ADMINISTRATIVE PROCEDURE. Number IV-1

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1 ADMINISTRATIVE PROCEDURE SUBJECT: DISCIPLINARY PROCEDURES Number IV-1 Effective Date: Issued: 2/13/87 Revised: 11/15/00 Page 1 of 8 PURPOSE: To outline procedures and policies relating to employee counseling, discipline, and due process, and to provide sample letters pertaining to counseling and corrective actions. OVERVIEW In 1974, the United States Supreme Court determined that a post termination evidentiary administrative hearing may be sufficient under procedural due process so long as notice and opportunity to respond preceded termination action. Arnett v. Kennedy, 416 U.S. 134 (1974). In 1975, the California Supreme Court spelled out the minimum procedure that the court felt was mandated by Arnett. The minimum procedure included notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action was based, and the right to respond either orally or in writing to the authority initially imposing discipline. Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975). In addition to Skelly requirements, employees are entitled to compliance by the governmental employer with the procedures specified within its own regulations. Layton v. Merit System Commission of the City of Pomona, 60 Cal.App.3d 58 (1976) Skelly procedures are required for disciplinary demotions and suspensions as well as dismissals, although in the case of short-term suspensions (five [5] days or less) the Skelly procedural requirements may occur immediately after the suspension action was put in effect. Ng v. State Personnel Board 68 Cal.App.3d 600 (1977); Civil Service Association, Local 400 v. City and County of San Francisco, 79 Cal.3d 540 (1978). POLICY: It is the policy of the District to establish conformity in procedures relating to employee discipline. Although exceptions will occur, a well-defined disciplinary process will enhance employer/employee relations.

2 Page 2 of 8 The Human Resources Division shall be contacted whenever a supervisor has reason to believe that an employee has violated a District rule or work practice. The determination of corrective action, if any, will be made after an investigation by department management of the alleged violated. If a determination is made that corrective action is necessary, department management will prepare necessary correspondence subject to review by the Human Resources Division. If a suspension without pay, in-grade salary reduction, or demotion is recommended, the General Manager or his designee shall approve. A Skelly meeting will generally precede disciplinary action involving a loss or reduction in pay. However, suspensions of five days or fewer may be immediately implemented providing that the Skelly procedure is then promptly followed. Under certain conditions more severe disciplinary action may immediately occur. FORMS OF DISCIPLINARY ACTION: The following forms of disciplinary action are listed in order of the least severe (oral reprimand) to the most severe (discharge). The Human Resources Division should be contacted for advice and counsel prior to any type of formal disciplinary action. 1. Verbal Reprimand The verbal reprimand is considered informal discipline and notifies the employee that his/her performance or behavior must be improved. This warning defines the areas in which improvement is required, sets up goals leading to this improvement and informs the employee that failure to improve will result in more serious disciplinary action. This is the first official step of disciplinary action. It should be used to deal with minor infractions of rules and practices. It is, in effect, a statement to the employee that he/she has (1) violated a District rule or work practice that he/she or should have been aware of, (2) that he/she will be expected to abide by all such rules in the future. 2. Written Reprimand The written reprimand is an official record of discipline, usually, but not always, issued after a previous verbal reprimand. The employee is advised that his/her behavior is seriously below standard and that continuation or repetition of that behavior shall result in more serious disciplinary action. The written reprimand shall cite violations of the District s Causes for Disciplinary Action. The written reprimand is considered the first formal step in the disciplinary procedure.

3 Page 3 of 8 3. Suspension The suspension is an ordered absence from duty without pay for a prescribed period of time. An employee may be suspended without pay for up to thirty (30) calendar days. Suspension without pay is a serious action by management involving loss of pay and fringe benefits. An employee generally receives less severe discipline prior to a suspension advising said employee that his/her performance is not satisfactory. 4. Reduction in Pay Reduction in pay is a temporary reduction in salary to a lower salary step for a specified maximum period of time. The employee does not have sudden stoppage of income and may be able to have the reduction lifted by good performance. The department does not lose the services of the employee. As with suspensions, an individual should have been warned or reprimanded prior to taking this action to advise him/her that his/her performance is not acceptable. 5. Demotion A demotion is a permanent change in classification of an employee to a position of lower responsibility and pay for unsatisfactory performance or disciplinary reasons. If demotion is used: 6. Discharge a. The letter of demotion must be specific as to the reason (s) for the action; b. The employee should be removed from his/her former place of work, if possible, to avoid embarrassment; c. The employee s new duties must be consistent with those described in the class specification for the new classification. Discharge is the most severe form of disciplinary action. Removal from employment may be caused by a serious violation of the District s Causes for Disciplinary Actions, or due to an accumulation of various violations. This action should only be taken when management is thoroughly satisfied that the employee has been given every reasonable opportunity to meet performance or behavior standards and clearly failed to do so.

