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- Appeals process ordinance was adopted by Nephi City
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By Myrna Trauntvein
Times-News Correspondent
An appeals process ordinance was adopted by Nephi City Council.
"Denton Hatch, city attorney, developed an ordinance for your consideration and adoption," said Randy McKnight, city administrator. "This would, officially, put us in line with an ordinance as required by Utah Code."
The ordinance establishes an appeal process and grievance process for appointive officers and employees who are covered by Utah Code and the city's personnel policies establishing an appeal process.
Utah Code 10-3-1105 requires that all employees of municipalities, other than officers appointed by the Mayor or other person or body exercising executive power, police chief, deputy police chief, the fire chief, deputy or assistant fire chief, heads of departments, superintendents, probationary employee, part-time employee, or seasonal employee or others exempted will hold their employment without limitation of time, being subject to discharge or dismissal only as provided in Utah Code.
State code, city ordinances and policies require that an appeal board or hearing officer be established to handle appeals from the discharge or transfer to a position with less remuneration of certain employees and requires that the method and manner of choosing the members of the hearing officer be prescribed by the governing body of each municipality by ordinance.
"The ordinance you are considering tonight sets forth the policies and procedures needed to provide for the filing of grievances by certain employees of the city," said McKnight.
In all cases where an employee, who is not exempt, is discharged, suspended without pay for more than two days, or involuntarily transferred from one position to another one with less remuneration, that employee has the right to appeal.
Those exempted, in accordance with the ordinance are employees at will and have no rights to appeal unless specifically provided for in other city ordinances, an employment contract, or the city's personnel policies.
However, under personnel policies, all employees have the right to file grievances regarding the terms and conditions of employment with the city. Only grievances covered by code will have a right of appeal to a hearing or appeal officer.
"Those making an appeal must file written notice of the appeal with the city recorder within 10 days after the discharge or transfer or other action," said Hatch.
Upon the filing of the appeal, the city recorder will refer a copy of the appeal to the hearing officer. The hearing officer will then begin the investigation, take and receive evidence and fully hear and determine the matter.
The hearing officer will sustain the discharge, suspension or transfer if presented substantial evidence that cause existed for the action taken.
The hearing officer may resolve any grievance filed by an employee regarding terms and conditions of employment but only if such resolution does not infringe on the legislative or budgetary power of the council.
The appeals board consists of an impartial hearing officer appointed by the city for the purpose of conducting a hearing and ruling on the appeal or grievance. The individual should be a person with experience in law, human resources, mediation or arbitration.
"The hearing officer will be chosen for each appeal by the mayor," said McKnight. "It will likely be a different person for each appeal."
The hearing officer is to be impartial and have no personal or other conflicts of interest and the costs and expenses of the hearing and any fees paid to the hearing officer are the responsibility of the city.
When the hearing officer receives the assignment from the city, he/she is to conduct an investigation, take and receive evidence and fully hear and determine the matter.
The employee may appear in person and be represented by counsel, have a public hearing, confront the witnesses whose testimony is to be considered, and examine the evidence to be considered.
The hearing officer will uphold the disciplinary process and action imposed by the city if the officer finds that the city has presented sufficient evidence to justify the discipline imposed or finds that the grievance was not well taken.
"The city must have presented substantial evidence (more than a scintilla but less than preponderance), that the proposed transfer, suspension or termination is justified under the City's adopted personnel policies and procedures or that the grievance was not well taken," said Hatch.
The decision of the hearing officer will be certified to the city recorder within 15 days from the date the matter was referred to it or within any continued time period. The hearing officer may, as part of its decision, provide that the employee must receive his salary for the period of time during which he is discharged, suspended or any deficiency in salary for the period he was transferred to less pay.
A final action or order of the hearing officer may be appealed to the court of appeal by filing with that court a notice of appeal within 30 days after the issuance of the final action or order of the hearing officer.
"This ordinance shall become effective immediately upon publication after final passage," said Hatch.
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