McINCHAK REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE.pdf

8/12/2019 McINCHAK REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE.pdf

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Case5:14-cv-03084-RMW Document11 Filed08/01/14 Page1 of 41

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STRADLING YOCCA

CARLSON RAUTH

L.\1\ YERS

NEWPORT BEACH

JEFFREY A. DINKIN, SBN 111422

idinkin@sycr. com

ALLISON E. BURNS, SBN 198231

aburns@sycr. com

DAVID C PALMER, SBN 251609

dpalmer@sycr. com

Exempt from filing fee

Government Code § 6103

S1RADLING

YOCCA CARLSON

RAUIH

A Professional Corporation

800 Anacapa Street, Suite A

Santa Barbara, California 931 0 1

Telephone: 805) 730-6800

Facsimile: 805) 730-6801

Attorneys for Defendants

CITY OF CARMEL-BY-THE SEA;

JASON STILWELL; SUSAN PAUL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA,

JASON STILWELL, CITY

ADMINISTRATOR OF THE CITY OF

CARMEL-BY-THE-SEA, SUSAN

PAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THE

CITY OF CARMEL-BY-THE-SEA;

and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 HRL)

REQUEST

FOR

JUDICIAL

NOTICE

IN

SUPPORT

OF

SPECIAL MOTION TO STRIKE

{Filed concurrently with Def?ndants

Notice ofMotion n d ~ e c i l Motion to

Strike; Declarations o Susan Paul,

Jason Stilwell and l ison E. Burns;

and

[Proposed] Order]

DATE: September 30, 2014

TIME: 10:00 a.m.

COURTROOM:

2

Action Filed:

Trial Date:

June

4

2014

Not Set

REQUEST FOR JUDICIAL NOTICE 5:14-cv-03084 HRL)

DOCSOC/1674689v3/1 02910-0006




1 TO THE HONORABLE COURT AND ALL PARTIES OF RECORD:

2 PLEASE TAKE NOTICE THAT, pursuant to Rule 201 of the Federal Rules o

3 Evidence ( Rule 201 ), Defendants respectfully request that this Court take

4 judicial notice

of

the following:

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)0

1 Attached hereto as Exhibit A is a true and correct copy of Chapter 2.52

of the Municipal Code of the City of Carmel-by-the-Sea ( Carme

Municipal Code ) found via the government website of the City o

Carmel by the Sea http://ci.carmel.ca.us/carmel/index.cfm/residents/city

services/municipal-codes/

A federal court must take judicial notice if a party requests it and the court is

supplied with the necessary information. Fed. R. Evid. Rule 201(c)(2). Rule 201

allows federal courts to take judicial notice of an adjudicative fact that is no

subject to reasonable dispute. n adjudicative fact is simply the facts of the

particular case and typically relate to the parties, their activities, their properties

their businesses. Valdivia

v

Schwarzenegger, 599 F.3d 984, 994 (9th Cir. Cal.

2010) citing Fed.

R

Evid. 201, Advisory Committee Notes. The true and correc

copy

of

the Carmel Municipal code is an adjudicative fact because it relates to the

existence of the City of Carmel-by-the-Sea's Municipal Code, which is relevant in

the above-caption case. The true and correct copy of the Carmel Municipal Code is

not subject to reasonable dispute because the truth and correctness of the copy can

be accurately and readily determined from sources whose accuracy canno

reasonably be questioned. Fed.

R

Evid. 201(b )(2); See also Cota

v

Maxwell

Jolly, 688 F. Supp. 2d 980, 998 (N.D. Cal. 2010) [ The Court may properly take

judicial notice of the documents appearing on a government website .]

STRADLING YOCCA

-2-

CARLSON RAUTH

LAWYERS

NEWPORT

BEACH

REQUEST FOR JUDICIAL NOTICE 5:14-cv-03084 (HRL)

DOCSOC 1674689v3/1 02910-0006




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STRADLING YOCCA

CARLSON RAUTH

L WYERS

NEWPORT

BE CH

DATED: August 1 2014

STRADLING YOCCA CARLSON

RAUTH

A Professional Co

Attorneys for Defendants

CITY OF CARMEL-BY-THE

SEA; JASON STILWELL; SUSAN

PAUL

REQUEST FOR JUDICIAL NOTICE

5:

14-cv-03084 HRL)

DOCSOC/16 74689v3 l 02910-0006






Case5:14-cv-03084-RMW Document11 Filed08/01/14 Page5 of 41Chapter 2.52 PERSONNEL SYSTEM

Sections:

Article

I

Code

o

Ethics

Code

o

Ethics.

Article II Position Classification Plan

Definition.

Terms Used.

Administration

o

the Plan.

Article Ill. Types

o

Positions/Employment Status

At-Will Employee Defined.

Types

o

Positions.

Employee Defined.

Employment Status.

Volunteers - Guidelines.

Article IV. Recruitment Selectionand Appointment

Definitions.

Recruitment and Selection Procedure.

Exception to CMC ==-c=·

Special Requirements for Appointment.

General Requirements for Appointment.

2.52.125 Relocation Expenses.

Article V Training and Observation Period

Definition and Purpose.

Duration.

Extensions Possible.

Failure to Meet Performance Standards.

Retention

o

Regular Status Previously Held.

Successful Completion.

Article VI. Promotion Transfer Voluntary Demotion

Promotion Defined.

Promotion Policy.

Transfer Defined.

Transfer Purpose.

Transfer Policy.

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Reassignment.

Voluntary Demotion Defined.

Voluntary Demotion Policy.

Acting Status.

Acting Status

Transfer

Maximum Period Reached.

Types of Separations.

Resignation.

Article VII. Separations

Failure to Achieve Regular Status.

Dismissal.

Layoff.

Order of Layoff.

Article VIII. Performance Evaluations

Purpose.

Definitions and Roles.

Department Manager s Responsibilities.

Documentation

of Evaluations

Approved Forms.

Established Rating

Periods

Frequency.

Evaluation Procedure.

Employee Rights for Review

of

Record.

Article IX Disciplinary Actions

Applicability

of

Disciplinary Actions.

Types of Disciplinary Action.

Counseling.

Oral Reprimand.

Written Reprimand.

Emergency Suspension.

Suspension Defined.

£..52.325 Disciplinary Demotion.

2.52.330 Dismissal.

Department Manager Responsibilities.

Causes for Disciplinary Action.

Outline of Procedural Steps in Disciplinary Actions.

2.52.350 Notice

of

Intent to

Discipline

Defined.

2.52.355 Notice

of

Intent to Discipline Content.

Employee s Response to Notice of Intent to Discipline.

Disciplinary Action Order Defined.

Disciplinary Action

Order

Content.

Service of Notice

of

Intent to Discipline and the Order

of

Disciplinary Action.

2.52.371 Employee Continues Duties During Five-Day Period.

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Immediate Paid Administrative Leave Pending Investigation.

Appeal and Answer to Order of Disciplinary Action.

Appeals Hearing Process.

Signed Order of Disciplinary Action - Service.

Article X. Grievances andTheir Resolution

Purpose of This Article.

Definitions.

Right to Grieve.

Good Faith Required

of All Parties.

Right

of

Representation.

Grievance Processing on City Time.

Extension of Established Time Limits.

Failure to Meet Time Limits Management.

Failure to Meet Time Limits Employee.

Limitations

on

Authority.

Right to Consult on Grievance Filing Procedure.

Grievance Forms.

Representative - Rights and Obligations.

Grievance Procedure.

City Administrator s Decision - Final.

Independent Hearing Officer s Decision - Final.

More Expeditious Grievance Handling Not Prohibited.

Grievance Procedure Does Not Apply to Unlawful Actions.

Article XI. Salaries, Benefits, and Leaves

Salary Plan - Purpose.

City Administrator s Role.

Basic Elements of the Salary Plan.

Pay Periods.

Basic Work Week.

Practical Work Week.

Fire Personnel Work Week.

Salary Plan Administration.

2.52.550 Anniversary Dates.

Merit Salary Step Advancement.

Denial/Delay

of

Step Advancement.

Effective Dates of Salary and Personnel Changes .

2_ 52 570

Salary Determination Promotions.

Salary

Determination

Transfer.

Salary Determination

Voluntary

Demotion.

Salary

Determination

Disciplinary Demotion.

Salary Determination - Reclassification of Position.

Overtime Defined.

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Overtime Authorization.

Overtime Compensation.

Overtime

Compensation

Firefighting Personnel.

Compensatory Time Off Use

of

Accrued Hours.

Record

of

Overtime Worked.

Vacations

Accrual.

Vacations Eligibility for Use.

Vacations

Scheduling.

Vacations Maximum Accrual Allowed.

Vacations

Compensation Upon Separation.

Management Leave.

Vacations Compensation for Unused Vacation.

Sick Leave Accrual - Employees Hired Prior to November 1 1984.

Sick Leave Accrual - Employees Hired After November 1 1984.

Sick Leave Charges Against Credit.

Sick Leave Physician s Statement Required.

Sick Leave Department Notification.

Sick

Leave

Use for Family Illness or Bereavement.

Military Leave Annual Paid.

Military

Leave

Unpaid.

Leave Without

Pay

Types.

Leave Without

Pay

Duration.

Leave Without Pay Request Procedure.

Leave Without Pay Approval Considerations.

Leave Without Pay Early Return From.

Leave Without Pay Revoked.

Holidays

Designated.

Holidays

Entitlement.

Medical, Dental and Vision Insurance.

Uniform Allowance for Certain Employees.

Retirement.

Delegation

of

Authority.

Article XII. Personnel Records and Policies

General.

Employees Role.

Payroll Records.

Personnel Files Contents.

Personnel Files Security.

Personnel Policies.

