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23-93 VOID ORDINANCE NO. 23-93 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 35, "EMPLOYEE POLICIES AND BENEFITS", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 35.002, "APPLICATION; EXCLUSIONS", PROVIDING CLARIFICATIONS AND EXCLUSIONS CONCERNING EMPLOYEES COVERED BY THE ACT; BY AMENDING SECTION 35.007, "FIXING PAY AND GRADE THROUGH BUDGETARY PROCESS", PROVIDING FOR MERIT-BASED RETENTION AND RECALL OF EMPLOYEES DURING AND AFTER REDUCTIONS IN FORCE; BY AMENDING SECTION 35.009, "APPEAL; HEARING; PROCEDURE", PROVIDING CLARIFICATION THAT MATTERS WHICH ARE NOT DISCIPLINARY ACTIONS ARE NOT APPEALABLE TO THE CIVIL SERVICE BOARD; BY REPEALING SECTION 35.014, "RETAINMENT OF RANK, GRADE AND SENIORITY; REDUCTION OF NUMBER IN GRADE", PROVIDING A REPEALER; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. Section 1o That Section 35.002, "Application; Exclusions", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 35.002 APPLICATION; EXCLUSIONS (A) All persons regularly employed by the municipality in any department shall be construed to come within the provisions of this subchapter, except as otherwise provided in this Act. department heads- who-a~e- employed- subsequent-to- the- date- th~s -subchapter becomes-kawv This subchapter shall not include any officer or person employed for temporary duty only; nor shall it include employees covered under the terms of a collective bargaining agreement, or expired collective bargaining agreement which is subject to renegotiation unless otherwise expressly provided in this subchapter or in the code of rules and regulations or in the collective bargaining agreement. (B) The provisions of this subchapter shall not apply to those persons appointed by the City Commission or to any. assistant city manager, department headt assistant department headt police ma~or~ or such other key employees as may be designated by resolution of the City Commission. Section 2. That Section 35.007, "Fixing Pay and Grade Through Budgetary Process", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 35.007 FIXING PAY AND GRADE THROUGH BUDGETARY PROCESS. %A~ The City Commission gove=n~ng---author~ty---o~---the mun~=&pak~t¥ shall fix the pay of all employees, shall fix the number of positions members in each particular classification grade and may increase or reduce the number of positions in any classification grade, or may abolish that classification grade, through the budgetary process. The City Manager may vary the number of positions emp}oyees.in any classification grade during the budget year to meet city requirements. ~B~ In the event of a reduction in the number of positions in members-o~ any classification grade, the emDloyees members shall be retained in the positions, remaininq within that classification grade according to meritt as determined by the City Manaqer. Any such determination by the City Manager shall be final and shall not be subject to appeal or judicial review. Employees who are not retained shall be laid off. Laid off employees shall receive no pay or benefits durinq any period in which they are laid off. sen~o~y?-and-those-membe~s-~hus-be~ng f~r~e~-back-to-a-~ower-grade~-w~-thereafter-rece~ve-the-pay-o~-the ~owe~-g~ade~ In the event the number of positions in a particular classification ~ade is, within one (1) year followinq a reduction, again increased, former employees shall be qiven an opportunity for recall to their previous positions in inverse order to the order in which they were laid off~ those-members-f~e~-ba~-as-afo~esa~d sha~-be-f~st-to-su~ee~-to-tha~-grade-a~ord~ng-to-sen~o~t~ without further examination or probationary period. Laid off employees who are notified of an opportunity for recall and who respond affirmatively in writtnq to such notification within ten (10) calendar days followinq the date the notification is sent, shall be reinstated to their previous position with no loss in seniority. Howevert laid off employees shall not accrue seniority durinq any period in which they are laid off. %~--~n-the-even~-a-reduc~on-~n-~he-force-of-an¥-grade-thereo~ causes-a- member-of-the-kowest- ~ne=~ve-~u~yT-that-member-on-~nac%~ve-~u%y-sha~k-not-rece~ve-any pa¥~-but-the-~nact~ve-membe=-shakk-no~-kose-h~s-sen~or~t¥7-p=ov~e~ he-rema~ns-~nact~ve-for-a-per~o~-no~-to-excee~-on-yeary-an~-enters on-ac~ve-~u~¥-w~%h~n-~en-~ays-af%er-no%~ce~has-been-g~ven-h~m-b¥ ~he-e&~¥-Manager-~hat-a-pos~%~on-~s-~penv sen~or~ty-k~st-shak}-be-ce=t~f~ed-of-akk-empkoyees-and-the-emp~oyees shekk-~n-wr~t~ng-assen2-or-d~ssen%-2o-h~s-sen~or~2¥-re2~ng=--~n-the event-an-empkoyee-or-member-~ssen%s-2o-h~s-seniority~rating7 heaf~ng-shakk-be-he}d-by-~he-Board-and-~he-sen~f~y-de~e~m~nedF-and the-f~nd~ngs-of-the-Boa=~-shakk-be-f~nakv Section 3. That Section 35.009, "Appeal; Hearing; Procedure", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 35.009. APPEAL; HEARING; PROCEDURE. (A) An employee who for reason of discipline has been discharged, demoted, or suspended without pay for a period in excess of seven calendar days may appeal to the Civil Service Board for a hearing within ten calendar days from the time he was served with notice of discharge, demotion, or suspension without pay (as above referred to), as shown by that notice. In the case of discharge, the hearing shall be held within 90 days, but not sooner than 60 days, from the date that an appeal shall have been so filed with the Civil Service Board. In the cases of demotion and suspension without pay for a period in excess of seven calendar days, the hearing shall be held within 30 days from the date that an appeal shall have been so filed with the Board. Hearing dates in all appeals may be extended if mutually agreed to by the employee, the city, and the Board. Written notice shall be given to the person so removed, demoted, or suspended and to the head of the proper department of the time and place of hearing the appeal, which hearing shall be open to the public. 2 ORD. NO. 23-93 VOID (B) In instances of proper and timely appeals by employees to the Civil Service Board regarding disciplinary matters, pursuant to division (A) of this subchapter, the following procedures shall be applicable. Matters which the city manager formally states are not disciplinary actions, although such mattes may involve certain personnel actions, including terminations for failure to have or maintain job qualifications and requirements, shall not be appealable to the Civil Service Board. Only disciplinary matters, where so identified by the city manager, of terminations, demotions, and suspensions without pay in excess of seven calendar days are appealable to the Civil Service Board. (1) Functions of Boardt Counsel. The Civil Service Board shall hear all appropriate appeals~ and shall make all findinqs of fact necessary to resolve such appeals.