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HomeMy WebLinkAboutResolution No. 05-6885 MOU Police Mgmt.MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF DOWNEY AND THE DOWNEY POLICE MANAGEMENT ASSOCIATION November 1, 2005 — October 31, 2008 MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF DOWNEY AND THE DOWNEY POLICE MANAGEMENT ASSOCIATION ARTICLE NO. TITLE OF ARTICLE PAGE NO. I RECOGNITION 1 11 NON - DISCRIMINATION 1 III BASIC COMPENSATION PLAN 2 Sec. 1 — Salary Increase 2 Sec. 2 — Salary Ranges 2 Sec. 3 — Eligibility for Merit Salary Advancement 2 Sec. 4 — Merit Longevity 3 Sec. 5 — Education Incentive Pay 3 Sec. 6 — Court Time /Call in Pay 4 Sec. 7 — Uniform Allowance 4 Sec. 8 — Standby Compensation — Weekend 5 Sec. 9 — Bilingual Pay 5 Sec. 10 - Acting Captain Pay 5 IV WORK WEEK 5 Sec. 1 — Regular Work Week 5 Sec. 2 — Normal Work Week Schedule 5 Sec. 3 — Changes in Normal Work Week Schedule 6 V OVERTIME (COMPENSATORY TIME) 6 Sec. 1 — Compensation for Overtime 6 Sec. 2 — Overtime Policy 6 Sec. 3 — Exclusions 6 VI HOLIDAYS 6 Sec. 1 — Holidays 6 Sec. 2 Holidays Provided 7 VII VACATION 7 Sec. 1 — Accruals 7 Sec. 2 — Accrual Limits 8 Sec. 3 — Vacation Payoff 8 Sec. 4 — Accrual Calculation 8 Sec. 5 — Eligibility for Payoff 8 Sec. 6 — Prorated Accrual 8 VIII LEAVES OF ABSENCE 8 IX XI XII XIII XIV Sec. 1 — Leaves of Absence Without Pay Sec. 2 — Notice of Return to Work Sec. 3 — Outside Employment While on Leave Sec. 4 — Sick Leave Sec. 5 — Emergency Leave Sec. 6 — Workers' Compensation Injury on Duty Sec. 7 — Employee Disability Leave Sec. 8 — Military Leave Sec. 9 — Jury Duty Sec. 10 — Executive Leave FRINGE BENEFIT ADMINISTRATION Sec. 1 — Administration Sec. 2 — Selection and Funding Sec. 3 — Changes X HEALTH, DENTAL AND LIFE INSURANCE Sec. 1 — Medical Insurance Sec. 2 — Employee Withdrawal from City Health Plans Sec. 3 — Dental Insurance Sec. 4 — Life Insurance Sec. 5 — Long -Term Disability Insurance RETIREMENT Sec. 1 — PERS Coverage Sec. 2 — Employee's PERS Contribution Sec. 3 — Retiree Medical Annuity Sec. 4 - 3% at age 50 TUITION REIMBURSEMENT PROBATIONARY PERIOD Sec. 1 — Length of Probation /Extensions Sec. 2 — Process for Retention /Termination Sec. 3 — First of the Month SENIORITY Sec. 1 — Sec. 2 — Sec. 3 — Sec. 4 — Definition Probationary Employees Excluded Layoff and Recall Bumping Rights ii 8 8 9 9 10 10 10 11 11 12 12 12 12 12 12 12 13 13 13 13 14 14 14 14 15 15 15 15 15 15 16 16 16 16 16 XV CITY RIGHTS 16 Sec. 1 — Management Rights 16 Sec. 2 — Impact of Management Rights 17 Sec. 3 — Health and Safety 17 XVI EMPLOYEE ORGANIZATION RIGHTS AND RESPONSIBILITIES 17 Sec. 1 — Dues Deductions 17 Sec. 2 — Indemnification 17 XVII NO STRIKE — NO LOCKOUT 17 Sec. 1 — No Job Action 17 Sec. 2 — No Lockout 18 Sec. 3 — Consequence for Prohibited Conduct 18 Sec. 4 — Suspension of Employee Organization Rights 18 Sec. 5 — Association Responsibility 18 Sec. 6 — Hold Harmless 18 XVIII GRIEVANCE PROCEDURE 18 Sec. 1 — Grievance 18 Sec. 2 — Conduct of the Grievance Procedure 18 Sec. 3 — Grievance Steps 19 XIX MISCELLANEOUS 20 Sec. 1 — Third Party Legal Actions 20 Sec. 2 — Substance Abuse Policy 20 XX SOLE AND ENTIRE MEMORADUM OF UNDERSTANDING 22 Sec. 1 — Sole Source 22 Sec. 2 — Inclusion of Other Rules and Regulations 22 XXI WAIVER OF BARGAINING DURING TERM OF THIS 22 AGREEMENT XXII EMERGENCY WAIVER PROVISION 22 XXIII SEPARABILITY 23 XXIV TERM OF MEMORANDUM OF UNDERSTANDING 23 XXV RATIFICATION AND EXECUTION 23 iii MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DOWNEY AND THE DOWNEY POLICE MANAGEMENT ASSOCIATION ARTICLE I RECOGNITION Pursuant to the provisions of the Employee Relations Ordinance of the City of Downey, the City of Downey (hereinafter called the "City ") has recognized the Downey Police Management Association (hereinafter called the "Association ") as the majority representative of sworn personnel members of the Downey Police Management Association including all employees in classifications listed on Exhibit A, excluding all other personnel of the Police Department. The City has recognized the Downey Police Management Association for the purpose of meeting its obligations under the Meyers - Milias -Brown Act, Government Code Section 3500 et seq, and the Employee Relations Ordinance of the City when City rules, regulations or laws affecting wages, hours or other terms and conditions of employment are amended or changed. ARTICLE II NON - DISCRIMINATION Section 1. The parties mutually recognize and agree to protect the rights of all employees hereby to join and /or participate in protected Association activities or to refrain from joining or participating in protected activities in accordance with the Employee Relations Ordinance and Government Code Sections 3500 to 3511. Section 2. The City and the Association agree that they shall not discriminate against any employee because of race, color, sex, age, national origin, political or religious opinions or affiliations. The City and the Association shall reopen any provisions of this Agreement for the purpose of complying with any final order of a federal or state agency or court of competent jurisdiction requiring a modification or change in any provision or provisions of this Agreement in compliance with State or Federal anti - discrimination laws. Section 3. Whenever the masculine gender is used in this Memorandum of Understanding, it shall be understood to include the feminine gender. Section 4. The City and Association agree to comply with applicable State and Federal laws and regulations regarding employment of the handicapped. 1 ARTICLE III BASIC COMPENSATION PLAN Section 1. Salary Increases /Adjustments /Retroactive Pay. A. All employees covered by this Memorandum of Understanding shall receive the following salary increases: 1. Effective June 20, 2005 - five per cent (5 %). Employees who are on payroll the date of the adoption of the agreement and employees who have retired after July 1, 2005 shall be eligible for the retroactive adjustment. 2. Effective June 26, 2006 - four per cent (4 %). 3. Effective June 25, 2007 — four per cent (4 %). Section 2. Salary Ranges. Salary ranges shall be established to reflect the relative value of classifications covered by this Memorandum of Understanding. The salary ranges will have a spread of approximately 22% from the minimum to maximum figures with no set steps in between. A. Description of Schedules. The Pay Plan consists of a set of monthly salary schedules. Each schedule is designated by a schedule number, as approved by Council resolution. B. Hourly Equivalent Calculation. For payroll purposes, the hourly equivalent of a rate which includes all forms of pay shall be computed by dividing twelve (12) times the monthly rate by fifty -two (52) times the number of working hours per week (40) Section 3. Eligibility for Merit Salary Advancement. A. Progression Within the Salary Range. The minimum salary in the range would be appropriate for a new employee who minimally satisfied job requirements. The top of the range is reserved for employees who perform at the highest level of proficiency expected. Employees, both upon appointment and during the course of their employment, may receive any salary amount not to exceed the maximum of their range. Generally, a new employee is not considered for a merit increase before twelve (12) months of employment. Thereafter, employees will be reviewed for merit salary increases annually in conjunction with the employee's anniversary date. However, employees will not be considered for merit increases after reaching the end of the respective salary range. Employees may be granted merit salary adjustments more frequently than every twelve (12) months with prior City Manager approval. The sole consideration in the granting of merit increases shall be job performance, as indicated in a detailed corresponding Management Performance Evaluation Report. The following shall apply in the granting of such merit salary increases. 1. Merit salary adjustments for Captains and Lieutenants shall be made upon recommendation and approval of the Chief of Police. 2 2. Merit adjustments must be approved by the City Manager. The Chief of Police will provide their evaluation and proposed merit adjustment to the City Manager prior to giving it to the employee. 3. The amount of merit salary adjustment shall be directly related to the employee's progress in satisfying performance expectations. Generally, employees rated as having satisfactory performance will receive a minimum increase of 5.5 %. Adjustments up to 10% within the salary range are permitted. Also, while salary adjustments will normally involve increases, reductions may be made in instances of unsatisfactory performance. 4. After an employee reaches the top of the salary range, the level of proficiency appropriate to that salary rate must be maintained or the employee's salary may drop below the maximum. This may occur through a direct salary reduction or the employee may not be granted increases which may be possible due to adjustments in the range. 