Disci linar Settlement Agree ent The following terms and conditions of this Disciplinary Settlement Agreement ("Agreement ) shall constitute full and complete resolution' of the discip inary action against Ian Hawkiey #4393 ("Employee ) by the City of San Jose ("Cit ”) based upon the allegations stated in the Notice of Intende Discipline dated June 22, 2018, ("NOID"), attached hereto as Exhrbit-A, an incorporated herein by reference. 1. E ployee admits the allegations of misconduct set forth in the NOID (Exhibit A). Employee admits that his conduct in this regard is cause for discipline pursuant to the San Jose Municipal Code Section 3.04.1370, subdivisions (B), (E), and (V). 2. In resolution of this disciplinary action, Employee will receive a suspension from his position of Police Officer for a period of sixty (60) hours effective July 30, 2018, and the City agrees to hoid dismissal from City service in abeyance. 3. In consideration for holding the dismissal from City service in abeyance, E ployee understands and agrees that during the term of this Agreement: a. E ployee shall not engage in conduct similar to what was sustained in the NOID dated June 22, 2018, and t e Police Depart ent Investigation, violating the San Jose Police Department Manual S ctions L2111 Pursuit Communications, L2113 Continuation o Termination of Pursuit, L2605.5 Tactical Conduct, L2614.5 Shooting at oving Vehicles and L4435 Body Worn Camera Policy. b. Employee shall attend Force Options Training" and “Pursuit Training" to be conducted by the Police D partment s Training Unit and completed within six months of t e execution of this Agreement. 4. Should Employee fail to fully comply with or breach any terms of this Agreement. Employee agrees that the City shall have the right to issue a Notice of Reinstated Discipline automatically imposing the dis issal being held in abeyance pursuant to paragraph 2, above, 5. In the event that Employee iolates this Agreement, Employee will e notified of such breach by letter and will be given the opportunity to request an informal conference with the City Manager or designee. Any request for an informal conference with the Cit Manager or designee must be requested by the Employee within ten (10) days from the date of the letter notifying Employee that this Agreement has been violated. This informal conference must be hel within twenty-one (21) calendar days of the date of the letter notifying Employee that t is Agreement has been violated, unless the parties mutually agree to delay the informal conference, instead of an info mal conference, Employee may elect to respond in writing. Any such written response must be submitted within twenty-one (21) calendar days of the date of the letter notifying Employee that this Agreement has been violated, The City Manager or designee shall have the final and full discretion to eter ine whether a breach of this Agreement has occurred and whether to issue a Notice of Reinstated Discipline, A Notice of Reinstate Discipline, if deter ined to be appropriate by the City Manager or designee, shall be served by letter, hand-delivered or by U.S. mail, to employee's ho e address on file with the Human Resources Department and s all designate the effective date of the discipline. Employee hereby agrees to waive any and all rights to appeal the Notice of Reinstate Discipline as set forth in Section 6 below. 6. Employee is awar of the provisions of the San Jose Municipal Code Sections 3.04.1380 and 3.04.1390 and Section 25.8 of the emorandum of Agreement betw en the Cit of San Jose and San Jose Police Officers Association, copies of which are attached hereto and incorporated herein as Exhi it-B. Further, employee is aware of t e Public Safety Officers Procedural Bill of Rights Act under California Government Code Section 3300 et seq. Employee represents that he has read and understands these provisions. Employee understands and agrees that he knowingly an willingly waives any right of notice or appeal un er these provisions and any and ail other administrative or judicial review of the restrictions imposed pursuant to the terms of this Disciplinary Settlement Agreement, including without limitation t e dismissal contained herein, as well as any Notice of Reinstated Discipline that may be mposed pursuant to paragraph 4 above. Employee further agrees and ereby waives his right to file any and all appeals and supplementary procee ings before the Civil Service Commission and any action, judicial, arbi ral, or administrative, which may or ay not have heretofore been instituted in regard to or in any way related to this disciplinary matter. 7. This Agreement is effective when signed by all of the persons designated below and shall expire, if no breach occurs, three years from the effective date. Upon expiration, the usual rights and remedies of the e ployee and employer resume, 8. This Agree ent constitutes the entire agreement etween Em loyee and the City with respect to any matte s referred to n t is Agree ent. This Agreement supersedes an and all of the other agree ents between Employee and the City. 9. T is Agree ent shall not establish precedent for future proposed disciplinary a tions and therefore shall not obli ate the Cit to offer or enter into a settlement agreement in the future related to this E ployee or other Ci employees. However, the City may take into consideration he conduct referenced in the NOID, and the sixty (60) hour suspension set forth in 2 paragraph 2, above, with regard to any future disciplinary action taken agains Employee. 