Revised February 21, 2019
Article I Name and Objectives
Section 1 Identification
This organization shall be known as the Fremont Police Association, Incorporated, hereinafter referred to as “The Association.”
Section 2 Principal Office
The principal office of the Association shall be in the City of Fremont, County of Alameda, State of California.
Section 3 Formation
The Association shall be a non-profit organization, incorporated under Part 1, Division 2, Title 1, of the Corporations Code and shall have perpetual existence.
Section 4 Objectives
The objectives of the Association are:
- To promote the welfare, Efficiency and interests of the members of the Fremont Police Department.
- To promote, encourage and support the highest level of professional standards in law enforcement, the Law Enforcement Code of Ethics, and to cooperate in furthering the interests of the Department.
- To promote the interests of the City of Fremont and establish a closer and more informed relationship between the Fremont Police Department and the citizens of Fremont.
- To represent its members in their employment relationships with the City and other agencies.
- The Association shall have, possess, and exercise any and all powers, express or implied, required to achieve and promote the objectives as specified in paragraphs A-D above.
Article II Membership
Section 1 Membership Qualifications
To obtain membership in the Association, an applicant must be an active or retired employee of the Fremont Police Department. A member can have status in only one of the classes of membership described below. To retain membership, the member must either pay dues directly, or sign an authorized dues checkoff card as a precondition of retaining membership in any of the four classifications of the Association.
Section 2 Application for Membership
Any applicant for membership in the Association must complete and submit an application for membership to the Board of Directors.
Section 3 Active Membership
ACTIVE MEMBERSHIP shall be limited to regularly employed sworn police officers and sergeants of the Fremont Police Department. Active Members who are on leave of absence under Labor Code section 4850, sick leave, or extended leave of absence without pay but who have not been retired, and those terminated from the Department and whose cases are being appealed, can maintain Active Membership so long as the member continues to pay Association dues. Active Members shall have the right to vote and hold office in the Association.
Section 4 Active Retired Membership
ACTIVE RETIRED MEMBERSHIP shall be automatically bestowed upon Active Members who retire honorably from the Fremont Police Department. Separation or resignation from the Association (voluntary or otherwise) shall be permanent and nonrevocable, except as provided for in Section 9 below. Active Retired Members shall have the right to vote and hold office in the Association.
Section 5 Active Non-Voting Membership
ACTIVE NON-VOTING MEMBERSHIP for FREMONT POLICE MANAGEMENT (FPMA) MEMBERS shall be available for members of the FPMA. If, at the time of appointment to the rank of lieutenant, captain, and deputy chief, a person was not currently an Active Member of the Association, he/she must be approved for Active Non-Voting Membership by a majority vote of the Membership at the next regularly scheduled Association General Meeting. FPMA members who maintain an Active Non-Voting Members shall enjoy all of the benefits of the Association as the Board of Directors decides excluding the right to vote and hold office in the Association.
Section 6 Honorary Membership
HONORARY MEMBERSHIP shall be available to the Chief of Police and maybe available to other persons, as determined by the Board of Directors and approved by the general membership at a properly constituted membership meeting. An honorary member shall enjoy such benefits of the Association as the Board of Directors decides, but not the right to vote and hold office.
Section 7 Termination
Membership in the Association may be terminated for any of the following reasons:
- Non-payment of dues. While non-payment of dues constitutes grounds for terminating membership in the Association, there shall be a 120 calendar day “grace period” in which a member may cure a dues arrearage.
- Disciplinary proceedings as described in Article VIII, below.
Section 8 Withdrawal by Member
Membership in the Association may be discontinued by the member at any time by written notice from the member to the Board of Directors.
Section 9 Reinstatement
Any member who withdraws his/her membership from the Association or whose membership terminates for any reason may request reinstatement subject to the following conditions:
- Payment of $500; and payment of all back basic dues from the date of resignation.
- Payment of any special assessments levied against other members during the applicant’s absence.
- Approval of the Board of Directors and approval by two-thirds (2/3) of the Association’s membership by ballot following the application for reinstatement.
Article III Administration and Powers
Section 1 Concentration of Powers
The powers of the Association rests in its membership, but may be exercised by:
- A Board of Directors consisting of eleven (11) members elected from the qualified membership (as described in Section 6, below); or
- An Executive Board consisting of the President, First Vice-President, Second Vice-President, Secretary and Treasurer of the Association, as described in Section 13, below.
