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Discipline and Discharge A Guide For Municipal Officers

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Title: Discipline and Discharge A Guide For Municipal Officers


1
Discipline and Discharge A Guide For Municipal
Officers
  • Presented By
  • The Local Government Academy
  • John Lasky, Esquire
  • jwlasky_at_aol.com
  • March 13, 2008

2
First Things First
  • Tonight is an overview, not legal advice
  • Learn, in part, with real life examples
  • The 80-20 rule
  • 80 of your employees range from good to superb
  • 20 range from issue laden to bad
  • During our time, we will focus on the 20
  • But lets not lose sight of an important fact
    the bulk of your employees have much to
    contribute and, with your help, can be superb.

3
Agenda
  1. Preliminary Matters
  2. Basic Framework
  3. Fundamental Protections
  4. The Codes and Procedure
  5. Prevention

4
Part 1
  • Preliminary Matters

5
Some Interesting Data
  • Todays worker
  • Changes jobs 10 time/career
  • 1 of 3 is currently seeking new employment
  • In fact, estimated that 85 of IT professionals
    are in some state of looking for a new job
  • Not municipal workers
  • Modern day equivalent steel mills wonderful
    benefits, lifetime employment
  • What does this mean to us?

6
Ground Rules
  • Constitution of the United States
  • Application to municipal government
  • Violation welcomes 1983 of the Civil Rights Act
  • State Statutes
  • Strict interpretation
  • Limitation on municipal authority
  • Civil Service
  • National movement
  • Pennsylvania movement
  • Modern conventions moving away from early 20th
    Century model

7
Pennsylvania Employment (Generally)
  • Employment is at will.
  • An employee may be discharged, or may quit, at
    any time, for any reason, or for no reason.
  • Exceptions
  • Contract (express or implied)
  • Public policy
  • Tort
  • Legislation, including Property Right
  • Do not forget fair employment statutes

8
Part 2
  • Basic Framework

9
Property Right A Real Life Example
  • Borough policy manual no discharge without due
    process of law.
  • Borough fired long-time Secretary/ Treasurer no
    hearing, no opportunity for her to tell her side
    of the story.
  • She sues, claiming she had a contract and the
    Borough violated its policy.
  • What is the correct result?

10
The Borough Prevails.
  • Only a contract or statute provides an employee
    with a right of continued employment.  Werner v.
    Zazyczny, 681 A.2d 1331, 1336 (Pa., 1996). 
  • Municipality may not enter into employment
    contracts that contract away the right of summary
    dismissal. The power to confer tenure must be
    expressly set forth in the enabling legislation. 
    Stump v. Stroudsburg Municipal Authority, 658
    A.2d 333, 334-35 (Pa., 1995). 
  • A personnel manual is not a legislative action
    and cannot guarantee a property right in
    employment. 
  • Equitable estoppel is no exception to at-will
    employment.
  • Koleen Short v. Borough of Lawrenceville (Pa.,
    1996)

11
Property Right Lesson
  • Must have more than an abstract need, desire, or
    unilateral expectation. Person must have a
    legitimate claim of entitlement to a job. Board
    of Regents v. Roth, 408 U.S. 564, 577 (1972).
  • Municipality can not be bound by acts of its
    agents/employees if those acts 1) are outside
    the agents' powers 2) in violation of positive
    law or, 3) require legislative or executive
    action. Central Storage v. Kaplan, 410 A.2d 292,
    294 (Pa. 1979).
  • Officials are not free to make any enactments or
    decisions that are contrary to the authority
    provided by the Code. Phil. Presbytery Homes,
    Inc. v. Board of Comrs of Abington Twp., 269
    A.2d 871, 875 (1970)

12
Property Right Discussion
  • Know your limits!
  • You can effect change, but changing the world is
    another matter.
  • You may not be able to protect faithful
    employees.
  • Be fair to them by promising only what you can
    deliver.
  • Get familiar with your municipal code.

13
  • Big moral 1
  • Despite the fact that the electorate voted you
    in, your authority exists only within the
    governing code and other statutes.
  • Action not expressly supported by the governing
    code may be nullified even if it makes sense,
    is fair, or is supported by the majority of the
    electorate.

14
  • Big moral 2
  • Municipal employees without a property right in
    their employment are at will.
  • Remember property rights in municipal employment
    derive from statute.

