48(d)(3) of this Article, the grievant shall be permitted to be accompanied or represented by an individual of his own choice. (6) No reprisal. It shall be unlawful for any supervisor or other management official to make a reprisal against an employee on account of a grievance. (7) Waiver of time limits. By mutual agreement, the parties to a grievance may extend any or all of the time periods establis in this grievance procedure. Failure by the employee to process a grievance within the time limits, or agreed upon extension, shall constitute termination of the grievance. (e) Compliance with grievance procedure. Failure by the grievant to comply with all substantial procedural requirements of the grievance procedure without just cause will terminate the right of further appeal. Failure of the City to comply with all substantial procedural requirements of the grievance procedure without just cause will, at the option of the grievant, advance the grievant to the next step in the grievance process. Failure of the City, without just cause, to comply with all substantial -12 - 1978-12 procedural requirements of the hearing before the personnel advisory board shall result in a decision in favor of the grievan (f) Management rights. Nothing in this section shall circumscribe or modify the existing management right of the City to (i) direct the work of its employees as well as establish and revise wages, salaries, position classifications and general employee benefits; (ii) hire, promote, transfer, assign and retai employees within the City; (iii) maintain the efficiency of governmental operations; (iv) relieve employees from duties of th City in emergencies; and (v) determine the methods, means and personnel by which operations are to be carried on. This ordinance shall take effect on July 1, 1978. Introduced: June 6, 1978 Adopted: ATTEST: June 27, 1978 Clerk -13-