~-~n-hear~ngs-o~-appea~s-o~ d~s~harged-emp~oyees~-sha~-~n~t~en-as-a-j~r¥-~n-e~-~gat~on~ w~th-a-Beard-eeunse~-se~eeted-te-~net~en-as-a-judge-~n- ~t~gat~en~--As-the-tr~er-e~-~aet~-the-Beard-sha~-make-~nd~ngs-ef w~theut-pay-fer-a-perfed-fn-exeess-ef-seven-eafendar-days~--W~th-the eensent-ef-the-gevernfng-a~ther~ty~-the-Beard-may~-er-where-b~th part~es-je~nt~y-reg~est-s~h~-the-Bear~-sha~-~tf~ze-the- eeunse~-fermat-~n-the-demet~en-and-suspens~en-appea~-eases~-fn-the same- manner-as- pre~fded-here~n-~n- hearing-eases- ef- appea~s- d~seharged-em~e~ees~--Hewe~er~-at-a~-meet~ngs-and-hear~ngs-ef-the meet~ngs-and-hear~ngs~ (2) ~B~ fl-the- Beard-~e~nse~- fe~l~at-~s- net-~t~fzedy- the Beard-may-reg~est-that-the-e~ty-e~mm~ssfen-a~e~nt-and-reta~n-an atterney-at-~aw-te-~re~de-~ega~-adv~ee-te-the-Beard-at-hear~ngs-e~ appea~s-en~y~ A Board counsel shall be appointed selected by the City Commission. a- drawfng -eend~eted - by- the - e~ty- e~erk~ - er -a des~gnated-ass~stant-e~ty-e~er~-here~n-referred-te-as-the-~erk~ ~he-~ty-Manager~-en-behaff-ef-the-e~ty~-sha~-s~bm~t-te-the-~er~ names-e~-twe-gua~e~-~ew~ers-and-the~r-res~estf~e-a~dresses separate--sea~ed--en~e~epes?--and--the--e~f--Ser~ee--Beard--sha~ ~kew~se-subm~t-the-names-ef-twe-gua~f~ed-~awyers:--~he-names-must Be-s~bm~tted-w~th~n-ten-days-frem-the-date-an-a~pea~-fs-~f~ed-wfth the-Beard~--?he-draw~ng-sha~-be-he~d-en-the-next-reg~ar-bus~ness f~--~he-~emr-enve~epes-eenta~n~ng-the-fe~r-names-sha~-be ?he-~erk-sha~f-net~y-the-~ha~rDersen-e~-the-e~v~-Servfee-Beard and-the-e~ty-Manager-ef-the-t~me-e~-the-draw~ng-se-that-eaeh-mayy-~f they-se-des~rey-have-a-representat~ve-present~--?he-e~erk-sha~-draw feur-names-and-desfgnate-the-~rder-~n-wh~eh-the-names-are-~rawn~ ~he-ffrst-name-drawn-sha~-be-the-Beard-¢e~nse~-and-the-erder-e~ the-ether-names-drawn-w~-~nd~ate-the-erder-ef-s~eeess~en-ef-the Beard-ee~nse~s-~f-the~r-pre~eeessers-are-unab~e-te-servev f5~--f~-e~ther-the-e~ty-Manager-er-the-B~ard-faf~s- s~bm~t-names-w~th~n-the-ten-day-t~me-per~ed?-the-e~er~-sha~-preeee~ te-draw-the-twe-names-s~bm~tted?-an~-the-f~rst-name-drawn-sha~-be 3 ORD. NO. 23-93 VOZ~ ~6~ WMenever-~he-Board-counse~-~orma2-~s-u2~zodF-2he Board-counse~-sha~-~unc2~on-as-a-~ud~e-~n-c~v~-~2~a2~on-~n eonduc2~ng- hearings - o~- appea~s- to- the- e~v~- Service- Board- o~ d~scharged-empkoyees= The Board counsel must be a member of the state bar in good standing for the preceding five years. The Board counsel shall rule upon admission of evidence and all other questions of law. The-Board-eounsek-shakk-akso-ruke-upon-quest~ons o~-eon~k~ct-o~-~nterest-and-on-mot~ons-to-d~squak~y-members-o~-the e~v~k- Service- ~rom- serving- on- tha~- Board- during- a- par~=ukar hear~ng=--The-Board-eounsek-shakk-prov~de-~nstruct~ons-to-the-~v~k Serv~ce--Board--pr~or--to--~2s--mak~ng--{~nd~ngs--of--factF--wh~eh ~ns%rue%~ons-shakk-be-s~m~kar-to-jury-~ns2ruet~ons-u2~k~zed-~n-e~v~k k~t~gat~onv--The-~v~k-Serv~ee-Boa~d-sha}k-~ok}ow-and-ab~de-by-the Board-eounsek~s-ruk~ngs-on-akk-ques~ons-o~-kawF-~n=kud~ng-but-not k~m~ted-~o-h~s-~nstruct~onsF-h~s-ruk~ngs-on-con~k~=t-o~-~n~erest quest~ons-and-on-mo2~ons-to-d~squak~f¥-a-member-of-the-~v~k-Serv~ee Board-~rom-serv~ng-~n-a-par~cukar-casev %~ ~t-~s-the-~ntent-o~-~h~s-subchag~er-~ha~-the-Board counsek-and-the-~k-Serv~ce-Boar~-%when-ac~ng-together~-shakk resgect~veky-~unc~on-~n-~he-capac~es-o~-judge-and-~ur¥~-as-the judge-an~-jur~-wouk~-{unct~on-~n-c~v~k-k~t~gae~on=--However~-dur~ng ~he-course-o~-an-a99ea}-the-Board-counsek-sha}k~-~o-ehe-ex~ent-he ~eems-comga~bke-w~h-due-~roeess-and-~a~rness~-~u~k¥-~n~orm-~he Board-o~-akk-matters-ger~a~n~ng-~o-the-a99eak-and-hear~ng= (3) %~ Prehearinq Procedures. ~n-~he-case-o~-an-apgeak-o~ an- emgkoyee~s- d~scharge~- e~ach party must advise the other in writing within ~0 days from the date the appeal was filed with the Board, who their witnesses will be and the addresses of those witnesses. In other appeal cases each party must advise the other party in writing of their witnesses and their addresses within ten days from the date the appeal was filed with the Board. Failure to so notify the opposing party of the names and addresses of the other party's witnesses, when requested to do so in writing, shall entitle the deprived party to a reasonable continuance, or the undisclosed witnesses will be disqualified from testifying, as determined by the Board counsel~7-er-b¥-the-Board-when-no-Board-counsek-ks-used= Copies of all documentary evidence and exhibits shall be made available to the opposing party when prepared and not later than ten days prior to the hearing, along with the opportunity to examine the originals. Failure to timely furnish those copies, with the opportunity to examine the originals, shall entitle the deprived party to ~ reasonable continuance, or documentary evidence and exhibits shall be excluded from the evidence, as determined by the Board counsel or by the Board when no Board counsel is used. %~ When appropriate a A party shall be permitted to conduct cross-examination when testimony is taken or documents are made a part of the record. (4} ~8~ ~earinq Procedures and Orders. The Civil Service Board shall hear the evidence upon the charges and specifications as filed with the Board by the City Manger. No material amendment of, or addition to those charges of specifications will be considered by the Board counsel or the Board. The proceedings shall be as informal as is compatible with justice. At least ten calendar days prior to any hearing, the parties shall submit to ~he-c~v~k-serv~ee-board~-or-~o the board counsel onk¥-where-such-~orma~-~s-used~ a joint prehearing stipulation, 4 ORD. NO. 23-93 VOID which shall contain a record of the case documents leading up to the subject appeal, a brief statement of the agreed facts, and a statement of the disputed and anticipated factual and legal issues to be determined during the course of the hearing. When-the-board counse~-~ormat-~s-ut~zedy-t~he board counsel shall provide to the Civil Service Board all portions of such prehearing stipulation and attachments as the board counsel deems advisable and is compatible with due process. ~9~ The order of proof at all hearings shall be as follows: The City Manager or his designee shall present his or her evidence in support of the charges and-spe=~f~=at~ons. The appellant shall then produce any evidence as he or she may wish to offer in his o__r her defense. The parties in ~st may then offer rebuttal evidence. The Board counsel and the Board shall hear opening statements and closing arguments, when same are requested by either of the parties. %~8~ ~n--a~--hear~ngsy--~rrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not the evidence would be admissible in a trial in the courts of the state. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. ~ The Board counsel or the-Boardy-b¥-~ts-eha~rpers~ny-~n hearfngs-where-no-Board-counsek-~s-ased7 shall have the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon said counsel's h~s own motion, and to effect discovery which shall be permitted on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, except where otherwise modified by this subchapter. Motions to shorten the time for responding to a discovery request shall be liberally granted by the Board counsely-or-by-the-Board when-no-Board-~unse~-~s-used. %~6~ After the hearing of the appeal, when-a-Board-counsek-~s used~ the Board counsel shall submit to the Board his instructions, conclusions of law, and rulings on any questions of law presented by the parties, as well as his legal interpretation of the code of rules and regulations as the same may apply to the particular case. The Board counsel may make a submittal to the Board at the conclusion of the hearing or at a later time agreeable to the Board counsel and the Board. Where-the-board-counsel-~ormak-~s-not ut~zedy-the-part~es-ma¥-subm~t-proposed-~nstru~t~ons-and-reques~s {or-o~her-ruk~ngs-d~rect}¥-~o-~he-~v~k-Serv~ce-Board= All decisions of the Civil Service Board shall be by simple majority vote. ~. The~Board-w~-then-~ender-~s-~na~-dec~s~on-~n-the-{orm o~-a-~nak-order= The final order of the Board shall be in writing and include findings of fact ~he-=~}-serv~=e~board~s~-or the board counsel's where-su~h-~orma~-~s-used7 conclusions of law separately stated, and it shall be rendered within 30 days after the last day 5 ORD. NO. 23-93 VOID of the hearing or receipt of transcript, if applicable, whichever is later. The final order shall be prepared by the board counsel. If a party submitted proposed findings of fact or filed any written application or other request in connection with the hearing, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. The order shall also contain a finding relative to the degree of severity of the discipline which has been imposed, which shall be b~nd~ng-except-~n-~nstances-where-a-B~ard-e~unse~-~s-used~-~n-wh~ch case-the-~nd~ng-shakk-be advisory only to the Board counsel. %}8~ The above-described Board's final order relating to the hearing of appeals of suspensions without pay for more than seven calendar days and demotions shall be rendered within 30 days after the last day of the hearing or receipt of transcript, if applicable, whichever is later. %k9~ The 30-day period as it relates to the rendering of the final written order in employee discharge appeal cases and the Board's final order in employee discharge appeal cases and the Board's final order in employee suspension and demotion appeal cases, as referred to above, may be waived or extended with the consent of all parties. ~8~ Parties shall be notified either personally or by mail of any order, and, unless waived, a copy of the final order shall be delivered or mailed to each party or to his attorney of record. (5) ~4~ Supplemental Procedures. Any person subject to a subpoena or order directing discovery may, before compliance and on timely petition, request the Board counsel o=-the-Boa=~7-~f-the=e-~s no-Board-counse~-hear~ng-the-subject-appea~ to invalidate the subpoena or order on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material. ~}5~ A party may seek enforcement of a subpoena or order directing discovery issued under the authority of this subchapter, by filing a petition for enforcement in the circuit court of the judicial circuit wherein the person failing to comply with the subpoena or order resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, no person shall be in contempt while the subpoena or order is being challenged as provided in division (B)(14) of this section. Section 4. That Section 35.014, "Retainment of Rank, Grade, and Seniority; Reduction of Number in Grade," of the Code.of Ordinances of the City of Delray Beach, Florida, be and the same is hereby repealed. Section 5. That all ordinances or parts of ordinances which are in conflict herewith be and the same are hereby repealed. Section 6. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid such decision shall not effect the validity of the remainder hereof as a whole part thereof other than the part declared to be invalid. Section 7. That this ordinance shall become effective upon its approval by referendum election to be held within one year of its passage on second and final reading. 6 ORD. NO. 23-93 VOID PASSED AND ADOPTED in regular session on second and final reading on this the __ day of , 1993. MAYOR ATTEST: City Clerk First Reading. Second Reading. 7 ORD. NO. 23-93 VOID MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM ~ I~ - MEETING QF FEBRUARY 9. 1993 ORDINANCE NO. 23-93 DATE: February 5, 1993 At the time the agenda was complete, staff was still preparing this ordinance. It is anticipated that it will be delivered to you prior to Tuesday evening's meeting. 3'-0 [lTV JIF DELRli¥ BErlCH 100 N.W. 1st AVENUE · DELRAY BEACH, FLORIDA 33444 · 407/243-7000 MEMORANDUM TO: Jeffrey S. Kurtz, City Attorney FROM: David T. Harden, City Manager('!?~ i SUBJECT: PROPOSED CIVIL SERVICE AMENDMENTS DATE: February 23, 1993 My comments on Ordinance No. 23-93 are as follows: Section 1. What we wanted to do with the police majors was to have the majors serve at the pleasure of the police chief, but retain Civil Service protection for the rank from which they were promoted. Another way of looking at it would be to consider the rank of major a temporary rank. Thus if a police captain were promoted to major and the existing chief or the new chief decided to make a change, the officer could be removed from the position of major by the chief but would revert to the permanent rank of captain, and, at all times, would retain Civil Service protection for discharge or reduction in rank below the rank of captain. If we are to exclude assistan~ department heads from Civil Service, it should be done prospectively so that the exclusion would apply only to persons placed in the position of assistant department heads, subsequent to the effective date of this amendment. We are having some debate among the staff concerning whether or not assistant department heads should be excluded. There is a great deal of concern about giving the City Commission authority to exclude other employees by resolution. This goes far beyond anything anyone on City staff has requested. There is a very real and, I think, well-founded concern that three members of the City Commission could, at any given meeting, remove a specific employee's Civil Service protection and cause the employee's discharge. Jeffrey S. Kurtz February 23, 1993 Page two Section 2. I would suggest that the retention of employees, based on merit, be tied in some way to performance evaluations. Perhaps have the City Manager make the determination based on the employee's most recent two performance evaluations. The idea is to provide protection for employees from arbitrary discharge through manipulation of the budget process. Section 3. In the fifth line, under sub-section (B), the letter "r" has been omitted from the word "matters." Next, in paragraph (B) (3), since the initial phrase "In the case of an appeal of an employee's discharge" has been deleted, the first phrase in the next sentence "In other appeal cases" no longer makes sense and needs to be revised. Next, in paragraph (B) (4), at the top of page 6 in the last line of the paragraph which was formerly numbered "(17)", it states that the Board's order regarding severity of discipline shall be advisory only to the Board counsel. I realize this provision is in the existing Civil Service code, but I question the wisdom of this provision. Perhaps it too should be changed. Finally, in paragraph (B) (5), the last line refers to division (B) (14). This reference is no longer correct, since