15
Construction of Civil Service Law A Real Life
Example
  • Whitehall Township advertises for civil service
    Chief of Police. 10 years Whitehall experience
    required.
  • Fred, with 16 years non-Whitehall experience,
    gets the job in 1980.
  • Fred works 11 years. Never disciplined.
  • 1991 fired. Civil service hearing request
    denied.
  • Fred sues, claiming denial of civil service
    rights.
  • What is the correct result?

16
Case Dismissed
  • For civil service protection to attach, strict
    compliance with law is required.
  • Regardless whether results are harsh.
  • Fundamental purpose of civil service laws to
    establish "a system whereby municipal employees
    would be selected on the basis of their
    qualifications.
  • Conjour v. Whitehall, 850 F.Supp. 309 (E.D. Pa.
    1994)

17
Civil Service Lessons
  • Employee has no civil service rights if
    municipality mistakenly applied civil service
    law. McCartney v. Johnson, 191 A.2d 121 (1937) .
  • If municipality promotes officers without
    strictly following statutory civil service
    provisions, promoted employees must be demoted.
    Penn Hills v. Civil Service Comn, 487 A.2d 1048,
    1050 (Pa. Cmwlth. 1985).
  • If civil service commission does not properly
    certify names of eligible candidates, the
    appointed individual has no civil service
    protections, even if he had been working in the
    position. Detoro v. Pittston, 40 A.2d 486 (Pa.
    1945).
  • If commission failed to comply with the civil
    service statute, the appointed individual has no
    civil service rights. Bernardi v. Scranton, 598
    F.Supp, 26 (E.D. Pa. 1985) (The test was invalid
    because although the mayor had approved it, the
    civil service commission was required to approve
    the test.).

18
Civil Service Discussion
  • The rules are the rules.
  • Fairness is not a consideration.
  • Ignorance is no excuse.
  • You may do your job perfectly, but another
    persons mistake could unwind all your good work.
  • Think about employee relations and morale.

19
  • What did Mr. Conjour teach us? Remember the big
    moral 1
  • Despite the fact that the electorate voted you
    in, your authority exists only within the
    governing code and other statutes.
  • Action not expressly supported by the governing
    code may be nullified even if it makes sense,
    is fair, or is supported by the majority of the
    electorate

20
Part 3
  • Fundamental Protections

21
  • The Constitution of the United States

22
4th Amendment
  • The right of the people to be secure in their
    persons, houses, papers, and effects, against
    unreasonable searches and seizures, shall not be
    violated, and no Warrants shall issue, but upon
    probable cause, supported by Oath or affirmation,
    and particularly describing the place to be
    searched, and the persons or things to be seized.

23
4th Am. Real Life Example
  • Bob is an officer in Bucolic Borough.
  • Borough provides Bob with a locker.
  • Acting on a reliable tip, Borough searches Bobs
    locker and finds stolen evidence.
  • Borough discharges Bob. He sues, citing
    unreasonable search and seizure.
  • What is the proper result?
  • What if Bobs locker was locked?
  • Change the facts substitute e-mail for locker.

24
4th Am. Answer It Depends
  • Areas to which an employee has a reasonable
    expectation of privacy are off limits to a
    search.
  • Lockers look to facts and policy. If policy
    clearly provides lockers are Borough property and
    subject to inspection, no 4th Am. Violation. If
    Borough routinely treats lockers as private,
    search may violate 4th Am.
  • Solutions (1) adopt a policy, and (2) distribute
    Borough locks.

25
4th Am. Lessons
  • Policy is the key.
  • Offices and desks same rules apply.
  • Personal cars (even when parked in municipal
    lots) most likely private.
  • E-mail policy advisable to adopt.
  • Cameras and listening devices proceed with
    caution.
  • Pay attention to collective bargaining
    obligations.
  • Understand impact of a warrant.

26
Drug/Alcohol Testing Real Life Example
  • You notice Officer Lebowski slurring his speech,
    glassy-eyed, and walking irregularly. He has
    just consumed 4 economy-sized bags of Cool Ranch
    Doritos.
  • You direct Lebowski to take a drug test.
  • Lebowski resists, claiming it is an unlawful
    search?
  • Who is correct?