Jury/Witness Duty.

Safety.

Training.

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Article XIII. Workers' Compensation

Workers' Compensation - Purpose.

Job-Incurred Injury, Illness, or Accident Reporting.

Employees Covered.

Workers' Compensation - Benefits.

Safety Personnel - Benefits.

Combination of Benefits.

Page 5 of 5

* For statutory provisions authorizing cities to adopt a personnel system see Government Code§ et

seq.

Article

I. Code of Ethics

2.52.010 Code of Ethics.

As public employees we are entrusted with the confidence of those we serve to fulfill the

responsibilities of our roles. Our actions are deemed representative of those we serve and our

function, therefore, carries with it a greater responsibility than that of the private enterprise employee.

Our system of government is viewed by the public through our acts as we fulfill the demands of our

positions. We must demonstrate competency, integrity, honesty, courtesy and fairness in all

relationships, private and public, to best represent the type of government desired by all. We have a

patriotic duty to fulfill our roles in the highest standard possible for the purpose of assuring exemplary

government for all people. A departure from this ideal creates

an

injustice for all. (Ord. 87-1 §

2

1987).

Article II. Position Classification Plan

2.52.020 Definition.

Position classification plan means a written document providing a common language for use by the

City Council, City Administrator, managers and employees in discussing or considering the duties and

responsibilities of authorized positions; a base for establishing

an

equitable pay plan; and needed

information in recruiting, selecting, promoting, transferring, and training employees or making

organizational changes. (Ord. 87-1

§

2 1987).

2.52.030 Terms Used.

A. Position means a group of current duties and responsibilities assigned by the appointing

authority, requiring the full-time or part-time or intermittent employment of one person, or the

assignment o f a volunteer.

B. Class or class

of

position means a group of positions sufficiently similar with regard to duties

and responsibilities that the same title may be used to designate each position in the class, the same

entrance requirements may apply to each position, the same test

of

fitness may

be

used to select

qualified employees,

and

the same schedule of pay may be applied with equity under substantially

the same working conditions. Classes may consist of only one position.

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C.

Class series means two or more classes similar as to line of work and differing as to

responsibility and difficulty, arranged

in

a ladder o f steps

in

a normal line of promotion.

D. Allocation means the formal action

of

a competent authority assigning a position to a class

of

position based upon the nature of the position's duties, responsibilities, and qualifications required.

E. Job description means a written description of a class, identifying factors and conditions which

are essential characteristics of the class, including the title, examples of duties and responsibilities

which are typical of positions in the class, any factors or conditions which distinguish it from other

classes, and necessary or desirable qualifications to perform the duties of positions

in

the class. (Ord.

87-1 § 2 1987).

2.52.040 Administration of the Plan.

A.

City Administrator's Responsibilities. The City Administrator has responsibility for administrating

the plan.

B.

Department Managers' Responsibilities. Department managers shall notify the City Administrator

in writing when the duties of a position are modified significantly, so a classification study can be

made of that position.

C.

Class Specifications New and Revised. When a classification study of an existing position

determines the need for a new classification or revision

of

an existing one, the City Administrator shall

cause the changes to be made.

D. Procedure for Implementation

of

Class Changes. The City Administrator proposes new positions

and revised class specifications to the City Council and takes appropriate action

in

related salary

matters on direction from the City Council.

E.

Changes

in

Job Descriptions. The City Administrator may make changes in job descriptions when

information and documentation supports the need for the change. (Ord. 87-1

§

2 1987).

Article

Ill. Types of

Positions/Employment Status

2.52.050 At-Will Employee Defined.

At-will employee means an employee who may be separated from service with or without cause.

(Ord. 96-7

§

1 (Exh. A), 1996; Ord.

87-1 §

2 1987).

2.52.055 Types

of

Positions.

The following are the categories of positions used

in

the City:

A. Full-Time Position. Full-time positions are authorized budgeted positions which may only be filled

for the department's standard work week as approved by the City Council on a full-time basis and

entitled to the benefits negotiated by the applicable bargaining unit. Employees working 35 hours per

week or more shall be considered full-time.

B. Regular Part-Time Position(s). Regular part-time positions are those authorized by the City

Administrator to have regularly scheduled work weeks. Employees filling these positions shall work a

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minimum of 1 000 hours in a fiscal year and less than the City's standard work week established for a

similar authorized position. Employees authorized for these positions shall be eligible for specific

benefits, determined by the number of hours authorized to work

in

the fiscal year, as follows:

1. 1,000 to 1,559 Hours Worked Per Fiscal Year. Those benefits required by applicable State

and Federal law, membership

in

the California Public Employees' Retirement System

(CaiPERS), and eligible for participation

in

the CaiPERS Health program at the employee's

expense. These positions shall be considered at-will employees.

2.

1,560 Hours Worked Per Fiscal Year and Less Than 1,819 Hours Worked Per Fiscal Year. All

benefits available to full-time positions, except that all leave hours, including but not limited to

vacation leave, general leave, sick leave and bereavement leave, shall be computed at 75

percent of the full-time position entitlements.

C.

Temporary/Seasonal Part-Time Position(s). These positions work no more than 1,000 hours per

fiscal year and are eligible for only those benefits required by applicable State and Federal laws.

These employees shall be considered at-will employees.

D. Intermittent Fire Engineer(s). These positions shall be authorized by the City Administrator, and

shall work over 1 000 hours per fiscal year as hourly fire engineers. Employees in this classification

shall be entitled to the same dental/vision and medical coverages afforded full-time employees.

E. Paid-Call Firefighters. These positions work no more than 1 000 hours per fiscal year, unless

authorized by the City Administrator, and are eligible only for those benefits required by applicable

State and Federal laws, except that they may be entitled to the same City-funded dental/vision and

medical coverages afforded regular full-time employees at the employee only level, providing they

meet specific eligibility requirements as outlined by the City. These positions shall be considered at

will employees.

F. Trainee Employee. These positions refer to newly hired or promoted employees filling either a full

time or part-time position(s), and who have not yet completed the training and observation period for

that position. These employees shall be considered at-will employees. (Ord. 96-7

§

1 (Exh. A), 1996;

Ord.

87-1 §

2 1987).

2.52.060 Employee Defined.

Employee means a person holding a specified position with the City. (Ord. 96-7 § 1 (Exh. A), 1996;

Ord. 87-1 § 2 1987).

2.52.070 mployment Status.

The following are the categories of employment standing which City employees may have:

A. Regular Employee. Regular employee is the status of

an

employee filling a full-time or regular

part-time position after having completed a training and observation period for that class of position. If

the position is regular part-time, it must be authorized for at least one-half of a standard work week in

order for the incumbent to be eligible for regular status.

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B. Volunteer. Volunteer means any individual who performs services for the City upon request

of

the

City, and does not receive compensation from the City for the services provided. Volunteers working

for the departments must be approved by the department manager and the City Administrator.

Volunteers working for the Mayor and/or City Council must be approved

by

the Mayor and/or City

Council. (Ord. 96-7 § 1 (Exh. A), 1996; Ord. 87-1 § 2 1987).

2.52.080 Volunteers - Guidelines.

Volunteers providing service to the City:

A. May use City equipment, except motor vehicles, to accomplish the task for the City;

B. Will not be included in the City's workers' compensation, automobile, or employee-negotiated

insurance coverages;

C.

From time to time may be sent to meetings or seminars at City expense. These sessions must

assist the volunteer

in

accomplishing the task(s) assigned. Such training must be authorized by the

City Administrator for the volunteers working for departments and by the Mayor for volunteers working

for the Mayor and/or members of the City Council;

D. May receive from the City items such as identification cards, businesses cards, identification

badges and other similar incidental expense items, when appropriate;

E. May not take the place of any regular, budgeted City employee without going through the standard

personnel recruitment process as outlined

in

this chapter; and

F. Must sign a statement acknowledging an understanding of the guidelines pertaining to volunteers.

(Ord. 96-7 § 1 (Exh. A), 1996; Ord. 87-1 § 2 1987).

Article

IV. Recruitment, Selection and Appointment

2.52.090

Definitions

The following are definitions of terms used in the recruitment and selection for City employment:

A. The appointing authority is the City Administrator for all positions except elective positions, City

Attorney, City Engineer, and City Treasurer. The City Administrator has responsibility for employment,

promotion, demotion, transfer, discipline, and dismissal of employees either directly or upon

recommendation of a department head.

B. Department manager means the administrative head or acting head of a department.

C.

Appointment means selection by the City Administrator to fill either regular, temporary, or part

time positions.

D. Applicant means a person who has filed an employment application for a position in accordance

with the City's procedures.

E. Application or application form means the official form designated by the City Administrator for

employment application purposes.

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F.

Candidate means a person whose application form has been accepted as meeting the specific

qualifications for a class

of

position and the general requirements for City employment.

G.

Selection process means the procedures used by the City

in

determining the suitability

of

a

candidate or candidates for employment consideration

in

a class

of

position. The procedures,

depending upon a specific selection, may include but are not limited to any

of

the following: written

tests

of

knowledge

or

ability, performance tests, oral examinations, personality profiles,

employment/background investigations, medical examinations, and employment interviews.

Prospective employees

in

the Police and Fire Departments may also undergo psychological and/or

polygraph examinations.

H. Employment list means a list which may be established of the names

of

persons,

in

order

of

descending final ratings, who have been qualified for employment consideration through the City's

selection process.

I. Recruitment announcement means a printed bulletin or brochure for posting and distribution which

details the class

of

position opening, salary rate or range, examples

of

duties and responsibilities,

minimum or desirable education and experience requirements, a statement as to other than usual

working days, hours, or conditions,

an

outline

of

the selection process to be followed, the manner

in

which application forms are to be submitted, and the final date for filing applications. (Ord. 87-1

§ 2

1987).

