I. Public Safety Officers Procedural Bill of Rights (Govt. Code Sec. 3300)

     A. The parties hereto recognize that all members of the Police Unit are covered by the provisions and decisional interpretations of the Public Safety Officers Procedural Bill of Rights. (Bill of Rights.)

     B. Officers may, with the approval of the POA Board of Directors, bring an action in Superior Court without exhausting the administrative remedies described in this Article, in those instances where it is alleged that a specific violation of the Public Safety Officers Procedural Bill of Rights has occurred and it is alleged that the remedies contained in this Article are inadequate.

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II. Definitions

     A. For purposes of this Article, the following definitions shall apply:

          1. Punitive action - shall be defined as those actions which may directly lead to dismissal, demotion, suspension, reduction in salary, written reprimand, written warning, transfer for purposes of punishment, or less than satisfactory performance evaluation.

          2. Interrogation - shall mean any inquiry concerning the actions or conduct of an officer which may lead to punitive action or criminal allegation.

          3. Investigation - shall mean the process of conducting inquiry(ies) into the actions or conduct of an officer(s) from the moment it is reasonably apparent that such inquiry(ies) may lead to punitive action or criminal allegations directed toward an officer or officers.

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III. Civil Service Appeals

     A. Officers may, in addition to other rights to administrative appeals and/or hearings set out herein, appeal any punitive action which is covered by provisions of City Civil Service Rules to the Civil Service Commission in accordance with those rules.

     B. Where a punitive transfer action has taken place in conjunction with a disciplinary action over which the Civil Service Commission has jurisdiction the parties hereto agree that the Commission may rule on the propriety of the matter before it and that the Police Department will be bound on the matter of the punitive transfer by the findings of the Commission.

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IV. Investigations

     A. Any officer(s) under investigation shall receive at least three days notice prior to an interrogation except where such delay will hamper the gathering of evidence as determined by an Assistant Chief. At the time an officer is advised that an interrogation is planned the said officer will be advised of the subject of the interrogation and that he/she has a right to obtain representation.

     The actual scheduling of the interrogation will be subject to the reasonable accommodation of the schedules of the subject officer and his/her representative.

     B. Investigations of shooting incidents involving officers and any incident involving the actions or conduct of an officer(s) where personnel from the Internal Affairs Unit are called to the scene of the incident will be reported to the Police Officers Association immediately. The Association will provide a telephone number to the Police Department and it shall be the responsibility of the duty lieutenant to telephone the number and report the general nature of the incident.

     C. Officers who are removed from the normal duties of the job during the pendency of an investigation shall not be so removed for longer than thirty (30) calendar days except where the business necessities of the Department require the removal from duties to extend beyond 30 days. Under circumstances of such an extension, the involved officer shall have the right to a hearing before an Assistant Chief concerning the business necessities alleged and shall have the opportunity to argue and present evidence to contradict those business necessities.

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V. Intra-Department Hearings

     A. Scope - The herein described intra-departmental hearing procedures shall be available to officers as follows:

     B. Procedure - hearings regarding punitive actions shall be conducted as follows:

          1. The hearing officer shall be the Chief of Police or his/her designee of not less than the rank of Assistant Chief, except that for hearings regarding notes of counseling and written warnings, a Captain may be the designated hearing officer. Such hearing officer shall have had no role in the original decision to take punitive actions.

          2. Each officer requesting to appeal a matter shall have ten (10) working days to file an appeal with the office of the Chief of Police.

          3. The appeal hearing shall be recorded in such a manner as to permit a transcript to be made. All parties shall have access to the original recordation, a duplicate copy and/or any transcript.

          4. The officer shall have the right to present evidence, cross-examine witnesses and require the attendance of any witnesses who are city employees.

          5. At the conclusion of the hearing the hearing officer shall render a written decision which shall state the facts found to be true and the decision of the hearing officer based upon those facts.

          6. Officers who have reached permanent status may appeal a decision of the hearing officer in matters set out in Section A, 4 and 5 hereof, to the Office of the City Manager within ten (10) working days of receipt of the decision. Such appeal will consist solely of a review of the written record and/or audio tapes developed at prior steps of the appeal. The City Manager or representative shall issue findings within 30 working days of receipt of the full and entire appeal package.