4 Page 4 of 8 CAUSES FOR DISCIPLINARY ACTION Any of the following may be sufficient cause for disciplinary action: 1. Unauthorized possession or use of District property or another employee s property 2. Willful abuse, damage, or defacing of District property 3. Misuse or personal use of District materials, equipment or property 4. Neglect of duty 5. Insubordination 6. Violation or disregard of published safety rules or common safety practices 7. Sleeping on the job 8. Refusal or failure to perform work as assigned 9. Loitering or willfully wasting time during working hours 10. Gross negligence that negatively affects the quality of service or finished product 11. Fighting on District premises 12. Gambling on District premises 13. Smoking in smoke-free District premises 14. Possession of alcoholic beverages, illegal/unauthorized drugs, or being under the influence of intoxicating beverages/drugs on District property 15. Conviction of illegal conduct 16. Unauthorized selling of merchandise on District premises or during working hours 17. Unauthorized possession of weapons 18. Falsifying pay records or production records 19. Excessive absenteeism/tardiness 20. AWOL - Absence without approved leave

5 Page 5 of Offensive treatment of the public or other employees, threatening others, engaging in threatening behavior, or committing a violent act in the workplace 22. Fraud in securing employment 23. Dishonesty 24. Incompetence. As used herein, the term incompetence shall mean that the employee lacks adequate ability, knowledge or fitness to perform the duties which are within the scope of the employee s employment. 25. Suspension, revocation, lapse, or expiration of a driver s license required for the job classification. PRE-DISCIPLINARY PROCEEDINGS: The California Supreme Court s Skelly v. State Personnel Board decision provides a public employee with certain procedural protections before discipline (a suspension of more than five (5) working days) may be imposed. Although the Skelly case is commonly cited for the proposition that an employee is entitled to a hearing prior to the imposition of discipline, the term hearing is misleading. A hearing provides for the introduction of evidence and the direct and crossexamination of witnesses. Skelly requires an administrative meeting whereby the employee or his/her representative may respond to the charges with facts and/or other information, which may not have been considered. The requirements of the Skelly procedure are satisfied as follows: SKELLY NOTICE 1. The employee receives advance notice of the maximum punitive action imposed. 2. The notice states the reasons for the proposed action. 3. The notice contains the charges upon which the proposed action is based. 4. The employee is allowed access to the materials upon which the action is based. 5. The employee is afforded the right, either orally or in writing, or both, to respond to the proposed changes. The notice requirements of Skelly are as follows: 1. The Skelly notice should be in writing. 2. The letter should set a date, time and place for the employee to respond to the

6 Page 6 of 8 charges if he/she elects to do so. In order to allow the employee time to seek advice and to prepare any oral or written response he/she may wish to make, the date set for his/her response should be approximately five working days from the date the letter is sent. The letter should contain a request that the employee give notice if he/she elects to waive his/her right to respond orally. 3. The letter should contain the maximum penalty, which may be imposed. 4. The reasons for the proposed action must be set out in detail. The part of the Skelly letter setting out the misconduct with which the employee is charged must be factual so that any person reading the letter will be able to determine the exact misconduct charged. 5. The factual allegations of misconduct must specifically cite violations of the District s Causes for Disciplinary Action as described in this Administrative Procedure. 6. The notice must advise the employee of his/her right to respond to the charges, either orally or in writing. 7. The notice must advise the employee of his/her right to representation if he/she elects to respond. 8. The notice will advise the employee that discipline may be imposed whether or not he/she responds to the charges. 9. Copies of the notice should be sent to: SKELLY MEETING a. The General Manager; b. The Human Resources Manager; c. The employee s supervisor; d. The employee s bargaining Union representative, if any. The Skelly meeting, if the employee elects to have a meeting, should be conducted as follows: 1. The authority who may impose the discipline should chair the meeting. 2. The meeting chairperson should establish that the employee has received the Skelly notice and understands the charges set forth therein.

7 Page 7 of 8 3. The chairperson should make available any documents which were considered in determining the proposed charges and disciplinary action. 4. The employee or his/her representative should be given the opportunity to respond to the proposed charges. 5. The employee or his/her representative should be given the opportunity to make final comments regarding the proposed action. 6. The chairperson should close the meeting by indicating that he/she will consider all statements and/or documents, which may have been presented prior to determining the final action. The person conducting the meeting will determine whether the charges have been established and the severity of the disciplinary action. ACTION LETTER The person who conducted the hearing should promptly prepare a letter containing all of the following: 1. Factual findings. This part of the letter may, for charges which have been established, repeat the charges as set out in the Skelly notice letter. If a charge has not been established, or if facts in mitigation of a charge s seriousness have been disclosed, the letter should so state. 2. The specific provisions(s) of the Causes for Disciplinary Action which were violated. 3. The discipline imposed may not exceed the maximum stated in the Skelly letter. 4. A statement that the employee may appeal the action consistent with the provisions of the Union contract or other District procedures, if applicable. 5. Copies of the action letter should be sent to: a. The General Manager; b. The Human Resources Manager; c. The employee s supervisor; d. The employee s bargaining Union representative, if any

8 Page 8 of 8 APPROVED: Walter J. Bishop General Manager Attachments: Exhibit A Report of Disciplinary Action Exhibit B Confirmation of Verbal Reprimand Exhibit C Written Reprimand Exhibit D Notice of Intent to Terminate (or Suspend or Demote) Exhibit E Notice of Termination (or Suspension or Demotion) Exhibit F Notice of Rejection of Temporary (or Probationary) Appointment