The officers, Board of Directors, and Executive Board shall have the right to exercise all necessary powers to carry out all objectives of the Association.
Section 2 Corporate Powers
The Association shall have, and may exercise, all corporate powers and rights bestowed upon non-profit organizations by the California Corporations Code. Nothing contained in these Constitution and Bylaws shall be deemed to limit or supersede the exercise or possession of any such right or power, including the Association’s right to sue or be sued.
Section 3 Selection of Officers
The membership of the Association shall, by ballot, select a President, First Vice-President, Second Vice-President, Secretary, Treasurer, and six (6) Directors at Large, who shall serve as the Board of Directors (the “Board”).
Section 4 Term of Office
Each member of the Board shall serve a term of two (2) years, without limit upon the number of terms.
Section 5 Timing of Election
The President and First Vice President shall be elected in odd-numbered years. The Second Vice President, Secretary, and Treasurer shall be elected in even-numbered years. The two (2) year terms shall run from June 1st of the year of the election to May 31st two (2) years thereafter.
Section 6 Eligibility
Only Active Members or Active Retired Members of the Association (as described above) are eligible to hold office.
Section 7 Duties of The Board of Directors
The duties of the Board of Directors (and of the Executive Board in the interim periods between regularly scheduled meetings of the Board of Directors) shall include, but shall not be limited to, the following: to conduct, manage, govern, execute, and administer all of the offices of the Association; to control and supervise the handling of all funds and properties of the Association; to see that their duties are properly conducted; and to pass upon all matters pertaining to the affairs of the Association as delegated to the Board by the Constitution and Bylaws of the Association.
- Each of the eleven (11) members of the Board of Directors shall have one (1) equal vote in all matters of the Association upon which the Board may vote.
Section 8 President’s Duties
The President Shall:
- Preside at all meetings of the Board of Directors and of the Association;
- Appoint committees;
- Be responsible of the general management and direction of the affairs of the Association, subject to the control of the Board of Directors.
Section 9 Vice President’s Duties
The First and Second Vice Presidents Shall:
- Conduct the affairs of the Association in the absence of the President;
- Assist, advise, and support the President during his/her term of office
Section 10 Secretary’s Duties
The Secretary shall:
- Attend all sessions of the Board of Directors and all meetings of the membership;
- Record all rotes and minutes of all proceedings of the Board of Directors and all regular and special meetings of the Association in books to be kept for that purpose;
- Keep each record made by or required of him/her under the provisions of this Constitution and Bylaws of the Association;
- Serve, issue, and publish all notices;
- Receive and present to the Board of Directors applications for membership in the Association;
- Keep a copy of the Constitution and Bylaws of the Association, complete with such amendments as may be enacted.
Section 11 Treasurer’s Duties
The Treasurer shall:
- Receive and have the custody of all funds and properties of the Association;
- Keep full and accurate accounts of receipts and disbursements in records belonging to the Association;
- Deposit all monies and other valuable effects of the Association in the name and to the credit of the “Fremont Police Association, Inc.” in such depositors as may be designed by Board of Directors;
- Disburse the funds of the Association as may be directed by the Board of Directors, taking proper vouchers for such disbursements;
- Render to the Board of Directors, whenever requested, and account of all his/her transactions as Treasurer and of the financial conditions of the Association;
- It shall be the responsibility of the Treasurer to have his/her financial records audited annually, and to present a report to the membership of the Association. If required by the Board of Directors, the Treasurer shall give the Association a bond in such sum or with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the office and for the restoration of the Association, in case of his/her death, resignation, retirement, removal from office, of all books, papers, vouchers, monies, and other properties of whatever kind in his/her possession or under his/her control belonging to the Association. When said bond is required, the premium on the bond shall be paid by the Association.
Section 12 Directors at Large Duties
The six (6) Directors at Large shall act as representatives of the general membership to the Board of Directors.
Section 13 Executive Board named Trustees
The Executive Board shall consist of the duly elected President, First Vice-President, Second Vice-President, Secretary and Treasurer. The members of the Executive board shall also serve as Trustees of the Fremont Police Association Benefit Trust Fund (“Fund”).
Should any member of the Executive Committee be unable or unwilling to serve as a Trustee, the President shall then appoint from the general membership a Trustee to serve in the place and stead of the Executive Committee member who is unable or unwilling to serve. Such replacement Trustee shall serve at the pleasure of the President.