5. Salary ranges for Police Captain and Police Lieutenant shall be adjusted at such time as the City grants cost -of- living adjustments to the rank - and -file employees unless the City Council directs to the contrary. The amount of such cost -of- living adjustments granted to the management classifications will be no less than that granted to the Police Officers' Association. In such instances where salary ranges are increased for cost -of- living purposes, the individual employee salaries will be increased in proportion to the amount of the range adjustment, provided that for reasons of unsatisfactory performance an individual employee may be denied such an adjustment. All salary range adjustments shall require the adoption of a resolution by the City Council. Section 4. Merit Longevity. A. Eligibility for Merit Longevity. Upon approval of the appointing power, Police Lieutenants who have completed five (5), ten (10) and twenty (20) continuous years of service with the City of Downey may receive merit longevity pay adjustments as follows. Effective December 23, 2002, years of service served as a POST certified Peace Officer in another agency shall apply toward longevity eligibility as though earned in Downey. Service Compensation Adiustment 5 years One -half (1/2) step above the monthly base rate (2.75 %) 10 years One (1) step above the monthly base rate (5.5 %) 20 years One and one -half (1 -1/2) steps above the monthly base rate (8.25 %) Section 5. Education Incentive Pay. Employees covered by this Agreement shall receive additional compensation at the following rates upon attainment of the applicable educational level. A. 2.75% per month for Associate in Arts degree and /or Intermediate Police Officers Standards and Training Certificate. Effective January 6, 2003, an additional 1.25% shall be paid for degree and /or certificate (for a total of 4 %). B. 5.5% per month for Bachelor's degree or Advanced Police Officers Standards and Training certificate. Effective January 6, 2003, an additional 2.00% shall be paid for degree and /or certificate (for a total of 7.5 %). 3 C. Degrees stated above may be substituted by equivalent college units. Equivalent Bachelor's degree units must be one -half lower division and one -half upper division of the total units required for the degree. Section 6. Court Time /Call in Pay A. Court time is time required to be spent by Police Lieutenants in response to a subpoena, a coroner's inquest, a hearing or trial on a civil action on behalf of the City, or criminal case at a time other than that regularly required of such employee for his employment, for the purpose of testifying as to knowledge acquired in the course of his employment with the City. This definition shall apply to subpoenas issued for taking of depositions. Employees who are off duty on sick leave benefits, as described in Article VIII, Section 4, of this Agreement, or Workers' Compensation as described in Article VIII, Section 6, or when testifying at any grievance, City Council or other hearing on behalf of himself, another employee or the Association, shall not accrue additional time or compensation as court time. B. Compensation for Court Time. Any off duty Police Lieutenant shall be compensated at the rate of time and one -half as follows: 1. Criminal Witness: He shall be paid at the applicable hourly rate or, with the approval of the Chief of Police he may, in lieu of pay, accumulate any portion of his court time and take an equivalent leave of absence. The accumulation of court time to be used as leave of absence shall be limited to the number of hours earned for which such members have not been otherwise compensated at the member's applicable hourly rate of pay. 2. Civil Witness (in line of duty): Any such officer shall receive his normal salary (and expenses, if any) from his employer for time at court and to and from court, while testifying in any civil case on behalf of the City. 3. Payments: Payments under this Section shall be on the regular payday following such court appearance. The Chief of Police shall make a report to the Director of Finance prior to each pay date, listing the member's earning benefits under this Section. Such report shall indicate the court time each member earned in the previous pay period and whether he has elected to receive equivalent time as leave of absence pay when appearing as a witness. 4. Standby Compensation: Minimum standby time for court assignments shall be compensated at the rate of time and one -half as follows: a. Two (2) hours pay for the morning standby. b. Two (2) hours pay for the afternoon standby. c. If the employee is called into court, or called in for duty, he shall be paid three hours or the actual number of hours in court or worked whichever is greater. Section 7. Uniform Allowance. A. Required uniforms of Police Management personnel which become worn may, at the discretion of the Chief of Police, be surveyed and replaced as necessary. The Chief of Police shall permit maximum discretion of the employees in the selection of items of the uniform provided, however, that the officer shall meet uniform standards within ten (10) working days after notice. 4 B. Effective July 1, 2005, employees covered by this MOU will receive $175.00 annually, payable the first payroll period in July, for the purpose of maintaining their uniforms. Uniforms shall be maintained in accordance with Section 5.0 of the Manual of the Downey Police Department. Section 8. Standby Compensation - Weekend. A. Duty Chief Compensation - Police Captains. Any Police Captain designated by the Chief of Police to be a weekend duty chief or to be on standby on weekends and /or holidays, shall be compensated at a rate of five (5) hours compensatory time for each on -call duty day. Police Captains may request to have accrued compensation time cashed out. B. Duty Supervisor - Police Lieutenants. Any sworn unit member who is designated by management to be the Duty Supervisor or to be on standby on weekends and /or holidays shall be compensated for standby time at ten (10) hours compensatory time for Saturday and Sunday and five (5) hours compensatory time for a holiday on a day that City Hall is closed. The Duty Supervisor or any unit member designated by management to be on standby shall be required to carry a beeper and answer all calls from the department in a timely manner. C. Week -ends are defined as starting at 5:00 p.m. Friday and ending at 7:00 a.m. Monday. Section 9. Bilingual Pay. Employees required to speak or translate Spanish as part of their regular duties will be compensated $23.08 per bi- weekly pay period in addition to their regular salary. The Chief of Police has the authority and discretion to assign and /or remove this bonus up to budget authority. To be eligible for this assignment, the employee must pass a conversational examination administered by a court certified interpreter, or an employee who has been certified by the Personnel Director to administer such examination. Employee must recertify at least every eighteen (18) months to maintain the eligibility. Effective December 30, 1999, bilingual pay will be compensated at $46.15 per biweekly pay period. Section 10. Acting Captain Pay. A Police Lieutenant is eligible to receive acting pay of 5.5% when assigned to serve in an acting capacity. The department shall not fill a vacant Captain position with an Acting Captain for more than thirty (30) calendar days. Serving in an acting capacity shall not be used as a basis for, or in support of, a request for reclassification. ARTICLE IV WORK WEEK Section 1. Regular Work Week. The regular work week for all employees covered by this Agreement shall be forty (40) hours per week. Section 2. Normal Work Week Schedule. In order to provide for the public safety and efficiency of operation, the Chief of Police shall have the authority to allocate resources and establish work schedules of employees in work periods of five (5) or four (4) days. For sworn personnel, the normal work week shall consist of four (4) ten -hour work days with lunch included. If, in the opinion of the Chief of Police, restructuring of the normal work day or work week becomes necessary for the purpose of promoting efficiency, nothing herein shall be construed as preventing the Chief of Police from restructuring the normal work day or week of individual employees. Section 3. Changes in Normal Work Week Schedule. If, in the opinion of the Chief of Police, it 5 should become necessary to establish schedules departing from the normal work day or work week, the Chief of Police shall give written notice of such change as far in advance as is reasonably practical. If the change is other than on an individual basis, the City shall meet and confer with the Association regarding the impact of the decision prior to implementing a general