Terminating the Employment Relationship

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. 274 These are the only two options. The contracting agency may not appoint its own designee or hearing officer as the trier of fact. 275 At this stage, the appeal becomes more adversarial in nature and is conducted according to the Administrative Procedures Act, 276 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. 277 The contracting agency should be represented by an attorney at this stage. 8. I NVOLUNTARY D ISABILITY R ETIREMENT An involuntary disability retirement occurs where a CalPERS local agency retires a local safety member for disability against the desire or wishes of the local safety member. While a local safety member could also inform CalPERS that the member rejects the disability retirement, the member could still accept the disability retirement “under protest” simply to prevent a loss in compensation. However, a cceptance of the disability retirement “under protest” does not make the disability retirement any less involuntary. There are a number of concerns of which a public employer should be aware of before subjecting a member to an involuntary disability retirement. First, it results in a separation from employment and a drop in compensation to the extent the disability allowance is less than the member’s normal wages or salary. As such, the public employer should provide the member with adequate due process both before the disability retirement is approved and effectuated, as well as after. Pre-retirement due process should come in the form of a document such as a Notice of Intent to Disability Retire, or similar, and the right to respond, including the right to request a Skelly conference, which allows the member to address the governing board or the local agency’s delegate who is charged with making the determination on the application for disability retirement prior to the determination being made. Post-retirement due process will flow from the statutory appeal procedures normally available when a member disagrees with the outcome on an application for disability retirement. The procedures are similar to the procedures discussed above in Section 4, which addresses separating an employee because of a disability.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 78