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11- 3 CHAPTER 3: PROTECTION OF CITY OFFICERS AND EMPLOYEES FROM REPRISAL OR RETALIATION FOR DISCLOSING IMPROPER GOVERNMENTAL ACTION 11.03.01: DEFINITIONS: IMPROPER GOVERNMENTAL ACTION: Any action taken by an officer or employee in the performance of his official duties, whether or not the action is within the scope of his employment, which is: In violation of any state law or regulation; In violation of Fernley City Code, an ordinance adopted by the City Council, or an ordinance or regulation adopted by the appointing authority which employs the officer or employee; An abuse of authority; Of substantial and specific danger to the public health or safety; or A gross waste of public money. CITY: City of Fernley, County of Lyon, State of Nevada CITY EMPLOYEE: Any person who performs public duties under the direction and control of a City officer for compensation paid by or through the City. CITY OFFICER: A person elected or appointed to a position with the City that involves the exercise of a City power, trust or duty, as applicable, including: Actions taken in an official capacity which involve a substantial and material exercise of administrative discretion in the formulation of City policy; The expenditure of money of the City; or The enforcement of laws and regulations of the state, county, or City. REPRISAL OR RETALIATORY ACTION includes: The denial of adequate personnel to perform duties; Frequent replacement of members of the staff; Frequent and undesirable changes in the location of an office; The refusal to assign meaningful work; The issuance of letters of reprimand or evaluations of poor performance; A demotion; A reduction in pay; The denial of a promotion; A suspension; A dismissal; A transfer; Frequent changes in working hours or workdays; or If the employee is licensed or certified by an occupational licensing board, the filing with that board, by or on behalf of the employer, of a complaint concerning the employee, if such action is taken, in whole or in part because the City officer or employee disclosed information concerning improper governmental action. ---PAGE BREAK--- 11- 4 11.03.02: APPOINTMENT, QUALIFICATIONS AND AUTHORITY OF HEARING OFFICER, CITY MANAGER’S DUTIES: The City Council will periodically appoint a hearing officer or a panel of hearing officers from the recommendations made by the City manager. A person who wishes to serve as a hearing officer pursuant to this Chapter must: Possess a bachelor’s degree from an accredited college or university and have at least 4 years of professional experience in resolving disputes between opposing parties, 2 years of which included making determinations or adjudicating issues by interpreting statutes or administrative rules or regulations; Possess an associate’s degree from an accredited junior college or community college and have at least 5 years of professional experience in resolving disputes between opposing parties, 2 years of which included making determinations or adjudicating issues by interpreting statutes or administrative rules or regulations; Have at least 2 years of experience as a hearing officer with an administrative agency of the state; or Possess any other combination of education and experience which the City Manager deems to be equivalent to the education and experience required by paragraph 1, 2 or 3, and demonstrates to the satisfaction of the City Manager that he possesses the knowledge, skills, and abilities required by this subsection. In addition to those qualifications listed in subsection 2, a hearing officer must be able to: Interact effectively with all participants at a hearing in a manner which ensures an impartial, orderly proceeding; Work independently; Listen and analyze the evidence presented at a hearing and communicate effectively his decisions on motions and objections related to that evidence; Communicate effectively, orally and in writing with persons from a variety of social, economic and educational backgrounds; Render an impartial decision based on: The evidence presented at a hearing; and An objective analysis of applicable statutes, regulations and case law; Write decisions and opinions in a clear, concise and accurate manner; and Be knowledgeable of the provisions of state law and regulations, and City code relating to local governments. If the hearing officer determines that the action taken was reprisal or retaliatory action, the hearing officer may issue an order directing the proper person to desist and refrain from engaging in such action. The hearing officer shall file his decision with the City Manager, or other elected or appointed board responsible for the actions of that person and prepare a separate copy ---PAGE BREAK--- 11- 5 redacting identifying or sensitive information. The redacted copy of the decision of the hearing officer shall be made public. The City Manager, or the City Manager's designee, shall provide each officer and employee with a summary of the hearing officer’s determination. 11.03.03: WRITTEN APPEAL BY OFFICER OR EMPLOYEE WHO CLAIMS REPRISAL OR RETALIATORY ACTION WAS TAKEN: A City officer or employee who claims a reprisal or retaliatory action was taken against him for disclosing information concerning improper governmental action may file a written appeal with the City Manager. The appeal must be: Filed within 60 workdays after the date the alleged reprisal or retaliatory action took place. Submitted on a form provided by the City Manager. Contain a statement that sets forth with particularity: The facts and circumstances under which the discloser of improper governmental action was made; and The reprisal or retaliatory action that is alleged to have been taken against the City officer or employee. Upon receipt of the written appeal, the City Manager shall contact a hearing officer from among those who have qualified and been appointed by the Council. The City Manager shall ascertain whether the hearing officer has any conflicts which would prevent him from hearing the appeal. The hearing officer shall be entitled to reasonable compensation from the City for time spent hearing and determining the appeal, and for reasonable travel costs or other expenses incurred in hearing the appeal. The City Manager shall forward the written appeal to the hearing officer. The hearing officer may reject an appeal form that is incomplete or otherwise deficient as insufficient to commence appeal. 