change. Section 1. Compensation for Overtime. All authorized overtime for employees shall be paid at time and one -half the regular hourly rate of pay for such employees. Overtime shall be paid on all hours worked in excess of forty (40) hours in the employee's work week and for all hours worked in excess of a normal shift. All paid leave shall be counted as hours worked. Employees may elect to accumulate compensatory time in lieu of taking overtime pay. The City -shall pay off all CTO hours in excess of 300 hours as of February 1 of each year. Section 2. Overtime Policy. It is the policy of the City that overtime work is to be discouraged. However, in cases of emergency or whenever public interest or necessity requires, any department or division head may require any employee in such department or division to perform overtime work. The projects and types of work for which overtime may be authorized shall be approved in advance by the City Manager; except, in the event of emergency, overtime may be authorized by the department head or his designate. Section 3. Exclusions. Police Captains are specifically excluded from overtime compensation of any type. ARTICLE VI HOLIDAYS Section 1. Holidays. Employees covered by this Agreement shall receive eleven (11) holidays each year, which shall be compensated as follows: PERSONNEL ON A 10 -HOUR SHIFT A. If an employee is required to work on a scheduled holiday, he /she will receive the ten (10) hours of holiday pay. In addition, the employee will receive fifteen (15) hours of compensation for having worked on the holiday. The fifteen (15) additional hours of holiday compensation may be taken in the form of compensatory time off. B. If a scheduled holiday falls on the employee's regular day off, he /she will receive ten (10) hours of compensatory time off. No additional holiday compensation will be provided. C. If an employee, having obtained prior authorization, takes a scheduled holiday off, he /she will receive ten (10) hours of holiday pay for the day off and no additional compensation. PERSONNEL ON A 9 -80 SCHEDULE ARTICLE V OVERTIME (COMPENSATORY TIME) A. If an employee is required to work on a scheduled holiday that falls on a scheduled hour day, he /she will receive the nine (9) hours of holiday pay. In addition, the employee will receive thirteen and one -half (13.5) hours of compensation for having worked the holiday. The thirteen and one -half (13.5) additional hours of holiday compensation may be taken in the form of compensatory time off. 6 B. If a scheduled holiday falls on the employee's regular day off, he /she will receive nine (9) hours of compensatory time off. No additional holiday compensation will be provided. C. If an employee, having obtained prior authorization, takes a scheduled holiday off, he /she will receive nine (9) hours of holiday pay for the day off and no additional compensation. D. If the holiday falls on the scheduled eight -hour day, the eight (8) hour shift benefit described below shall apply. PERSONNEL ON AN 8 -HOUR SHIFT A. If an employee is required to work on a scheduled holiday, he /she will receive the eight (8) hours of holiday pay. In addition, the employee will receive twelve (12) hours of compensation for having worked on the holiday. The twelve (12) additional hours may be taken in the form of compensatory time off. B. If a scheduled holiday falls on an employee's regular day off, he /she will receive eight (8) hours of compensatory time off. No additional holiday compensation will be provided. C. If an employee, having obtained prior authorization, takes a scheduled holiday off, he /she will receive eight (8) hours of holiday credit for the day off and no additional compensation. Section 2. Holidays Provided. The eleven (11) holidays are as follows: 1. New Year's Day 2. Martin Luther King Birthday 3. Washington's Birthday (President's Day) 4. Memorial Day 5. Independence Day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day After Thanksgiving 10. Day Before Christmas 11. Christmas Day ARTICLE VII VACATION Section 1. Accruals. Police management employees covered by this Agreement shall accrue vacation leave with pay on the following scheduled basis: Years of Service Hours per Year 7 0 -5 120 6 -10 136 11+ 160 Section 2. Accrual Limits. Vacation shall be taken at the convenience of the City with the approval of the department head. Where possible, such vacation should be taken annually and not accumulated from year to year. All eligible employees, however, shall be allowed to accumulate two (2) years allowance of vacation. If the employee is prohibited by the supervisor from taking the employee's vacation because of manpower shortages or operational needs, the employee shall be paid all vacation in excess of two (2) years at the rate earned at the time the employee would have taken his or her vacation. All accumulated vacation in excess of two (2) years shall be taken off within ninety (90) days at a time mutually agreeable to both the supervisor and the employee. If at all possible, the supervisor shall accommodate the employee's desires as to the taking of vacations. If the employee does not take the excess vacation time off within the ninety (90) days, the employee will forfeit this excess time. Section 3. Vacation Payoff. When an employee who has become entitled to receive vacation under this Article separates from City service, either by retirement, permanent layoff or termination, the employee shall be entitled to be paid for unused earned vacation at the rate of pay in effect at the time of separation. Section 4. Accrual Calculation. Vacation shall be accrued on a monthly basis by dividing twelve (12) into the number of hours per year to which the employee is eligible to receive based upon the employee's years of service with the City. Section 5. Eligibility For Payoff. Employees who are separated from their employment with the City after completion of the probationary period, shall be paid all accrued vacation at the employee's current vacation schedule and hourly rate. The employee shall be entitled to be paid for accrued vacation for each full month of service worked by the employee during the employee's employment with the City. Section 6. Prorated Accrual. In the event any employee is on payroll 15 days or more but less than a full month, he shall be entitled to receive one -half (%2) of his monthly vacation accrual. An employee who is on payroll less than 15 days shall not be entitled to receive any vacation accrual proration for the last month worked. ARTICLE VIII LEAVES OF ABSENCE Section 1. Leaves of Absence Without Pay. The City Manager and /or the City Council may grant a permanent employee a leave of absence for a specific purpose without pay for a period not to exceed up to one (1) year. No such leave shall be granted except upon written request of the employee. Approval shall be in writing and a copy filed with the Personnel Office of the City. Upon expiration of a regularly approved leave, the employee shall be reinstated in the position held at the time the leave was granted. The employee shall report promptly upon the expiration of any leave granted. Failure to report within a twenty -four (24) hour period after expiration of the leave shall be considered a voluntary resignation, provided that the employee may appeal this automatic termination through the grievance procedure as though it were a non - voluntary termination. No employment or fringe benefits such as, but not limited to, sick leave, vacation, health insurance, retirement or any other benefit shall accrue to any employee during leave of absence without pay. 8 Section 2. Notice of Return to Work. An employee on leave of absence must give the City at least seven (7) days written notice of the employee's intent to return to work. Section 3. Outside Employment While on Leave. An employee who engages in outside employment during said leave of absence without prior approval of the City Manager shall be subject to termination. Any employee who falsified a reason for the request for said leave of absence or any extension of such leave of absence may be terminated for falsifying such request. Section 4. Sick Leave. A. Sick leave shall be defined as absence from duty because of illness or off - the -job injury, or exposure to contagious diseases as evidenced by certification from an accepted medical authority. B. Sick leave shall be accrued at the rate of ten (10) hours per month. Sick leave shall not be considered as a privilege that an employee may use at his discretion but shall be allowed only in case of necessity and actual sickness or disability. Unused sick leave shall be accrued at the rate of one hundred, twenty (120) hours per year without limit on accumulation. C. In order to receive compensation while absent on sick leave, the employee shall notify a designated supervisor at least one -half (%2) an hour prior to the start of designated duty. In all instances, if