Legal Aspects Discipline

Front 1

Define discipline in a public agency environment

Back 1

Punish undesired conduct
 Deter future misconduct of the employee and
others
 Improve current conduct of the employee and others
 TO ACCOMPLISH THE ABOVE:
 As a general rule discipline should be progressive
and corrective or remedial

Front 2

Progressive and Corrective Discipline

Back 2

The concept means imposing a more serious
penalty with each additional or new rule infraction
 Prior disciplinary history and sanctions are
considered in setting the level of current discipline
 The progression of sanctions can be accelerated
for serious infractions
 Discipline must be reasonable under the
circumstances, taking into account the employee’s
employment history and seriousness of the
violation

Front 3

“Cause”

Back 3

The concept of “Just Cause” or “For Cause” is a
key element of discipline.
 The term involves either wrongdoing by the
employee or some damage to the employment
relationship or behavior harmful to the employer
 Its effect is to prevent arbitrary discipline against
public employees for improper motives, such as
illegal discrimination.
 This standard creates a protected property interest
in a public employment position that is protected by
legal due process requirements.

Front 4

Nexus

Back 4

There must be some reasonable connection
between the employee’s actions and their
employment position in order to impose discipline
for the behavior.
 This connection (nexus) is usually fairly clear when
the misconduct occurs on duty.
 The nexus is also required for off-duty misconduct
and that can be more difficult to establish to sustain
disciplinary action.

Front 5

The Disciplinary Interview

Back 5

In setting up the interview and investigation plan
consider whether :
 Has the officer has been given proper notice of the
date and time of interview
 Are there Garrity/Gardner considerations?
 Is there a legal right to representation?
 Are there any Statutory Rights that need to be
considered, such as a Peace Officer Bill of Rights?

Front 6

Use immunity

Back 6

immunity granted to a witness in a criminal case that prevents the use of the witness's compelled testimony against that witness in a criminal prosecution

Front 7

garrity

Back 7

prohibits compelled statement in prosecution

Front 8

gardner

Back 8

you cannot use employment coercion ( force ) to waive their 5th amendment right.

Front 9

Quasi-judicial function

Back 9

– Investigate alleged misconduct
– Hold fact finding disciplinary hearings
– Draw conclusions as to the merits of misconduct allegations
– Exercise discretion in a judicial manner

Front 10

Administrative functions

Back 10

– Classify and grade positions
– Administer employment examinations and testing
– Certify ranked lists of eligible candidates
– Fill open positions
– Provides a comprehensive process for hiring

Front 11

Appeals to Court
 Exhaustion of Administrative Remedies

Back 11

– In order to appeal an administrative decision concerning
discipline the appellants must show that they have
exhausted their administrative remedies, which means
used the entire administrative appeals process
Advancing Excellence
process.

Front 12

tenured

Back 12

This term and concept is used primarily in the
academic world.
 The term denotes a special status that protects an
employee from summary dismissal.
 Tenure provides some of the most protection
available for an employee.
 Termination is permitted only for incompetence or
extreme misconduct or financial exigency.

Front 13

amendments for due process

Back 13

5th and 14th

Front 14

requirement for due process

Back 14

property interest that is constitutionally protected.

Front 15

Procedural due process

Back 15

involves the technical and
procedural requirements , including:
– Notice
– Opportunity to be heard
– Other issues concerning the process

Front 16

Substantive due process

Back 16

deals with whether or not
the agency’s actions were arbitrary or capricious
– Fundamental fairness

Front 17

What are the 2 types of due process

Back 17

procedural and substantive

Front 18

elements of procedural due process discipline

Back 18

Adequate notice of the expected or prohibited conduct must
be provided to the employee.
 A prompt and impartial investigation is part of due process.
 The employee should have an opportunity to present
evidence and be heard
Advancing Excellence
heard.
 The decision should be made by a neutral fact finder.
 The employer has the burden of proof by preponderance of
evidence that discipline should be imposed.
 Discipline is proportionate to the violation, giving due
consideration to prior history of the employee and similarly
situated other employees.

Front 19

Freedom of Speech

Back 19

applies to the
employment relationship in the public sector.
 The Supreme Court has held that for public
employees their right to free speech concerning
employment related matters is protected if it is “a matter of public concern.”
 This standard is different than for the private sector,
which has very few constraints on employers.
 The case law uses a balancing test between free
speech and the government’s need to regulate the
speech for efficiency and responsibility to public.(balancing test)

Front 20

Freedom of Association

Back 20

cannont regulate interests unless criminal interest or indirect - direct harm

Front 21

A public employer can search a work area if

Back 21

reasonable suspicion
or if the employee has NO
Reasonable Expectation of Privacy.

Front 22

how can the employer eliminate any reasonable
expectation of privacy

Back 22

providing notice to the
employees that property or items may be subject to
search at any time.

Front 23

Random Drug Testing

Back 23

Testing must truly be random and consistent with
some proper selection method.
 Testing must be done pursuant to written policy and
procedure

Front 24

Burden of Proof in Discipline Case

Back 24

is on the
employer to prove the facts by a preponderance of
the evidence.
 The Employer must prove:

– That there was a rule violation, and
– The nexus between violation and agency efficiency or
operations, and
– The penalty was reasonable in light of prior history of the
employee, the nature of the violation and past cases and
practices.

Front 25

Constructive Discharge Issues

Back 25

working conditions become so bad that a reasonable person would quit

Front 26

“Cause”

Back 26

is a
key element of discipline.This standard creates a protected property interest
in a public employment position that is protected by
legal due process requirements

Front 27

Nexus

Back 27

There must be some reasonable connection
between the employee’s actions and their
employment position in order to impose discipline
for the behavior.