paragraph (14) is now the first paragraph under number (5). DTH:mld Attachment c: Department Heads ORDINANCE NO. 23-93 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 35, "EMPLOYEE POLICIES AND BENEFITS", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 35.002, "APPLICATION; EXCLUSIONS", PROVIDING CLARIFICATIONS AND EXCLUSIONS CONCERNING EMPLOYEES COVERED BY THE ACT; BY AMENDING SECTION 35.007, "FIXING PAY AND GRADE THROUGH BUDGETARY PROCESS", PROVIDING FOR MERIT-BASED RETENTION AND RECALL OF EMPLOYEES DURING AND AFTER REDUCTIONS IN FORCE; BY AMENDING SECTION 35.009, "APPEAL; HEARING; PROCEDURE", PROVIDING CLARIFICATION THAT MATTERS WHICH ARE NOT DISCIPLINARY ACTIONS ARE NOT APPEALABLE TO THE CIVIL SERVICE BOARD; BY REPEALING SECTION 35.014, "RETAINMENT OF RANK, GRADE AND SENIORITY; REDUCTION OF NUMBER IN GRADE", PROVIDING A REPEALER; PROVIDING A SAVING CLAUSE; PROVIDING AN EFFECTIVE DATE. Section 1. That Section 35.002, "Application; Exclusions", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 35.002 APPLICATION; EXCLUSIONS / (A) All persons regularly employed by th~ municipality in any department shall be construed to come within the provisions of this subchapter, except as otherwise provided in this Act. department heads-who-are-employed-~ubseguent-to- the-date-this- sub~hapter become~-~awv This subchapter shall not include any officer or person employed for temporary duty only; nor shall it include employees covered under the terms of a collective bargaining agreement, or expired collective bargaining agreement which is subject to renegotiation unless otherwise expressly provided in this subchapter or in the code of rules and regulations or in the collective bargaining agreement. (B) The provisions of this subchapter shall not apply to those persons appointed by the City Conunission or to any assistant city manaqer~ department headr assistant department headI police maJorl ~such~.~other-.key~employees--as-may be desiqnated-by-resolution=--(~f Section 2. That Section 35.007, "Fixing Pay and Grade Through Budgetary Process", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to-read as follows: Section 35.007 FIXING PAY AND GRADE THROUGH BUDGETARY PROCESS. %A~ The City Commission gove~ning---auth~r~ty---~f---the municipality shall fix the pay of all employees, shall fix the number of positions members in each particular classification ~rede and may increase or reduce the number of positions in any classification ~rade, or may abolish that classification through the budgetary process. The City Manager may vary the number of positions employees in any classification ~rade during the budget year to meet city requirements, fB~ In the event of a reduction in the number of positions in members-e~ any classification ~rade, the employees members shall be retained in the positions remaininq within that classification grade according to merit~ as determined by the City Manaqer. Any such determination by the City Manaqer shall be final and shall not be subject to appeal or judicial review. Employees who are not retained shall be laid off. Laid off employees shall receive no pay or benefits during any period in which they are laid off. sen~r~ty~-and-those-members-thus-be~ng for~ed-ba~k-to-a-~ower-gradeT-w~-thereafter-re~e~ve-the-pay-~-the kower-grade= In the event the number of positions in a particular classification grade ist within one (1) year followinq a reductionr again increased, former employees shall be given an opportunity for recall to their previous positions in inverse order to the order in which they were laid offr those-members-~orced-ba~k-as-a~oresa~d sha~-be-~rst-t~-su~eed-t~-that-grade-a~rd~ng-t~-sen~r~ty7 without further examination or probationary period. Laid off employees who are notified of an opportunity for recall and who respond affirmatively in writinq to such notification within ten (10) calendar days followinq the date the notification is sent~ shall be reinstated to their previous position with no loss in seniority. However, laid off employees shall not accrue seniority durinq any period in which they are laid off. ~e~--~n-the-event-a-redu~t~n-~n-the-f~rce-~-any-grade-there~ causes-a-member-~-the-~owest-grade-of-that-force-to-go-~nto fnactfve-dutyT-that-member-on-fnaot~ve-duty-sha~k-not-rece~ve-any pa¥7-but-the-fna~tfve-member-shakk-not-kose-h~s-sen~or~t~F-provfded he-rema~ns-fnactfve-for-a-per~od-not-to-exceed-on-yearl-and-enters on-a~t~ve-duty-wSth~n-ten-days-a~ter-not~e-h~-been-g~ven-h~m-by the-~fty-Manager-that-a-posft~on-~s-open= ~B~--After--the--format~on--o~--the--~v~--Serv~ce--BoardF--a senforfty-~fst-shak~-be-certff~e~-of-akk-emp~oyees-and-the-empkoyees sha~}-~n-wrft~ng-assent-or-d~ssent-to-h~s-senforfty-rat~ng~--fn-the event-an-empkoyee-or-member-d~ssents-to-h~s-sen~or~ty-rat~ngF-a hear~ng-sha}~-be-he~d-by-the-Board-and-the-sen~or}ty-determ~nedT-and the-f~nd~ngs-of-the-Board-shakk-be-f~nak= Section 3. That Section 35.009, "Appeal; Hearing; Procedure", of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: Section 35.009. APPEAL; HEARING; PROCEDURE. (A) An employee who for reason of discipline has been discharged, demoted, or suspended without pay for a period in excess of seven calendar days may appeal to the Civil Service Board for a hearing within ten calendar days from the time he was served with notice of discharge, demotion, or suspension without pay (as. above referred to), as shown by that notice. In the case of discharge, the hearing shall be held within 90 days, but not sooner than 60 days, from the date that an appeal shall have been so filed with the Civil Service Board. In the cases of demotion and suspension without pay for a period in excess of seven calendar days, the hearing shall be held within 30 days from the date that an appeal shall have been so filed with the Board. Hearing dates in all appeals may be extended if mutually agreed to by the employee, the city, and the Board. Written notice shall be given to the person so removed, demoted, or suspended and to the head of the proper department of the time and place of hearing the appeal, which hearing shall be open to the public. 