an employee is incapacitated, notification shall be waived until a reasonable period has elapsed. For any such absence, the employee shall file a written statement with the City Manager stating the cause of the absence. When the absence is for three (3) work days or more, the department head may require a physician's certificate stating the cause of absence before said leave shall be approved by the City Manager. D. The right to benefits under the sick leave plan shall continue only during the period that the employee is employed by the City. This plan shall not give any employee the right to be retained in the service of the City, or any right of claim to sickness disability benefits after separation from the service of the City. E. Notwithstanding anything contained in this Section, no employee shall be entitled to receive any payment or other compensation from the City while absent from duty by reason of injuries or disability received as a result in engaging in employment other than employment by the City for monetary gain or other compensation, or by reason of engaging in business or activity for monetary gain or other compensation other than business or activity connected with City employment. F. At the written request of the appointing authority, the City Manager may require an employee to submit to an examination by the City's physician, and if the results of the examination indicate the employee is unable to perform his duties, or in the performance of his duties exposes others to infection, the employee shall be placed on sick leave without privilege of reinstatement until adequate medical evidence is submitted that the employee is competent to perform his duties or will not subject others to infection. Any employee so examined shall have the right to submit the reports of a competent medical authority of his own selection, and at his own expense, in addition to the report submitted by the City physician. In the event of a conflict of opinion and /or recommendation of the two physicians, a third physician shall be selected by the first two physicians and the final decision shall be made by the City Manager based upon the medical evidence submitted to him. G. Sick Leave Conversion 9 1. Upon retirement of an eligible employee, 90% of an employee's unused accumulated sick leave shall be deposited into the City Retirement Health Savings Plan to be used for eligible medical expenses. The maximum number of hours that will be deposited is 1,575 (90% of 1,750). For employees who retire and who are not enrolled into Medicare, 100% of the employee's unused accumulated sick (maximum amount is 1,750 hours) shall be deposited into the City Retirement Health Savings Plan. H. Accrued sick leave shall be valued for the purpose of Section G above for employees hired on or after June 30,1974, only on the following basis: 1. Sick leave earned on or after July 1,1974, shall be calculated at the rate prevailing at the end of the fiscal year in which it was earned. 2. Sick leave taken shall be deducted from the oldest, lowest value accrued sick leave first, provided, however, when an employee takes sick leave, the employee shall receive for each day of sick leave one (1) day's pay at the employee's rate of pay in effect at the time of taking sick leave. For covered employees hired prior to June 30, 1974; and/ or retirees with 20 years of City service, or retirees with a physical disability, or a psychological disability resulting from a direct consequence of a violent act, sick leave shall be converted at the prevailing rate. I. Employees who have accrued three - hundred sixty (360) hours of sick leave, may convert each two (2) hours of accumulated sick leave to one (1) additional hour of vacation, providing that not more than eighty (80) hours of additional vacation days may be so converted in any one (1) fiscal year. Employees who have made conversions during the past two years, may reverse the conversions made for those years provided that the employee has sufficient vacation hours. J. Sick Leave Payoff Upon Layoff. In the event of a permanent or indefinite layoff, an employee with ten (10) years of continuous service with the City shall be entitled to the above benefit. If such employee resigns after receiving official notification of his impending layoff, he shall be eligible for the above benefit. Section 5. Emergency Leave. A. Any employee who is absent from work by reason of attendance upon members of the immediate family, whose incapacitation requires the care of such employee, or death in the immediate family of the employee, may be allowed emergency leave with pay not to exceed six (6) work days per incident on the basis of one -half (1/2) work day for each month of regular employment, which is deducted from accumulated sick leave. Immediate family shall include and be limited to mother, father, brother, sister, spouse, child, current in -laws, and grandparents of any eligible employee of the City. B. For absences under this Section exceeding a total of three (3) working days in any six month (6 mo.) period, a physician's certificate verifying the leave basis may be required by the City Manager or department head. All such claims for emergency leave are subject to verification by the City Manager. Section 6. Workers' Compensation Injury on Duty. Employees covered by this Agreement shall be entitled to all rights provided under Section 4850 of the Labor Code. Section 7. Employee Disability Leave. 10 A. This Section establishes a disability leave plan at seventy -five percent (75 %) of the base salary for employees having more than one (1) year continuous service with the City and who have exhausted all accumulated sick leave, vacation and compensatory time due to non - industrial illness or injury under the following eligibility schedule: Maximum Time Allowance (Working Hours) Years of Service Before Reimbursement Additional After Reimb. Total 1 through 5 240 120 360 6 through 10 360 180 540 Over 10 480 240 720 B. Application for disability leave shall be made by the employee to the City Manager through the department head, accompanied by full medical justification from a physician chosen by the City at the direction of the City. Failure to submit to such an examination shall be a basis for terminating disability leave. If the City Manager approves the application, he shall notify the employee of such approval in writing. C. After the employee returns to work, the employee shall reimburse the City one -half (%2) of the time used for such employee disability leave at a minimum rate of one -half (%2) day of sick leave per month or may contribute vacation to accelerate employee's reimbursement to the City for providing the benefits under this Article. D. When the "maximum time allowance" has been reimbursed as set forth above, the employee shall be eligible to apply for additional disability leave on the basis of one (1) day's leave for each half (%2) day reimbursed to the City; provided that no employee shall receive more than the "total" set forth above for his length of service, during his entire employment with the City. E. Disability leave shall not deprive an employee of his rights to vacation and sick leave accumulation during such leave. F. Grounds for termination of disability leave by the City Manager shall include, but not be limited to, the following reasons: 1. The employee has recovered from his illness or injury. 2. The leave is being used as a pre- retirement leave for purpose of postponing retirement or pension. 3. The disability leave was procured by fraud, misrepresentation or mistake. 4. The employee has not cooperated fully in supplying all information and submitting to any examination requested by the City to determine the existence or continuing nature of the employee's disability. Section 8. Military Leave. Military Leave shall be granted in accordance with the provisions of state and /or federal law. All employees entitled to military leave shall give the appointing power an opportunity, within the limits of military regulations to determine when such leave shall be taken. Section 9. Jury Duty. The City will not provide release time forjury duty to employees covered by this Agreement. If the State and /or Federal Court Jury Commissioners rescind their present policy of granting exemptions from jury service to persons who do not receive paid release time for jury duty from their employers, so as to require jury duty service despite the absence of such pay from their employer, then the City's practice of providing paid leave time to employees forjury duty shall 11 be reinstated immediately upon the effective date of such change for the applicable State and /or Federal Court. A. In the event that an employee is called for jury duty and wishes to serve, accrued vacation leave, compensatory time or a leave of absence without pay shall be granted subject to the scheduling requirements of the City. B. In the event that the