2.52.100 ecruitment and Selection Procedure.

When a position vacancy occurs or

is

impending which the City intends to fill, the following includes

steps usually taken under the direction of the City Administrator:

A. Prepare a recruitment announcement;

B.

Distribute the recruitment announcement for posting in the various City facilities, organizations and

agencies;

C.

Place paid advertisements

in

the appropriate news media and professional and technical

publications;

D.

Receive and evaluate applications;

E. Notify applicants as to whether they are qualified for further consideration;

F.

Provide disqualified applicants an opportunity to submit additional clarifying information if the

appointing authority requests it;

G.

Notify candidates

of

the time and place

of

the selection process;

H. Conduct selection process;

I. Determine and notify successful candidates resulting from selection process; notify unsuccessful

candidates;





of 5

J. Establish employment list, when appropriate, as determined by the appointing authority. Ord.

87-1

§

2 1987).

At the discretion of the City Administrator the following may prevail:

A. Promotional Consideration. When a vacancy occurs or is impending, and the City Administrator

has reason to believe there are or may be highly qualified persons already employed within the City

organization, recruitment efforts may be limited to consideration

of

employees only. In this event the

procedure outlined in CMC may be modified. There is no obligation for the City

Administrator to consider in-house applicants only, nor once having initiated in-house recruitment,

discontinuing this process if it appears that the employee applicant s) are not sufficiently well qualified

to justify recru itment and selection from within the organization. Ord. 87-1 § 2, 1987).

2.52.115 Special Requirements

for

Appointment

The following are special requirements which apply for appointment to a City position:

A.

Pre-Employment Medical Examination. At the discretion of the City Administrator, appointment to

specified classes of positions is subject to medical examination of appointees by a competent

California-licensed physician designated or approved by the City Administrator. Such examinations

are to be conducted at City expense after tentative selection but prior to actual employment Medical

standards employed will necessarily take into account specific physical requirements for differing

classes

of

positions.

B. Background Checks and Fingerprints. At the discretion of the City Administrator, an employment

and personal background check will be made of all prospective employees. Further, no person shall

be employed

in

the Police Department until fingerprinted and the Chief of Police has certified no

record

of

felony conviction exists. Ord. 87-1

§ 2

1987).

2.52.120 General Requirements

for

Appointment

The City Administrator with the concurrence of the department manager may reject an application or

remove from an employment list anyone who does not meet the general requirements for City

employment. The basis for such action may include: failure to pass pre-employment medical

examination; dismissal for cause from public or private employment; misstatement on, or omission

of

material facts from a City employment application form; or an employment history or personal conduct

which demonstrates a lack of fitness for City employment. Ord.

87-1

§ 2 1987).

2.52.125 Relocation Expenses.

The City Administrator is authorized to offer relocation expenses to management personnel relocating

from another area. The amount of relocation expense shall be established and/or amended by

resolution. Ord.

87-1

§

2 1987).

Article V. Training and Observation

Period

2.52.130 Definition and Purpose.

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The training and observation period is the specified time during which a newly appointed employee's

performance of duties and responsibilities in a City class of position is evaluated. (Ord. 87-1 §

2

1987).

2.52.135 Duration.

All City employees shall serve a training and observation period as established by applicable

memorandum of understanding. (Ord. 87-1

§

2 1987).

2.52.140 Extensions Possible.

In

six-month training and observation periods, if the department manager feels the normal training

and observation period is not long enough to fairly evaluate the trainee employee's performance, an

extension of up to three months may be authorized by the City Administrator. The extension request

and the approval or denial of the request shall all take place prior to the completion of the initial

training and observation period. Requests for extensions will

be

determined

on

a case-by-case basis

taking into consideration whether the extension will assist the trainee employee meet the minimum

performance standards

of

the job. (Ord.

87-1

§

2

1987).

2.52.145 Failure to Meet Performance Standards.

At any time during a training and observation period, i f the department manager determines that the

employee has failed to meet performance standards, the employee shall be removed from the

position. (Ord. 87-1 § 2 1987).

2.52.150 Retention of Regular Status Previously Held.

An unsuccessful trainee employee who had regular status

in

a City position has the right to return to

that position

if

vacant at the salary range/step previously held. (Ord. 87-1 §

2

1987).

2.52.155

Successful

Completion.

Upon the successful completion of a training and observation period, an employee is granted status

in that class of position. This status can be granted only at the end of the training and observation

period, or any approved extension thereof, by the appointing authority upon recommendation

of

the

department manager. (Ord.

87-1 § 2

1987).

rticle

VI.

Promotion, Transfer,

Voluntary

Demotion

2.52.160 Promotion Defined.

Promotion means advancement of a City employee

in

a regular position to a position

in

another

class having greater responsibility and a higher salary range. (Ord. 87-1 § 2 1987).

2.52.165 Promotion Policy.

The appointing authority will give preference to promotional candidates in a selection process who

are fully qualified for the higher level position and who have demonstrated by all aspects

of

their

employment history with the City their merit for promotional appointment. (Ord. 87-1

§

2 1987).

2.52.170 Transfer Defined.

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Transfer means assignment of an employee in a regular position to another position in:

A. The same class in another department;

B.

A different class which has the same salary range;

C.

A different class which has a different but generally comparable salary range when,

in

the

judgment of the appointing authority, both classes are equivalent with respect to duties and

responsibilities. (Ord.

87-1 § 2

1987).

2.52.175 Transfer Purpose.

The purpose of a transfer

is

to utilize the skills of

an

employee

in

another assignment. Transfer may

occur for a variety of reasons, including better career opportunities for the employee, the employee's

personal reasons, training of the employee, or the convenience of the City. (Ord. 87-1

§

2 1987).

2.52.180 Transfer Policy.

Transfer may be initiated either by an employee with the approval of the City Administrator or by the

City Administrator. The transferred employee shall serve a training and observation period as

specified by appropriate memorandum of understanding. All training and observation requirements as

outlined shall apply. (Ord.

87-1 §

2 1987).

2.52.185 Reassignment.

A department manager may reassign an employee from one position, in the same class, to another

within the department at any time. (Ord.

87-1

§

2

1987).

2.52.190 Voluntary Demotion Defined.

Voluntary demotion means reduction initiated by an employee,

in

writing,

in

a regular position to a

vacant position

in

another class having lesser responsibilities and a lower salary range. (Ord. 87-1

§

2 1987).

2.52.195 Voluntary Demotion Policy.

Wherever feasible, the City Administrator will accommodate the employee's wishes

in

this regard.

There must be satisfactory evidence of the employee's ability and fitness to perform

in

the lower class

for voluntary demotion to occur. The demoted employee shall serve a training and observation period

as outlined by the department and applicable memorandum of understanding. (Ord.

87-1 § 2

1987).

2.52.200 cting Status.

A. During the normal course of employment, employees may be required from time to time to perform

the duties of other positions within the department in which they are regularly employed. This may be

caused by

an

emergency need, vacations, illness, training, or other similar reasons.

B. In cases where a vacancy occurs because an existing employee leaves City service, is away from

City service because of an industrial disability, nonindustrial disability, disciplinary action or other

reason, the City Administrator may promote or transfer an individual to another position on

an

acting-

status basis for a period not to exceed six months. Prior to making the appointment, the City

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Administrator shall meet with the department manager and proposed employee to be transferred to

negotiate an equitable financial agreement. If an agreement is not reached with one employee,

another employee may be proposed for acting status. (Ord. 87-1

§ 2

1987).

2.52.210 Acting Status Transfer Maximum Period Reached.

If

the acting status transfer lasts the maximum time allowed (six months), the employee shall return to

the position held prior to the transfer and the position being held by the employee during the six

months acting status will remain open until filled by a new employee, return

of

the regular employee,

or hiring of an intermittent employee. If the position is that of a department manager, the acting status

may be extended upon agreement of the City Administrator and employee. (Ord. 87-1 § 2 1987).

Article

VII.

Separations

2.52.220 Types of Separations.

Separations from City service include: resignation, failure to achieve regular status during the training

and observation period, dismissal, and layoff. (Ord. 87-1

§ 2

1987).

2.52.225 Resignation.

This is a voluntary separation of an employee.

In

order for an employee to leave City service

in

good

standing, a written, signed resignation must be submitted to the employee s department manager at

least two weeks

in

advance of the employee-designated separation date. With a department

Manager s agreement, less than two weeks is acceptable. A resignation shall be effective on the date

designated therein and if no date is designated, effective immediately. A written resignation is final

upon receipt by an employee s department manager and may not be withdrawn except by

authorization of the City Administrator when it is deemed that the City s best interests are served by

so doing. (Ord.

87-1

§

2

1987).

2.52.230 Failure to Achieve Regular Status.

This is an involuntary separation of

an

at-will employee for failing to satisfactorily complete the

training and observation period. (Ord. 87-1 § 2 1987).

2.52.235 Dismissal.

This is an involuntary separation of

an

employee. (Ord. 87-1 § 2 1987).

2.52.240 Layoff.

This is an involuntary separation of an employee from a class of position, and from City service if the

employee cannot or does not wish to be placed in a lower class

of

position. Layoff occurs without

prejudice and without fault on the employee s part for any or all of the following reasons: abolition of

position; curtailment in funds; interest of economy; modification or reduction

of

service requirements;

displacement by another employee with greater layoff rights as defined by the City Council. (Ord.

87-1 § 2 1987).