27
Drug/Alcohol Answer
  • Lebowski is half right pursuant to courts, a
    drug test is a search.
  • In this case, the test is lawful.
  • Government has a compelling interest to ensure a
    drug-free workplace
  • Especially when the employees are in a
    safety-sensitive position

28
Drug/Alcohol Lessons
  • The test must be reasonable look to
  • Employees expectation of privacy
  • Justification for the test
  • Manner of overseeing the test
  • Develop a policy in advance.
  • That way, everyone knows, and the standards are
    set
  • Be sure the policy is thorough.

29
Drug/Alcohol Lessons
  • Reasonable suspicion testing
  • Generally Constitutional
  • Usually permissible with first-hand observation
    of impairment and specific, articulable facts
    indicating impairment
  • Compare
  • Confidential informant tells supervisor he
    smelled marijuana in the bathroom.
  • Officer associates closely with a known drug user.

30
Drug/Alcohol Lessons
  • Post-Accident testing
  • Generally permissible, especially when limited to
    severe accidents.
  • Compare
  • Required testing when accident results in death
    or 10,000 in damage.
  • Required testing after an incident.
  • Required testing if involved in an accident or
    unsafe practice.

31
Drug/Alcohol Lessons
  • Random testing
  • Controversial
  • Law allows random programs for employees in
    safety-sensitive positions
  • Courts have thrown out programs for prosecutors,
    custodians for a transportation system elevator
    mechanics, and others.
  • What about parking enforcement staff?
  • With regard to union employees mandatory subject
    of bargaining

32
Drug/Alcohol Lessons
  • If you are serious about testing
  • Appoint a medical review officer (MRO)
  • Be sure policy is clear and distributed
  • Policy should address consequences, including
    consequences for refusal/tampering
  • Arrange with testing site and lab in advance
    (chain of custody, anti-tampering, split
    specimens, drug panel)
  • Lets discuss relationships medical providers

33
5th Amendment
  • No person . . . shall be compelled in any
    criminal case to be a witness against himself,
    nor be deprived of life, liberty, or property,
    without due process of law . . . .

34
5th Am. Real Life Example
  • You have reliable reason to believe an on-duty
    officer had a lady friend in his cruiser last
    night.
  • You ask the officer to account for his activities
    during the previous night.
  • The officer refuses, citing 5th Am. Protection.
  • What should you do?

35
Answer 5th Am. Does Not Apply
  • 5th Am. Protects against self-incrimination with
    regard to a criminal action.
  • This is an ADMINISTRATIVE action, not a criminal.
  • Per the U.S. Supreme Court a public employee has
    an affirmative obligation to provide a full and
    fair disclosure of his/her activities.
  • Garrity v. New Jersey, 385 U.S. 493 (1967)

36
5th Am. What To Do?
  • Explain that the inquiry is for administrative,
    not criminal purposes
  • If the officer refuses, discipline pursuant to
    your policy.
  • If the officer continues to refuse, continue to
    discipline (sort of like a game of chicken).

37
5th Am. Lessons
  • If you wish to compel the officer to speak, you
    must not mix criminal and administrative
    proceedings.
  • Do not share any part of your investigation with
    a prosecutor (absent a warrant).
  • Be very cognizant of collective bargaining
    agreement.
  • Violating the CBA my result in loss of evidence.

38
Tips Regarding Employee Statements
  • Think about pros and cons of recording
  • Script questions in advance
  • Do not be afraid to vary from script
  • Avoid yes and no questions
  • Take good notes
  • Validate the statement
  • Have employee sign each page of your notes, or
    type the questions/answers and have employee
    review, make changes and sign.

39
14th Amendment
  • All persons born or naturalized in the United
    States, and subject to the jurisdiction thereof,
    are citizens of the United States and of the
    State wherein they reside. No State shall make or
    enforce any law which shall abridge the
    privileges or immunities of citizens of the
    United States nor shall any State deprive any
    person of life, liberty, or property, without due
    process of law nor deny to any person within its
    jurisdiction the equal protection of the laws.

40
14th Am. Real Life Example
  • Tom is an officer in Toney Township.
  • You witnessed Tom sleeping on the job. A video
    camera confirms he was sleeping. He had already
    been disciplined 4 times for sleeping.
  • You discharge Tom. He sues, claiming you
    violated his Constitutional rights.
  • What is the correct result?

41
14th Am. Answer You Violated Toms Rights
  • 14th Am. extends due process to certain
    municipal employees, including all police
    officers.
  • Due process (1) notice, (2) opportunity to be
    heard.
  • Tom received neither notice nor opportunity to be
    heard.