2 ORD. NO. 23-93 (B) In instances of proper and timely appeals by employees to the Civil Service Board regarding disciplinary matters, pursuant to division (A) of this subchapter, the following procedures shall be applicable° Matters which the city manager formally states are not disciplinary actions, although such matte~ may involve certain personnel actions, including terminations for failure to have or maintain job qualifications and requirements, shall not be appealable to the Civil Service Board. Only disciplinary matters, where so identified by the city manager, of terminations, demotions, and suspensions without pay in excess of seven calendar days are appealable to the Civil Service Board. (1) Functions of Boardr Counsel. The Civil Service Board shall hear all appropriate appeals, and shall make all findings of fact necessary to resolve such appeals.7-~n-hearings-o~-appea~s-o~ discharged-emp~oyeesT-sha~-funct~on-a~-a-jury-~n-c~v~-~t~ga~on~ w~th-a-Board-c~unse~-se~ected-to-~unct~on-as-a-judge-~n-c~v~ k~t~gat~onv--As-the-trier-of-fact/-the-Board-sha~k-make-f~nd~ngs-of fact-whfch-shakk-be-reduced-to-wrftten-form-by-the-Board-counse}7 f~--The-Board-as-a-body-on}y-shak~-conduct-hear~ngs-of appea~s-of-demoted-empkoyees-and-of-appea}s-of-empkoyees-suspended wfthout-pay-for-a-perfod-fn-excess-o~-seven-ca}endar-daysv--Wfth-the consent-of-the-governfng-author~tyT-the-Board-may7-or-where-both part~es-jofnt~y-request-suchT-the-Board-shakk-ut~ze-the-Board counse~-~ormat-~n-the-demotion-and-suspensfon-gp9eak-casesT-~n-the same-manner-as- provfded-here~n-fn-hearfng-~ases-of-appeaks-by d~scharged-empkoyeesv--HoweverT-at-akk-meetfng~-and-hearfngs-of-the Boardl-the-~hakrperson-of-the-Board-shakk-contfnue-to-act-as-the presfdfng-off~cer-to-presfde-over-the-conduct-and-settfng-of-those meetings-and-hearings= (2} ~ ff-the-Board-counsek-format-~s-not-ut~k~zedT-the Board-may-request-that-the-efty-eomm~ss~on-appo~nt-and-retafn-an attorney-at-kaw-to-prov~de-kega}-a~v~ce-to-the-Board-at-hear~ngs-of appeaks-onky= A Board counsel shall be appointed sekected by the City Commission. a-drawfng-conducted-by- the- e~ty-e~erkT-or-a des~gnated-assfstant-e~ty-e}erk~-here~n-referred-to-as-the-e~erk= The-~ty-ManagerT-on-behakf-of-the-c~tyT-shakk-submft-to-the-ekerk names-of-two-quakkf~ed-kawyers-and-the~r-respect~ve-addresses-in separate--seaked--envekopes?--and--the--e~vfk--Serv~ce--Board--shakk k~kew~se-submft-the-names-of-two-guakff~ed-kawyers=--The-names-must be-subm~tted-w~thfn-ten-days-from-the-date-an-appeak-~s-f~ked-w~th the-Boardr--The-drawfng-sha}k-be-hekd-on-the-next-~egukar-busfness day-after-the-expfratfon-of-the-ten-day-perfod= %4~--The-four-envekopes-conta~n~ng-the-four-names-shakk-be pkaced-fn-a-receptacke-by-the-ekerk-and-reta~ned-~n-h~s-custody= The-~kerk-shakk-not~fy-the-~ha~rperson-of-the-efvfk-Serv~¢e-Board and-the-~ity-Manager-of-the-t~me-of-the-draw~ng-so-that-each-mayT-ff they-so-desfreT-have-a-representat~ve-presentr--The-ekerk-shakk-draw four-names-and-des~gnate-the-order-~n-wh~ch-the-names-are-drawn= The-~rst-name-drawn-sha~-be-the-Board-counse~l-and-the-order-o~ the-other-names-drawn-w~}~-~nd~¢ate-the-order-of-successfon-of-the Board-counseks-ff-thefr-predecessors-are-unabke-to-serve= %5~--ff-e~ther-the-efty-Manager-or-the-Board-fa~ks-to submft-names-wfthfn-the-ten-day-t~me-periodT-the-ekerk-shakk-proceed to-draw-the-two-names-subm~ttedT-and-the-f~rst-name-drawn-sha}}_be the-Board-counse~-and-the-second-name-h~s-successor= 3 ORD. NO.'23-93 ~6~ Whenever-the-Board-counse}-format-~s-ut~fzedy-the Beard-counset-sha~-funct~on-as-a-judge-~n-~v~-~t~gat~on-~n conducting- hearings- of- appeaEs- to- the- e~vEk- ServEce- Board- of d~scharged-emp~oyees= The Board counsel must be a member of the state bar in good standing for the preceding five years. The Board counsel shall rule upon admission of evidence and all other questions of law. The-Board-counse~-shakk-a~so-ruke-upon-quest~ons of-¢onf~ct-of-~nterest-and-on-mot~ons-to-d~squa~fy-members-of-the Cfvfl- Service- from-servfng- on- that- Board-during- a- part~cukar hear~ngv--The-Board-counse~-sha~-pr~v~de-~nstruct~ons-to-the-e~v~ Serv~ce--Board--pr~or--to--~ts--mak~ng--{~nd~ngs--o~--~actT--wh~ch ~nstruct~ons-sha~-be-s~m~ar-to-jury-~nstruct~ons-ut~k~zed-~n-c~v~k k~t~gat~on=--The-~v~-Serv~¢e-Board-shak~-~ok~ow-and-ab~de-b¥-the B~ard-c~unsekXs-ru~ngs-on-ak~-quest~ons-o~-kawT-~nckmd~ng-but-n~t kim~ted-to-h~s-~nstruct~onsT-h~s-ruk~ngs-on-¢on~k~ct-o~-~nterest quest~ons-and-on-mot~ons-to-d~squa}~fy-a-member-o{-the-e~v~k-Serv~ce Board-~rom-serv~ng-~n-a-part~cu~ar-~ase= ~ }t-~s-the-~ntent-o~-th~s-subchapter-that-the-Board ¢ounsek-and-the-e~v~k-Serv~ce-Board-%when-act~ng-together~-shakk respest~ve~y-~unst~on-~n-the-capa~t~es-o{-judge-and-Juryi-as-the judge-and-jury-wou~d-~un~t~on-~n-c~v~}-k~t~gat~on=--HoweverT-dur~ng the-sourse-o~-an-appeak-the-Board-counsek-shak~7-to-the-extent-he ~eems-compat~b~e-w~th-due-process-and-~a~rnessT-{u¼ky-~n~orm-the Board-o~-akk-matters-perta~n~ng-to-the-appeak-and-hear~ngv (3) %~ Prehearinq Procedures. ~n-the-~ase-o~-an-appeak-o~ an-empkoyee~s- d~scharge7- e~ach party must ~dvise the other in writing within 30 days from the date the appeal was filed with the Board, who their witnesses will., be and the addresses of those witnesses. ~ In othe~ appeal cases each party must advise the other party in writing of their witnesses and their addresses within ten days from the date the appeal was filed with the Board. Failure to so notify the opposing party of the names and addresses of the other party's witnesses, when requested to do so in writing, shall entitle the deprived party to a reasonable continuance, or the undisclosed witnesses will be disqualified from testifying, as determined by the Board counsel.i-or-by-the-Board-when-no-Board-counse~-~s-used= Copies of al~ documentary 'evidence and exhibits shall be made available to the opposing party when prepared and not later than ten days prior to the hearing, along with the opportunity to examine the originals. Failure to timely furnish those copies, with the opportunity to examine the originals, shall entitle the deprived party to ~ reasonable continuance, or documentary evidence and exhibits shall be excluded from the evidence, as determined by the Board counsel or by the Board when no Board counsel is used. %}~ When appropriate a A party shall be-permitted to conduct cross-examination when testimony is taken or documents are made a part of the record. (4} ~8~ Hearinq Procedures and Orders. The Civil Service Board shall hear the evidence upon the charges and specifications as filed with the Board by the City Manger. No material amendment of, or addition to those charges of specifications will be considered by the Board counsel or the Board. The proceedings shall be as informal as is compatible with justice. At least ten calendar days prior to any hearing, the parties shall submit to the-~v~-serv~ce-boa~dT-or-to the board counsel on}y-where-such- format-~s-used7 a joint prehearing stipulation, 4 ORD. NO. 23-93 which shall contain a record of the case documents leading up to the subject appeal, a brief statement of the agreed facts, and a statement of the disputed and anticipated factual and legal issues to be determined during the course of the hearing. When-the-board c~unse~-format-~s-ut~zedT-tThe board counsel shall provide to the Civil Service Board all portions of such prehearing stipulation and attachments as the board counsel deems advisable and is compatible with due process. ~9~ The order of proof at all hearings shall be as follows: The City Manager or his desiqnee shall present his or her evidence in support of the charges and-specifications. The appellant shall then produce any evidence as he or she may wish to offer in his o__r her defense. The parties in interest may then offer rebuttal evidence. The Board counsel and the Board shall hear opening statements and closing arguments, when same are requested by either of the parties. ~8~ ~n--a~--hear~ng~T--~rrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not the evidence would be admissible in a trial in the courts of the state. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be ~ufficient in itself to support a finding unless it would be admissible over objection in civil actions. ~ The Board counsel or-the-BoardT-by-~ts-Cha~rpersonT-~n hearfngs-where-no-Board-¢ounsek-fs-used7 shall have the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon said counsel's h~s own motion, and to effect discovery which shall be permitted on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, except where otherwise modified by this subchapter. Motions to shorten the time' for responding to a discovery request shall be liberally granted by the Board counselT-or-by-the-Boar~ when-no-Board-counse~-~s-use~. f~6~ After the hearing of the appeal, when-a-Boar~-~ounse~-~s use~7 the Board counsel shall submit to the Board his instructions, conclusions of law, and rulings on any questions of law presented by the parties, as well as his legal interpretation of the code of rules and regulations as the same may apply to the particular case. The Board counsel may make a submittal to~ the Board at the conclusion of the hearing or at a later time agreeable to the Board counsel and the Board. Where-the-board-~ounse~-forma~-~s-not utf~zedT-the-~art~es-ma~-submft-prop~sed-fnstr~tfons-an~-reguests for-other-rukfngs-dfrectky-to-the-efvtk-Servfce-Board= All decisions of the Civil Service Board shall be by simple majority vote. ~}?~. The-Board-w~kk-then-render-its-ffnak-de~s~on-~n-the-form of-a-f~na~-order= The final order of the Board shall be in writing and include findings of fact the-c~v~k-serv~ce-boar~ZsT-or the board counsel's where-such-format-rs-used7 conclusions of law separately stated, and it shall be rendered within 30 days after the last day 5 ORD. NO. 23-93 of the hearing or receipt of transcript, if applicable, whichever is later. The final order shall be prepared by the board counsel. If a party submitted proposed findings of fact or filed any written application or other request in connection with the hearing, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. The order shall also contain a finding relative to the degree of severity of the discipline which has been imposed, which shall be b~nding-ex~ept-in-~nstances-where-a-Board-counse~-~s-usedT-in-wh~ch case-the-finding-shaCk-be advisory only to the Board counsel. --~ %~8~ The above-described Beard's final order relating to the hearing of appeals of suspensions without pay for more than. seven calendar days and demotions shall be rendered within 30 days after the last day of the hearing or receipt of transcript, if applicable, whichever is later. ~9~ The 30-day period as it relates to the rendering of the final written order in employee discharge appeal cases and the Board's final order in employee discharge appeal cases and the Board's final order in employee suspension and demotion appeal cases, as referred to above, may be waived or extended with the consent of all parties. %28~ Parties shall be notified either personally or by mail of any order, and, unless waived, a copy of the final order shall be delivered or mailed to each party or to his attorney of record. (5/ ~4~ Supplemental Procedures. Any person subject to a subpoena or order directing discovery may, before compliance and on timely petition, request the Board counsel or-the-B~ardT-~-the~e-~s n~-B~ard-c~unse~-hearin§-the-subject-a~pea~7 to invalidate the subpoena or order on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material. %~5~ A party may seek enforcement of a subpoena or order directing discovery issued under the authority of this subchapter, by filing a petition for enforcement in the circuit court of the judicial circuit wherein the person failing to comply with the subpoena or order resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, no person shall be in contempt while the subpoena or order is being challenged as provided in division (B)~ of this section. Section 4. That Section 35.014, "Retainment of Rank, Grade, and Seniority; Reduction of Number in Grade," of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby repealed. Section 5. That all ordinances or parts of ordinances which are in conflict herewith be and the same are hereby repealed. Section 6. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid such decision shall not effect the validity of the remainder hereof as a whole part thereof other than the part declared to be invalid. Section 7. That this ordinance shall become effective upon its approval by referendum election to be held within one year of its passage on second and final reading. 6 ORD. NO. 23-93 PASSED AND ADOPTED in regular session on second and final reading on this the __ day of , 1993. MAYOR ATTEST: City Clerk First Reading Second Reading. 7 ORD. NO. 23-93 ]TY OF [IELRAY BEII[H _~ :,':L~::L: ~.: ::~< ~:.<_< Writer' s Direct Line (407) 243-7092 MEMORANDUM Date: January 29, 1993 To: City Commission From: Jeffrey S. Kurtz, City Attorney// / Subject: Civil Service Act Revision Pursuant to Commission direction the City Attorney's Office, along with Carson, Linn & Adkins, have reviewed the Civil Service Act and would propose the following changes. These amendments are briefly described within this memo. In .order to amend the Civil Service section of our Code, it is necessary to either submit the changes to the Legislature for passage or pass a local ordinance subject to approval by referendum of the electors. This matter will be placed before you for discussion at the February 2, 1993 workshop. Our proposed amendments relate to the following provisions of the Act: Section 35.002 (Application; Exclusions)--the exclusion for "department heads who are employed subsequent to the date this Act becomes law" is eliminated in favor of language stating all employees are covered "except as otherwise provided in this Act". Subsection (B) is amended to provide that the Act shall not apply to persons appointed by the City Commission, assistant city managers, department heads, assistant department heads, police majors, and other "key employees" designated by the City Commission (see Section 6 of the amendment). Section 35.007 (Fixing Pay and Grade Through Budgetary Process) --the term "position" and "classification" are substituted for "member" and "grade". Layoff procedures are modified to provide for reduction of employees on the basis of "merit, efficiency, character and industry" instead of seniority, and to eliminate bumping. Recall procedures are clarified and streamlined. Section 35.009 (Appeal; Hearing; Procedure)--clarified that the appeal procedure applies only in disciplinary cases (Section Memo to City Commission January 29, 1993 Page 2 3 ) . Clarifies and simplifies the hearing procedure, and eliminates references to the functioning of the board and board counsel as "jury" and "judge". Provides for the appointment of board counsel by the City Commission. Section 35. 