(A) An employee protected by this subchapter who has the right to file an appeal of an adverse personnel action under § 34.08 of this code shall have the option of utilizing the procedures established in the city's Personnel Rules and Regulations or the procedures established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures.
(B) Any employee protected by this subchapter may file a written complaint within sixty (60) days after the action prohibited by this subchapter with the City Attorney. The written complaint must set forth the facts which constitute the alleged retaliation. The City Attorney shall refer the complaint to the Department of Administrative Hearings (DOAH) within sixty (60) days, except the City Attorney shall have the authority to extend such time for reasonable cause.
(C) Findings of fact shall be based upon a preponderance of the evidence and shall be based exclusively on the evidence of record and on matters officially recognized. The presiding officer shall complete and submit to the city and all parties, a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order. All proceedings conducted under this subsection shall be de novo.
(D) The presiding officer's findings of fact, conclusions of law and recommendation shall be transmitted to the City Manager. The City Manager may adopt the recommended order as the final order of the city. The City Manager may reject or modify the conclusions of law and interpretation of ordinances and administrative rules. When rejecting or modifying such conclusion of law or interpretation of an administrative rule, the City Manager must state with particularity the reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of an administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact.
(E) If the written complaint directly involves a public officer appointed by the City Council pursuant to the City Charter, the presiding officer shall submit its findings to the City Council for a final decision. The City Council shall then determine in a public meeting whether to adopt the recommended order as the final order of the city. The City Council may reject or modify the conclusions of law and interpretation of ordinances and administrative rules. When rejecting or modifying such conclusion of law or interpretation of an administrative rule, the City Council must state with particularity the reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact.
(Ord. 2002-30, passed 4-18-02; Am. Ord. 2020-75, passed 11-5-20)