42
14th Am. Loudermill Hearing
  • Pre-deprivation due process.
  • Face-to-face or written (written preferred).
  • Notice to employee of potential disciplinary
    action that could impact pay.
  • Explanation of evidence sufficient enough for
    employee to respond.
  • Need not be all evidence
  • Need not turn over or show documents
  • Be mindful of CBA
  • Cleveland Bd. Of Educ. V. Loudermill, 470 U.S.
    532 (1985)

43
14th Am. Loudermill Exception
  • You may immediately suspend employee, even
    without pay, if
  • Employee faces criminal charges and holds
    position of public trust (includes police
    officers).
  • Impractical to delay for a Loudermill hearing.
  • Conduct a post-deprivation Loudermill hearing
    promptly.
  • This exception is limited. Use caution.

44
Due Process Adjunct Weingarten Rights
  • Members of a collective bargaining unit have the
    right to have a fellow unit member present during
    questioning that could lead to discipline.
  • Unit member, not an attorney
  • Employees duty to request
  • Check the CBA
  • It may enhance rights

45
Weingarten Real Life Example
  • Back to Officer Tom of Toney Township.
  • You ask Tom to explain his conduct.
  • Tom requests that Officer Ed attend.
  • The problem Ed is on vacation for the next 5
    days.
  • What should you do?
  • May you direct Tom to prepare a written statement?

46
Answer Maintain Your Authority
  • A reasonable delay is acceptable.
  • Otherwise, Officer must choose an alternate.
  • The key is availability.
  • Remember, an Officers requesting an union rep is
    like a Law Order suspects lawyering up.
  • Do not attempt to get additional information.
  • In such cases, do not ask for a written
    statement.
  • Lets discuss written statements.

47
Weingarten Questions
  • What if the Officer and union rep ask to consult
    privately during the meeting?
  • What if the Officer and union rep ask to consult
    privately every three minutes?

48
Weingarten Answers
  • The Pennsylvania Labor Relations Board places no
    restrictions on the number or length of
    Weingarten consultation breaks.
  • Pa. State Corrections Officers Assn. v. Commw. Of
    Pa., 33 P.P.E.P. 33108 (PLRB 2002)
  • Lets discuss the Pennsylvania Labor Relations
    Board.

49
Part 4
  • The Codes

50
The Police Tenure Act
  • No person employed as a regular full time
    police officer in any police department of any
    township of the second class, or any borough or
    township of the first class within the scope of
    this act, with the exception of policemen
    appointed for a probationary period of one year
    or less, shall be suspended, removed or reduced
    in rank except for the following reasons (1)
    physical or mental disability affecting his
    ability to continue in service, in which case the
    person shall receive an honorable discharge from
    service (2) neglect or violation of any official
    duty (3) violating of any law which provides
    that such violation constitutes a misdemeanor or
    felony (4) inefficiency, neglect, intemperance,
    disobedience of orders, or conduct unbecoming an
    officer (5) intoxication while on duty. A person
    so employed shall not be removed for religious,
    racial or political reasons. A written statement
    of any charges made against any person so
    employed shall be furnished to such person within
    five days after the same are filed.
  • 53 P.S. 812

51
The Borough Code
  • No person employed in any police or fire force
    of any borough shall be suspended, removed or
    reduced in rank except for the following
    reasons      (1) Physical or mental disability
    affecting his ability to continue in service, in
    which cases the person shall receive an honorable
    discharge from service.    (2) Neglect or
    violation of any official duty.    (3) Violation
    of any law which provided that such violation
    constitutes a misdemeanor or felony.    (4)
    Inefficiency, neglect, intemperance, immorality,
    disobedience of orders, or conduct unbecoming an
    officer.    (5) Intoxication while on
    duty.    (6) Engaging or participating in
    conducting of any political or election campaign
    otherwise than to exercise his own right of
    suffrage.
  • 53 P.S. 46190 