2.52.245 Order of Layoff.

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Page

In

the event that layoff

is

necessary, the City Administrator,

in

advance of layoffs, will develop a layoff

procedure which will require approval by the City Council. (Ord. 87-1

§

2 1987).

rticle

VIII. Performance Evaluations

2.52.250 Purpose.

The primary purpose of an evaluation program is to motivate employees to work at their highest

capacity by better delineating work responsibilities, jointly establishing job standards and objectives,

reviewing progress toward achieving those results, and subsequently planning the employee's future

development; and providing a basis for rewarding employees according to their achievement. (Ord.

87-1 § 2 1987).

2.52.255 Definitions and Roles.

For the purpose of this article only, the following shall apply:

A. Employee performance evaluation means a formal review of an employee's work performance,

documentation of the information, and discussion with the employee concerning work performance.

This process

is

also referred to by the terms employee evaluation and employee rating.

B. Evaluator means the individual having full supervisorial or managerial responsibili ties who

prepares and discusses the performance evaluation with the employee.

C.

Reviewer means the individual who reviews the completed performance evaluation. The reviewer

is the department manager or City Administrator. The reviewer may attach supplemental comments

to the completed performance evaluation. (Ord.

87-1

§

2

1987).

2.52.260 Department Manager's Responsibilities.

The department manager will have responsibilities in the following areas with respect to employee

performance evaluations:

A. Ensure that employees understand all the job duties and responsibilities in their formal job

description;

B. Ensure that all employees in the department receive performance evaluations in accordance with

the provisions of these rules, based upon their formal job description;

C.

Ensure that all persons conducting performance evaluations

in

the department understand the

department's objectives, the purpose of performance evaluations, and the process of fairly and

impartially evaluating employees' work performance;

D. Ensure that employee performance evaluations are accomplished

in

a timely manner

in

accordance with the provisions of these rules;

E. Ensure the security and confidentiality of employee performance evaluations by the following:

1.

The evaluations will be typewritten. If typed by someone other than the evaluator, that

individual will be selected carefully and precautions will be taken to ensure that information

of 5





Page 5 of 5

about the employee evaluation does not extend beyond the person required to type the

evaluation.

2. Discussions with employees regarding performance evaluations shall be held in a manner

and location protecting the privacy of the discussion.

3. Performance evaluations and related materials will be protected from the scrutiny

of

unauthorized persons at all times.

4. The original

of

the employee s performance evaluation will be secured in the employee s

central personnel file. (Ord. 87-1

§

2, 1987).

2.52.270 Documentation

of

Evaluations

Approved

Forms.

All formal employee evaluation reports will be on forms approved by the City Administrator. (Ord. 87-1

§ 2

1987).

2.52.275 Established Rating Periods - Frequency.

A. At-will employees will be evaluated every eight weeks during the training and observation period. It

is expected that meetings will be held between formal evaluations to discuss the employee s

performance. The final evaluation will occur no later than two weeks before the end

of

the training

and observation period. If the training and observation period has been extended, the final evaluation

will

occur

no later than two weeks before the end

of

the extended period.

B. Regular status employees will be evaluated at least annually. The annual evaluation will occur no

later than two weeks prior to the employee s anniversary date for the position held.

C. A department manager may evaluate employee performance more frequently than specified in the

preceding two sections as determined by:

1. Department policy for the entire department or for specialized

or

technical job classes;

2. Memoranda

of

understanding (MOUs);

3. Unsatisfactory

job

performance

or

performance needing improvement. (Ord. 87-1

§

2, 1987).

2.52.280 Evaluation Procedure.

The following general procedures will apply to the employee performance evaluation process:

A. The employee to be evaluated will be advised

in

advance

of

the time and place for evaluation

discussion. Such notification will not be less than one day in advance.

B. The evaluator will prepare in duplicate a written evaluation

of

the employee s work performance

which documents fulfillment

of

job standards and states areas

of

needed improvement and options

available to improve performance. If performance standards are not met by the next evaluation,

disciplinary action may be taken.

C. The evaluator will discuss the performance

of

the employee. If, during this discussion, the

employee disputes a fact(s) in the evaluation and provides evidence supporting the disputed fact(s),

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the evaluator may revise the evaluation to reflect accurately the information.

If

the evaluator does not

revise the evaluation, the employee may initiate a grievance.

D. The employee will be given

an

opportunity to review the completed written evaluation and any

addenda. The employee will be required to sign the evaluation acknowledging that the employee s

evaluation has been discussed with the employee. The employee will be told that signing the

evaluation does not indicate agreement with the evaluation.

E. The employee will be given 30 days from the date of acknowledgment to file written comments on

a separate written attachment which will become part of the employee s evaluation document. There

will be no appeal or other remedy available to an employee dissatisfied with the performance

evaluation.

F. The employee will be given a copy of the complete written evaluation containing the employee s

signature and the signature of the evaluator and reviewer.

G. The original of the evaluation is the official copy and it will be filed in the employee s central

personnel file. (Ord. 87-1 §

2

1987).

2.52.285 Employee Rights

for

Review of Record.

An employee shall have the right to inspect and review any official record(s) relating to the

employee s performance. The contents of such records shall be made available to the employee for

inspection and review at reasonable intervals during the City s regular business hours. The employee

shall have the right to respond in writing or have a personal interview about any information with

which the employee disagrees. (Ord.

87-1 § 2

1987).

Article

IX. Disciplinary

Actions

2.52.290

Applicability

of

Disciplinary

Actions

The disciplinary actions and procedural steps enumerated

in

this article apply to employees having

regular status in the City. Employees having regular status have the right to appeal

and

hearing. (Ord.

87-1 §

2

1987).

2.52.295 Types

of Disciplinary Action

The following disciplinary actions are available: counseling, oral reprimand, written reprimand,

emergency suspension, suspension, disciplinary demotion, and dismissal. (Ord. 87-1 § 2 1987).

2.52.300 Counseling.

Counseling includes any informal discussion with

an

employee designed to assist the employee to

fully develop skills and abilities. Counseling is usually conducted by the employee s immediate

supervisor. Counseling is not appealable. (Ord. 87-1 § 2 1987).

2.52.305 Oral Reprimand.

An oral reprimand verbally notifies the employee that performance or behavior must be improved.

Oral reprimands are usually given by supervisors when counseling has failed to produce changes.





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The supervisor should record all pertinent information regarding the oral reprimand and write a

confirming memo to the employee. No record is placed in the employee's permanent personnel file

unless subsequent action is necessary. An oral reprimand is not appealable. (Ord. 87-1 § 2 1987).

2.52.310 Written

Written reprimand means a written document presented to

an

employee regarding performance or

conduct problems. A copy must be provided to the employee and a copy placed in the employee's

personnel records. Within 10 working days following receipt of a written reprimand the employee shall

be permitted to file a written response to be attached to the reprimand. Both the reprimand and the

response will be included in the employee's personnel file. A written reprimand is appealable and if

the appeal is upheld all records of the incident will be purged from the employee's personnel file.

Written reprimands are given by department managers and/or the City Administrator. (Ord. 87-1 § 2

1987).

2.52.315

Emergency

Suspension

A department manager or the City Administrator may immediately suspend, for a period

of

less than

five days, an employee who is guilty of misconduct. After such action is taken, the provisions of CMC

mu s t be promptly applied. (Ord.

87-1

§ 2 1987).

2.52.320

Suspension

Defined.

Suspension means

an

involuntary absence without pay for a period

of

up to and including 15 days.

This action is available exclusively to the City Administrator. (Ord. 87-1

§

2 1987).

2.52.325 Disciplinary Demotion.

An involuntary reduction of an employee from a position

in

one class to a position

in

another class

having lesser responsibility and lower salary range allocation. This action is available exclusively to

the City Administrator. (Ord. 87-1 §

2

1987).

2.52.330 Dismissal

Discharge

or

removal of an employee from City service. This action is available exclusively to the City

Administrator. (Ord. 87-1

§

2 1987).

2.52.335

Department

Manager Responsibilities

A department manager who has knowledge of an employee's performance or conduct constituting

grounds for disciplinary action as listed in CMC shall initiate the appropriate discipl inary

procedure(s) or notify the City Administrator or in turn be subject to censure or discipline. (Ord. 87-1

§

2

1987).

2.52.340 Causes for Disciplinary Action

........ . ..............

Including but not limited to:

A. Failure to meet job performance standard;

B. Refusal to perform job duties;

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C. Neglect

of

job duties;

D.

Absence without leave;

E. Abuse of sick leave;

F.

Any conduct which relates to the employment and results

in

the impairment or disruption

of

City

service;

G. Fraud or misrepresentation in securing employment;

H.

Theft;

I. Drinking alcoholic beverages or using drugs on the job; or reporting for work under the influence

of

alcohol or drugs;

J. Conviction of a felony or misdemeanor involving moral turpitude;

K.

Willful violation of any Federal or State law, City ordinance or lawful departmental or City regulation

or order relating to the employee s job or position with the City;

L. Failure or refusal to work harmoniously with other workers or the public, where such action

is

detrimental to the mission. (Ord. 87-1 §

2

1987).

2.52.345 Outline of Procedural Steps in Disciplinary

Actions.

Following is the sequence of steps which occur when an employee

is

disciplined by suspension,

disciplinary demotion, or dismissal:

A. Notice of intent to discipline: Prepared and served;

B.

Employee s right to respond;

C.

Notice of disciplinary action: Prepared and served;

D. Appeal process. (Ord. 87-1 §

2

1987).

2.52.350 Notice of Intent to Discipline Defined.

A written notice to inform an employee of intended disciplinary action prior to taking such action.

Preparation shall be at the direction of the City Administrator in consultation with the employee s

department manager. (Ord.

87-1 § 2

1987).

2.52.355 Notice of

Intent to Discipline

Content.

The order shall contain the following:

A. The intended disciplinary action and effective date;

B. The cause(s) forming the basis for the action against the employee;

C.