10. Employee acknowledges that he is nowingly and voluntarily entering into this Agreement and that he has had the opportunity to consult with a representative of his c oosing prior to executing the same. For E ployer For Em loyee: City of San Jose Ian Hawkiey - Date Chief of Police Jennifer Sche bri Date Director of Employee Relations Approved as to form: Approved as to form; Sean Pritchar San Jose Police Officers Association c; SJPD Personnel File Human Resources Personnel File 3 -,SanJosi Police Departmeii-i June 22, 2017 Officer Ian Hawkley # 4393 201 W. Mission Street _San-Jose -CA-95-14-0 Re: No ice of Int nded Discipline Deai' Officer Hawkley; This letter is to notify you of rny intent to recommend to the City Manager that you be terminated from your position o Police Officer (2215) in the San ose Police Department. The proposed disci linary action is based upon the follow ng: 1. On or about June 17, 201 you were involved in an unauthor ed vehicle pursuit You di not notify communications of the pursuit, failed to terminate the pursuit, used i ro er tactics, disc arged your firearm at a moving e icle, and faile to roperly activate your Body Worn Camera, This conduct is cause for iscipline pursuant to San Jose Municipal Code Section 3.04.1370; (B) Misconduct ¦ E) Failure to observe applicable rules and regulations (V) Any other act, either during or outside of uty hours hic is detrimental to the pu lic ser ice. Your conduct Is in viol tion of San Jose Police De artment Du y Manual Sections L 2111 ~ Pursuit Co munications. L 2T13 - Con inu tion or Ter ination of Pursuit,T2602.5 Tactical Conduct, L 2641.5-Shooting a Moving Vehicles, an L'4435 " Bo y Worn Carhera Policy. information sup ortin the c arges abo e is contained in the attache m t rial nd is incorporated herein by reference. SANsa»coN Toss 201W Mission St. San Jose, CA 5110 id (408) 277-4 212 fnx (408) 277-5771 wss y.sjpd.or Officer laii Hawkley 43 3 Notice of Intended Discipi e June 22,2018 Pa e 2 of3 In addition to considering he significance of the acts noted above, 1 have also i'eviewed your personnel history and noted that you have been employe with the Cit of San Jose since October 10, 2014, I have also noted the following: Before t e roposed iscipline is implemented, you have a right, to requ st a pre- disciplinary S/re// conference, which provides you an opportunity to respond and provide relevan Information. Because this is not an evidentiary hearing, you ave no right to call or to 'cross-examine witnesses, However, you may be represented y a union representative or legal counsel. If ou desire to exercise your right to a Skelly conference In t is matter, you must make t e request by notif ing the Secretary of the Assistant Chief of Police at (408) 2774 14 within seven (7) calendar days of service of this notice upon .you. Provided you make the request In a timely manner, then a pre disciplinary Skelly conference will be sch dule an conducted as soon as possible. instea of conference, you may elect to respon in writing. Any such ritten response must be submitte within seven (7) c len ar days of service of this notice upon ou. Any request to extend the seven (7) calend r ay period must be made In writing ithin he se en (7) day period and mus include the reasons for the extension. If ou o not choose to exercise your pre-disciplinai Skelly rights, the effective date of the discipline wili be the soonest possi le date following the seven (7) calendar days in which you have to exercise your Skelly rig ts. You will receive a Notice of Disci line that will specify the,effect ve date of the discipline. If you r quest a Skelly conference or submit a written response, a deter ination on the recommended disci linary action will be made after consideration of the Information you provide. If the Cit decides to proceed Officer Ian Haw ley 4393 Notice ofintendcd Disoi iine June 22,20 ig Pages of3 with formal div oipiinaiy action after the Skelly rocess, you ill receive a Notice of Discipline that will contain the actual effecti e da e of the isciplinary action. Please e aware that it is a violation of the Cit 's Non-Retaiiation Policy (City Polic Manual Section 1.1.4) to re aliate in any way agains any person w o participates in making a corn ialnt, ro ides Information, or other ise partici ates in an investigation rela ed to misconduct or violations of Ci y policies or regulations, Sincerely, E gardo Garcia Chief of Police Lt. Brian Matchett #3302 Commander interna! Affairs Unit EG;bm Enclosure cc: Office of Employee Relations 3.04.1380 - Discipiinary action - Notice re uirements. A. The appointing authority may take disciplinary action against an employee for one or more of the causes for discipline specified in this part, as follo s; 1. Where the contemplated discipline is a demotion, dismissal or suspension, by ersonally serving the employee with a written "notice of int nded discipline," setting fort the specific nature thereof, the length and com encement date if it be a suspension, and the reasons for the propose discipline, along with a copy of the charges and materials upon which the action is based. Said "notice of intended