Front 28

The Disciplinary Interview

Back 28

Has the officer been given proper notice of the date and time of interview

Front 29

Garrity v. New Jersey, 385 U.S. 493 (1967)

Back 29

prohibits compelled statement in prosecution

Front 30

Gardner v. Broderick, 392 U.S. 273 (1968)

Back 30

you cannot use employment coercion ( force ) to waive their 5th amendment right.

Front 31

Weingarten Right

Back 31

The U.S. Supreme Court has
ruled that there is a right to representation by a
union representative for union employees when:
– Representation is requested, and
– There is a reasonable belief by the employee that
discipline may result from the matter under investigation.

Front 32

Employment Status

Back 32

An employee’s status is often determinative of their
rights and the employer’s obligation during the
disciplinary process.

Front 33

Factors to Consider in determining employee status

Back 33

How was the employee hired?
 What were the terms and conditions at time of hire?
 Have the terms and conditions changed since
hiring?
 Is there an employment contract or collective
bargaining agreement?
 Are there statutes or ordinances that affect the
process?

Front 34

Civil Service Commissions

Back 34

are created by statute or ordinance
and are responsible for employment within public
agency
 Administrative functions:
– Classify and grade positions
– Administer employment examinations and testing
– Certify ranked lists of eligible candidates
– Fill open positions
– Provides a comprehensive process for hiring

Front 35

Quasi-judicial function

Back 35

Investigate alleged misconduct
– Hold fact finding disciplinary hearings
– Draw conclusions as to the merits of misconduct allegations
– Exercise discretion in a judicial manner
 Discipline can only be imposed “for cause”
 Appeals are usually to the state trial court or
appeals court

Front 36

Appeals to Court
 Exhaustion of Administrative Remedies

Back 36

In order to appeal an administrative decision concerning
discipline the appellants must show that they have
exhausted their administrative remedies, which means
used the entire administrative appeals process

Front 37

Unionized Employees

Back 37

CBA’s provide for discipline only for “Just cause” or
“Cause ”

Front 38

Tenured

Back 38

This term and concept is used primarily in the
academic world.
 The term denotes a special status that protects an
employee from summary dismissal.
 Tenure provides some of the most protection
available for an employee.
 Termination is permitted only for incompetence or
extreme misconduct or financial exigency

Front 39

At Will

Back 39

Even at-will employees may not be terminated for
an unlawful reason and still have statutory and
constitutional protections, such as whistle blower
statutes or discrimination laws

Front 40

Probationary Employees

Back 40

is the initial period of employment or promotion
when the employee is not subject to the “just cause”
requirement for removal.
 Generally, no due process requirements exist for such
terminations
 A probationary period must be limited in time.
 A probationary employee may not be discharged for an
unlawful reason.
 In some states certain employees, such as honorably
discharged veterans, have protection from the first date of
employment even if there is a probationary period

Front 41

Due Process

Back 41

5th Amendment protections for due process apply
constitutional protections to federal actions
concerning employment.
 14th Amendment protections apply constitutional protections to state actions, which includes local
government employment actions.
 Constitutional protections do not apply to private
employers but statutes such as discrimination laws
will apply

Front 42

5th Amendment

Back 42

protections for due process apply
constitutional protections to federal actions
concerning employment

Front 43

14th Amendment

Back 43

protections apply constitutional
protections to state actions, which includes local
government employment actions.

Front 44

“Loudermill Hearing

Back 44

is required by the U.S.
Supreme Court prior to termination of employment

Only an informal pre-termination hearing is
required and it need not address the merits of the
case against the employee.
 The employer must give the employee notice of the
charges and an opportunity to respond to them
prior to imposing discipline

Front 45

Name Clearing Hearing

Back 45

Not all jurisdictions recognize that such hearings are
required.

hearings take place when there is no property
interest in the position so no just cause is required to
terminate employment.

The focus of the hearing is to protect the officer’s good
name and reputation within the community from the stigma
associated with termination from employment associated
with misconduct.
 In jurisdictions that provide for it a Name Clearing Hearing
will be held if the dismissal is stigmatizing to the officer’s
reputation and if there was public disclosure of grounds for

Front 46

Procedural due process

Back 46

involves the technical and
procedural requirements , including:
– Notice
– Opportunity to be heard
– Other issues concerning the process

Front 47

Substantive due process

Back 47

deals with whether or not
the agency’s actions were arbitrary or capricious
– Fundamental fairness

Front 48

1st amendment issues

Back 48

The case law uses a balancing test between free
speech and the government’s need to regulate the
speech for efficiency and responsibility to public

Front 49

Freedom of Association

Back 49

showing that the employee
intends to carry out unlawful aims of the group or
membership represents a conflict of interest or is
otherwise directly harmful to the employer

Front 50

Administrative Searches In Employment

Back 50

A public employer can search a work area if there
reasonable suspicion that the employee is
engaged in workplace misconduct, including squad
cars, lockers, computers and other property.
AND
if the employee has NO
Reasonable Expectation of Privacy.

Front 51

Random Drug Testing

Back 51

must truly be random and consistent with
some proper selection method
AND
must be done pursuant to written policy and
procedure.

Front 52

Burden of Proof in Discipline Case

Back 52

preponderance of
the evidence

Front 53

Constructive Discharge Issues

Back 53

The burden of proof is on the employee to prove
that any reasonable person would have quit under
the circumstances

Front 54

Discipline for Conduct Unbecoming

Back 54

The concept has been successfully attacked for
being too vague so it fails to provide sufficient notice of prohibited conduct and leads to
discriminatory enforcement.