Statement of specific act(s) or omission(s) upon which the disciplinary action is based;

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D.

Right to Respond. The employee's right to respond orally or in writing to the department manager

within five working days of the delivery

of

the notice and that failure to respond will result in the

preparation of a notice of disciplinary action;

E. The employee's right to review all written materials relating to the proposed action and the right to

have representation. (Ord.

87-1

§

2 1987).

2.52.356 Employee s Response

to

Notice of Intent to Discipline.

Within five working days of the service of a notice of intent to discipline, an employee may respond

orally or in writing to the department manager. If the employee's explanation or denial of the stated

charges

is

deemed by the department manager to be true and adequate, the charges shall be

dropped and no record entered into the employee's personnel file. If the employee's explanation or

denial of the stated charges

is

deemed by the department manager to be untrue or inadequate, a

disciplinary action order shall be prepared and served. (Ord. 87-1

§ 2

1987).

2.52.360 Disciplinary Action

Order-

Defined.

Discipl inary action order means a written order of disciplinary action by suspension, disciplinary

demotion, o r dismissal. The order is prepared by the department manager for the signature of the city

administrator. (Ord.

87-1

§ 2 1987).

2.52.365

Disciplinary Action Order-

Content.

The order shall contain the following:

A. The disciplinary action and effective date;

B. The cause(s) forming the basis for the action against the employee;

C.

Statement of specific act(s) or omission(s) upon which the disciplinary action is based;

D. Right to Appeal. The employee will be informed of the right to appeal and the timing and procedure

for appealing and answering the charges as defined in CMC the right to review all written

materials relating to the disciplinary action, and the right to be represented at the hearing by the

employee's representative;

E. Failure to Appeal or Appear. The employee will

be

informed that the failure to appear at the

subsequent hearing will result in the City Administrator signing the order of disciplinary action. The

City Administrator's action will be final. (Ord. 87-1 §

2

1987).

2.52.370 Service

of

Notice

of Intent to Discipline

and

the Order of Disciplinary

Action.

Service

of

the notice of intent to discipline and the order o f disciplinary action will be deemed

sufficient and complete when delivered in person to the employee or when it is posted by United

States certified mail to the last known address of the employee. (Ord.

87-1

§ 2 1987).

2.52.371 Employee Continues Duties During Five-Day Period.





Except as otherwise provided, the employee will continue to perform the regular duties and

responsibilities

of

the employee s position until such time as the order of disciplinary action becomes

effective. (Ord. 87-1 § 2 1987).

2.52.375 Immediate Paid

Administrative

Leave Pending Investigation.

Notwithstanding the procedures outlined, the City Administrator may immediately place the employee

on fully paid administrative leave pending investigation if there is good cause to believe that the

employee is guilty of extreme conduct which, if true, warrants disciplinary action, and which in the

opinion

of

the City Administrator imminently threatens to seriously disrupt the City service either

because of the nature of the conduct itself or because of its anticipated effect on others

in

the

department. In the event this action is taken, the City Administrator will comply with the procedures

described

in

CMC and at the earliest time practicable. (Ord.

87-1 §

2, 1987).

2.52.380 Appeal and Answer

to

Order of Disciplinary Action.

Within 10 working days of the service of the order of disciplinary action, the employee may appeal the

order by filing with the City Administrator a signed statement asking for a hearing and submitting a

signed written answer to the charges denying the allegations the employee does not believe to be

true, briefly stating the foundations for the employee s belief or otherwise explaining the employee s

conduct. Filing of the answer to the charges may be made in person or by United States mail posted

to arrive no later than the above specified time period. Upon request the City Administrator may

extend the time limit

on

a case-by-case basis. (Ord. 87-1 §

2

1987).

2.52.385 Appeals Hearing Process.

The City Administrator will hear all evidence, review all documents and receive oral testimony. If the

City Administrator upholds the employee s appeal, the charges shall be dropped, the employee

reinstated, and a record of the City Administrator s decision placed in the employee s personnel file. If

the City Administrator denies the employee s appeal, the order of disciplinary action will be signed

and served. The decision of the City Administrator is final and not subject to appeal. (Ord. 87-1

§

2

1987).

2.52.390 Signed

Order

of

Disciplinary

Action

Service.

When all administrative procedures as prescribed herein have been completed, the City Administrator

will serve the signed order of disciplinary action in accordance with CMC and file a copy with

the City Clerk.

Article X.

Grievances and

Their

Resolution

2.52.400 Purpose

of

This Article.

...................

. .......................................................................................................

This article provides a constructive process to identify and resolve in a fair, orderly, and expeditious

manner, employee grievances resulting from problems which may arise from working relationships

and conditions.

2.52.410 Definitions.

For the purpose of this article only, the following definitions shall apply:





Page

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A. Grievance. Grievance means a complaint relating to any phase of an employee's employment or

working conditions which an employee believes has been adversely affected because of violation,

misapplication, or misinterpretation

of an

obligation to the employee as such obligation

is

expressed

and written in: the City personnel system ordinance; City or departmental written policies, rules or

orders; clearly established lawful past practice

of

a department; or the applicable current

memorandum

of

understanding with an employee organization.

B.

Rejected Grievance. Rejected grievance means a grievance which

is

denied when

in

the opinion

of the appointing authority sufficient evidence is not presented justifying the grievance petition.

C.

Grievance Conference. Grievance conference means a conference at any step

in

the process

between management and the employee.

D.

City Administrator. City Administrator means the City Administrator or a representative

designated by the City Administrator.

E.

Department Manager. Department manager means the administrative head or acting head of the

department involved, or a designated representative.

F.

Employee. Employee means any person holding regular, temporary or intermittent employee

status.

G.

Day. Day means calendar day. The time period for grievance purposes begins on the first day

following the day the grievance

is

filed or submitted to the next step. When the time period for a given

step in the grievance procedure ends on a weekend

or on

a holiday,

it

shall automatically be

extended to the next regular City workday.

H. Grievant. Grievant means any employee authorized

to

file a grievance.

I.

Timely Initiation

of

Grievance Process. Timely initiation

of

grievance process means that all

grievants must initiate the grievance procedure within 10 days

of

first becoming aware

of

the alleged

violation.

J. Representatives. Representative means a person, who at the request of the employee or

management,

is

invited to participate

in

grievance conferences. (Ord. 87-1

§

2, 1987).

2.52.415

Right

to Grieve.

Any employee shall have the right to present a grievance arising from employment

in

accordance with

the rules and regulations

of

this article. (Ord.

87-1 §

2, 1987).

2.52.420 Good Faith Required

of

ll

Parties.

All parties will act

in

good faith while attempting to reach a solution at the earliest possible step

of

the

procedure. The employee will have the assurance that filing a grievance will not result

in

reprisal of

any nature. (Ord.

87-1 § 2

1987).

2.52.425

Right

of Representation.

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An aggrieved employee will have the right to

be

represented or accompanied by a person of the

employee s choice if the complaint is not resolved at the informal level as provided for in Step 1

of

the

grievance procedure. (Ord.

87-1 § 2

1987).

2.52.430 Grievance Processing on City Time.

The processing

of

a grievance will be considered

as

City business and the employee and the

employee s representative will have reasonable time and facilities allocated for this purpose. (Ord.

87-1 § 2 1987).

2.52.435

Extension

of Established Time Limits.

The time limits established herein may be extended by mutual agreement. (Ord. 87-1 § 2 1987).

2.52.440 Failure to Meet Time Limits - Management.

If there is failure by management to respond within the specified time limits, the employee may

process the grievance at the next step in the procedure. (Ord. 87-1 § 2 1987).

2.52.445 Failure

to

Meet Time Limits Employee.

If the employee at any step of the procedure fails to appeal the decision on a grievance within the

specified time limit, such decision will be deemed accepted and not subject to further appeal or

consideration. The City Administrator may waive this provision upon a showing of good cause. (Ord.

87-1 §

2 1987).

2.52.450 Limitations on Authority.

At any level in the grievance procedure the employee will be told if the resolution of the grievance is

above the authority at that level. The employee will then be directed to the proper level in the

grievance procedure. (Ord. 87-1 § 2

1987).

2.52.455 Right

to Consult on

Grievance Filing Procedure.

An employee is assured the right to consult with the employee s supervisor, department head, or

personnel officer, without prejudice, concerning the manner, form and/or procedure for filing a

grievance. (Ord. 87-1 §

2

1987).

2.52.460 Grievance Forms.

Standard grievance forms and this article of the Personnel System Ordinance governing grievances

and their resolution will be made available in

the individual departments and

in

the City Personnel

Office. (Ord. 87-1

§ 2

1987).

2.52.465 Representative Rights and Obligations.

A. Employee s Representative. An employee may be represented or accompanied by a person of the

employee s choice at any step in the grievance procedure beyond Step 1. If a representative is used,

the following shall apply:

1. The name

of

the employee s representative will be given to management not less than 24

hours prior to any grievance conference.




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2.

If the representative

is

another City employee, such representative will not

be

released during

working hours without advance approval of the representative s supervisor.

3. The representative s supervisor shall grant a reasonable amount

of

time off; provided such

would not unreasonably interfere with City work.

B. Grievance Conferences. Grievance conferences are normally conducted during regular working

hours at a mutually convenient time.

C.

Investigation of Grievances During Working Hours. These investigations by an employee and the

employee s representative, if any, will be

in

accordance with the following:

1.

Approval of a job site supervisor must be obtained prior to the representative entering any job

site.

2. There shall

be

no solicitation of other grievances.

3. The investigation shall be conducted

in

a reasonable amount of time and expeditiously so as

to not impede the City s work requirements.

4. Time spent after the close of the regular work

in

investigating will be the employee s and

representative s own time.

