Chapter 26 CIVIL SERVICE*

This chapter shall apply only to all present full-time police officers of the city, including any future appointees to such full-time positions. Full-time police officers shall mean police officers in positions which require certification by the state law enforcement training center, who have the power of arrest, who are paid regularly by the city, and for whom law enforcement is a full-time career, but shall not include clerical, custodial or maintenance personnel.

(Code 1974, � 2-201)

State law references: Similar provisions, R.R.S. 1943, � 19-1828.

Sec. 26-2.� Position creation and elimination. (return to ch. 26)

All positions subject to this chapter shall be created or eliminated by the council.

(Code 1974, � 2-202)

State law references: Similar provisions, R.R.S. 1943, � 19-1836.

Sec. 26-3.� Establishment of salaries and compensation. (return to ch. 26)

This chapter shall not be construed to infringe upon the power and authority of the council to establish salaries and compensation of all employees within the compensation schedule or ranges established by the council for positions.

(Code 1974, � 2-203)

State law references: Similar provisions, R.R.S. 1943, � 19-1836.

Sec. 26-4.� Payment of compensation for services. (return to ch. 26)

No treasurer, auditor, comptroller or other officer or employee of the city subject to this chapter shall approve the payment of or be in any manner concerned in paying, auditing or approving any salary, wage, or other compensation for services to any person subject to the jurisdiction and scope of this chapter, unless the person to receive such salary, wage or other compensation has been appointed or employed in compliance with this chapter.

(Code 1974, � 2-204)

State law references: Similar provisions, R.R.S. 1943, � 19-1837.

Sec. 26-5.� City's duty to commission. (return to ch. 26)

It shall be the duty of the city to appropriate each fiscal year, from the general funds of the city, a sum of money sufficient to pay the necessary expenses involved in carrying out the purposes of this chapter, including but not limited to reasonable attorney's fees for any special counsel appointed by the civil service commission when the city attorney is not authorized by the city administrator to represent the commission. The city administrator may establish the hourly or monthly rate of pay of such special counsel. The city shall afford the commission, its members and employees, all reasonable facilities and assistance to inspect all books, papers, documents and accounts applying or in any way appertaining to any and all positions and employments subject to civil service and shall produce such books, papers, documents and accounts. All city officers and employees shall attend and testify whenever required to do so by the commission, the accused, or the city administrator.

(Code 1974, � 2-205)

State law references: Similar provisions, R.R.S. 1943, �� 19-1834, 19-1843, 19-1846.

Sec. 26-6.� Political fund contribution and political service. (return to ch. 26)

No person holding any position subject to civil service shall be under any obligation to contribute to any political fund or to render any political service to any person or party whatsoever. No person shall be removed, reduced in position or salary or otherwise prejudiced for refusing so to do. No public officer, whether elected or appointed, shall discharge, promote, demote or in any manner change the official rank, employment or compensation of any person under civil service, or promise or threaten to do so for giving, withholding or neglecting to make any contribution of money, services or any valuable thing for any political purposes.

(Code 1974, � 2-206)

State law references: Similar provisions, R.R.S. 1943, � 19-1841.

Sec. 26-7.� Obstructing examinations. (return to ch. 26)

No commissioner or any other person shall by himself or in cooperation with one or more persons:

(1) Defeat, deceive or obstruct any person in respect to the right of examination according to the rules and regulations made pursuant to this chapter;

(2) Falsely mark, grade, estimate or report upon the examination and standing of any person examined or certified in accordance with such act or aid in so doing;

(3) Make any false representation concerning the examination or concerning the person examined;

(4) Furnish any person any special or secret information for the purpose of improving or injuring the prospects or chances of any person so examined or certified to be examined or certified; or

(5) Persuade any other person to permit or aid in any manner any other person to impersonate him in connection with any examination, application or request to be so examined.

(Code 1974, � 2-207)

State law references: Similar provisions, R.R.S. 1943, � 19-1840.