52
First Class Township Code
  • No person employed in any police or fire force
    of any township shall be suspended, removed or
    reduced in rank except for the following reasons
    (1) physical or mental disability affecting his
    ability to continue in service, in which cases
    the person shall receive an honorable discharge
    from service (2) neglect or violation of any
    official duty (3) violation of any law of this
    Commonwealth which provides that such violation
    constitutes a misdemeanor or felony (4)
    inefficiency, neglect, intemperance, disobedience
    of orders, or conduct unbecoming an officer (5)
    intoxication while on duty (6) engaging or
    participating in conducting of any political or
    election campaign otherwise than to exercise his
    own right of suffrage. A person so employed shall
    not be removed for religious, racial or political
    reasons. A written statement of any charges made
    against any person so employed shall be furnished
    to such person within five days after the same
    are filed with the commission.
  • 53 P.S. 55644

53
2nd Class City Code
  • Section 9.1 (a)
  • No employee in the competitive or
    non-competitive class in the bureau of police,
    except any such employee who has been convicted
    of a felony and whose appellate remedies have
    been exhausted, shall be removed, discharged,
    suspended, demoted or placed on probation, except
    for just cause which shall not be religious or
    political. The procedure for an employee to
    challenge a removal, discharge or suspension or
    placement on probation is subject to collective
    bargaining.

54
  • Remember the slide Pennsylvania Employment
    fair employment statutes.

55
Discipline Real Life Example A
  • Chief threatened bodily harm to Township
    Supervisor and threatened his officers with
    retaliation if they complained to the Supervisors
    about him or otherwise disagreed with him. 
  • While in uniform, Chief visited School
    Superintendent and attempted to secure a Township
    Supervisor's school and employment records in an
    attempt to discredit him. 
  • Chief threatened litigation to try to control
    officers and Supervisors.
  • Chief treated subordinate police officers in an
    intimidating and demeaning manner. 
  • Do you discipline the Chief?

56
Scott Township (Columbia County) Did, and It Stuck
  • The courts have defined the term 'conduct
    unbecoming and officer' under Section 2 of the
    Act as conduct tending to destroy public respect
    and confidence in the operation of municipal
    services or affecting the morale or efficiency of
    the police department.  Powell v. Middletown
    Township Board of Supervisors, 2001 WL 920769, 2
    (Pa.Cmwlth.).

57
The Scott Twp. Court Also Cited
  •     We demand from our law enforcement officers,
    and properly so, adherence to demanding standards
    which are higher than those applied to many other
    professions.  It is a standard that demands more
    than forbearance from overt and indictable
    illegal conduct.  It demands that in both an
    officer's private and official lives he do
    nothing to bring dishonor upon his noble calling
    and in no way contribute to a weakening of the
    public confidence and trust of which he is
    repository. Cerceo v. Darby, 3 Pa.Cmwlth. 174,
    281 A.2d 251, 255 (Pa.Cmwlth. 1971)

58
Discipline Real Life Example B
  • Officer initiated a pursuit of a motorcycle. The
    motorist abandoned the motorcycle and fled.
  • Officer took custody of the motorcycle and placed
    it in the Borough Building where it was secured
    as evidence. Officer removed the motorcycle to
    the residence of his brother-in-law. Officer and
    brother-in-law rode the motorcycle recreationally
    on numerous occasions.
  • What would you do, and why?
  • What happened?

59
Discipline Real Life Example B
  • Borough discharged Officer. He arbitrated.
  • The Arbitrator reinstated Officer, relying on the
    following
  • (1) Borough did not give Officer forewarning of
    the possible disciplinary consequences of his
    actions
  • (2) There was neither a written policy nor a
    directive, and there was a lack of a clear
    unwritten policy
  • (3) The former and current Mayor and all police
    officers knew where the motorcycle was and did
    nothing for an extended period of time
  • (4) Borough inefficiently conducted an internal
    investigation.
  • Wyoming Valley Lodge v. Wyoming Borough, Cmwlth.
    Ct., No. 1335 C.D. 2007 (not reported)

60
Discipline Real Life Example B
  • Lessons
  • Must follow process
  • Arbitrator and courts closely analyze municipal
    behavior
  • There are very few no-brainers
  • Be aware of internal policies (or lack thereof)

61
Just Cause Standard
  • 1.) Notice to the grievant of the rules to be
    followed and the consequences of non-compliance
  • 2.) Proof that the grievant engaged in the
    alleged misconduct
  • 3.) Procedural regularity in the investigation of
    the misconduct and
  • 4.) Reasonable and even-handed application of
    discipline, including progressive discipline when
    appropriate.
  • See Hill Sinicropi, Remedies in Arbitration,
    2nd Ed. (BNA Books 1991) p.137-145