5. Entry to a job site will not be permitted if it would unreasonably interfere with or delay City

work.

6. All safety regulations relating to the presence or conduct of persons at the job site shall be

complied with. (Ord. 87-1 § 2 1987).

2.52.470 Grievance Procedure.

A Step 1 Informal Grievance. An employee wishing to grieve will discuss the matter informally with

the employee s immediate supervisor. The supervisor will give an oral decision to the employee within

five days subsequent to the discussion.

If

the immediate supervisor is the topic of the grievance and

the employee believes face-to-face discussion of the grievance will serve no added value, the

employee will tell the supervisor that the supervisor is the topic of the grievance and that the formal

grievance procedure will be implemented.

B. Step Formal Grievance. If the employee is dissatisf ied with the immediate supervisor s oral

decision, the grievance may be pursued by submitting it

in

writing on the City s grievance form to the

supervisor within five days of the decision given in Step 1. Failure to complete this procedure will bar

further consideration of the grievance. The supervisor shall schedule a grievance conference at a

mutually agreeable time, hear the grievance, and render a written decision to the employee within 10

days of receipt of the formal grievance. An employee representative may attend the grievance

conference.

C. Step

3

Departmental Appeal. If the employee wishes to appeal the supervisor s written decision,

a copy of the grievance and the supervisor s response must be submitted on the City s grievance

form to the employee s department manager within five days of receipt of the supervisor s decision.

If





Page 24 of 5

the employee

is

a department manager, proceed to Step 5. Failure to complete this procedure will bar

further consideration

of

the grievance. The department manager shall schedule a grievance

conference at a mutually agreeable time, hear the appeal, and render a written decision to the

employee within 10 days

of

the grievance conference. An employee representative may attend the

grievance conference.

D. Step Administrative Appeal. If the employee wishes to appeal the department manager s

written decision, the appeal must

be

submitted to the City Administrator within five days of receipt of

the department manager s decision. The written appeal must be made on the City s grievance form

and will include the original grievance and management responses, if any. Failure to complete this

procedure will bar further consideration

of

the grievance. The City Administrator shall schedule a

grievance conference at a mutually agreeable time, hear the appeal, and render a written decision to

the employee within 10 days of the grievance conference. An employee representative may attend

the grievance conference.

E. Step 5 - Department Manager s Appeal. The City Administrator is the immediate supervisor for all

department managers. If a department manager is a grievant and wishes to appeal the decision

of

the supervisor, the appeal shall be heard by a mutually agreed upon, independent hearing officer who

shall be compensated by the City. Once selected, the independent hearing officer must receive the

appeal within five days. The written appeal must be made on the City s grievance form and will

include the original grievance and supervisor response, if any. Failure to complete this procedure will

bar further consideration of the grievance. The independent hearing officer shall schedule a grievance

conference at a mutually agreeable time, hear the appeal, and render a written decision to the

department manager within 10 days

of

the grievance conference. An employee representative may

attend the grievance conference. (Ord.

87-1

§ 2, 1987).

2.52.475 City Administrator s Decision - Final.

Where grievances are pursued to the City Administrator, the City Administrator s decision will be final.

(Ord. 87-1 § 2 1987).

2.52.480 Independent Hearing Officer s Decision - Final.

Where grievances are pursued by department managers to an independent hearing officer, the

hearing of ficer s decision shall be final. (Ord.

87-1

§

2

1987).

2.52.485 More Expeditious Grievance Handling

Not

Prohibited.

Nothing

in

this article is stated

or

implied which shall prohibit a more expeditious handling

of

a

grievance. (Ord.

87-1 § 2

1987).

2.52.490 Grievance Procedure Does Not

Apply to

Unlawful

Actions.

The grievance procedure

is

not intended to apply to instances wherein an employee becomes aware

of clearly unlawful acts

or

actions involving City operations

in

any aspect including City funds,

equipment, personnel,

or

facilities.

In

these instances an employee is encouraged to bring pertinent

information directly to the attention

of

either the department manager or the City Administrator. (Ord.

87-1 §

2, 1987).





Page 5 of 5

Article

XI. Salaries, Benefits, and Leaves

2.52.500

Plan-

The purpose of the salary plan is to provide a fair and equitable system for reimbursement to City

employees

in

all classifications for their services rendered. The plan is based upon the application of

progressive salary administration principles, and procedures governed

by

State law concerning

negotiations with recognized bargaining units of employees. Ord. 87-1

§

2, 1987).

2.52.510

Administrator s

Role.

The role of the City Administrator or a designee of the City Administrator includes the following:

A. Periodically recommending to the City Council changes

in

salary range for each City class of

position based upon the availability of funds and the considerations outlined in subsections B) and

C) of this section.

B. Periodically developing data concerning salaries and rates paid by other agencies and

organizations for comparable City classifications, and data concerning cost

of

living or other factors

as governed by City policy.

C.

Using the data developed as a base for negotiating with the recognized bargaining units of

employees and for use in determining appropriate salary ranges.

D. Administering the salary plan. Ord. 87-1 § 2, 1987).

2.52.520

Basic

Elements of

the

Salary Plan.

A. Salary Schedule. The salary schedule is an instrument used for the orderly and equitable

application of City salaries to all positions in the organizational structure. The schedule consists of a

series of equally spaced ascending salary ranges, each identified by a range number.

B. Salary Resolution. A salary resolution adopted by the City Council establishing the legal current

salary range from the salary schedule for each class of position. The salary resolution

is

adopted

annually or periodically by the City Council upon review and recommendation of the City

Administrator

in

accordance with the provisions outlined in CMC Other amendments may

be made from time to time, as required, by the City Council. Ord. 87-1 § 2, 1987).

2.52.525 Pay Periods.

The pay periods are:

A. The first through the fifteenth of the month.

B. The sixteenth through the last day of the month. Ord.

87-1 §

2, 1987).

2.52.530 Basic

Work

Week.

The work period for City employes

is

eight hours per day, 40 hours per week, except as elsewhere

provided

in

this chapter. Ord.

87-1 §

2, 1987).





Page 26

of 5

2.52.535 Practical Work Week.

The operations of some departments require that some employees work on days at times other than

the basic work period. Authorization for a practical work period will be made by the City Administrator

as service needs require. (Ord. 87-1

§

2 1987).

2.52.540 Fire Personnel

Work

Week.

Fire Department operations require 24-hour-per-day staffing. Fire officers and the dispatcher clerk

work a 40-hour work period. All other personnel work a designated period agreed upon during the

negotiation process relying

on

guidelines established by the Fair Labor Standards Act. (Ord. 87-1

§ 2

1987).

2.52.545 Salary Plan Administration.

A. Salary Ranges/Steps Employment and Advancement. New employees are normally hired at the

first step of the salary range for the classification in which hired. However, the City Administrator may

approve hiring at a step in the range above the first step when the new employee possesses

exceptional qualifications.

B. Advancement to each succeeding salary step occurs normally each year on the employee s

However, the City Administrator may authorize a within-range

step adjustment, bypassing the normal numerical sequence for outstanding performance. (Ord. 87-1

§

2 1987).

2.52.550 Anniversary Dates.

An employee s anniversary date is established

or

changed as follows:

A. Initial Employment. The anniversary date for payroll purposes is established as the beginning

of

the pay period in which employed as a regular employee if the employee begins work on the first

working day

of

that pay period. Otherwise, the beginning date

of

the next succeeding pay period

establishes an employee s anniversary date.

B. Demotion. The anniversary date

of

any demoted employee will change to the effective date of the

demotion.

C. Transfer. The anniversary date

of

an employee who transfers or is transferred will remain

unchanged.

D.

Promotion. The anniversary date

of

an employee who promotes will change to the effective date

of

the promotion.

E. Return From Leave of Absence. An employee returning from an unpaid leave of absence

of

more

than 3CY;days will have the anniversary date extended for the length of time the employee was on

leave. Military leaves are exempt.

F. Reclassification. The anniversary date

of

an employee whose position is reclassified will remain

unchanged. (Ord. 87-1

§

2 1987).

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2.52.555 Merit Step Advancement.

Merit salary step advancement occurs on an employee's anniversary date and can be granted only

upon the department manager's performance evaluation report confirmed by the City Administrator.

(Ord. 87-1 §

2,

1987).

2.52.560 Denial/Delay

of

Step Advancement.

The employee's department manager or the City Administrator may deny or delay an increase if the

employee's overall job performance evaluation is not satisfactory. The employee must be notified of

the reason for the denial or delay. The department manager or City Administrator may approve an

employee's merit salary increase at any time prior to the next anniversary date upon the employee's

overall job performance evaluation becoming satisfactory. (Ord.

87-1

§

2,

1987).

2.52.565 Effective Dates

of

Salary and Personnel Changes.

···· · ·· ........................... ·········································· ....................

···································

..........................

Merit salary step advancements, promotions, demotions, transfers and other actions affecting

an

employee's salary or status may be effective only at the beginning of a pay period. Excluded from this

requirement are disciplinary actions, resignations, and retirements. (Ord. 87-1 §

2,

1987).

2.52.570 Salary Determination

Promotions.

When an employee is promoted, salary advancement shall be to a rate in the new range which

provides at least five percent more than the employee's current rate. The new rate shall not exceed

the maximum of the new range. (Ord. 87-1 §

2,

1987).

2.52.575 Salary Determination - Transfer.

When an employee is transferred, the salary rate shall remain unchanged. (Ord.

87-1 §

2, 1987).

2.52.580 Salary Determination Voluntary Demotion.

.............................

.

..........

,.

...........

.......................................

When an employee voluntarily demotes, the salary rate will remain unchanged, but Y rated if

applicable. (Ord. 87-1

§

2, 1987).

