3.75.040 Suspension without pay, demotion or dismissal, disciplinary hearings.
A. A suspension without pay, demotion, or a disciplinary dismissal, of an employee who is disciplined in accordance with this chapter, shall be accomplished and reviewed only in accordance with the procedures stated in this section.
B. Before any department head may dismiss, demote, or suspend an employee without pay, the employee shall receive written notice of intent to dismiss, demote, or suspend without pay (hereafter referred to in this section as “discipline”) containing a reasonably specific statement of the basis for the intended discipline and a notice of the employee’s entitlement to request a hearing with the mayor at which time such intended discipline will be reviewed. A copy of the written notice will be provided to the mayor.
C. The procedures for a pre-discipline hearing, if requested by the employee subject to discipline, shall be as follows:
1. The hearing shall be before the mayor. The mayor may appoint a designee to hold the hearing and provide a written report containing finding of facts and recommending a final decision to the mayor. The mayor may accept, modify, or reject the designee’s recommendation, and shall issue a final decision.
2. The employee’s request for a hearing must be in writing, signed by the employee (or representative or legal counsel of the employee), and delivered to the mayor’s office within five business days of receipt of the notice of intent to discipline described in subsection (A) of this section. The employee’s failure to request a pre-discipline hearing within the time and manner provided shall be deemed a waiver of the employee’s right to a hearing, and to any further review to which the employee might have otherwise been entitled. If an employee waives pre-disciplinary review, the city will implement the discipline described in the notice of intent.
3. If the employee requests a hearing, the mayor or his or her designee (collectively referred to in this section as “mayor”) will hold a hearing within 15 business days from the date of receipt of the request unless the date for the hearing is extended by the mayor. Absent exceptional circumstances, in no event will the hearing occur more than 30 calendar days following the employee’s request for a hearing. The mayor shall notify the employee of the date, time, and place of the hearing.
4. The employee, at his or her own expense, may be represented by legal counsel or another person of the employee’s choice.
5. At the request of the employee, the hearing may be open to the public.
6. All testimony shall be under oath. The proceedings shall be audio recorded. Upon written request, the employee is entitled to a copy of the audio recording at no charge. The employee or the employee’s representative, the city’s representative, and the mayor may question witnesses and introduce evidence. The hearing shall be informal, and the Alaska Rules of Evidence shall not apply. However, the mayor will exercise appropriate controls over the proceeding and the evidence presented, and irrelevant or unduly repetitious evidence shall be excluded.
7. The mayor shall determine the order of presentation at the hearing. The hearing shall, at a minimum, include the following:
a. Brief opening statement by the city;
b. Brief opening statement by the employee;
c. Presentation of evidence by city;
d. Presentation of evidence by the employee;
e. Rebuttal as necessary;
f. Argument by city;
g. Argument by employee;
h. Rebuttal argument by city; and
i. Surrebuttal argument by employee.
D. The city shall prove, by a preponderance of the evidence, that just cause exists to carry out the intended discipline, and then the employee must prove, by a preponderance of the evidence, that the city does not have just cause to carry out the intended discipline.
E. Unless the mayor orders otherwise, the employee shall continue to be paid pending issuance of the mayor’s decision.
F. The mayor shall exercise independent judgment as to the weight of the evidence presented by the parties.
G. The mayor shall issue a written decision no later than 15 business days after the close of the hearing. The decision shall include findings of fact and a statement of the reason(s) for the decision.
H. If the mayor does not find just cause to support the recommended discipline, the mayor may then impose a lesser form of discipline or may determine that no discipline of any nature shall be imposed.
I. The written decision will be placed in the employee’s central personnel file and a copy may be retained in the department evaluation file.
J. The mayor has the authority to negotiate separation agreements as a result of disciplinary action separations.
K. The affected employee may appeal the mayor’s decision by filing a written notice of appeal with the Alaska Superior Court for the Third Judicial District at Palmer in accordance with the Alaska Rules of Appellate Procedure. A notice of appeal must be filed within 30 calendar days after the employee’s receipt of the mayor’s decision. Appellate review is limited to whether or not substantial evidence exists, in light of the whole record, to support the mayor’s decision.
L. Disciplinary actions which have been the subject of a pre-discipline hearing may not be disputed by the grievance procedure provided in this chapter.
M. An employee may request that the suspension described in this section be removed from the employee’s central personnel file not earlier than 24 months after the first day the employee returns to work after a suspension. The request shall be submitted to the employee’s department head, in writing, signed and dated by the employee. The department head shall deliver his or her decision to the employee in writing within 14 business days of the date of the employee’s request. The decision to remove the suspension from the employee’s central personnel file is made solely at the discretion of the department head. A copy of the employee’s request and the department head’s decision shall be delivered to the mayor and to the human resources department and placed in the employee’s central personnel file and a copy may be retained in the department evaluation file.
N. If the department head denies the employee’s request to remove records of a suspension described in subsection (M) of this section, the employee may appeal the decision by submitting a written request for reconsideration to the mayor, signed and dated by the employee, and delivered to the mayor’s office, within five business days of the date of the department head’s decision. If an employee duly delivers his or her request for reconsideration of the department head’s decision, the mayor shall review the request and issue a written decision no later than 14 business days from the date of the reconsideration request. The decision shall include findings of fact and statement of the reason(s) for the decision. The decision of the mayor is final and may not be appealed. A copy of the final decision shall be distributed to the employee, the employee’s department head, and the human resources department for placement in the employee’s central personnel file. A copy may be retained in the department evaluation file.
O. All disciplinary actions are the property of the city and may not be destroyed for the length of service plus six years or the time required by the current city retention schedule. (Ord. 16-22 § 4, 2016; Ord. 03-33(SUB)(AM) § 2, 2003)