62
Discipline Real Life Example C
  • Off-duty Trooper spent the afternoon drinking at
    a bar. Upon leaving, he approached his
    ex-girlfriend.  An argument ensued concerning
    money.  Trooper jammed his loaded, police-issued
    weapon into the womans mouth and threatened to
    kill her.  He then drove away to continue
    drinking, but later returned to the scene where
    police arrested him. 
  • Trooper was charged with three counts of driving
    under the influence and one count each of simple
    assault and making terroristic threats he
    subsequently pled guilty to all five charges.
  • State dismissed him. He appealed through
    arbitration. 

63
Discipline Real Life Example C
  • Arbitrator concluded that although the Trooper
    had committed the acts in question, the
    discipline of dismissal was excessive. 
  • Thirteen years of exemplary service had been
  • Trooper had been under a great deal of stress
    prior to the incident as a result of his working
    at the crash site of the USAir jet near
    Pittsburgh
  • Main focus because Troopers conduct was less
    egregious than actions committed by troopers whom
    the State Police had merely suspended, dismissal
    was inappropriate. 
  • Result reinstatement without back pay.
  • Pa. State Police v. Pa. State Troopers Ass'n, 741
    A.2d 1248 (Pa. 1999)

64
Discipline Real Life Example C
  • Lessons
  • Discipline will not survive on its own merits.
    Rather, reviewer will compare to similar cases.
  • Do not lose sight of mitigating factors
  • Arbitrators award are very difficult to
    overturn the PA Supreme Court upheld this award.

65
Discipline Real Life Example D
  • Officer had 13 on-duty vehicle accidents during
    his 13-year career.
  • After the last accident, the Township had enough
    and terminated his employment.
  • Officer appealed, citing his clean driving record
    for the previous three years.
  • What result?

66
Discipline Real Life Example D
  • Officers history reveals that most if not all
    of the accidents resulted from his following too
    close to another vehicle, his inability to
    anticipate obstacles, his consistent failure to
    exercise good judgment, and his lack of awareness
    of surrounding conditions. Officers failure to
    improve his driving and his inability to respond
    to emergencies without endangering himself, the
    public, and his patrol car at the very least
    constitute neglect, inefficiency, and conduct
    unbecoming a police officer, which has been
    defined to include conduct that adversely affects
    the morale and efficiency of the police force or
    tends to destroy public respect for, and
    confidence in, the police force . . . . Moreover,
    the Township was justified in terminating Brooks'
    employment  given his lengthy history of such
    accidents and its legitimate concerns about
    liability, public safety, and the efficiency and
    public perception of its police department.
  • Brooks v. Civil Serv. Comm'n, 755 A.2d 115
    )Cmwlth. Ct., 2000)
  • What if the officer was suspended 30 days for
    running a red light (otherwise clean record)?

67
Discipline Real Life Example D-1
  • Officer was suspended for 3 days w/o pay for
    conduct unbecoming. Offense a single motor
    vehicle accident when he ran a red light while
    responding to an emergency call using lights but
    no siren.
  • Court reversed the suspension a police vehicle
    responding to an emergency is entitled to go
    through a red signal and is exempt from the
    highway  right-of-way rules when using emergency
    lights and sirens.
  • Also, the department rules made use of sirens a
    judgment call, and the officer adequately
    explained his decision to proceed without sirens.
  • Appeal of Leis, 455 A.2d 1277 (Pa. Cmwlth. 1983)

68
Discipline Real Life Example E
  • Officer was having a difficult time with his
    ex-wife.
  • He brandished his service revolver recklessly
    drove the wrong way on a street, endangering a
    child disobeyed a standing administrative order
    and the order of a superior officer at the scene
  • Borough terminated Officer's employment for
    neglect of official duty and conduct unbecoming
    an officer under the Borough Code.
  • Officer appealed to civil service commission.
  • What was the result?