Secs. 26-8--26-40.� Reserved. (return to ch. 26)

ARTICLE II.� APPOINTMENTS, PROMOTIONS AND DISCIPLINARY ACTIONS (return to ch. 26)

Sec. 26-41.� Appointments and promotions. (return to ch. 26)

All appointments to and promotions in the police department shall be made solely on merit, efficiency and fitness, which shall be ascertained by open competitive examination and impartial investigation by the civil service commission.

(Code 1974, � 2-401)

State law references: Similar provisions, R.R.S. 1943, � 19-1829.

Sec. 26-42.� Requirements for civil service position applicants. (return to ch. 26)

An applicant for a position of any kind under civil service shall be able to read and write the English language, meet the minimum job qualifications of the position as established by the city administrator, and be of good moral character. An applicant shall be required to disclose past employment history and criminal record, if any, and submit a full set of his fingerprints and a written statement authorizing the city to forward the fingerprints for identification. Prior to certifying to the city administrator the name of the persons eligible for the position or positions, the civil service commission shall validate the qualifications of such persons.

(Code 1974, � 2-402)

State law references: Similar provisions, R.R.S. 1943, � 19-1831.

Sec. 26-43.� Filling of vacant positions. (return to ch. 26)

(a)�� Considerations. If the city administrator fills a vacancy in a position subject to this chapter, he shall consider factors, including but not limited to:

(1) The multiple job skills recently or currently being performed by the applicant which are necessary for the position;

(2) The knowledge, skills and abilities of the applicant which are necessary for the position;

(3) The performance appraisals of any applicant who is already employed in the department, including any recent or pending disciplinary actions involving the employee;

(4) The employment policies and staffing needs of the department, together with related contracts, ordinances and statutes;

(5) Required federal, state or local certifications or licenses necessary for the position; and

(6) The qualifications of the applicants who are already employed in the department and have successfully completed all parts of the examination for the position. No person shall be reinstated in or transferred, suspended, or discharged from any such position or employment contrary to this chapter.

(b)�� Procedure for filling vacant positions. Whenever a position subject to this chapter becomes vacant, the city administrator shall make requisition upon the civil service commission for the names and addresses of the persons eligible for appointment and may decline to fill such vacancy for an indefinite period. If the commission certifies fewer than three names for each vacancy to the city administrator, the city administrator may appoint one of such persons to fill the vacancy, may decline to fill the vacancy, or may order that another examination be held by the commission.

(c)�� Temporary appointments. If a vacancy occurs and there is no eligible list for the position or if the commission has not certified persons from the eligible list, a temporary appointment may be made by the city administrator. Such temporary appointment shall not continue for a period longer than four months. No person shall receive more than one temporary appointment or serve more than four months as a temporary appointee in any one fiscal year.

(Code 1974, � 2-403)

State law references: Similar provisions, R.R.S. 1943, �� 19-1829, 19-1835.

Sec. 26-44.� Probationary period. (return to ch. 26)

To enable the city administrator to exercise a choice in the filling of positions, no appointment, employment or promotion in any position in the civil service shall be deemed complete until after the expiration of a period of not less than six months nor more than one year after certification by the state law enforcement training center for police officers, as may be provided in the rules of the civil service commission, during which time the city administrator may terminate the employment of the person appointed if, during the performance test thus afforded and upon an observation or consideration of the performance of duty, the city administrator deems such person unfit or unsatisfactory for service in the department. The city administrator may appoint one of the other persons certified by the commission; and such person shall likewise enter upon such duties until some person is found who is fit for appointment, employment or promotion for the probationary period provided; and then the appointment, employment or promotion shall be complete.

(Code 1974, � 2-404)

State law references: Similar provisions, R.R.S. 1943, � 19-1835.

Sec. 26-45.� Disciplinary actions. (return to ch. 26)

(a)�� Tenure of employment. The tenure of a person holding a position of employment subject to this chapter shall be only during good behavior.