     C. Denial of Promotion on Grounds Other Than Merit - Any officer denied promotion on grounds other than merit may appeal such denial as set out herein. The appeal request shall state the grounds other than merit by way of factual allegations. At the conclusion of the hearing, one of the following decisions may be reached:

          1. The grounds specified in the appeal are sufficiently job related to constitute grounds based on merit;

          2. The allegations in the appeal are not supported by the evidence;

          3. The grounds specified in the appeal are supported by the evidence and are not job related, in which case the decision of non-promotion will be adjusted to place the aggrieved employee in the next available opening in the classification or to reverse the original promotional decision if feasible. A denial of an appeal under this section is appealable to the Office of the City Manager in the manner set out in this Article.

     D. Other Negative Material - Any officer who has material negative to his/her employment relationship or a satisfactory performance evaluation containing negative comments placed in his/her personnel file may appeal the placement of such material to a ranking officer of not less than the rank of Captain.

          1. For the purposes of this section and this article, Personnel file shall mean any file or repository of material kept for the purpose of making employment related decisions concerning an officer.

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VI. Other Policies, Practices and Procedures

     A. During the term of this agreement, no policies, practices or procedures of the City or the Police Department which affect wages, hours or working conditions and which specifically affect investigations, or the procedures for conducting appeals and hearings shall be changed in any way without the agreement of the parties.

     B. During the term of this agreement, the City agrees not to implement or adopt any changes in policy or procedure which adversely affects or diminishes the procedural or substantive rights of officers contained in this article, the Personnel Manual, the Charter of the City of San Diego, any applicable state or federal law, or the Constitutions of the State of California or the United States except by mutual agreement of the parties.

Furthermore, the City agrees not to meet and confer over any proposed changes to the above-described rights during the term of this agreement except by mutual agreement of the parties.

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VII.  Miscellaneous Provisions.

     A. Conformity with Bill of Rights - All provisions of this article are to be read to expand and/or complement rights which officers enjoy under the Public Safety Officer Procedural Bill of Rights. The parties hereto do not intend to limit or reduce those statutory rights in any way.

     B. Personnel Files - Any employee who has any material adverse to his/her employment relationship placed in a personnel file shall be allowed to file a complete written response to the material within 30 days of being notified of its placement in the file. The Police Department will notify an individual of the placement of such material in the file by certified mail within 30 days of its placement. Should there be a failure to notify, the material will be considered void and removed from the personnel file. The rights to protection of the personnel file established herein shall survive the termination of the employee should such material be placed into the file without the knowledge of the employee or after his/her termination.

     C. Upon separation of a probationary officer who is terminated for less than satisfactory performance or failure to meet employment standards, the City will release to any person or entity seeking information only the name of the officer, the dates of employment, classification and "failed probation". The only exception will be proper process of the court and a waiver signed by the affected employee. Such separation will not be considered disciplinary in nature.

     D. Formal reprimands without further penalty more than two (2) years old, and those with additional penalty more than five (5) years old, will not be considered for purposes of promotion, transfer, special assignments and disciplinary actions except as to disciplinary actions, when such reprimands show patterns of specific similar police misconduct as defined in the Departmental Rules and Regulations and Department Instructions. All officers shall have the right to review their Departmental and Divisional Personnel Jackets and identify all such documents. Upon concurrence of the commanding officer that such documents have been appropriately identified, they will be placed in an envelope, sealed and initialed by the officer. The envelope will be placed in the officer's Department personnel file and will be opened only in the event the officer is in the future subject to discipline.

     E. Upon the adoption of this article, the appropriate provisions of policies, practices and procedures of the City and/or Police Department shall be amended to conform herewith. However, should there be a failure to so amend or should any such policies, practices or procedures conflict with the provisions of this article, this article shall prevail.

NOTE: The City and POA agree to negotiate in good faith modifications to the Police Department Discipline Procedures. Therefore, this article is exempt from any and all "zipper clauses" in this MOU that would otherwise preclude meeting and conferring on changes to articles in this agreement.