discipline" shall also advise the e ployee that he as five calendar days in hich to respond either personally or in writing at an informal hearing before the depar nent head making the charges or the appointing authority-or the person esignated by either-and may ap ear with counsel or representative, to show cause, if any, why such discipline should not be i posedr ro ided howevef -th at--s-aid-five'day- riod-m-a -be-ex e de -b -dep«rtm©nt-h©ad-0[ appointing authori y upon the employee's timel request in writing and for reasons of employee s convenience and necessi y, B. No disciplinary action of any type or duration s all be valid unless a forma! written notice thereof is served upon the e ployee and filed with t e secretar of the commission within se ent -two hours of he effecti e date of the disci line. Such notice of suspension, demotion or dismissal shall be served upon the employee either personally or by mail and shall include: 1. A statement of the nature of the iscipiinary action; 2. A statement in ordinary, concise language of the acts or omissions upon which the causes are. based; 3. The effective date of the action; and 4. A statement advising the employee of his right to answer and setting forth that t e response must be made within the time period specified in the notice of suspension, demotion or dismissal, if his answer is to constitute an appeal. C. The procedures se forth hereinabove shaii not apply to proba ionary employees who are rejected from probation, ursuant to Section 3.04.1010 of the San Jose Municipal Code. D. The procedures set forth hereinabove shall not preclu e an employee from entering into a written agreement with the cit to settle a pending iscipiinary matter, and further shall not preclude an employee fro waiving any of the notice provisions, hereinabove provided for, as part of tha written settlement agreement. A copy of any such disciplinary settlement agreement s all e filed w th the co mission. (Prior code § 2016.5; Ords. 20017, 20893.) 3.04.1390- Answer to notice of discipline - Filing. Not later than twenty days after ser ice of the notice of disciplinary action, the employee may file wit the commission a written answer to the notice, w ich answer shall e deemed to be a denial of all of the allega ions of the notice of disciplinary action not expressl admitted, and a request for hearing or investigation as provi ed in this part. With the consent of the commission, an amended answer ma be filed. If the employee fails to answer within said twenty calendar days, or after answer with aws his appeal, the disciplinary action taken by the appointing authority shall be final. A cop of the employee's answer, and of an amended answer, shall be given promptl by the secretary of the commission to the appointing authority. (Prior code § 2016.6; Ord. 20801,) 25,8 Discfpiinarv Grievances 25.8.1 Employees in the bargaining unit shall only be disciplined for cause. Discipline Is defined to include those matters that are cognizable before the Civil Service Commission plus disciplinary transfers. 25.8.2 Persons on probationary status (entry-level or promotional) may not appeal under this agreement rejection on probation. 25.8.3 Letters of reprimand ay be a pealed underthis section only to the City Manager level. 25.8.4 Documented Oral Counselings (DOCs) retained by the Internal Affairs Di is on may be appealed under this section only to the level of Assistant Chief of Pol ce. However, should a particular DOC e the result of the Assistant Chiefs having re uced a higher form of disciplin to a DOC with whic the affected officer is still dissatisfied, suc DOC ay be appealed to the level of the Chief of Police. DOCs received for preventable, automobile accidents shall not be appealable unless the officer contends that the accident was not preventable. 25.8.5 Nothing herein constitutes a waiver of rights of employees otherwise granted by law (e.g., Govern ent Code Sections 3300 et. seg.). 25.8.6 An employee challenging a suspension, demotion, dismissal or disciplinary transfer shall have the option of choosing between the dispute resolution provisions of this Agreement, or appeal to the Civ l Ser ice Commission. Any employee who wishes to preser e the right of appeal to the Commission us comply with the time requirements for filing such appeal as specified in the Civil Ser ice Rules. Within twent (20) days of the ate of a Notice of Discipline, the e ployee may file an appeal with the Civil Service Co mission or pursue the grievance procedure or both. The grievance procedure shali begin at Step IV Arbitration for this process. Immediate arbitration shall not apply. 25.8.7 The employee shall confirm is her election of remedies in writing to the Director of Employee Relations. If the employee files an appeal to the Civil Service Commission and also an ap eal through the grievance procedure of this Agreement within the required timelines, the election of remedies must be made no later than 45 days fro the date of the Notice of Discipline. The election of re edies must also be made prior to the sub ission of a request for a list of arbitrators and prior to scheduling a Ci il Ser ice Commission appeal hearing, As other ise provided in this Agreement, for the matter to go to binding arbitration, the Organization ust agree (i.e,, must be the party taking the matter to arbitration.