69
Discipline Real Life Example E
  • Discharge upheld
  • Despite childrens alleged exposure to drugs when
    in wife's custody.
  • Rejected argument that all administrative orders
    be in writing, holding violation of a specific
    written direction is not prerequisite to finding
    of disobedience of orders.
  • Evidence of the genesis of Feliciano's ongoing
    marital dispute did not minimize the seriousness
    and character of the conduct.
  • In the interest maintaining a high degree of
    respect for the police, officers may be held to a
    higher standard of conduct that other citizens
    and even other public employees.
  • Feliciano v. Borough of Norristown, 758 A.2d 295
    Pa. Cmwlth. 2000)

70
Discipline Real Life Example F
  • Officer agreed to work 4.5 overtime hours until
    730 a.m.
  • He informed sergeant and chief that because of
    personal business after his overtime shift, he
    could be exhausted and might miss a meeting with
    the mayor.
  • He missed the meeting.
  • He was suspended for 3 days for direct
    disobedience of orders.
  • Officer appealed. His defense he did not
    willfully disobey the order, but failed to awaken
    in time.
  • What was the result?

71
Discipline Real Life Example F
  • Suspension was proper.
  • An act of disobedience does not requires
    willfulness.
  • Officer conceded that he "certainly was aware of
    the meeting".
  • Different result in another case, in which
    officer was charged with knowing refusal to obey
    an order, but officers were not informed of the
    order.
  • Amendola v. Civil Service Com., 139 Pa. Commw. 76
    (1991) 

72
Discipline Real Life Example F
  • Officer involved in an off-duty accident while
    was charged with violating Vehicle Code.
  • The board of supervisors suspended officer for
    nine months without pay.
  • Officer appealed to trial court, which conducted
    a full hearing.
  • Court modified the penalty to a six-month
    suspension and directed the board to reinstate
    Officer to his former position with three months
    back pay.
  • Does a court get to conduct a full hearing?

73
Discipline Real Life Example F
  • No, if the municipality properly performs its
    duty
  • Provides proper notice, advises of right to
    counsel, responds to proper discovery requests,
    allows testimony and cross-examination, etc.
  • In this case, the court merely reviews for
    irregularities and abuse of discretion.
  • But if the municipality abuses it duty, a court
    may order a full-blown hearing.

74
Discipline Checklist
  • Investigate gather information/data
  • Issue Loudermill (earlier is necessary)
  • Review employees response
  • Communicate determination
  • Recommendation
  • Offer opportunity for local agency hearing OR
    grievance (if appropriate)
  • Carry through sending appropriate
    communications and using appropriate decision
    makers

75
Election of Remedies Township of Falls v.
Whitney, 730 A.2d 557 (Pa. Cmwlth. 1999)
  • The trial court determined that the doctrine
    of election of remedies operated as a bar to the
    grievance arbitration. We agree. This court has
    held that an election of remedies includes the
    deliberate and knowing resort to one of two
    inconsistent paths to relief. . . . "Further,
    the doctrine of election of remedies applies only
    when the available remedies are inconsistent and
    to be inconsistent the remedies in question must
    be different means of adjudicating the same
    issues.

76
Sample Loudermill Hearing
  • Based on the reasons described below, you may
    be subject to disciplinary action up to and
    including discharge. The purpose of this
    memorandum is to provide you with timely notice
    of the potential for disciplinary action against
    you, to explain to you the evidence that suggests
    you may have engaged in improper conduct, and to
    provide you with an opportunity to offer any and
    all information that could cause me to reconsider
    taking or recommending disciplinary action, or
    could impact the level of discipline, if any,
    that I may take or recommend.
  • My preliminary determination that you could be
    subject to disciplinary action up to and
    including discharge stems from your conduct on
    November 15, 2003. On that date, you were
    involved in a vehicular pursuit of an
    unidentified automobile. During that pursuit,
    you operated the Borough police vehicle at high
    speed while the siren and lights were engaged.
    You pursued the unidentified vehicle well beyond
    one (1) mile outside of the Boroughs
    jurisdiction. You eventually wrecked the
    Boroughs police vehicle.

77
Sample Loudermill, Continued
  • As you are aware, the Borough has issued a
    policy and procedure with regard to pursuits
    which, in pertinent part, provides
  • MANDATORY STANDARDS FOR PURSUITS OUTSIDE THE
    BOROUGH LIMITS
  • Officers shall not engage in high speed pursuits
    outside the borough limits except in accordance
    with the following standards
  • Serious Crimes When the officer has probable
    cause to believe the subject has committed a
    serious crime as defined in this order.
  • Officer(s) pursuing a fleeing person who they
    have probable cause to believe has committed a
    felony wherein immediate interest is the only
    means whereby the person may be identified and
    brought to justice, may continue a pursuit beyond
    the borough limits.
  • Officers pursuing persons they believe have
    committed misdemeanors shall not continue a high
    speed pursuit beyond approximately three (3)
    miles past the borough limits unless apprehension
    is imminent.
  • Officers pursuing persons who have committed a
    summary offense or summary offenses shall not
    continue a high speed pursuit beyond one (1) mile
    of the borough limits unless apprehension is
    imminent.
  • Note that the policy and procedure defines
    serious crimes as Homicides, rape, robbery,
    arson, aggravated assault, burglary and
    Kidnapping.