Section 14 Trustees’ Duties
Section 14. The duties of the Executive Board acting as Trustees of the Benefit Trust Fund shall include, but not be limited to, the following: establish the trusts and plans thereunder to provide benefits to the Fund participants, define the types and level of such benefits, determine how such trusts and/or plans should be funded, establish how reserves should be allocated, and how benefits would be distributed, define which members or classes of membership and/or dependents can participate in such trusts.
Section 15 Appointment of Committees
The Executive Board shall also be authorized to appoint committees from current active voting members of the Association to carry out the goals and purposes of the Executive Board.
Section 16 Appointment of Managers
The Executive Board shall also be authorized to appoint Managers from current active voting members of the Association. managers may be appointed to carry out responsibilities that are of an indefinite and ongoing nature which require specialized skill and subject matter expertise.
Managers shall report to meetings of the Board annually, or more frequently as summoned by the Board with reasonable notice, on the activities carried out by their offices. The Board shall conider these reports, and consider the Manager’s performance and necessity. Continuation of Managers’ appointments shall be made by a motion and majority vote of the Board. Managers are appointed “at will” and may be removed, replaced, or their offices dissolved entirely by a majority vote of the Board.
Article IV Elections, Vacancies, Recall, Referendum
Section 1 Frequency of Elections
An election of officers shall be held once a year, however, the officers subject at election are described at Article III, Section 3, above.
Section 2 Number of Votes
Each Active Member of the Association shall be entitled to one (1) equal vote for each office to be filled in each election of the Association, and shall be entitled to one (1) equal vote on any matter of the Association upon which the membership votes.
- It shall be the responsibility of the FPA board to determine whether a matter for approval will require a vote of the membership. The FPA board may distribute information related to the proposal for vote and an explanation of the ballot process at a membership meeting, through printed materials and/or electronic posting via the FPA website. The membership ballots shall be prepared in a hard copy form by means of a typewritten paper ballot or prepared electronically via the FPA website. The completed ballots shall be submitted via the United States Postal Service, placed in a FPA ballot box or submitted electronically via the FPA website. The voting process shall be determined by the FPA board prior to the start of the vote.
Section 3 Proxy Voting
Any Active Member who cannot attend a membership meeting because he/she is on duty as a police officer at the time of the meeting can designate another Active Member in attendance to cast a proxy vote. An Active Member not in attendance must address a letter to the Board which is dated, signed, and specifically designates the person to hold the proxy vote. A proxy is only valid for the meeting in which it is presented and is only valid for ten (10) days from the date shown on letter.
Section 4 Consecutive Terms
Eligible members may be elected to consecutive terms of officer, either as Directors-at-Large, Secretary, Treasurer, Vice-President (First or Second), or President.
Section 5 Timing of Elections
The election process of the Association, shall be between April 15 through May 15, annually. The President shall appoint an Election Committee which shall oversee the election process.
Section 6 Nomination Ballots
Commencing April 15th, the Election Committee shall prepare a ballot for nominations. The ballots will be prepared and distributed in a hard copy form by means of a typewritten paper ballot or prepared electronically via the FPA website. The voting process will be determined by the Elections Committee at the onset of the election. Each eligible voting member of the Association may make nominations for vacant positions on the Board of Directors, consisting of six (6) Directors-at-Large; one (1) Secretary; one (1) Treasurer; and, where applicable under Article III, Section 5, one (1) First Vice-President, one (1) Second Vice-President and one (1) President by placing one name in the space provided for each office to be filled and returning the ballot within seven (7) days. The completed ballots shall be submitted via the United States Postal Service, placed in a FPA ballot box or submitted electronically via the FPA website. All ballots that comply with the election process shall be forwarded to the Election Committee. Nominees for election shall be selected upon the basis of those members receiving the greatest number of votes and equal in number to twice the number of existing vacancies.
Section 7 Election Ballots
At the direction of the Election Committee, an election ballot will be prepared in a hard copy form by means of a typewritten paper ballot and/or prepared electronically via the FPA website. Each eligible voting member of the Association shall receive one (1) election ballot. Each member may then vote for one (1) person in each of the respective offices for which there is a nominee, and then return the ballots within seven (7) days. All completed ballots shall be submitted via the United States Postal Service or placed in a FPA ballot box. If the electronic ballot process is utilized, via the FPA website, the membership shall electronically cast their vote within seven (7) days. All ballots that comply with the election process shall be forwarded to the Election Committee. The Election Committee shall, count ballots in an open membership meeting or release the results of the electronic ballot within ten (10) days. The nominees receiving the greatest number of votes for each of the respective offices shall be declared elected.