11.03.04: TIME FOR HEARING; CONTINUANCES: The hearing officer shall convene the hearing at the time and place specified for the purpose of hearing the appeal. Written notice of the time and place of the hearing must be given to the parties at least 10 days in advance. The notice must contain the information required for a party to request reasonable accommodation. The hearing officer shall provide reasonable accommodation to a party with a disability who requests such accommodation with the time sufficient to make the accommodation. Hearings may be continued beyond the period originally scheduled or recessed until a future date which is agreeable to the hearing officer and the parties if good cause is shown. 11.03.05: PROCEDURES FOR CONDUCT OF HEARING ON WRITTEN APPEAL; HEARING OFFICER’S DECISION: ---PAGE BREAK--- 11- 6 The provisions of this section govern the procedure for conducting a hearing for a written appeal filed pursuant to this chapter. The employee or officer filing the appeal may represent himself at the hearing or be represented by an attorney or other person of the employee’s or officer’s own choosing. All testimony must be under oath administered by the hearing officer. The appeal must be heard in the following manner: Opening statement for the officer or employee. Opening statement for the employer, unless reserved. Presentation of the officer’s or employee’s case followed by cross- examination. During the presentation of the officer’s or employee’s case, the county officer or employee must establish: The officer or employee was an officer or employee on the date of the alleged reprisal or retaliatory action; The officer or employee disclosed information concerning improper governmental action; and The alleged reprisal or retaliatory action was taken against him within 2 years after the date he disclosed the information concerning improper governmental action. If the officer or employee establishes the facts set forth in paragraph 11.03.05 D(3) presentation of the employer’s case, followed by cross- examination, to establish that the employer did not engage in the alleged reprisal or retaliatory action or that the action was taken for a legitimate business purpose and was not the result of the disclosure of information concerning improper governmental action by the officer of employee. If the employer establishes a legitimate business purpose for the alleged reprisal or retaliatory action, the officer or employee may introduce evidence, followed by cross examination, to demonstrate that the stated business purpose is a pretext for the reprisal or retaliatory action. The parties may respectively offer rebutting testimony only, unless the hearing officer permits additional evidence upon the original cause. Argument for the officer or employee. Argument for the employer. Closing argument for the officer or employee. Submission of the appeal for a decision. Except as otherwise provided in subsection F, all hearings on appeals must be open to the public. On the motion of either party, the hearing officer shall exclude from the hearing room witnesses in the matter not at the time under examination except the parties to the proceeding. No hearing may be closed except on motion of either party for good cause shown. A document or piece of physical evidence sought to be introduced during the hearing must first be identified for the record and the hearing officer may ---PAGE BREAK--- 11- 7 request the production of such records and the appearance of such persons as he requires. The hearing officer shall determine the evidence upon the charges and specifications as set forth by the appeal document, and shall not consider any additional evidence beyond the scope of the charges. An officer's or employee's past performance by way of an act or a failure to act may be shown by competent evidence. All testimony and exhibits offered at the hearing must be relevant and bear upon the matter in contention. Any testimony or exhibits which are considered by the hearing officer as not meeting this criterion may properly be excluded. The hearing officer shall also consider the objection of either side to the introduction of evidence. Competence and relevance must be the primary test in ruling on objections. A decision must be based on evidence presented. The hearing officer shall be guided in his decision by the weight of the evidence as it appears to him at the hearing. Any letter, paper or object offered in evidence must be properly authenticated. The representative for the opposing party is entitled to examine the exhibit when it is offered. The hearing officer shall render his decision within 30 days of the conclusion of the hearing. 11.03.06: PROHIBITIONS AND APPLICATION: An officer or employee shall not directly or indirectly use or attempt to use the officer’s or employee’s official authority or influence to intimidate, threaten, coerce, command, influence or attempt to intimidate, threaten, coerce, command or influence, another officer or employee, as applicable, in an effort interfere or prevent the disclosure of information concerning improper governmental action. For the purposes of this section, use of "official authority or influence" includes taking, directing others to take, recommending, processing or approving any personnel action, such as an appointment, promotion, transfer, assignment, reassignment, reinstatement, restoration, reemployment, evaluation or other disciplinary action. An officer or employee shall not use the provisions contained in this chapter to harass another officer or employee. Nothing contained in this chapter prohibits an officer or employee from initiating proper disciplinary procedures against another officer or employee, as applicable, who discloses untruthful information concerning improper governmental action. This chapter is intended to be directory and preventive rather than punitive, and do not abrogate or decrease the effect of any of the provisions of state statutes or City code provisions which define crimes or prescribe punishments with respect to the conduct of officers or employees.