Disciplinary Procedures - Double Jeopardy/Punishment
Pennsylvania arbitrator sustains a five-day suspension of a sergeant for assaulting a
subordinate officer, but overturns a demotion. The bargaining agreement did not specify
demotion as a disciplinary option and a suspension plus demotion was double punishment
for the same misconduct. City of Duquesne and Teamsters L-205, 126 LA (BNA) 1723
(Felice, 2009).
First Circuit concludes that it is not double jeopardy to suspend an employee for the
purpose of conducting an investigation and to later terminate the employee, based on the
facts disclosed in the investigation. Zayas v. Bacardi Corp., #07-1950, 524 F.3d 65, 2008
U.S. App. Lexis 8387 (1st Cir.).
Arbitrator holds that an employer did not have just cause to terminate a supervisory
employee for making sexual comments, because he had been required to view a CD and
to review the organization's sexual harassment policies. "Double jeopardy" prevented
further discipline. Meijer and Grievant "H", 120 LA (BNA) 700 (Obee, 2004). [2005 FP
Mar]
Employee was not subject to double jeopardy when he was terminated for the incident for
which he was initially suspended, where the penalty was not imposed until the incident
had been investigated and the fire chief made his decision. City of Coweta, Okla. and
IAFF L-3483, 119 LA (BNA) 42, FMCS Case #02/09594 (Moore, 2003). {N/R}
Management did not subject a police officer to double jeopardy when it transferred him
due to his performance deficiencies, after disciplining him for those lapses. Assignmentrelated decisions do not constitute double jeopardy. City of Topeka Police Dept. and FOP
L-3, 118 LA (BNA) 519, FMCS Case #01/16809 (Erbs, 2003). {N/R}
Arbitrator overturns the firing of a public employee who was suspended for six days, but
shortly afterwards was fired for an accumulation of disciplinary offenses. The discharge
was barred by double jeopardy. Transit Auth. of River City and Amal. Transit Union L1447, 118 LA (BNA) 939, FMCS Case #020822/15082-7 (Goggin, 2003). {N/R}
Management did not commit double jeopardy when it denied a merit increase to an
employee it had disciplined six months earlier for insubordination, where his entire
performance was evaluated. State of Alaska Dept. of Corrections and Public Safety
Employees Assn., 117 LA (BNA) 674, Alaska Case #01-C327 and PSEA Case #01-01C
(Henner, 2002). {N/R}
Management did not have just cause to terminate an employee, after he filed of a
grievance contesting his suspension and demotion. The added punishment violated the
double jeopardy concept. St. Lucie County, Fla. and Teamsters L-769, 115 LA (BNA)
1046, FMCS Case #00/13783 (Frost, 2001). {N/R}
California appellate court upholds a decision to terminate an officer, who had been fired,
then reinstated. Double jeopardy does not apply to employment decisions. Ziegler v. City
of So. Pasadena, 73 Cal.App.4th 391, 1999 Cal.App. Lexis 642, 86 Cal.Rptr.2d 424 -- as
modif. at 1999 Cal.App. Lexis 690. [1999 FP 164- 5]
A firefighter who was denied a promotion after he failed random drug test was not
subjected to double jeopardy; the grievant was not demoted and was still receiving same
rate of pay. City of Corpus Christi, Tex. and Firefighter's Assn., 113 LA (BNA) 329,
AAA Case #70-390-00005-99 (Allen, 1999). {N/R}
Police dept. could not give a one-day disciplinary suspension to an officer for misuse of
his take-home police car, because dept., already had taken back the vehicle for 30 days.
Arbitrator holds that the second action was "double jeopardy," because there was a delay
of several weeks. Metro. Dade Co. and Grievant, 25 (8) LAIG #5074 (Hoffman, 1995).
{N/R}
Management did not have the right to impose a 7-day suspension in addition to a 3-day
suspension already imposed on the employee for being in tavern drinking beer during a
noon break. The grievant was not told that that he was being suspended for three days
pending further investigation into the matter. City of Kenosha, Wis. and AFSCME L-71,
76 LA (BNA) 758 (McCrary, 1981). {N/R}
Termination of an officer as additional punishment after suspension was imposed is not
double jeopardy; use of hearsay evidence at trial was permissible. Cross v. State ex rel.
Linton, 419 N.E.2d 991 (Ind.App. 1981). [82 FP 85-9]
The double jeopardy defense is not applicable to disciplinary trials. Bart v. State Dept. of
Law Enf., 52 Ill.App.3rd 487, 367 N.E.2d 773 /at 776. [82 FP 85-9]
A Florida agency may not take disciplinary action on one occasion, and at a later date
increase the punishment. Dept. of Environmental Protn. v. Barker, 654 So.2d 594, 1995
Fla.App. Lexis 4422. {N/R}
Police dept. could not re-discipline officer who resigned over drug charge, and was later
reappointed a probationary officer. An employee may not be twice disciplined for the
same offense. Branza v. Martin, 570 N.E.2d 411 (Ill.App. 1991). [1992 FP 37-8]
Punishment imposed on a police officer by the Civil Service Board was invalid because
the Police Dept., through its internal review system, had punished him earlier. In re
Officer J.L. Mitchell, 88 N.C. App. 602, 364 S.E.2d 177, 1988 N.C.App. Lexis 104.
{N/R}
A Florida Criminal Justice Stds. and Trng. Cmsn. determination on decertification of a
peace officer is a different proceeding than a disciplinary disposition by the state's Career
Serv. Cmsn., and is not double jeopardy. Walley v. Florida Game and Fish Cmsn., 501
So.2d 671, 1987 Fla. App. Lexis 7653. {N/R}
If an employee is exonerated of misconduct in the current context, he cannot be
disciplined for prior acts. Jackson v. S&W Bd. of New Orleans, 503 So. 2d 634, 1987 La.
