Order in the Court! Administering Effective Discipline That Will Stand Up On Appeal

Transcription

1 Order in the Court! Administering Effective Discipline That Will Stand Up On Appeal CALPELRA 2015 Samantha W. Zutler Partner, Burke Williams & Sorensen Avoiding Common Pitfalls in Administering and Defending Discipline: Overview Lay the proper foundation Perform a sufficient investigation Follow internal procedures Provide sufficient process Avoid mistakes at the appeal hearing Lay the Proper Foundation: Performance Evaluations Regular, accurate, and fair Consistent throughout the organization Should document any informal communications during the review period Should clearly define upcoming goals No surprises! Often the single most important piece of evidence in a discrimination or harassment lawsuit or a disciplinary appeal (or not). 1

2 Lay the Proper Foundation: Document performance Document, document, document!!! ensures that performance issues are not forgotten essential for later discipline regular, accurate, honest and fair performance reviews recognize problematic relationships and intervene if necessary Lay the Proper Foundation Police and Fire POBAR and FOBAR require the employee be given an opportunity to review and respond to any negative entry in his or her personnel file. (No shenanigans!) Poole v. Orange County Fire Authority (August 24, 2015) A supervisor s log is not a personnel record. Perform a sufficient investigation Internal vs. external investigator? Attorney vs. non-attorney Report vs. no report 2

3 Perform a Sufficient Investigation Should you place the employee on administrative leave pending the investigation? Interview notice Include right to representation if a subject Include the nature of the investigation Include the time and date of interview or indication that someone will contact to schedule Police and fire: POBAR and FOBAR require the employee be informed of the nature of the investigation prior to the interview. Perform a Sufficient Investigation Employee s rights in an interview Weingarten allows an employee subject to an investigative interview that could reasonably lead to discipline to have a union representative present during the interview. Police and fire: POBAR and FOBAR allow this same right to representation for all interrogations that may lead to discipline. Scheduling the interview Right to representation vs. perennially unavailable counsel (Upland Police Officers Assn. v. City of Upland, 111 Cal. App. 4th 1294 (2003)) Perform a Sufficient Investigation Police Officers and Firefighters POBAR and FOBAR allow specific rights to police officers and firefighters participating as subjects in investigations: Reasonable time for scheduling and length of questioning Compensation for off duty time Notice of rank, name and commanding officer in charge of interrogation, and others present. No more than two interrogators at one time. Notice of the nature of the investigation No offensive language or threats of punitive action Right to record on own device, right of access to transcribed record Right to notes of investigator Right to representation 3

4 Perform a Sufficient Investigation Is it privileged??? Consider: Attorney vs. non-attorney investigator Retainer agreement Scope of investigation Factual findings vs. findings of violation of policy vs. legal conclusions Follow Internal Procedures Attempt to synch all governing documents (MOUs, Personnel Rules, Lexipol, General Orders, Muni Code provisions) regarding discipline or performance. If not, attempt to negotiate procedure to be used with the Union or employee. Differing procedures lead to discrimination charges. Follow Internal Procedures Determining appropriate level of discipline Discipline matrix Factors to consider Progressive discipline Skipping levels of discipline 4

5 Follow Internal Procedures: Considerations in determining the level of discipline Severity of deficiency or misconduct Duration of the problem performance Surrounding circumstances and/or mitigating factors Level of employee training Degree of appropriate supervision Employee s prior work record Intent of the employee Amount and quality of factual evidence of deficiency or misconduct Follow Internal Procedures: Progressive Discipline Incrementally higher levels of discipline Intended to curb misconduct or performance issues before implementing more severe forms of discipline Not legally required, but often required by personnel rules or MOU Often considered by arbitrators (even if not required by the Agency) Provide Sufficient Process: Skelly Requirements Notice of proposed action; Reasons; Copy of charges and materials on which action based; Right to respond to authority initially 5

6 Provide Sufficient Process: Who should be the Skelly Officer? No absolute requirement of no involvement; Practical issues in small agencies; Meaningful opportunity ; Flippin v. LA Bd. of Civil Service Commnrs. (2007) 148 Cal.App.4th 272. Consider involving the Union or employee in selection process. Provide Sufficient Process: New Material Revealed at the Skelly Skelly officer cannot recommend a higher level of discipline than that which was already proposed. Remedy is a new Notice of Intent incorporating the new charges and a new Skelly hearing Provide Sufficient Process: Post-Skelly Final Notice of Discipline Issued after consideration of employee s presentation at Skelly hearing Includes summary of Skelly presentation and reasons for decision Includes appeal procedure Final discipline cannot be greater than initial proposed discipline 6

7 Avoid Mistakes at the Appeal Hearing Due process requires a full evidentiary hearing Employer has the burden of proving just cause for the discipline Know your own policies! Avoiding Mistakes at the Appeal Hearing Synch your policies Avoid any due process issues related to bias Avoiding Mistakes at the Appeal Hearing: Establishing Just Cause 1. Was the employee warned of the consequences of his/her actions? 2. Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? 3. Was an effort made before discharge to determine whether the employee was guilty as charged? 4. Was the investigation conducted fairly and objectively? 5. Did the employer obtain substantial evidence of the employee's guilt? 6. Were the rules applied fairly and without discrimination? 7. Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record? 7

8 Avoiding Mistakes in the Appeal Hearing: Choosing the Hearing Officer Who pays? When a third party is hired on an ad-hoc basis AND paid by the employer, there is a pecuniary interest sufficient to disqualify and void his/her decision (if s/he is used again in a certain time period). Haas v. County of San Bernardino (2002) 27 Cal.4 th 1017 Due process issue with employee paying Avoiding Mistakes in the Appeal Hearing: Choosing the Hearing Officer PERB strike list Agreed upon list Office of Administrative Hearings Layperson Hearing Officer Avoiding Mistakes in the Appeal Hearing Good facts: To stipulate or not to stipulate Preparing the witnesses (or: what do you mean you re in Cambodia?? ) The best witnesses Experts? 8

9 Avoiding Mistakes in the Appeal Hearing The Closing Argument Brief Orally, on the record One side closes on the record; the other briefs Questions? Samantha W. Zutler Burke, Williams & Sorensen, LLP San Francisco, California (415)