78
Sample Loudermill, Continued
  • The conduct described above may constitute
    violations of your duties and responsibilities as
    an x Borough Police Officer as set forth
    under the Borough Code
  • Neglect of violation of any official duty (53
    P.S. 46190 (2)) and/or
  • Inefficiency, neglect, intemperance,
    immorality, disobedience of orders, or conduct
    unbecoming an officer (53 P.S. 46190 (4)).
  • This type of conduct, if confirmed, is
    unacceptable under any circumstance and may be
    more egregious when it involves an officer in a
    leadership position.
  • You now have an additional opportunity to
    provide to me any and all information that could
    cause me to reconsider taking or recommending
    disciplinary action to the Borough Council. Such
    information may include that which could impact
    the level of discipline, if any, that I will take
    or recommend. This information must be in
    writing. If you chose to respond, you must
    deliver the information to my office no later
    than 100 p.m. on Monday, April 5, 2004.

79
Grievance Arbitration
  • Guaranteed by law
  • Final step in the grievance process (after
    meetings)
  • Driven by the just cause standard
  • Arbitrator selection process usually strike
    method
  • Hearing
  • Briefs v. closing statements
  • Appeals

80
Just Cause Standard
  • 1.) Notice to the grievant of the rules to be
    followed and the consequences of non-compliance
  • 2.) Proof that the grievant engaged in the
    alleged misconduct
  • 3.) Procedural regularity in the investigation of
    the misconduct and
  • 4.) Reasonable and even-handed application of
    discipline, including progressive discipline when
    appropriate.
  • See Hill Sinicropi, Remedies in Arbitration,
    2nd Ed. (BNA Books 1991) p.137-145.

81
Part 5
  • Prevention
  • (In brief)

82
  • The time to repair the roof is when the sun is
    shining.
  • John F. Kennedy
  • If I had six hours to chop down a tree, Id
    spend the first hour sharpening the axe.
  • Abraham Lincoln

83
  • Dont wrestle a pig in a mud hole. You both get
    dirty, and the pig enjoys it. Anonymous
  • Great ideas often receive violent opposition
    from mediocre minds.
  • Albert Einstein

84
Preempting the Need for Discipline
  • Discipline is evidence of failure
  • By the disciplined employee based on conduct
  • Often by management for allowing the situation to
    get so bad
  • Prevention keys
  • Hire right
  • Promote right
  • Engage staff

85
Hiring
  • The one time you have all the power.
  • The one time employee will be on best behavior.
  • The problem most municipalities (and private
    entities) do not focus appropriate energy on the
    process.
  • Solution examine your process, and re-tool it
    into a real predictive function.

86
Hiring Advertising
  • Word-of-mouth or other informal hiring processes
    risk violating the ADA, Title VII (prohibiting,
    among other things, racial discrimination) and
    federal civil rights law created by our courts.
  • Be sure to advertise publicly and in a manner of
    general circulation.

87
Hiring Tests
  • Written
  • Off-the-shelf is not always tied to your needs
  • Oral
  • Bulk of officers job is communication and
    judgment
  • No yes or no questions
  • Performance
  • If the job is physical, dont you want to know
    whether the applicant can perform?
  • Caution Americans With Disabilities Act
  • Psychological
  • Required for police
  • Know the doctor

88
Hiring Qualifications
  • Education
  • Experience
  • Certifications
  • Verification
  • Reference check be thorough
  • Background check criminal history
  • Polygraph
  • Drug Test (Caution ADA)

89
Post-Hire
  • Emphasize the probation period
  • Evaluate throughout
  • Use it as a training tool
  • Engage your managers
  • They should model engagement
  • Employees will follow
  • Challenge the employees

90
  • Questions
  • and
  • Discussion
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