014 ( Retainment of Rank, Grade and Seniority; Reduction of Number in Grade)--repeals this section entirely. Section 35.007 will govern all layoffs. Should you have any further questions regarding this matter, please do not hesitate to contact the City Attorney's Office. JSK: jw cc: City Manager Ned Gusty Department Heads civsvcat, jsk Proposed Amendment to City of Delray Beach civil Service ~ct (1/21/93 Draft) An act relating to the City of Delray Beach, Palm Beach County; amending sections 2, 7, 9, 10, and 21, and repealing section 17, of chapter 25784, Laws of Florida, 1949, as amended, relating to the civil service act of said city; providing clarifications and exclusions concerning employees covered by the act; providing for merit-based retention and recall of employees during and after reductions in force; providing clarification that matters which are not disciplinary actions are not appealable to the civil service board; providing clarifications to the functions, procedures, and orders of the civil service board and the board counsel; providing for the appointment of the board counsel by the City Council; providing severability; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Section 2 of chapter 25784, Laws of Florida, 1949, as amended by chapter 80-496, Laws of Florida, is amended to read: Section 2. All persons regularly employed by said municipality in any Department shall be construed to come within the provisions of this Act, except as otherwise provided in this Act; TM .... .~.. u~ .... ~ .... cmp!cycd ~"~ ...... * *~ ~" ~*~ *~ ~* ~ .... ~ .... : and this Act shall not include any officer or person employed for temporary duty only; nor shall it include employees covered under the terms of a collective bargaining agreement, or expired collective bargaining agreement which is subject to re-negotiation unless otherwise expressly provided in this Act or in the code of Rules and Regulations or in the collective bargaining agreement. Section 2. Section 7 of chapter 25784, Laws of Florida, 1949, as amended by chapter 67-1284 and chapter 80-496, Laws of Florida, is amended to read: Section 7. The City Commission g ...... ~g ___..__~"*~"__~ ~-- ----~ ---..---=---"""~~*'--~ shall fix the pay of all employees, shall fix the number of positions ~ in each particular classification ~ and may increase or reduce the number Of positions in any classificat~o~ 9~u~e, or may abolish that classification~m~e, through the budgetary process. The City Manager may vary the number of positions ~m~ in any classification ~ during the budget year to meet City requirements. In the event of a reduction in the number of positions ~ in ;~ any c%assification ~, the employees ~ shall be retained in the positions remaining within that classification ~ according to merit, efficiency. character, and industry, as determined bv the City Manager. Any such determination by the City ManaGer shall be final and shall not be subject to appeal or judicial review. Employees who are not retained shall be laid off. Laid off employees shall receive no pay or benefits during any period in which they are laid off. !c;~..-_r gr~_d~_. In the event the number of Dositions in a particular classification ~ is, within one (1)year following a reduction, am3a~R increased, former employees shall be given an opportunity for recall to their previous positions in inverse order to the order in which they were laid off. tho£c mcm_~cr~_ fcrc~d b~_ck a~_ ..... ~-~ *- ceniority without further examination or probationa~ period. Laid off employees who are notified o$ a~ opportunity for recall and who respond affi~atively in writing to such notification within te~ (10) calendar days following the date the notification is sent, shall be reinstated to their previous position with no loss in seniority. However, laid off employees shall not acc~e seniority during any period in which they are laid off. In thc cvcnt: r~ducticn in ~id ~ ................................. p~ric~ nct tc cnc yaar, :n~ enter: cn ::id :ctivc ~uty ';~ithin ten dayc Section 3. Section 9 of chapter 25784, Laws of Florida, 1949, as amended by chapters 80-496 and 83-397, Laws of Florida, is amended to read: Section 9. An employee who for reason of discipline has been discharged, demoted or suspended without pay for a period in excess of 7 calendar days may appeal to the Civil Service Board for a hearing within ten calendar days from the time he was served with notice of discharge, demotion or suspension without pay (as above referred to), as shown by such notice. In the case of discharge, the hearing shall be held within 90 days, but not sooner than 60 days, from the date that such appeal shall have been so filed with the Board. In the cases of demotion and suspension without pay for a period in excess of 7 calendar days, the hearing shall be held within 30 days from the date that such appeal shall have been so filed with the Board. Hearing dates in all appeals may be extended if mutually agreed to by the employee, the City and the Board. Written notice shall be given to the person so removed, demoted or suspended and to the head of the proper Department of the time and place of hearing the appeal, which hearing shall be open to the public. Section 4. Section 10 of chapter 25784, Laws of Florida, 1949, as amended by chapters 80-496, 83-397, and 86-428, Laws of Florida, is amended to read: Section 10. Appeals and appeal procedures.--In instances of proper and timely appeals by employees to the civil service board regarding disciplinary matters, pursuant to section 9 of this act, the following procedures shall be applicable. Matters which the city manager formally states are not disciplinary actions, although such matters may involve certain personnel actions, including terminations for failure to have or maintain job qualifications and requirements, shall not be appealable to the civil service board. Only disciplinary matters, where so identified by the city manager, of terminations, demotions, and suspensions without pay in excess of 7 calendar days are appealable to the civil service board. A. Functions of Board, Counsel. Ter=ination=. The civil service board shall hear all appropriate appeals, and shall make all findinqs of fact necessary to resolve such appeals., ~- ' -~ -~ ~ a O~, ......................................... tly ' order by thc board counucl. !itig ti ' ' ' civil = on ..... ~"~'~ ~ ........ ~ ..... ~- ~ ~ · ' ' The board counsel shall rule upon admission of evidence and all other questions of law. The board counsel shall also rule upon questions of conflict of interest and on motions to disqualify members of the civil service board serving on that board during a particular hearing. The board counsel shall provide instructions to the civil service board prior to its making findings of fact, which instructions shall be similar to jury instructions utilized in civil litigation. The civil service board shall follow and abide by the board counsel's rulings on all questions of law, including, but not limited to, his or her instructions, his or her rulings on conflict of interest questions and on motions to disqualify a member of the civil service board from serving in a particular case, and on all other prehearing, hearing, and posthearing motions. In such instances it shall be the responsibility and under the authority of the board counsel to determine all preliminary matters such as, but not limited to, standing of the parties, the timeliness of the filing of the appeal and any responsive pleadings, whether