App. Lexis 8632. {N/R}
A reprimand cannot be increased to more serious punishment at a later time. DPS, State
Police v. Rigby, 401 So. 2d 1017, 1981 La. App. Lexis 4151. {N/R}
Double punishment in consecutive trials is not allowed. Appellate court reversed the
aggravated punishment imposed in the second trial. Silver v. City of Harrisburg, 422
A.2d 704 (Pa.Cmnwlth. 1980). [82 FP 85-10]
The Florida Career Service Cmsn. has consistently held that an agency lacks the authority
to discipline an employee twice for a single offense and is fundamentally unfair. An
agency is entitled to suspend an employee for a period of time necessary for investigation
and disposition of charges; when followed by a suspension, the employee is not placed in
jeopardy twice for the same offense. Dept. of Corr. v. Duncan, 382 So.2d 135 (Fla. App.
1980). {N/R}
Having concluded an investigation, disciplinary action may not be increased at a later
date, "nor may an agency discipline an employee twice for the same offense." Fla. Dept.
of Transp. v. Career Serv. Cmsn., 366 So. 2d 473, 1979 Fla. App. Lexis 13951. {N/R}
An officer's record of prior misconduct was admissible in a hearing to determine
propriety of his proposed discharge and was not double punishment. N.Y. State Dept. of
Correctional Services and AFSCME C-82, 69 LA 344 (Kornblum, 1977). {N/R}
B
Disclaimer: Please note that this “arbitration decision” was a settlement. As a
settlement, it does not have value as precedent. This decision was inadvertently
given a number, and is included for the sake of continuity, and for informational
purposes only.
ARBITRATION DECISION NO.:
2
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Adjutant General
DATE OF ARBITRATION:
January 30, 1987
DATE OF DECISION:
January 31, 1987
GRIEVANT:
Jeanne Favand
OCB GRIEVANCE NO.:
G-86-0371
ARBITRATOR:
Nicholas Duda, Jr.
FOR THE UNION:
Daniel S. Smith
FOR THE EMPLOYER:
Rachel L. Belenker
KEY WORDS:
Double Jeopardy
ARTICLES:
CASE SYNOPSIS:
Grievant was employed as a Clerical Specialist in the Offices of the Adjutant General of
the State of Ohio. Grievant was dismissed in August of 1986 as a result of excessive
tardiness.
Management based her dismissal upon a consideration of her attendance record in the
prior two years and its attempt to encourage improvement by progressive discipline. The
Union grieved the removal, citing a number of grounds.
The Arbitration of this dispute was the first arbitration between the department and the
Union under the new labor agreement. After the State’s direct presentation the arbitrator
mediated with the concurrence of the parties. An agreement was drawn up by the parties,
which was approved by the arbitrator as the decision and award of the Arbitrator, and is
final and binding on all parties.
The agreement provides that:
1. Grievant's removal was converted into an extended suspension.
2. Grievant shall return to work on February 15 1987.
3. Grievant shall be paid a gross amount of $3,179.00; and
4. Grievant's continuous service shall be reinstated without any break for the period of
absence.
Comments: This case was won due to the principal of double jeopardy. Grievant had a
history of habitual tardiness. Based upon this problem Grievant was issued a three day
suspension. Prior to the imposition of the suspension Grievant was tardy on two
occasions. Due to the two instances of pre-disciplinary tardiness Grievant was dismissed.
The principal of double jeopardy dictates that management may only discipline for acts
which have occurred after the last instance of discipline. Double jeopardy is applicable to
allow for the effectiveness of the disciplinary process. An employee must have the right
to have discipline take effect before being disciplined a second time.
APPEARANCES
FOR THE UNION
Daniel S. Smith, General Counsel
Jeanne Favand, Grievant
FOR THE STATE
Rachel L. Belenker, Assistant Attorney General, Presenting the Case
Lieutenant Colonel Neil J. Moore, Labor Relations Officer, Co-Counsel
Colonel Robert Green, Division Chief, Military Personnel Office
Lieutenant Colonel James M. Chubb, Military Personnel Management Officer
July 1, 1986 was the effective date of the first Labor Agreement between the Union and
the State of Ohio for a number of state units, including the Adjutant General Department.
Grievant, an employee of that department, was tardy on August 18, 1986. After
considering her attendance record in the prior two years and the results of its attempts to
encourage improvement by progressive discipline, the Department discharged her. The
Union grieved the removal, citing a number of grounds.
The arbitration of this dispute, held on January 29, 1987, five months after her discharge,
was the first arbitration between the Department and the Union under the new Labor
Agreement. After the State's direct presentation the Arbitrator mediated with the
concurrence of the parties. The dispute was <PAGE NAME="3">resolved by the parties.
A copy of the Memorandum of Understanding stating the terms of the resolution is
attached.
All of the signatories to that agreement requested that the Agreement be approved by the
Arbitrator as the decision and award of the Arbitrator and therefore final and binding on
the parties. The Arbitrator grants those requests. Accordingly the signed Memorandum of
Understanding is the decision and award for this case.
Nicholas Duda, Jr. Arbitrator
<PAGE NAME="Attachment">
MEMORANDUM OF UNDERSTANDING
TO RESOLVE GRIEVANCE NUMBER G-86-371
Adjutant General (04-86); Arbitrator Number ND 475
The Parties and Grievant agree to settle the subject grievance and to give grievant a last
opportunity to fulfill her attendance obligations without precedent or prejudice to any
situation involving other employees, solely on the following basis:
1. Grievant's removal is converted into an extended suspension;
2. She will be returned to work on February 15, 1987;
3. She will be paid a gross amount of $3,179.00 dollars;
4. Effective immediately her continuous service is reinstated without any break for the
period of absence.
/