Section 8 Commencement of Office
The newly elected officers shall take office on June 1st, and the officers will be installed at the first regular meeting succeeding their election, and they shall serve until their successors are duly elected.
Section 9 Filling of Vacancies
Whenever a vacancy occurs in the Board of Director as the result of death, resignation, retirement, or removal from office, such vacancy shall be filled within a period of thirty (30) days by the appointment of an eligible, qualified member to the office by the Board of Directors. Such appointee shall serve until the next regular election.
Section 10 Abandonment of Office
Any officer of the Association who absents himself/herself without cause for three (3) or more consecutive meetings may be removed from office by a majority vote of the Board of Directors.
Section 11 Recall
Whenever written charges signed by twenty-five percent (25%) of the membership of the submitted to the Directors asking the recall of any officer of the Association, the Board of Directors, within ten (10) days, shall direct the preparation of a recall ballot, the same to be submitted to each voting member of the Association. All ballots shall be returned within seven (7) days, placed in a sealed envelope or ballot box, and forwarded to the Board of Directors. The Board of Directors shall, within ten (10) days, count the ballots in an open meeting. If the required two-thirds (2/3) of the Membership voted in favor of recall, the officer shall be declared removed from office.
Section 12 Resignation
An officer desiring to resign from office shall submit hes/her resignation I writing to the Board of Directors.
Section 13 Referendum
Whenever a petition, signed by twenty-five percent (25%) of the members of the Association, calling for a referendum or initiative vote is submitted to the Board of Directors, such initiative or referendum shall be submitted to a vote of the membership within ten (10) days, any referendum petition shall be filed no later than (10) calendar days after posting of the minutes of the Board meeting for which a referendum is sought.
Section 14 Initiation of Membership Vote
Whenever two-thirds (2/3) of the Membership present at a meeting of the Association vote to submit a matter to a vote of the entire membership, such initiative or referendum vote must take place within ten (10) days.
Article V Meetings
Section 1 Regular Meetings
Regular meetings of the Association shall be held quarterly. If it is determined by the Board of Directors that regular meetings are required more frequently, said regular meetings may be called after written notice as to time and place shall have been posted at least ten (10) calendar days in advance.
Section 2 Manner of Order
Except where inconsistent with these Constitution and Bylaws, “Robert’s Rules of Order,”as amended, shall govern the conduct of all meetings except as may be otherwise provided in these Constitution and Bylaws.
Section 3 Order of Business
The order of business shall be:
- Roll Call of officers;
- Reading of the minutes of the previous meeting;
- Communications and bills;
- Report of the Treasurer
- Reports of standing committees;
- Reports of special committees;
- Unfinished business;
- New business;
- Good of the Association;
Section 4 Special Meetings
A special meeting of the Association may be called when deemed necessary by the President, or by a majority of members of the Board of Directors, or by petition signed by twenty-five percent (25%) of the active membership pof the Association. Written notice as to time and place of a special meeting shall be posted at least forty-eight (48) hours in advance.
Section 5 Quorum
The (10) percent of the Active Membership of the Association must be present at a regular or special meeting to constitute a quorum.
Section 6 Special Meetings, Limitation of Business
Whenever a special meeting has been called, only those matters specified in the notice of meeting shall be considered.
Section 7 Board Meetings
The Board of Directors shall meet once each month at a time and place to be determined by the Board. Except for an executive session, all Board meetings shall be open to the membership of the Association and written notice as to time and place shall be posted at least forty-eight (48) hours in advance.
Section 8 Access to Meetings
All meetings of the Board of Directors shall be open to any member of the Association, except for Executive Sessions. An Executive Session may be declared by the Board of Directors to deal with sensitive issues which may affect the operations of the Association or its membership. Executive Sessions are restricted to the Board of Directors, counsel and specifically invited person(s).
Section 9 Quorum of the Board
Six (6) members of the Board of Directors present at a meeting shall constitute a quorum. However, no measure upon which the Board of Directors is empowered to act may be passed without the affirmative vote of six (6) or more members of the Board.