(b)�� Causes for disciplinary action. Any such person may be removed or discharged, suspended with or without pay, demoted, reduced in rank, or other privileges, except pension benefits, for any of the following reasons:

(1) Incompetency, inefficiency, or inattention to or dereliction of duty;

(2) Dishonesty, prejudicial conduct, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee, any act of omission or commission tending to injure the public service, any willful failure on the part of the employee to properly conduct himself, or any willful violation of this chapter or the rules and regulations adopted pursuant to this chapter;

(3) Mental or physical unfitness for the position which the employee holds;

(4) Drunkenness or the use of intoxicating liquors, narcotics or any other habit-forming drug, liquid or preparation to such an extent that the use interferes with the efficiency of mental or physical fitness of the employee or precludes the employee from properly performing the functions and duties of his position;

(5) Conviction of a felony or misdemeanor tending to injure the employee's ability to effectively perform the duties of his position; or

(6) Any other act or failure to act which, in the judgment of the civil service commissioners, is sufficient to justify the offender to be an unsuitable and unfit person to be employed in the public service.

(Code 1974, � 2-405)

State law references: Similar provisions, R.R.S. 1943, � 19-1832.

Sec. 26-46.� Disciplinary action procedure. (return to ch. 26)

(a)�� No employee in the civil service who shall have been permanently appointed or inducted into the civil service shall be removed, suspended, demoted or discharged except for cause, and then only upon the written accusation of the police chief, city administrator or any citizen or taxpayer.

(b)�� The written accusation shall set forth the alleged misconduct, charges or grounds for investigation against the employee. The written accusation shall be filed by the complainant with the secretary of the civil service commission, who shall cause a copy of such written accusation to be delivered within 24 hours after the filing to the police chief, to the city administrator, and to the employee personally or by certified mail.

(c)�� The police chief shall have the authority to immediately suspend, with pay, an employee against whom such written accusation has been filed, pending the confirmation of the suspension or a decision of the city administrator to reinstate the employee, with or without pay.

(d)�� Prior to any decision of the city administrator to reinstate the employee or remove, demote, discharge or suspend the employee, with or without pay, the police chief shall within a reasonable period of time investigate the alleged misconduct, charges or grounds against the employee and explain the basis of the employer's evidence to the employee and provide the employee an opportunity to present his version of the circumstances which resulted in the filing of a written accusation. If the police chief's investigation reveals other misconduct, charges or grounds, the chief shall amend the written accusation to include the other misconduct, charges or grounds by filing an amendment to the written accusation with the secretary of the commission. If a police chief is being disciplined, the city administrator shall follow the same procedures as are followed by the police chief in disciplining employees under this chapter. Upon completion of this procedure within a reasonable period of time, the police chief shall recommend in writing to the city administrator that the alleged misconduct, charges or grounds set forth in the written accusation be deemed to:

(1) Be without merit;

(2) Not warrant disciplinary action;

(3) Warrant disciplinary action less severe than removal, demotion, discharge or suspension, with or without pay, such as an oral or written reprimand; or

(4) Warrant removal, demotion, discharge or suspension, with or without pay.

(e)�� Within ten calendar days after receiving the written recommendation of the police chief, the city administrator shall decide to accept the recommendation of the police chief, or shall decide that the alleged misconduct, charges or grounds for investigation against the employee set forth in the written accusation to:

(1) Be without merit;

(2) Not warrant disciplinary action;

(3) Warrant disciplinary action less severe than removal, demotion, discharge or suspension, with or without pay, such as an oral or written reprimand; or

(4) Warrant removal, demotion, discharge or suspension, with or without pay. Any employee so removed, suspended, demoted or discharged may, within ten calendar days after receiving written notice of the city administrator's decision, file a written demand for an investigation and public hearing by the commission. The employee shall file the request for the hearing with the secretary of the commission and simultaneously send a copy of the request to the city administrator. The failure to file such a request with the secretary of the commission within ten calendar days of the receipt of notice of the action by the city administrator shall constitute a waiver of the employee's right to review by the commission, and the city administrator's decision shall become final.

(f)�� Within seven calendar days after receipt of the employee's notice of appeal, the city administrator shall cause to be mailed or delivered the following notice to the employee and secretary of the commission a notice containing:

(1) A statement of the charges;

(2) The names of witnesses who will be called on behalf of the city administrator and a general statement of the nature of their testimony; and

(3) Copies of the documents to be offered in support of the charges.