court fully reimburses the City for the full salary of an employee on jury duty, the City will immediately reinstate the practice of providing paid release time to employees for jury duty. C. In the event that an employee is called for jury duty and the court does not excuse jury service based on the non - payment of salary by the employer, the City shall grant said employee paid release time for the required jury duty. Section 10. Executive Leave. Police Captains and Police Lieutenants (effective July 1, 1995) are eligible for one (1) day of Executive Leave each four months. This leave should be used within the specified time. This leave may not be carried forward from one calendar year to another. ARTICLE IX FRINGE BENEFIT ADMINISTRATION Section 1. Administration. The City reserves the right to select the insurance carrier or administer any fringe benefit programs that exist during the term of this Memorandum of Understanding except dental insurance. Section 2. Selection and Funding. In the administration of the fringe benefit programs, the City shall have the right to select any insurance carrier or other method of providing coverage to fund the benefits included under the terms of this Memorandum of Understanding, provided that the benefits of the employees shall be no less than those in existence as of the implementation of this Agreement. Section 3. Changes. If, during the term of this Memorandum of Understanding, any change of insurance carrier or method of funding for any benefit provided hereunder occurs, the City shall meet with and discuss the matter prior to any change of insurance carrier or method of funding the coverage. ARTICLE X HEALTH, DENTAL AND LIFE INSURANCE Section 1. Medical Insurance. The City shall continue to contribute to a medical benefit package for the employees at 100% of the premium specified by the carrier during the life of this Agreement. If an employee dies in the line of duty, the surviving spouse and eligible dependents shall be able to continue coverage by paying the appropriate premium. Effective November 1, 2000, the City agrees to add to the Kaiser Plan the benefit of eyeglass lenses every twenty -four months with a $70 frame allowance. B. Citywide Medical Committee - A Committee, consisting of one representative appointed from each Employee Association will be created for the purpose of studying the City Medical plans with the goal of reducing the cost of the plans and developing improved retiree medical benefits. No changes to the existing health benefits will be made without written approval of both parties. 12 Section 2. Employee withdrawal from City health plan. The City agrees to permit an employee to withdraw from the City health plan as follows: A. The employee is either enrolled in the Kaiser Plan, or B. The employee had claims for the year prior to the open enrollment in an amount equal to or greater than the employee premium rate, and C. The employee presents written proof that the employee is covered by another health plan, and D. The employee notified the City during the open enrollment period. The City agrees that an employee who opts -out of the City provided medical insurance plan and whose medical insurance is through someone other than another City employee, shall receive $81.00 per month if the employee had "employee only" coverage, $162.00 per month if the employee had "employee plus one" coverage, or $229.00 per month if the employee had "family coverage ". The employee may elect to have the appropriate opt -out amount added to the employee's paycheck or to be applied to the City's deferred compensation plan. If an employee opts -out of a City provided medical insurance plan, but that employee's medical insurance is through another City employee's insurance plan, the withdrawing employee shall be compensated as follows: 1. If the withdrawing employee is covered by a relative who is enrolled in the City Plan health insurance, the employee shall receive $81.00 per month, regardless of his or her level of coverage (single, two -party or family) prior to withdrawal; 2. If the withdrawing employee is covered by a relative who is enrolled in the City's Kaiser health plan, the withdrawing employee shall be paid according to the following table: Employee A Employee B Opt out per month Single Single $ 81.00 Single Emp + 1 81.00 Single Emp + 2 81.00 Emp + 1 Emp + 1 162.00 Emp + 1 Emp + 2 or more 162.00 Emp + 2 or more Emp + 2 or more 229.00 Section 3. Dental Insurance. The City will continue to make a maximum contribution of $31.95 per month per employee for dental insurance coverage. Effective January 1, 2006 (benefit year 2006), the City agrees to increase the maximum benefit under the Delta Dental coverage from $1,000 to $2,000 for each enrollee per calendar year. The city agrees to absorb any increase in cost and the association agrees that the employee's contribution will continue to be $37.52 per month. The City and Association agree that the City's contribution amount will be capped at the amount equal to the premium to be effective July 1, 2007 minus the employee contribution of $37.52. Section 4. Life Insurance. Police Captains and Police Lieutenants shall be provided with group term life insurance in an amount equal to the nearest $1,000 figure below full annual salary. Section 5. Long -Term Disability Insurance. Police Captains and Police Lieutenants shall be provided with group Long -Term Disability insurance coverage. ARTICLE XI 13 RETIREMENT Section 1. PERS Coverage. Employees covered by this Agreement participate in the Public Employees' Retirement System. Employee options are described in a contract between the City of Downey and the Public Employees' Retirement System. Section 2. Employee's PERS Contribution. 9% of base salary shall be applied to the employees' contribution towards retirement. Section 3. Retiree Medical Annuity. An employee who retires from the City of Downey shall be entitled to participate in the City sponsored medical plans; for employees who retire after July 1, 1987, the City shall contribute up to a maximum of $98.00 per month toward the premium for employee only coverage under the City sponsored medical plans; and for employees who retire after July 1, 2002, the City shall contribute up to a maximum of $200.00 per month toward the premium for employee and dependents; and for employees who retire after July 1, 2003, the City shall contribute up to a maximum of $235.00 per month toward the premium for employee and dependent; and for employees who retire after July 1, 2004, the City shall contribute up to a maximum of $270.00 per month toward the premium for employee and dependents provided: A. At the time of retirement the employee has a minimum of ten (10) years of service, or is granted a service- connected disability retirement; and B. At the time of retirement the employee is employed by the City; and C. Effective the day after official separation from the City the employee has been granted a retirement allowance by the California Public Employees' Retirement System. D. The City's obligation to pay said monthly contributions shall be modified downward or cease during the lifetime of the retiree upon the happening of any one of the following: 1. During any period the retired employee is eligible to receive or receives health insurance coverage at the expense of another employer the payment will be suspended. "Another employer" as used herein means private employer or public employer or self - employed or the employer of a spouse. As a condition of being eligible to receive the premium contribution set forth above, the City shall have the right to require any retiree to annually certify that the retiree is not receiving any such paid health insurance benefits from another employer. If it is later discovered that misrepresentation has occurred, the retiree will be responsible for reimbursement of those amounts inappropriately expended and the retiree's eligibility to receive benefits will cease. 2. If the retired employee becomes eligible to enroll, automatically or voluntarily, in Medical or Medicare, the City's plan shall provide secondary coverage only and the City's contribution rate set forth above shall be adjusted downward accordingly. 3. In the event the Federal government or State government mandates an employer funded health plan or program for retirees, or mandates that the City make contributions toward a health plan (either private or public plan) for retirees, the City's contribution rate set forth above shall be first applied to that plan. If there is any excess, that excess may be applied toward the City medical plan as supplemental coverage provided the retired employee pays the balance owing for such coverage if any. 14 4. Upon the death of the retired employee, the monthly contributions shall cease. The surviving spouse shall be able to continue coverage by paying the appropriate premium. E. It is understood and agreed that the annual amount contributed by the City to fund the Retiree Medical Annuity on behalf of the employees, shall be included as an item of compensation in total compensation survey comparisons. Section 4. 