Section 10 Restriction of Attendance
Any membership meeting in which items to be discussed are, in the opinion of the President or a majority of the Board, of such a nature that the presence of management personnel in such a meeting would hinder the objectives of the Association, the Board or President can restrict those persons in attendance to Active and Active Retired Members only.
Section 11 Requirement to Attend; Penalties
Each Voting Member of the Association is required to attend a minimum of one (1) regularly scheduled Association meeting between June 1 to May 31. Failure to fulfill this requirement may result in the violating member being assessed the equivalent of one (1) month’s basic dues.
Article VI Finance
Section 1 Revenues
The revenues of the Association shall consist of dues, assessments, donations, fines, and/or other funds raised through promotional activities of the Association.
Section 2 Special Assessments
Whenever the Board of Directors deems that conditions warrant or demand the levying of an assessment upon the members of the Association, the Board, upon its own majority vote, shall submit the proposed assessment plan to the members of the Association. The members of the Association, shall, within ten (10) days, vote by ballot upon the assessment; and if the plan is approved by two-thirds (2/3) of the members voting, the assessment shall be due and payable within thirty (30) days.
Section 3 Expenditures
The Board of Directors shall have the power to make expenditures for the maintenance and benefit of the organization. The membership, at any regular or special meeting at which a quorum is present, may approve donations or expenditures by majority vote. Expenditures previously approved by the membership at a properly convened meeting may be paid by the Board of Directors or Treasurer without further approval by the membership. The Board may approve donations of up to $500 per issue without approval of the membership.
Section 4 Manner of Disbursement
Disbursements shall be made by cash, check, credit card, debit card, or wire transfer. Disbursements shall only be made pursuant to the authorities enumerated in Article VI, Section 3. The Treasurer shall record each disbursement as required in Article II, Section 11, and present those records upon demand of any Board Member or other proper authority.
Article VII Dues
Section 1 Dues Schedule
The dues of the Association shall be:
- Active Member and Active Non-Voting Member: Dues shall be 1.425% of gross top-step officer salary in effect for the same pay period. Dues shall be collected by payroll deduction twice monthly, plus such assessments as are levied by the membership. Assessments become due and payable thirty (30) days after passed by the membership. They become delinquent thirty (30) days thereafter.
- Active Retired Members retired on or after January 1, 2005 shall pay one hundred ($100.00) per year. Active Retired Members retired prior to January 1, 2005 shall pay sixty ($60.00) per year.
- Active Non-Voting Member for the Fremont Police Management Association (FPMA) members: The dues shall be fifty dollars ($50.00) per year, due on later than the second Friday in July of each year. Any current Active Member of the Association who joins the FPMA may apply to be an Active Non-Voting Member of the Association within thirty (30) days of their promotion to lieutenant or captain and their final Association dues payment at or concurrent with the time of promotion will be considered their dues for that year or partial year until the proceeding second Friday in July.
- Honorary Members: No dues are required for Honorary Members.
Article VIII Discipline and Disciplinary Proceedings
Section 1 Filing of Charges
Except as hereinafter provided in this Article, any member of the Association may file charges against any member for any serious and acts or omissions as hereinafter described, including, but not limited to, the acts or omissions of such individual while a member, officer, or director of the Association. All charges must concern only those acts or omissions which occur outside the course and scope of employment as an employee of the City, unless such acts impact the Association as described below.
Section 2 Basis for Filing Charges
The following shall constitute possible bases for the filing of charges:
- Violation of any provisions of the Constitution and Bylaws of this
- Misappropriation, embezzlement, or improper use of Association
- Acting in collusion with one or more management representatives to the detriment of the welfare of the Association or any of its members, including, but not limited to, giving management unauthorized information about Association positions, thoughts, or policies involving the meet-and-confer process or involving the filing or prosecution of any grievance or piece of litigation.
- Refusal or deliberate failure to carry out legally authorized decisions of the Board of Directors or of any Association officer or director, as authorized by these Constitution and Bylaws.
- Instituting, or urging others to institute, legal action outside the Association, before any forum whatsoever, against the Association, or any officer or employee thereof, without first exhausting all internal remedies within the Association, provided that the foregoing shall not apply where the action was instituted in order to prevent the loss of rights under an applicable statute of limitations, and the member has diligently pursued his/her internal remedies.