(g)�� Within nine calendar days after the filing of the written demand for an investigation and public hearing by the commission, the employee shall mail or deliver copies of the following upon the city administrator and the commission:

(1) A response to the statement of the charges;

(2) The names of witnesses who will be called on behalf of the employee and a general statement of the nature of their testimony; and

(3) Copies of the documents to be introduced.

(h)�� Upon receipt of a written demand for an investigation and public hearing, the commission shall conduct an investigation. The commission may be represented in such investigation and public hearing by the city attorney if authorized by the city administrator. If the city attorney does not represent the commission, the commission may be represented by special counsel appointed by the commission for any such investigation and hearing. Investigation shall consist solely of a review of the written submissions of the city administrator and employee to determine whether any individuals or documents should be subpoenaed by the commission for the subsequent public hearing before the commission, ultimately to determine whether the city administrator acted in good faith for the cause. Good faith for cause shall mean that the action was not arbitrary or capricious and was not made for political or religious reasons.

(Code 1974, � 2-405.01)

State law references: Similar provisions, R.R.S. 1943, � 19-1833.

Sec. 26-47.� Commission public hearing. (return to ch. 26)

(a)�� The civil service commission shall schedule a public hearing to be held after the investigation and no less than ten nor more than 20 calendar days from the date of filing of the employee's written demand for an investigation. The commission shall notify the city administrator and employee in writing at least five calendar days prior to the date of the hearing of the date, time and place of hearing.

(b)�� The parties may, by agreement and stipulation, continue the date of hearing to be held at a time more than 20 calendar days from the date of filing of the employee's written demand for an investigation.

(c)�� The parties shall have the right to amend their filings with the commission, provided reasonable notice is provided to the other party.

(d)�� The city administrator shall be permitted to appear in person and by counsel and to present the case. The city administrator may present evidence by testimony and documents and shall be permitted to cross examine the employee's witnesses. At the hearing, the employee shall be permitted to appear in person and by counsel and to represent the defense. The employee may present evidence by testimony and documents and shall be permitted to cross examine the witnesses called by the city administrator.

(e)�� The commission may affirm the action taken by the city administrator if such action is supported by a preponderance of the evidence. If the commission finds that the removal, suspension, demotion or discharge was made for political or religious reasons or was not made in good faith for cause, it shall order the immediate reinstatement or reemployment of such employee in the position or employment from which such employee was removed, suspended, demoted or discharged, which reinstatement shall, if the commission in its discretion so provides, be retroactive and entitle such person to compensation and restoration of benefits and privileges from the time of such removal, suspension, demotion or discharge.

(f)�� After the hearing, in lieu of affirming the removal, suspension, demotion or discharge, the commission may modify the order of removal, suspension, demotion or discharge by directing a suspension, with or without pay, for a given period, either decreasing or increasing the written recommendation of the city administrator, and the subsequent restoration to duty or demotion in position or pay. No later than ten calendar days after the hearing, the commission shall certify its findings in writing to the employee, and to the city administrator, who shall enforce them.

(Code 1974, � 2-405.02)

State law references: Similar provisions, R.R.S. 1943, � 19-1833.

Sec. 26-48.� Leave of absence. (return to ch. 26)

A leave of absence with or without pay may be granted by the city administrator to any person under civil service. The city administrator shall give notice of such leave to the civil service commission. All appointments for temporary employment resulting from such leaves of absence shall be made from the eligible list, if any, of the civil service.

(Code 1974, � 2-406)

State law references: Similar provisions, R.R.S. 1943, � 19-1838.

Sec. 26-49.� Reduction in force policy. (return to ch. 26)

(a)�� Establishment. The council in establishing a reduction in force policy shall consider recommendations from the civil service commission but shall not be bound by them. Prior to the adoption of a reduction in force policy, the council shall, after giving reasonable notice to each police officer by first class mail, conduct a public hearing.