3% at age 50 Retirement Benefit. Effective July 23, 2001, the City shall amend the contract with the Public Employee's Retirement System (PERS) to implement the benefits of Government Code Section 21362.2, to provide the 3% at 50 retirement formula. ARTICLE XII TUITION REIMBURSEMENT Section 1. Reimbursement Rates. With prior approval of the City Manager, employees may be reimbursed for tuition and books for courses taken to improve their value to the City. Tuition shall be reimbursed for courses as recommended by the department head with job related justification and approved by the City Manager, with quarterly reports to the City Council including the names of individuals, their positions and the courses taken. Employees must receive a passing grade in order to be reimbursed for the course. Reimbursement shall be made at the rate of tuition charged at California State University at Los Angeles for courses on the quarter system, and California State University at Long Beach for courses on the semester system. The employee will be reimbursed for required books only. ARTICLE XIII PROBATIONARY PERIOD Section 1. Length of Probation /Extensions. An original appointment will be tentative and subject to a probationary period of not less than eighteen (18) months, except that the City Manager may extend the probationary period for a class up to an additional six (6) months or for a marginal employee for up to an additional three (3) months. The promotional appointment will be tentative and subject to a probationary period of not less than 12 months. Should the appointing authority desire to terminate any probationary employee, the appointing authority shall notify such employee not later than two (2) weeks prior to the end of the probationary period. Section 2. Process for Retention /Termination. If the service of the probationary employee has been satisfactory to the appointing authority, then the appointing authority shall file with the personnel officer a merit rating including a statement, in writing, to such effect and stating that the retention of such employee in the service of the City is desired. In the case of an original appointment, if such a statement is not filed, the employee will be deemed to be unsatisfactory and his employment terminated at the expiration of the probationary period. In the case of a promotional appointment, the employee shall be reinstated to the position from which he was promoted. Section 3. First of the Month. All probationary periods shall extend to the first day of the month following the period of probation. ARTICLE XIV SENIORITY Section 1. Definition. Seniority is defined as the length of an employee's continuous service 15 within rank from his last date of promotion, and shall apply in the manner and to the extent set forth in the remainder of the Article. Section 2. Probationary Employees Excluded. Probationary employees shall have no seniority rights, but shall acquire seniority from his last date of hire upon completion of his probationary period. Section 3. Layoff and Recall. Seniority shall apply between employees in a rank for purposes of layoff and recall. Section 4. Bumping Rights. An employee who is subject to layoff pursuant to this Section may exercise his seniority in the next lower rank within the Police Department provided that the employee has satisfactorily held the same position in the rank in which the employee seeks to exercise seniority. The employee with the earliest promotion date to that rank will be considered to have seniority for that position. ARTICLE XV CITY RIGHTS Section 1. Management Rights. The City reserves, retains, and is vested with, solely and exclusively, all rights of management which have not been expressly abridged by specific provisions of the Memorandum of Understanding or by law to manage the City, as such rights existed prior to the execution of this Memorandum of Understanding. The rights of management, as they are not abridged by this Agreement or by law, shall include, but not be limited to, the following rights: A. To manage the City generally and to determine the issues of policy. B. To determine the necessity and organization of any service or activity conducted by the City and expand or diminish services. C. To determine or change the nature, manner, means, and technology, types of equipment and extent of services to be provided to the public. D. To determine or change methods of financing. E. To determine and /or change the facilities and size of the work force by which the City operations are to be conducted. F. To determine and change the number of locations, relocations and types of operations, processes and materials to be used in carrying out all City functions. G. Establish and /or change work schedules and /or work assignments in accordance with this Agreement and existing departmental rules, regulations and procedures. H. To relieve employees from duties for lack of work or lack of funds. I. To establish and modify productivity and performance programs and standards and to require compliance therewith. J. To discharge, suspend, demote or otherwise discipline permanent non - probationary employees for proper cause. K. To hire, transfer, promote and demote employees for non - disciplinary reasons in accordance 16 with this Memorandum of Understanding. L. To determine policies, procedures and standards for selection, training and promotion of employees. M. To maintain order and efficiency in its facilities and operation. N. To establish and promulgate and /or modify rules and regulations to maintain order and safety in the City which are not in contravention with this Agreement. O. To take any and all necessary actions to carry out the mission of the Agency in emergencies. Section 2. Impact of Management Rights. Except in emergencies, or where the City is required to make changes in its operations because of the requirements of law, whenever the exercise of management's rights shall impact on employees of the bargaining unit, the City agrees to meet and confer with representatives of the Association regarding the impact of the exercise of such rights, unless the matter of the exercise of such rights is specifically provided for in this Memorandum of Understanding or in Personnel or Departmental Rules and Regulations and /or salary resolutions of the City which are incorporated by this reference in this Agreement. Section 3. Health and Safety. The City shall not exercise any of the foregoing rights in an arbitrary, capricious or invidiously discriminatory manner as to injure the health and /or safety of the employees. PROHIBITED CONDUCT ARTICLE XVI EMPLOYEE ORGANIZATION RIGHTS AND RESPONSIBILITIES Section 1. Dues Deductions. The City shall deduct dues on a regular Basis from the pay of all employees in the classifications and positions recognized to be represented by the Association who voluntarily authorize such deduction, in writing, on a mutually agreed upon form to be provided for this purpose. The City shall remit such funds to the Association within thirty (30) days following their deduction. Section 2. Indemnification. The Association agrees to hold the City harmless and indemnify the City against any claims, causes of actions or lawsuits arising out of the deduction or transmittal of such funds to the Association, except the intentional failure of the City to transmit to the Association monies deducted for the employees pursuant to this Article. ARTICLE XVII NO STRIKE - NO LOCKOUT Section 1. No Job Action. The Association, its officers, agents, representatives and /or members agree that during the term of this Agreement they will not cause or condone any strike, walkout, slowdown, sick -out, or any other job action by withholding or refusing to perform services. Section 2. No Lockout. The City agrees that it shall not lockout its employees during the term of this Agreement. The term "lockout" is hereby defined so as not to include the discharge, suspension, termination, layoff, failure to recall or failure to return to work of employees of the City in 17 the exercise of its rights as set forth in any of the provisions of this Agreement or applicable ordinance or law. Section 3. Consequence for Prohibited Conduct. Any employee who participates in any conduct prohibited in Section I above, shall be subject to termination by the City. Section 4. Suspension of Employee Organization Rights. In addition to any other lawful remedies or disciplinary actions available to the City, if the Association fails, in good faith, to perform all responsibilities listed below in Association Responsibility, Section I, the City may suspend any and all of the rights and privileges, accorded to the Association under the Employee Relations Resolution in this