- Using the name or assets (including mailing lists) or goodwill of the Association in an unauthorized manner or for an unauthorized purpose.
- Deliberately interfering with any official of the Association in the discharge of his/her lawful duties.
- Conviction of felony or other infamous crime, or a crime the nature of which is such as to bring the Association as an organization into disrepute.
- Knowingly submitting any false financial report or statement to the Association.
- Making any material misrepresentation causing the expenditure of Association energies, funds, or goodwill.
- Absence by an elected official for three consecutive Board and/or without cause.
- Acting in a manner such as to substantially harm the interests of the Association
Section 3 Procedure for Filing Charges
- Charges shall be brought in writing and hall be signed by the member or members bringing the charge. Charges shall be specific, citing in detail the nature, the time, and the circumstances of the alleged offense. Where the violation of a Constitution and Bylaws provision is alleged, the specific section shall be cited, along with the specific act or omission which constitutes the violation. The charge(s) shall be filed with the Secretary of the Association or, if he/she is a directly interested party, the President of the Association. Such officer shall forward such charges to members of the Hearing Committee, as defined herein.
- The charges shall be served by registered mail, return receipt requested, to the address last known to the Association of the member involved. In the alternative, service may be made personally upon the charged member.
Section 4 Hearing Committee
A three-member Hearing Committee shall be appointed to hear the charge. One member shall be appointed by the accused and one member by the accuser. The accused and the accuser shall select the third Hearing Committee member by striking names from a list of five (5) Association members selected on an annual basis by the Board of Directors. The winner of a coin flip between the accused and the accuser shall choose which party strikes the first name.
As provided in Section 3 above, the Hearing Committee shall receive a copy of charges filed against a member or official of the Association from the Secretary or President. An additional copy of the charges shall be sent to the accused at his/her last known address on the books of the Association, or personally handed to him/her, within fifteen (15) days after charges are received by the Secretary or President and at least thirty (30) days before the hearing date. The Hearing Committee shall similarly serve on the accused a statement of the date, time, and place of the hearing on such charges.
Section 5 Hearing Procedures
- The accused shall have the right to present an answer to the charges, to present witnesses in his/her own behalf, to cross-examine any witnesses against him/her, to be presumed innocent unless proven guilty, and to choose either an open or a closed hearing. The quantum of proof involved is the preponderance of evidence and the burden lies with the accuser.
- The accused shall not have the right to be represented by legal counsel, unless the Hearing Committee chooses to allow such representation. The accused does have the right to be represented by any Association member or official who is not a member of the California Bar.
- The person bringing the charge will have the right to bring testimony, the right to select a person of his/her own choosing who is a member or official of the Association, but not a member of the California Bar, to present the case. The person bringing the charge shall also have the right to cross-examine any witnesses, including the accused, who testifies on behalf of the accused. The person bringing the charge shall have the right to be represented by counsel if the Committee permits the accused to be represented by counsel.
- Formal rules of evidence need not apply. The Hearing Committee may be advised by counsel, but such counsel cannot participate in either presenting, or defending against, the charges before the Hearing Committee.
- Members of the Hearing Committee may also be members of the Board of Directors, but any member of the Hearing Committee may not participate whatsoever in proceedings involving appeals to the Board of Directors, as hereinafter described, concerning any hearing in which he/she has participated.
Section 6 Penalties
The Hearing Committee may, if it finds the accused guilty on one or more charges, assess one or more of the following penalties:
- A formal reprimand, accompanied by a formal warning against any repetition of the acts or omissions of which the accused is guilty.
- Full or partial restitution, where the consequences of an offense can be measured in material terms.
- Removal from office.
- Suspension from membership for a specific period of time, not to exceed two (2) years, or suspension of officers or directors from their office for a period not to exceed one (1) year.
- Expulsion from membership.
Section 7 Specious Charges Filed Without Good Faith or With Malice
If the charges are not sustained, and the Hearing Committee or Appellate Body (as defined in Section 9 below) is convinced that the charges were not brought in good faith or were actuated by malice, the Hearing Committee or the Appellate Body may impose a penalty on the charging party as in its judgment is deemed proper under the circumstances. In any such case, the party against whom the penalty is imposed will have the same right to appeal the imposition of the penalty, ·if it is imposed by the Hearing Committee, as would exist if he/she had initially been charged and had a hearing before such committee. The penalty imposed must be one such as set forth above in Section 6 above.