(b)�� Factors. The council shall adopt a reduction in force policy which shall consider factors including but not limited to:

(1) The multiple job skills recently or currently being performed by the employee;

(2) The knowledge, skills and abilities of the employee;

(3) The performance appraisal of the employee, including any recent or pending disciplinary actions involving the employee;

(4) The employment policies and staffing needs of the department, together with related contracts, ordinances and statutes;

(5) Required federal, state, or local certifications or licenses; and

(6) Seniority.

(Code 1974, � 2-407)

State law references: Similar provisions, R.R.S. 1943, � 19-1830.

Secs. 26-50--26-80.� Reserved. (return to ch. 26)

ARTICLE III.� CIVIL SERVICE COMMISSION* (return to ch. 26)

__________

*Cross references: Board, commissions and committees, � 2-321 et seq.

__________

Sec. 26-81.� Created. (return to ch. 26)

There is created in the city a civil service commission which shall have three members who shall each be a citizen of the United States, a resident of the city for at least three years immediately preceding such appointment, and an elector of the county wherein such person resides.

(Code 1974, � 2-301)

State law references: Authority to create a civil service commission, R.R.S. 1943, � 19-1827.

Sec. 26-82.� Appointment of members. (return to ch. 26)

The members of the civil service commission shall be appointed by the mayor, by and with a majority vote of the council. At the time of any appointment, not more than two members of the civil service commission, including the ones to be appointed, shall be registered electors of the same political party.

(Code 1974, � 2-302; Ord. No. 99-15, � 1, 11-30-1999)

State law references: Similar provisions, R.R.S. 1943, � 19-1827.

Sec. 26-83.� Members' term of office. (return to ch. 26)

The first persons appointed to the civil service commission shall serve staggered terms.

(Code 1974, � 2-303)

State law references: Similar provisions, R.R.S. 1943, � 19-1827.

Sec. 26-84.� Removal from office. (return to ch. 26)

Any member of the civil service commission may be removed from office for incompetency, dereliction of duty, malfeasance in office, or other good cause by the mayor with the approval of the council, except that no member of the civil service commission shall be removed until written charges have been preferred, due notice given such member, and a full hearing had before the council.

(Code 1974, � 2-304; Ord. No. 99-15, � 2, 11-30-1999)

State law references: Similar provisions, R.R.S. 1943, � 19-1827.

Sec. 26-85.� Compensation of members. (return to ch. 26)

Members of the civil service commission shall serve without compensation.

(Code 1974, � 2-305)

State law references: Similar provisions, R.R.S. 1943, � 19-1827.

Sec. 26-86.� Meetings. (return to ch. 26)

The civil service commission shall hold meetings as may be required for the proper discharge of its duties.

(Code 1974, � 2-306)

State law references: Similar provisions, R.R.S. 1943, � 19-1830.

Sec. 26-87.� Chairperson. (return to ch. 26)

The civil service commission shall annually elect one of its members as chairperson.

(Code 1974, � 2-307)

State law references: Similar provisions, R.R.S. 1943, � 19-1830.

Sec. 26-88.� Secretary and chief examiner. (return to ch. 26)

The civil service commission shall appoint a secretary and a chief examiner, who shall keep the records of the commission, preserve all reports made to it and keep a record of all examinations held under its direction, and perform such other duties as the commission may prescribe. The commission may merge the positions of secretary and chief examiner and appoint one person to perform the duties of both positions. The commission shall appoint the city's personnel officer as secretary and chief examiner, if requested to do so by the city administrator. The secretary and chief examiner shall be subject to suspension or discharge upon the vote of a majority of the appointed members of the commission.

(Code 1974, � 2-308)

State law references: Similar provisions, R.R.S. 1943, � 19-1830.

Sec. 26-89.� Quorum. (return to ch. 26)

Two members of the civil service commission shall constitute a quorum for the transaction of business.

(Code 1974, � 2-309)

State law references: Similar provisions, R.R.S. 1943, � 19-1827.

Sec. 26-90.� Powers and duties. (return to ch. 26)

(a)�� The civil service commission shall adopt and promulgate procedural rules and regulations which shall provide in detail the manner in which examinations may be held and shall provide for any other matters assigned to it by the city administrator. At least one copy of the rules and regulations shall be made available for examination and reproduction by members of the public. One copy of the rules and regulations shall be given to each full-time police officer.