Memorandum of Understanding including, but not limited to, suspension of recognition of the Association, grievance procedure, right of access, check -off, the use of the City's bulletin boards and facilities. Section 5. Association Responsibility. In the event that the Association, its officers, agents, representatives, or members engage in any of the conduct prohibited in Section I above, the Association shall immediately instruct any persons engaging in such conduct that their conduct is in violation of this Memorandum of Understanding and unlawful, and they must immediately cease engaging in conduct prohibited in Section I above and return to work. Section 6. Hold Harmless. If the Association performs all of the responsibilities set forth in Section I above, its officers, agents, representatives or members shall not be liable for damages for prohibited conduct performed by employees who are covered by this Agreement in violation of Section I above. ARTICLE XVIII GRIEVANCE PROCEDURE Section 1. Grievance. Grievance shall be defined as a dispute between the Association, employee or employees and the City, regarding interpretation or application of specific provisions of this Memorandum of Understanding and departmental rules and regulations or as an appeal of a disciplinary action. Section 2. Conduct of the Grievance Procedure. An employee may request the assistance of another person of his own choosing in preparing and presenting his /her grievance at any level of review, or may be represented by a recognized employee organization or may represent himself /herself. A. Any retroactivity on monetary grievances shall be limited to ninety (90) days prior to the date that the grievance was filed, in writing, except in cases where it was impossible for the employee to have had prior knowledge of an accounting error. B. All time limits specified may be extended to a definite date by mutual agreement of the employee or his Association representative, and the decision - making Management representative involved at each step of the grievance procedure. Such mutual agreement shall be evidenced in writing and signed by the employee or Association representative and management representative. Section 3. Grievance Steps. Grievance procedure shall provide for the following steps: Step One. Informal Procedure. An employee must first attempt to resolve a grievance without delay through discussion with a supervisor on an informal basis. The grievance shall begin at the level of supervision that ultimately took the action that resulted in the grievance. If, after such 18 discussion, the employee does not believe the problem has been satisfactorily resolved, he /she shall have the right and obligation to discuss it with his /her supervisor's immediate superior, if any, and through the chain of command to the Chief of Police if necessary. Every effort shall be made to find an acceptable solution by these informal means at the most immediate level of supervision. At no time may an informal process go beyond the Chief of Police. In order that this informal procedure may be responsive, all parties involved shall expedite this process. In no case may more than fourteen (14) calendar days elapse from the date of the alleged incident or action giving use to the grievance or fourteen (14) calendar days from the date the employee should have reasonably known about the alleged incident and the first meeting with the supervisor discussed in this section. The employee shall have up to seven (7) additional days for each level of supervision; however, the time shall not be cumulative. Failure to meet any of these time lines shall mean that the grievance shall be barred and waived. Appeals of disciplinary action begin one level of supervision above the supervisor taking the disciplinary action. Terminations are appealed directly to the Personnel Advisory Board (Step Four). Step Two. Formal Procedure. If the grievance is not resolved through the informal process and the employee has complied with all time limits, then the employee shall have the right to file the grievance in written form and present it to the Chief of Police within ten (10) calendar days from the decision or completion of the informal process. The written grievance shall state all facts plus the specifics of the alleged dispute. Failure of the employee to take action within the time limit set forth above will constitute termination of the grievance. The Chief of Police shall review the written material submitted by the employee and may require the employee's supervisor and /or superior officers to submit written material regarding this grievance. Copies of these materials will be given to the employee prior to meeting with the Chief of Police. The department head shall render a decision and comments in writing that shall be given to the employee within ten (10) calendar days of the meeting between the employee and the department head. Step Three. Employee Relations - Personnel Director. If the grievance is not resolved in Step Two, the employee may, within ten (10) calendar days present the grievance in writing to the Employee Relations/ Personnel Director for processing. Failure of the employee to take this action will constitute termination of the grievance. In the event the employee is not being represented by a recognized employee organization, the Employee Relations /Personnel Director shall forward the grievance to the designated management representative who shall attempt to resolve the grievance with the employee. If the employee is being represented by a recognized employee organization, the Employee Relations /Personnel Director shall convene a joint meeting of the recognized employee organization and management representative who shall attempt to resolve the grievance. In the event the grievance is not satisfactorily adjusted or settled through discussion at this level, both parties shall advise each other, in writing, as to their respective positions. Step Four. Grievance Hearing. If the grievance is not resolved in Step Three, the employee may, within ten (10) calendar days of the receipt of the written position from management representatives, present a "request for hearing" in writing to the Personnel Director. Failure of the employee to take this action will constitute termination of the grievance. With the approval of the Personnel Advisory Board, the Personnel Director shall request from the State Mediation and Conciliation Service, or mutually agreed upon alternative organization, a list of seven (7) neutral hearing officers. In the event that the parties cannot agree upon a mutually acceptable hearing officer from the list of seven, the parties shall alternately strike names from the list, with the City striking the first name. The identity of the last remaining individual on the list will be selected as the hearing officer. 19 The hearing officer shall preside over a full and fair evidentiary hearing and, within thirty (30) calendar days of its conclusion, render a written decision that includes findings of fact and a recommendation to the City Manager. That decision shall be served jointly upon the grieving party and the City Manager Step Five. City Manager's Decision. Within thirty (30) calendar days of receipt of the decision of the hearing officer, the City Manager shall, in writing, adopt, modify or reject that decision. The decision of the City Manager shall be the final administrative decision. ARTICLE XIX MISCELLANEOUS Section 1. Third Party Legal Actions. Third Party Legal Actions Against Police Captains and Police Lieutenants. If a determination is made by the department that the employees involved have met the condition that the action given rise to the legal proceeding was taken by the employees during the course and scope of the employees' employment without malice and in the apparent best interest of the City, the City shall afford legal representation to the employees in any civil or criminal process. The choice of attorney shall be made by the majority vote of the Police Chief, City Manager, and employees. The Police Chief, City Manager and the employees shall each have one (1) vote for a maximum total of three (3) votes. Section 2. Substance Abuse Policy. The City of Downey and the Association have a vital interest in maintaining safe, healthful and efficient working conditions. Being under the influence of a drug or alcohol on the job may pose serious safety and health risks not only to the user but to co- workers and the citizens of Downey. The possession, use or sale of an illegal drug or of alcohol on the job also poses unacceptable risks for safe, healthful and efficient operations. "On the job" means while on City premises, at work locations, or while on duty or being compensated on an "on call status." The City of Downey and the Association recognize that their future is dependent on the physical and psychological well being of all employees. The City and the Association mutually acknowledge that a drug and alcohol -free work environment benefits Downey's employees and citizens. The purpose of this section is to define the City's drug and alcohol policy as well as the possible consequences of policy violation. A. Possession, sale, use or being under the influence of drugs or alcohol while on the job is strictly prohibited. This prohibition shall not apply to legitimate undercover activities of Police Officers that are undertaken in accordance with the direction of the Police Department. B. When reasonable suspicion exists, the City may require an employee to submit to a medical examination, including, but not limited to, a substance screening. Substance screening means the testing of urine or other body fluids as reasonably deemed necessary by a physician to determine whether an employee has a restricted substance in their system. 