Section 8 Findings of the Hearing Committee
All decisions shall be rendered by the Hearing Committee within thirty (30) days following the completion of the hearing, except by mutual consent of the accuser and the accused. Such decision shall be in writing and shall be transmitted by registered mail, return receipt requested, to the person bringing the charge and to the accused simultaneously.
Section 9 Appeal Process
- Either party may, within thirty (30) days following receipt of the decision, file an appeal to the Appellate Body, which shall be the Board of Directors of this Association, excluding any of its members who were members of the Hearing Committee in the matter from which an appeal is taken. The appeal shall be in writing and shall be accompanied by a copy of the original charges and of the decision which is being appealed. The appeal shall set forth in substance the appellant’s reasons for believing the Hearing Committee was in error and the nature of the error. A copy of this appeal shall be served by registered mail, return receipt requested, or in person, on the opposing party. The opposing party shall have thirty (30) days within which to respond to the appeal.
- The Appellate Body shall determine the matter at the next meeting of the Board of Directors if reasonably possible, after appeals and responses are filed in a timely manner. Except in the case of an emergency expulsion or suspension of a member, the decision of the Hearing Committee shall be stayed until the appellate process is exhausted or waived. The Hearing Committee must label a suspension or expulsion as an emergency one, as well as the facts constituting the emergency, if such suspension or expulsion is not to be stayed on appeal.
- The Appellate Body may, in its discretion, hold an entirely new hearing on the matter, if it does not wish to determine the appeal based on the record before it.
- The Hearing Committee and the Appellate Body may each set forth rules and regulations as to the procedures of a hearing and/or appeal, so long as same are not inconsistent with these Constitution and Bylaws.
- The Appellate Body shall render its decision in writing, and that decision shall be transmitted by registered mail, return receipt requested, to both appellant and appellee simultaneously. In addition, a copy of the decision shall be forwarded to the President for any additional appropriate action.
Article IX Arbitration of All Disputes, Claims and/or Controversies
In accordance with the Federal Arbitration Act, 9 U.S.C. § 1, et seq., the United States Supreme Court decision of Gilmer v. Interstate/Johnson Lane Corp., 111 S. Ct. 1647 (1991) and the California Arbitration Act (Code of Civil Procedure § 1280, et seq.), members shall submit to final and binding arbitration any dispute, claim, or controversy arising between them and the Association. Such claims, disputes, and/or controversies specifically include, but are not limited to:
- discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., or the Age Discrimination in Employment Act, 29 U.S.C. § 623, et seq., or the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., or the California Fair Employment and Housing Act, California Government Code section 12900, et seq.; and
- claims for tortuous violation of the duty of fair representation (i.e. “DFR” claims). In addition, and in accordance with the statutes cited above, members expelled or suspended from membership under Article VIII of these Bylaws shall submit to final and binding arbitration any dispute, claim or controversy arising out of such expulsion or suspension concerning any alleged violations of Article V’s disciplinary procedures, after all the procedures set forth in that Article has been first exhausted.
In all cases arising under this section, an impartial arbitrator will be selected by the American Arbitration Association. The arbitrator’s fees and expenses will be paid in full by the Association. Notwithstanding the preceding, in those cases where an expelled or suspended member submits to arbitration an alleged violation of Article VIII’s disciplinary procedures, such individual shall pay half of the arbitrator’s fees and expenses, which amount shall be held by the Association in an interest-bearing, escrow account until the arbitrator renders a decision. If the arbitrator ultimately rules in favor of the individual, the Association will reimburse such individual with the amount held in escrow, with interest, and pay in a full the arbitrator’s fees and expenses. If the arbitrator rules in favor of the Association, the monies held in escrow will be used to satisfy in part the arbitrator’s fees and expenses.
Article X Ratification and Amendment
Section 1 Declaration of Ratification
These Constitution and Bylaws, and all sections and parts hereof, shall be deemed ratified and shall become effective upon approval by a majority vote of the Voting Members of the Fremont Police Association at the time these Constitution and Bylaws are submitted for approval.
Section 2 Amendment
Once ratified, these Constitution and Bylaws may be amended by an affirmative vote of two-thirds (2/3) of the Membership of the Association. Such amendment may be brought before the membership by recommendation of the Board of Directors, by a majority vote at a regular meeting, or by a majority vote at a special meeting called to consider the amendment.