2.52.585 Salary Determination - Disciplinary Demotion.

When an employee is given a disciplinary demotion, the employee will be cut to a rate in the new

range commensurate with the cause for disciplinary action as determined by the City Administrator.

(Ord. 87-1 §

2,

1987).

2.52.590 Salary Determination

Reclassification

of Position.

A.

When an employee

is

reclassified to a lower classification the salary rate will remain unchanged. If

this rate lies between two steps in the range for the lower classification, the employee's salary will be

advanced to the higher step.

If

the employee's salary rate prior to the reclassification exceeds the top

step of the new salary range it will be Y rated. Y rating simply means that these employees will

continue to receive their present salaries but not receive general cost-of-living increases until

such time these latter increases applied to the salary ranges for their classifications result in their

salaries again falling within their respective ranges.





of 5

B. An employee reclassified to a higher classification will receive a salary rate advancement to the

same step

in

the new range. (Ord.

87-1 § 2

1987).

2.52.595 Overtime Defined.

Overtime

is

time which an employee

is

required to work beyond those hours stipulated

in

the

employee's basic work period, fire personnel work week, practical work period or work day as

established by the applicable memorandum of understanding, but

in

no event below the standards

defined in the regulations

of

the Fair Labor Standards Act. (Ord. 87-1 § 2 1987).

2.52.600 Overtime Authorization.

Overtime shall be worked only upon prior authorization of the department manager or designee. (Ord.

87-1 §

2 1987).

2.52.605 Overtime Compensation.

Overtime compensation for all employees except those exempt by Federal guidelines will be on the

basis

of

compensatory time off at the rate of time-and-one-half off for time worked

or

when

authorized, payment on time-and-one-half basis for time worked. (Ord. 87-1 §

2

1987).

2.52.610 Overtime Compensation - Personnel.

Overtime work for nonexempt firefighting personnel will be

on

the basis of one-and-one-half times the

hourly rate computed on the basis of the Fair Labor Standards Act guidelines and applicable

memorandum of understanding. (Ord. 87-1

§ 2

1987).

2.52.615 Compensatory Time Off Use of

Accrued

Hours.

Requests to use compensatory time must be permitted within a reasonable period after making the

request. A reasonable period will be determined by the customary work practice

of

the City

department and the facts and circumstances of each case. (Ord. 87-1 § 2 1987).

2.52.620 Record of Overtime Worked.

Overtime records will be recorded

and

maintained by individual departments and transmitted to the

payroll office. Compensatory time off records will be recorded and maintained by individual

departments and inspected periodically by the Personnel or Payroll Departments. All records will be

recorded and preserved

in

compliance with the Fair Labor Standards Act guidelines. (Ord.

87-1 § 2

1987).

2.52.625 Vacations - Accrual.

All regular employees who accrue vacation benefits will accrue the time specified

in

the applicable

memorandum of understanding. Regular part-time positions regularly working a minimum

of

20 hours

per week accrue, prorated on a monthly basis, from the time

of

initial appointment. (Ord. 87-1

§ 2

1987).

2.52.630 Vacations -

Eligibility for

Use.





Page 29 of 5

After one year of continuous service

an

employee is eligible to use accrued vacation time. Ord.

87-1

§

2

1987).

2.52.635

Vacations

Vacation scheduling is the responsibility of individual department managers. Ord. 87-1

§

2 1987).

2.52.640 Vacations -

Maximum Accrual Allowed.

The maximum amount of vacation time that may be held

in

an unused status shall be the amount an

employee is entitled to accrue in two anniversary years. Exceptions may be granted by the

department manager with approval by the City Administrator. Ord. 87-1

§ 2

1987).

2.52.645 Vacations

Compensation

Upon Separation.

Regular employees who have at least one year

of

continuous service are entitled to monetary

compensation equal to the value of the accrued vacation time. Ord. 87-1

§

2 1987).

2.52.650 Management Leave.

Designated management personnel,

in

addition to vacation time, are entitled to additional hours of

paid leave, or a pro rata amount

if

not in a management position for a full year, during each fiscal

year. The amount shall be defined

in

the applicable memorandum of understanding or contract.

Unused hours shall not be carried over to succeeding years nor compensation paid for any unused

hours at the time of resignation, retirement, or dismissal. Ord. 87-1 §

2

1987).

2.52.655 Vacations - Compensation

for

Unused Vacation.

Unused vacation hours may be sold back to the City up to a specified amount of hours as designated

in

the applicable memorandum of understanding. Ord. 87-1

§

2 1987).

2.52.660

Sick

Leave

Accrual

Employees Hired

Prior to November

1

1984.

Regular employees entitled to accrue sick leave and who were hired prior to November

1

1984, shall

be entitled to accumulate an unlimited amount

of

sick leave hours. The formula for compensation

upon retirement will be the current hourly rate of the employee, times the total accumulated sick leave

hours, divided by one-half. Upon resignation after five years of continuous service, the formula for

compensation will be the current hourly rate of the employee times the total accumulated sick leave

hours, divided by one-fourth. Ord.

87-1

§

2

1987).

2.52.665 Sick Leave Accrual Employees Hired After November 1 1984.

Regular employees entitled to accrue sick leave and who were hired after November

1

1984, will

accumulate

an

unlimited number of sick leave hours. A maximum

of

600 hours will be the total

amount for which the City reimburses the employee upon termination

of

resignation from

employment. This provision does not apply to employees resigning with less than five years of

continuous service who shall not be entitled to any compensation. Severance from employment after

five years will result in reimbursement at 25 percent of accumulated sick leave hours, with a

maximum

of

600 hours, times the actual hourly rate at the time

of

resignation. Upon retirement, the

rate shall be adjusted from 25 percent to 50 percent. Ord.

87-1

§

2

1987).





Page 30

of 5

2.52.670 Sick

Leave-

Credit.

Sick leave, including medical and other doctor appointments, shall be charged against an employee s

credit only for regular working days and shall not be charged for time absent on holidays or other

authorized days off. Charges against an employee s credit shall be rounded off to the lowest hour, for

example:

Time

Off Work

Time Charged

55 minutes or less 0

1 hour 1 hour

1 hour and any segment of 1 hour

the next hour

If an employee becomes sick on scheduled vacation time, the department manager may, with

acceptable documentation, authorize the use

of

sick leave instead of vacation leave. (Ord. 87-1 § 2

1987).

2.52.675 Sick

Leave-

Physician s Statement Required.

A physician s statement can be required at the option

of

the department manager, when the

employee has been absent from work for three or more consecutive work days. The same

requirement applies if the employee has been absent from work for four or more days

in

any 30-day

period. (Ord. 87-1 §

2

1987).

2.52.680 Sick Leave- Department Notification.

When required to

be

off the job because of illness or disability, the employee or someone in the

employee s behalf must notify the employee s supervisor within a reasonable time of the employee s

scheduled starting time for resuming work. (Ord.

87-1

§

2

1987).

2.52.685

Sick

Leave- Use for Family Illness

or

Bereavement.

Accrued sick leave may be used for serious illness, disability, or death in the employee s immediate

family as described in the appropriate memorandum of understanding. This use shall not exceed the

limit prescribed by the applicable memorandum of understanding. Immediate family

is

defined as the

employee s spouse, child, stepchild, parent, stepparent, grandparent, sibling, mother-in-law, father-in

law, sister-in-law, and brother-in-law, or any other person approved by the department manager. The

department manager may require that the employee furnish satisfactory proof to substantiate the

above sick leave use. (Ord. 87-1 § 2 1987).

2.52.690 Military

Leave-

Annual Paid.

An employee having regular status is entitled to City-paid leave not to exceed 30 calendar days in

any one-year period for training duty

in

any branch of the United States armed services. This leave

shall be granted in accordance with provisions of the California Military and Veterans Code.

However, a request for annual military leave can be honored only if accompanied by a copy of the

employee s official military orders showing the employee s name and other identifying information,

and the starting and completion dates of leave. The order must also show the date of the orders and





Page 31 of 5

other official information including the name and rank

of

the person issuing the orders. Since annual

training dates are ordinarily established months

in

advance

of

duty, an employee must inform the

employee's supervisor as soon as the training dates are known. Actual request for leave and official

military orders should be submitted

no

later than 15 days prior to the requested leave beginning date.

(Ord.

87-1 § 2 1987).

A An employee having trainee status shall be granted a short-term or extended leave when called to

active duty,

in

accordance with the provisions

of

the California Military and Veterans' Code. This

requirement for proof

of

military orders specified

in

CMC also applies to unpaid military

leave.

B.

Sick leave and vacation do not accrue to the employee while on leave, but the employee's

anniversary date remains unchanged. (Ord. 87-1

§

2 1987).

2.52.705 Leave

Without

Pay Types.

This term refers to leaves requested by an employee

in

advance of a proposed starting date, and

approved by the City Administrator upon the recommendation of the employee's department manager

as being

in

the interest and welfare of the depar tment or City. Leaves without pay may be granted for

any

of

the following purposes with specific requirements, as applicable, noted:

A.

Illness. Used for any legitimate illness including temporary medical

or

psychiatric problems. This

leave is used only when an employee has exhausted accrued sick leave and all other accrued leave.

Requests for leave must include a statement from the physician specifying the nature

of

the illness

and the time of anticipated release for return to active duty. In these situations, it may

be

possible for

medical insurance benefits to continue. This will depend

on an

evaluation

of

many factors, including

but not limited to policy contract language and evaluation by the City Administrator. After the

evaluation

is

completed, i f approval

is

given to continue medical insurance, the employee shall be

responsible for payment

of

the appropriate premium once any grace period has elapsed.

B.