1. Reasonable suspicion is cause based upon objective facts sufficient to lead a reasonably prudent supervisor to suspect that an employee is under the influence of drugs or alcohol so that the employee's ability to perform the functions of the job is impaired or so that the employee's ability to perform his /her job safely is reduced. 20 C. Any manager or supervisor requesting an employee to submit to a substance screening shall document in writing the facts constituting reasonable suspicion and shall give the employee a copy. The employee shall be given an opportunity to provide additional facts. An employee who is then ordered to submit to a substance abuse screening may request to be represented. Because time is of the essence in drug screening, a representative must be available within a reasonable time or the employee will then be ordered to submit to substance screening. An employee who refuses to submit to a substance screening may be considered insubordinate and shall be subject to disciplinary action up to and including termination. D. The supervisor, or designee, shall transport the suspected employee to the testing facility. Testing shall occur on City time and be paid for by the City. Employee urine samples, or other body fluids, will be collected in a DOX Security Container System or other system which includes methods or mechanisms designed to assure the integrity of the sample. The facility used for testing shall be certified by the National Institute on Druid Abuse and comply with established guidelines for "chain of custody" to insure that identity and integrity of the sample is preserved throughout the collecting, shipping, testing and storage process. E. Any positive test for alcohol or drugs will be confirmed by a scientifically sound method. An employee who tests positive on a confirmatory test will be given the opportunity to discuss the results with a physician to be designated by the City. The employee should be prepared at that time to show proof of any valid medical prescription for any detected substance or to otherwise explain, if he or she so chooses, a positive test result. F. While use of medically prescribed medications and drugs is not per se a violation of this policy, this policy shall establish that no employee shall operate a City vehicle or dangerous machinery or equipment while taking any kind of medication or drugs which are clearly marked that they may cause significant drowsiness or impair an employee's performance. An employee shall notify his /her supervisor, before beginning work, when taking such medications or drugs. In the event there is a question regarding an employee's ability to safely and effectively perform assigned duties while using such medications or drugs, clearance from a physician designated by the City may be required. The City reserves the right to send an employee home on sick leave under these circumstances. G. Employees with substance abuse problems are encouraged to participate voluntarily in the City- sponsored Employee Assistance Program (EAP). Assistance through the EAP may be sought by an employee with complete confidentiality and without adverse consequences to his /her employment. Employees should be aware, however, that a request for assistance through the EAP will not insulate the employee from disciplinary action already contemplated. Depending upon the facts surrounding the reasonable suspicion determination, positive test result, and /or other violation of this policy or other City /department rules and regulations, the City may refer an employee to the EAP. Such referral could, at the discretion of the City, be made available to the employee as an alternative to disciplinary action. Referral would be subject to agreement by the employee to enroll, participate in and successfully complete a rehabilitation and /or counseling program and other terms and conditions in a "Last Chance Agreement." An example of the type of terms and conditions the City may require is included in Attachments I and II. 1. It is the City's intent to use the EAP option for first offenders except the City reserves the right to discipline for those offenses which are a significant violation of City /department rules and regulations or where violation did or could have resulted in serious injury or property damage. ARTICLE XX 21 SOLE AND ENTIRE MEMORANDUM OF UNDERSTANDING Section 1. Sole Source. It is the intent of the parties hereto that the provisions of this Memorandum of Understanding shall supercede all prior agreements and memorandums of understanding, or memorandums of agreement, or contrary salary and /or personnel resolutions and ordinances of the City, oral or written, expressed or implied, agreements between the parties or understandings between the parties, and shall govern their entire relationship and shall be the sole source of any and all rights which may be asserted hereunder. This Memorandum of Understanding is not intended to conflict with Federal or State Law. Section 2. Inclusion of Other Rules and Regulations. Notwithstanding the provisions of Section 1 above, there exists within the City of Downey, certain personnel resolutions, ordinances, and departmental rules, regulations and procedures. To the extent that this Memorandum does not specifically contravene provisions of these personnel resolutions, ordinances, and departmental rules, regulations and procedures; these personnel resolutions, ordinances, and departmental rules, regulations and procedures are specifically incorporated herein. ARTICLE XXI WAIVER OF BARGAINING DURING TERM OF THIS AGREEMENT During the term of this Memorandum of Understanding, the parties mutually agree that they will not seek to negotiate or bargain with regard to wages, hours, and terms and conditions of employment, whether or not covered by this Memorandum or in the negotiations leading thereto and irrespective of whether or not such matters were discussed or were within the contemplation of the parties hereto during the negotiations leading to this Memorandum. Regardless of the waiver contained in this Article, the parties may, however, by mutual agreement, in writing, agree to meet and confer about any matters during the term of this Memorandum. ARTICLE XXII EMERGENCY WAIVER PROVISION In the event of circumstances beyond the control of the City, such as acts of God, fire, flood, insurrection, civil disorder, national emergency, or similar circumstances, provisions of this Memorandum of Understanding or the Personnel Rules or Resolutions of the City, which restrict the City's ability to respond to these emergencies, shall be suspended for the duration of such emergency. After the emergency is over, the Association shall have the right to meet and confer with the City regarding the impact on employees of the suspension of these provisions in the Memorandum of Understanding and any Personnel Rules and policies. ARTICLE XXIII SEPARABILITY Should any provision of this Memorandum of Understanding be found to be inoperative, void, or invalid by a court of competent jurisdiction, all other provisions of this Memorandum of Understanding shall remain in full force and effect for the duration of this Memorandum of Understanding. ARTICLE XXIV 22 TERM OF MEMORANDUM OF UNDERSTANDING The term of this Memorandum of Understanding shall commence on June 20, 2005, and shall continue in full force and effect until June 30, 2008. By: By: By: Lee Powell, Assistant City Manager Chris Birch, Personnel Director ARTICLE XXV RATIFICATION AND EXECUTION The City and the Association acknowledge that this Agreement shall not be in full force and effect until ratified by the Association and adopted by the City Council of the City of Downey. Subject to the foregoing, this Agreement is hereby executed by the authorized representatives of the City and the Association and entered into this 13th day of December, 2005. CITY OF DOWNEY: THE DOWNEY POLICE MANAGEMENT ASSOCIATION: 23 By: By: By: EXHIBIT A CLASSIFICATIONS REPRESENTED BY THE DOWNEY POLICE MANAGEMENT ASSOCIATION Police Captain Police Lieutenant