Terminating the Employment Relationship

e. Does My Governing Board Have to Make the Determination? Generally, the governing board (e.g. city council, board of supervisors, etc.) must be the body that makes the determination as to whether a local safety member is substantially incapacitated from the performance of their usual job duties. However, the governing body may delegate its authority to a subordinate officer subject to any conditions it may impose (e.g. city manager, county administrative officer, civil service commission, etc.) 269 If the contracting agency chooses to delegate this authority, it must do so by ordinance or resolution. f. The Information Has Been Gathered, Now What? Once the agency receives relevant medical records and, when requested, results of any medical examination, the matter should be set on the agend a for the governing body’s regular or special meeting so that the governing body may make a determination. If the governing body has delegated the decision to a subordinate officer, the officer will make the decision without an agenda item for the governi ng body’s consideration. If the item is placed on the governing body’s agenda, an administrative officer should prepare a recommendation to the governing body based upon the review of all information. The matter should be considered in closed session, since it will involve the discussion of a personnel matter, as well as discussion of private medical information. 270 The member may address the governing body during the public comment portion prior to the closed session, or in closed session. The member is not entitled to remain in the closed session after addressing the governing body and while the governing body is considering its decision. g. What Information Must the Determination Contain? The resolution of the governing body, or the written decision of the governing body’s delegate, should contain at least the following elements:  A statement certifying under penalty of perjury that the determination was made based on competent medical opinion;  A statement certifying under penalty of perjury that the determination was not used as a substitute for the disciplinary process. A statement that CalPERS’ determination regarding the eligibility of the member to file an application was sought where required;  A finding indicating the member has been found to be substantially incapacitated from the performance of the usual duties of their position;  A statement confirming whether or not the member had filed a Workers’ Compensation claim(s) for their disabling condition(s). If so, a statement is required as to whether the claim(s) was accepted;  A finding by the employer as to whether or not the causation of the disability was industrial. In case of a dispute about the causation of the disability, the employer The action of the governing body may be taken in open session by an open vote. 271

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 76