(b)�� The commission shall provide that all tests shall be practical and consist only of subjects which will fairly determine the capacity of persons who are to be examined to perform the duties of the position to which an appointment is to be made and may include but are not limited to tests of physical fitness and of manual skill and psychological testing.

(c)�� The commission shall provide, by the rules and regulations, for a credit of ten percent in favor of all applicants for an appointment to an entry-level position, as defined by the city administrator under civil service, who in time of war or in any expedition of the armed forces of the United States have served in and been honorably discharged from the armed forces of the United States and who have equaled or exceeded the minimum qualifying standards established by the city administrator.

(d)�� The commission may conduct an investigation concerning and report upon all matters regarding the enforcement and effect of this chapter and the rules and regulations prescribed under this chapter.

(e)�� The commission may inspect all institutions, departments, positions and employments affected by this chapter to determine whether it and all such rules and regulations are being obeyed. Such investigations may be conducted by the commission or by any commissioner designated by the commission for that purpose. The commission shall also make a like investigation on the written petition of a citizen, duly verified, stating that irregularities or abuses exist, or setting forth, in concise language, the necessity for such an investigation. The commission may be represented in such investigation by the city attorney if authorized by the city administrator. If the city attorney does not represent the commission, the commission may be represented by special counsel appointed by the commission in any such investigation. In the course of such an investigation, the commission, designated commissioner, or chief examiner shall have the power to administer oaths, issue subpoenas to require the attendance of witnesses and the production by them of books, papers, documents and accounts pertaining to the investigation, and to cause the deposition of witnesses, residing within or without the state, to be taken in the manner prescribed by law for like depositions in civil actions in the courts of this state. The oaths administered and subpoenas issued shall have the same force and effect as the oaths administered by a district judge in a judicial capacity and subpoenas issued by the district courts of the state. The failure of any person so subpoenaed to comply shall be deemed a violation of this chapter and shall be punishable as such. No investigation shall be made pursuant to this section if there is a written accusation concerning the same subject matter against a person in the civil service. Such accusation shall be handled pursuant to section 26-45.

(f)�� The commission shall provide that all hearings and investigations before the commission, designated commissioner, or chief examiner shall be governed by this chapter and the rules of practice and procedure to be adopted by the commission. In the conduct of such hearings and investigations, they shall not be bound by the technical rules of evidence. No informality in any proceedings or hearing or in the manner of taking testimony shall invalidate any order, decision, rule or regulation made, approved or confirmed by the commission; except that no order, decision, rule or regulation made by any designated commissioner conducting any hearing or investigation alone shall be of any force or effect unless it is concurred in by a majority of the appointed members of the commission, including the vote of any commissioner making the investigation.

(g)�� The commission shall establish and maintain a roster of officers and employees.

(h)�� The commission shall provide for, establish and hold competitive tests to determine the relative qualifications of persons who seek employment in any position and, as a result, establish eligible lists for the various positions.

(i)�� The commission shall make recommendations concerning a reduction in force policy to the city administrator.

(j)�� The commission shall keep such records as may be necessary for the proper administration of this chapter.

(k)�� The commission, upon request of the city administrator, shall establish and maintain a list of names and addresses, for a period of time established by the city administrator, of those eligible for appointment to or promotion within the police department.

(l)�� The commission, upon request of the city administrator, shall certify the names of the persons who are the three highest on the eligible list, following the most recent examination, and whose qualifications have been validated by the commission for a vacant position.

(m)�� The commission shall begin and conduct all civil suits which may be necessary for the proper enforcement of this chapter and the rules of the commission. The commission shall be represented in such suits and all investigations pursuant to this chapter by the city attorney, if authorized by the city administrator. If the city attorney does not represent the commission, the commission may be represented by special counsel appointed by it in any particular case.

(Code 1974, � 2-310)

State law references: Similar provisions, R.R.S. 1943, �� 19-1830, 19-1833, 19-1835.