(A) (1) The Merit Commission may take the following disciplinary actions against a regular member of the Department:
(a) Suspension with or without pay.
(b) Demotion.
(c) Dismissal.
(2) If a member is suspended under division (A)(2) of his section, the member is entitled to the member's remuneration and allowances for insurance benefits to which the member was entitled before the suspension. In addition, the city may provide the member's allowances for any other fringe benefits to which the member was entitled before the suspension. The Commission shall determine if a member of the Department who is suspended in excess of five days shall continue to receive the member's salary during suspension.
(B) A member may be disciplined by the Commission if:
(1) The member is convicted of a crime; or
(2) The Commission finds the member guilty of a breach of discipline, including:
(a) Neglect of duty;
(b) Violation of Commission rules;
(c) Neglect or disobedience of orders;
(d) Continuing incapacity;
(e) Absence without leave;
(f) Immoral conduct;
(g) Conduct injurious to the public peace or welfare;
(h) Conduct unbecoming a member; or
(i) Furnishing information to an applicant for appointment or promotion that gives that person an advantage over another applicant.
(C) If the Chief of the Department, after an investigation within the Department, prefers charges against a member of the Department for an alleged breach of discipline under division (B), including any civilian complaint for an alleged breach of discipline under divisions (B)(2)(f), (g), or (h) of this section, a hearing shall be conducted upon the request of the member. If a hearing is requested within five days of the Chief preferring charges, the parties may by agreement designate a hearing officer who is qualified by education, training or experience. If the parties do not agree within this five-day period, the Commission may hold the hearing or designate a person or board to conduct the hearing, as provided in the Commission's rules. The designated person or board must be qualified by education, training or experience to conduct such a hearing and may not hold an upper level policy making position. The hearing conducted under this division shall be held within 30 days after it is requested by the member.
(D) Written notice of the hearing shall be served upon the accused member in person or by a copy left at the member's last and usual place of residence at least 14 days before the date set for the hearing. The notice must state:
(1) The time and place of the hearing;
(2) The charges against the member;
(3) The specific conduct that comprises the charges;
(4) That the member is entitled to be represented by counsel or another representative of the member's choice;
(5) That the member is entitled to call and cross examine witnesses;
(6) That the member is entitled to require the production of evidence; and
(7) That the member is entitled to have subpoenas issued, served and executed.
(E) The Commission may:
(1) Compel the attendance of witnesses by issuing subpoenas;
(2) Examine witnesses under oath; and
(3) Order the production of books, papers and other evidence by issuing subpoenas.
(F) If a witness refuses to appear at a hearing of the Commission after having received written notice requiring the witness's attendance or refuses to produce evidence that the Commission requests by written notice, the Commission may file an affidavit in the circuit court of the county setting for the facts of the refusal. Upon the filing of the affidavit, a summons shall be issued from the circuit court and served by the sheriff of the county requiring the appearance of the witness or the production of information or evidence to the Commission.
(G) Disobedience of a summons constitutes contempt of circuit court from which the summons has been issued. Expenses related to the filing of an affidavit and the issuance and service of a summons shall be charged to the witness against whom the summons has been issued, unless the circuit court finds that the action of the witness was taken in good faith and with reasonable cause. In that case, and in any case in which an affidavit as been filed without the issuance of summons, the expenses shall be charged to that Commission.
(H) A decision to discipline a member may be made only if the preponderance of the evidence presented at the hearing indicates such a course of action.
(I) A member who is aggrieved by the decision of a person or board designated to conduct a disciplinary hearing under division (C) of this section may appeal to the Commission within ten days of the decision. The Commission shall on appeal review the record and either affirm, modify or reverse the decision on the basis of the record and such oral or written testimony that the Commission determines, including additional or newly discovered evidence.
(J) The Commission, or the designated person or board, shall keep a record of the proceedings in cases of suspension, demotion or dismissal, the Commission shall give a free copy of the transcript to the member upon request if an appeal is filed.
(Ord. 2989, passed - -94)