Terminating the Employment Relationship

 A notice that the local safety member has a designated number of days (e.g., 30 days) in which to appeal the governing body’s (or subordinate officer’s) determination from the date of receipt of the determination upon the member.

In some instances, the industrial causation may be disputed or unknown at the time the determination is made that the member qualifies for a disability retirement. In those cases, the governing board or subordinate officer may indicate that the determination of causation has been reserved until a finding is made by the Workers Compensation Appeals Board and that the employee is otherwise qualified for a non-industrial disability retirement. h. What Do I Do After the Determination Is Made? The governing body or subordinate officer must send the resolution or written decision to CalPERS as a certification of the contracting agency’s decision. 264 A copy of the governing body’s determination (or subordinate officer) along with a cover letter should be provided to the employee by certified, return receipt mail, or by personal service, along with a proof of service. The agency should be sure that the determination clearly informs the member that he or she has a designated number of days (30 days is commonly used) from the date the determination is received or personally served in which to file a notice of appeal from the agency’s decision. 265 The agency is not required to, but should include a copy of Government Code sections 21150- 21176 (PERS statutes pertaining to disability retirement) with the determination. If the decision was made by a delegate, the resolution or ordinance delegating the governing body’s authority should be attached as well. i. What Happens If the Local Safety Member Appeals? A local safety member may appeal the determination of the governing body by filing a request for appeal directly with the contracting public agency within the number of days designated by the agency in the notification of the agency’s decision. Once received, the agency must prepare for the appeal. The appeal must be heard either: (1) alone by an administrative law judge from the Office of Administrative Hearings who will render a “proposed” decision to the local governing body; or (2) the governing body, with an administrative law judge of the Office of Administrative Hearings presiding. 266 These are the only two options. The contracting agency may not appoint its own designee or hearing officer as the trier of fact. 267 At this stage, the appeal becomes more adversarial in nature and is conducted according to the Administrative Procedures Act, 268 which is akin to an administrative trial with rules of evidence, procedure and discovery. The burden of proof is on the party who alleges that the member is qualified for a disability retirement. 269 The contracting agency should be represented by an attorney at this stage.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 76