the parties and including the appellant employee have been properly notified of the charges against him and the like. di:ck=rgo, c~ach party must advise the other in writing within 30 days from the date the appeal was filed with the board, who their witnesses will be and the addresses of such witnesses. Failure to so notify the opposing party of the names and addresses of the other party's witnesses, when requested to do so in writing, shall entitle the deprived party to a reasonable continuance, or the undisclosed witnesses shall be disqualified from testifying, as determined by the board counsel., ~ ~.. tho bo=rd '-Jh~n nc bo=rd counsel ;~ u~d. copies of all documentary evidence and exhibits shall be made available to the opposing party when prepared and not later than 10 days prior to the hearing, along with the opportunity to examine the originals. Failure to timely furnish said copies, with the opportunity to examine the originals, shall entitle the deprived party to ~ reasonable continuance, or said documentary evidence and exhibits shall be excluded from the evidence, as determined by the board counsel. ...................................... ~n~':~r thc beard ccun=c! fo..at ~- uti!izod, ..............._ = kcarin~ of ap~ca!~ ~-__ tko civil ccunx~l :bx!! ~rcvi~c in:truction~ to thc ingt~cticn: :hz!! ~ gimi!zr tc ju~' in~tructicn: ; "+ .... + ' ify ....................--- = pzrt'Ic:, .... tim~!in~=u of th~ filing cf thc app~! ~nd zny 5 ........ ~1. ccntinuancc, cr thc undicc!cccd ;vi ........ ' ' ' entitle deprived ~nd azhibit= :h:!! b~ cxcludcd frcm th~ cvidcncc, d~t~inad by thc ~czrd ccun=c! cr by thc bc~rd '::h~n nc Thc bczrd :h:!! th=n r~nd~r it=__..__~;-~a ~;~_______.. ;~ thc ~.g Selection of board counsel.--The board counsel must be a me~er of The Florida Bar in good standing for the preceding 5 years. The board counsel shall be appointed ~ by the City Commission ~ "~"~""~"~ ~" ~" "~" "~ of the city of Delray Beach, 6 thc ~ ....... they ~ ~ ..... ~-----~i.. ~ ~ ~ ~' '~ ' C.~ Hearing procedures --~- ~ TM ~-~ ...... cr nut the bczrd ccunsu! fc~zt i: u:ed, t~he civil sunice board shall hear the evidence upon the charges and specifications as filed with the board by the city manager and as set forth in the prehearing stipulation. No material amen~ent of, or addition to said charges or specifications will be considered by the board counsel or the board. The proceedings shall be as info,al as is compatible with justice. At least 10 calendar days prior to any hearing, the parties shall s~mit to ~ -~'-~ .... ~- ~-~ the board counsel --~ ..... ~ ....... ~ ~-~ ~ ..... ~ a joint prehearing stipulation, which shall contain a record of the case documents leading up to the subject appeal, a brief statement of the agreed factS, and a statement of the disputed and anticipated factual and legal issues to be dete~ined during the course of the hearing. bcard ccunscl fc~at ~- utilizcd, t~he board counsel shall provide to the civil se~ice board all portions of such prehearing stipulation and attac~ents as the board counsel deems advisable and is compatible with due process. The order of proof at all hearings shall be as follows: The city manager or his desiqnee shall present his or her evidence in support of the charges~ :~ucific:tionu. The appellant shall then produce such evidence as he or she may wish to offer in his or her 7 defense. The parties in interest may then offer rebuttal evidence. The board counsel and the board shall hear opening statements and closing arguments, when same are requested by either of the parties. In all ~-g~, i~rrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The board counsel ~ ~ ~ ~.. ~ ~-~ 4~ ~ ...... ~ ..... ~ ....... ~ ~ ..... ~ shall have the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon said counsel's ~ own motion, and to effect discovery which shall be permitted on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, except where otherwise modified by this act. Motions to shorten the time for responding to a discovery request shall be liberally granted by the board counsel._w Where appropriate, a party shall be permitted to conduct cross-examination when testimony is taken or documents are made a part of the record. Any person subject to a subpoena or order directing discovery may, before compliance and on timely petition, request the board counsel, er ~- ~-~ ~ ~-- ~ -- --_~~"~-~_ ....... ___..___~, to invalidate the subpoena or order on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant materials. After the hearing of the appeal, ............. ~ the board counsel shall submit to the civil service board his or her instructions, conclusions of law, and rulings on any questions of law presented by the parties, as well as his or her legal interpretation of the code of rules and regulations as the same may apply to the particular case. The board counsel may make such submittal to the board at the conclusion of the hearing or at a later time agreeable to the board counsel and the 8 civil service board. 9~erc thc bczrd ccun=~! fcrr.:t is All decisions of the civil service board shall be by simple majority vote. The final order of the board shall be in writing and include the civil service board's findings of fact and .h- -~..~ :e~;±c~ ~-~-~'- -- the board counsel's wh~e ___..-,.-~ ______~-~* __~ ..... ____,~ conclusions of law separately stated, and it shall be rendered within 30 days after the last day of the hearing or receipt of transcript, if applicable, whichever is later. The final order shall be prepared by the board counsel. If a party submitted proposed findings of fact or filed any written application or other request in connection with the hearing, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. The order shall also contain a finding relative to the degree of severity of the discipline which has been imposed, which shall be ..... , ..... p_ in=tuncc:-~:hcru : %~ ccun:c! ~ ....~-~ .... *~- ~-~-- ~ ~ advisory only to the · board counsel, whose decision on the severity of discipline, if any, shall be final and shall be included in the final written order. The 30-day period as it relates to the rendering of the final written order as referred to above, may be waived or extended with the consent of all parties. Parties shall be notified either personally or by mail of any order, and, unless waived, a copy of the final order shall be delivered or mailed to each party or to his attorney of record. Section 5. Section 17 of chapter 25784, Laws of Florida, 1949, as amended by chapter 80-496, Laws of Florida, is hereby repealed. Section 6. Section 21 of chapter 25784, Laws of Florida, 1949, is amended to read: Section 21. The provisions of this Act shall not apply to those persons appointed by the City Council of the City of Delray Beach, ~ or to any assistant city manaaer, department head. assistant deDartment head. police major, or such other key employees as may be designated by resolution of the City Commission. Section 7. That should any section or provisions of this act or any portion thereof, any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 8. This act shall take effect upon becoming law. 8/151b/csc 10