Education or Training. Used when the kind

of

education or training is likely to enhance the City's

capabilities to provide service to the public. The leave should have as its objective either to increase

the employee's effectiveness

in

the current job, or enhance the employee's advancement within City

service.

C. Paternal Leave. Used when the employee requires time off at any time during a pregnancy,

adoption

of

a child, because

of

physical condition related to a pregnancy, or subsequent to delivery to

recuperate or provide care for the newborn or newly adopted.

D.

Personal. Used when none

of

the above apply and the employee's personal situation is such that

leave

is

desirable or needed.

E. Compulsory. Used when

in

the opinion of the department manager, an employee is unable to

perform the duties

of

the employee's position properly because

of

physical

or

mental reasons which

jeopardize the health and safety of the employee, fellow workers or the public, or which create a

situation

in

which the City

is

unable to provide proper services to the public.

In

these instances, an

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choice of which day to be at the department manager s discretion. If a holiday falls on a Sunday, it

shall

be

observed on Monday. (Ord. 87-1 §

2

1987).

2.52.740

- Entit lement.

Regular employees are entitled to paid holidays. If a holiday falls on an employee s nonwork day,

then the employee s next succeeding work day shall be considered a holiday. Firefighting employees

shall not be entitled to time off for holidays but instead shall be paid on the basis of an eight-hour shift

established by memorandum of understanding. Such pay to be in addition to any pay earned for shifts

actually worked. (Ord.

87-1 §

2

1987).

2.52.745 Medical, Dental

and

Vision Insurance.

All regular employees are entitled to receive medical, dental, vision, life, accidental death and

disability insurance as established by applicable memoranda of understanding. (Ord. 87-1

§ 2

1987).

2.52.750 Uniform

Allowance

for

Certain Employees.

Certain employees shall be entitled to receive a monthly uniform allowance as established by

applicable memorandum of understanding. (Ord. 87-1

§ 2

1987).

2.52.751 Retirement

The City is a member

of

the Public Employees Retirement System and provides a retirement option

for eligible employees. The type of plan and plan amendments are specified in the applicable

memorandum of understanding. (Ord. 87-1 § 2 1987).

2.52.752 Delegation

of

Authority

The City Administrator is authorized to initiate employer-initiated disability retirement procedures with

the Public Employees Retirement System. (Ord.

87-1 §

2 1987).

Article XII. Personnel

Records

and Policies

2.52. 760 GeneraL

The City shall maintain, under the direction of the City Administrator, records pertaining to current and

past City employees. The City shall develop, maintain, and distribute personnel policies included

in

procedural and policy statements. The City has

an

obligation to insure that City employees are

informed of their rights, benefits, and responsibilities under these policies. (Ord. 87-1

§

2 1987).

2.52.765 Employees Role.

Employees are hired to provide the necessary services and protection to the citizens of the

community. (Ord.

87-1

§

2

1987).

2.52.770 Payroll Records.

Current records shall be maintained for pay and related benefits for each employee. These records

will include the salary rate

to

which the employee is entitled, anniversary dates, adjustments in salary,

vacation and sick leave accrued and used, overtime worked, compensatory time off accrued and

used, unpaid time off, and any authorized payroll deductions. (Ord. 87-1

§ 2

1987).





2.52.775 Personnel Files- Contents.

The City will maintain in a central location and under the City Administrator s direction a personnel file

for each current employee. Personnel files will also

be

retained in inactive status for past employees

as specified in Federal and State laws. An employee s personnel file will contain, but will not be

limited to, the following: application forms for initial employment and subsequent promotions, all

personnel transaction forms, performance evaluation records, records

of

disciplinary action, notices

or letters of commendation, training records, records of on-the-job accidents or injuries, and requests

for and action concerning leaves without pay. (Ord. 87-1

§

2 1987).

2.52.780 Personnel Files- Security.

Personnel files are private and confidential. All persons will insure that confidentiality of the records

is

not revealed, nor open to scrutiny by the casual observer, nor the contents altered or removed.

Personnel files may

be

reviewed only upon authorization of the City Administrator or designatee with

reasonable notice. Any review will be in the immediate presence of the employee having custody of

the files. (Ord.

87-1 § 2

1987).

2.52.785 Personnel Policies.

New personnel procedures or policies, and policy statements may be prepared and distributed under

the direction of the City Administrator. Department managers, subject to the City Administrator s

approval, will develop and implement written departmental personnel policies. General personnel

policies follow. (Ord. 87-1 §

2

1987).

2.52.790 Jury/Witness Duty.

Employees called for jury duty during normal working hours will be excused from work as required to

attend this duty, and will continue to receive regular salary. Documentation

of

the notice to serve and

actual service will be provided the department manager by the employee. Any compensation derived

from this duty during normal working hours, except for mileage or related automobile expense when

the employee s personal automobile is used, will be reimbursed by the employee

to

the City. (Ord.

87-1 § 2 1987).

2.52.795 Safety.

The City and its employees have a mutual obligation to insure that safe working conditions and

practices are followed. Employees will report unsafe working conditions or equipment to thei r

supervisors. Employees deliberately violating or ignoring safe work practices and procedures are

subject to disciplinary action. (Ord. 87-1 § 2 1987).

2.52.800 Training.

Responsibility for the development

of

training programs is shared by department managers and the

City Administrator. (Ord. 87-1

§

2 1987).

Article

XIII.

Workers Compensation

2.52.900 Workers Compensation - Purpose.





of 5

The purpose of workers compensation is to compensate workers or their dependents for injury,

disability,

or

death sustained in the course of employment. Compensation includes provisions

of

medical, surgical, hospital, and other remedial treatment. (Ord.

87-1 § 2

1987).

2.52.905 Job-Incurred Injury, Illness,

or

Accident- Reporting.

An employee involved

in

an accident, or suffering an injury or illness while on the job site or while

performing the duties and responsibilities of the employee s position, must report this information

immediately to the employee s supervisor

or

other departmental management representative. Failure

to report may be grounds for disciplinary action

or

denying workers compensation. Special forms are

available for reporting occupational accidents, injuries or illnesses. (Ord. 87-1

§

2, 1987).

2.52.910 Employees Covered.

All employees are covered under the workers compensation coverage for the City, unless coverage

is specifically prohibited, i.e., volunteers, by other sections in this chapter. (Ord. 87-1

§ 2

1987).

2.52.915 Workers

Compensation-

Benefits.

wages are not made for the first three days an employee is unable to work (including weekends). For

this period

of

time the City will continue to pay the employee s salary. If

an

employee

is

hospitalized

or off more than 21 days, payments will be made even for the first three days. (Ord. 87-1

§

2, 1987).

2.52.920 Safety Personnel - Benefits.

Employees in the workforce classified as safety personnel, i.e., police and fire, shall be entitled to

workers compensation benefits as outlined in the Government Code of the State

of

California. (Ord.

87-1 §

2, 1987).

2.52.925 Combination

of

Benefits.

Nothing shall prohibit the City from combining workers compensation benefits with other protection

coverages, i.e., long-term disability insurance, as long as the proper meet-and-confer process is

observed. (Ord. 87-1

§

2 1987).

The Carmel-by-the-Sea Municipal Code is current

through

Ordinance 2014-05, passed May

6

2014.

Disclaimer: The City Clerk s Office has the official version of the

Carmel-by-the-Sea Municipal

Code.

Users should contact

the

City Clerk s Office for ordinances passed subsequent to the

ordinance cited above.





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)Q

STRADLING

YOCCA

CARLSON

RAUTH

LAWYERS

NEWPORT

BEACH

CERTIFICATE

SERVICE

I certify that on August 1 2014 the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered

users or,

if

they are not, I hereby certify that a true and correct copy was served in

the manner set forth below:

BY

EMAIL by transmitting via electronic mail the document(s) listed

above to the email address( es) set forth below.

D

BY FACSIMILE

by transmitting via facsimile the document(s) listed

above to the facsimile number(s) set forth below. I certify that said

transmission was completed without error and that a report was generated b

facsimile machine (949) 725-4100 which confirms said transmission.

D

BY OVERNIGHT DELIVERY:

by placing the document(s) listed above

in a sealed envelope with postage thereon fully prepaid, and delivering vi

overnight courier and addressed as set forth below, respectively.

BY MAIL: by placing the document(s) listed above in a sealed envelope

with postage thereon fully prepaid, in the United States Mail in Newpor

Beach, California, addressed as set forth below.

D

BY PERSONAL DELIVERY:

by causing personal delivery by

Nationwide Legal, Inc. of the document(s) listed above to the person(s) a

the address( es) set forth below

SEE

ATTACHED

SERVICE

LIST

I am readily familiar with the firm s practice of collection and processing

correspondence for mailing. Under that practice it would be deposited with the

U.S. Postal Service on that same day with postage thereon fully prepaid in the

ordinary course of

business. I am aware that on motion of the party served, service

is presumed invalid if postal cancellation date or postage meter date is more than

one day after the date of deposit for mailing in affidavit.

I declare under penalty

of

perjury under the laws

of

the State

of

California

that the above is true and correct.

Executed on August 1 2014, at Newport Beach, California.

/s/ Karen M. Hardy

Karen M. Hardy

CERTIFCATE OF SERVICE 5:14-cv-03084 (HRL)

DOCSOC/1674689v3/l 02910-0006




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Michelle A Welsh

Stoner, Welsh Schmidt

5 413 Forest Avenue

6

Pacific Grove, CA 93950-4201

Telephone: 831) 373-1993

7 Facsimile: 831) 373-1492

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SERVICE

LIST

v

City ofCarmel-by-the-Sea et

Court Case No. M128062

Attorney for

Plaintiff/Petitioner

Steven

clnchak

Documents

McINCHAK REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE.pdf