10.0 - 10.6 REPRESENTATION.docx

SECTION 10.0 REPRESENTATION ARTICLE 10.1 RIGHT TO REPRESENTATION This Article shall not be construed to make discipline, transfers, promotions, or probationary employee terminations grievable or arbitrable. It is mutually agreed that the provisions of this Article do not limit what the law require...

SECTION 10.0 REPRESENTATION ARTICLE 10.1 RIGHT TO REPRESENTATION This Article shall not be construed to make discipline, transfers, promotions, or probationary employee terminations grievable or arbitrable. It is mutually agreed that the provisions of this Article do not limit what the law requires. The right to representation 100 MOU24-22 during the investigation and adjudication of misconduct, categorical use of force investigation, an administrative appeal and grievance presentation is not to be denied to any employee. Any interview of an employee in connection with an investigation that the employee reasonably believes may result in disciplinary action against the employee will entitle the employee to a representative of the employee's choice. The employee has the right to choose a representative, subject only to reasonable consideration of the representative's availability and the urgency of the investigation. The representative may be a Department employee from the rank of lieutenant or below, or legal counsel (at the employee's expense), or both. A Director of the League shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any non-criminal information received from any employee under investigation or obtained as a representative of that employee in relation to employment matters. This does not apply if the Director is a percipient witness to criminal acts under investigation. All references to "on-duty representation" in Section 10.0 of this MOU shall refer to those representatives who are currently Department employees, excluding Directors of the League and any employee who represents him or herself. There is no provision for the use of on-duty time or overtime for an accused employee or grievant to prepare a defense or grievance initiation or appeal. In cases where the Department takes a video recording of an interview, a copy of the recording will be provided to the employee at no cost. ARTICLE 10.2 PERSONNEL COMPLAINT INTERVIEW REPRESENTATIVE Employees have the right to representation during an interview pursuant to a personnel complaint investigation or a "special" investigation. The duties of a representative in these interviews are: A. To conduct pre-interview consultation with the employee to ascertain if the employee understands the allegations against the employee; and B. To be present with the employee during the interview for purposes of: 1. Consultation, 2. Advice, 3. Clarification, 4. Ensuring procedures are followed, and 5. Ensuring the employee's rights are not violated. Representation shall be on an on-duty basis. When on-duty representation is impractical, the Department may use an adjusted work schedule. Such representation shall not be done on an overtime basis unless no other alternative is available and such overtime is approved by a supervisor. 101 MOU24-22 The provisions of this Article shall apply to an employee who is being interviewed as a witness pursuant to a personnel complaint investigation or "special" investigation if the employee has a reasonable belief that the employee may be disciplined as a result of the investigation. On-duty personnel selected as a representative shall obtain the approval of a supervisor before leaving their assigned duties. Permission shall not be denied unless deployment would be seriously affected or vitally important duties neglected. If this causes a delay for the employee in retaining the representative of the employee's choice, the interview will be rescheduled. ARTICLE 10.3 SKELLY/EMPLOYEE INVESTIGATION REVIEW REPRESENTATIVE The Skelly or Employee Investigation Review process is the last opportunity for an employee to discuss the investigation and/or rebut charges or present additional evidence on the employee's own behalf, if the employee so chooses, prior to the commanding officer submitting recommendations for disposition of a personnel complaint. The duties of a representative in the Skelly or Employee Investigation Review hearing are: A. To explain the process to the involved employee; B. To represent the employee during interviews with the commanding officer; C. To assist in formulating any rebuttal or requests for reinvestigation of the complaint; D. To counsel the employee regarding alternatives in the disciplinary process. Skelly Response. The employee shall be given a reasonable period of time to consider and prepare a Skelly response. When the regular duties of a Skelly representative prevent him from assisting an accused officer in preparing his response, a continuance, if requested, shall be granted for a reasonable period of time, provided such period of time shall not jeopardize the statute of limitations. Employee Investigation Review Response. The employee shall have 30 calendar days following service of the Employee Investigation Review, Form 1.88.1, within which to submit a response if the employee so chooses. An Employee Investigation Review representative may assist an employee in preparing a response. A Skelly or Employee Investigation Review representative shall be on-duty or use an adjusted work schedule. Such representation shall not be done on an overtime basis, unless no other alternative is available. 102 MOU24-22 Note: Should a Skelly or Employee Investigation Review representative undertake an investigation, it is not with the Department's sanction and shall not be on City time nor with City equipment. The term "Skelly" in this Article and elsewhere in this MOU is used solely to identify the procedure used by the Department in the administration of disciplinary actions. The use of that term does not imply a concession by the League that the Department's predisciplinary procedures meet the standards of constitutional due process. ARTICLE 10.4 ADMINISTRATIVE APPEAL REPRESENTATIVE When an employee requests an administrative appeal hearing pursuant to Section 9.0, the employee has a right to an administrative appeal representative. A. An employee may not serve as an administrative appeal representative until selected by the accused employee following service of a notice as specified in Section 9.0. B. The administrative appeal representative shall be on an on-duty basis while investigating the case and representing the employee. Overtime may only be worked with prior approval of the Officer-in-Charge of the representative. Such overtime approval shall not be unreasonably withheld. ARTICLE 10.5 GRIEVANCE REPRESENTATIVE Employees have the right to raise and pursue grievances concerning wages, hours and other terms and conditions of employment. It is recognized that the employee has a right to representation in that process. The duties of the representative include: A. To identify issues, facts, and appropriate procedures for the employee; B. To assist the employee in formulating written responses; C. To be present and represent the employee in the grievance process. The representative is considered on duty only when representing the grievant when the grievance is being discussed with Management. When on-duty representation is impracticable, the representative shall use an adjusted work schedule. Such representation shall not be done on an overtime basis unless no other alternative is available. Exception: A representative specifically assigned to Officer Representation Section shall be on an on-duty basis while investigating the case and representing the employee. Overtime may only be worked with prior approval of the Officer-in-Charge of the representative. 103 MOU24-22 ARTICLE 10.6 CONDUCT OF ALL REPRESENTATIVES; DEPARTMENT SUPPORT A. A representative shall use every legal means available and exercise the best efforts to represent the employee. B. Employees who are representatives may use Department facilities and resources to the extent reasonably necessary in assisting in the Skelly or appeal of the employee. This shall include reasonable logistical support for the Skelly or administrative appeal investigation. The Department is under no obligation to provide logistical support for an employee who represents him or herself as all preparation must be done on an off-duty basis. C. Representatives in conducting investigations and interviews shall identify themselves as such representatives. D. All Department employees have an obligation to cooperate with other Department employees or any other civilian representatives designated by the League who are representatives for the employee or the Department and to answer their questions responsively.