Discipline and Discharge
A Guide For Municipal Officers
Presented By:
The Local Government Academy
John Lasky, Esquire
jwlasky@aol.com
March 13, 2008
1
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 let’s not lose sight of an important fact: the
bulk of your employees have much to contribute
and, with your help, can be superb.
2
Agenda
1.
2.
3.
4.
5.
Preliminary Matters
Basic Framework
Fundamental Protections
The Codes and Procedure
Prevention
3
Part 1
Preliminary Matters
4
Some Interesting Data
• Today’s 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?
5
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
6
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
7
Part 2
Basic Framework
8
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?
9
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)
10
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 Com’rs of Abington Twp.,
269 A.2d 871, 875 (1970)
11
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.
12
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.
13
Big moral #2
• Municipal employees without a property
right in their employment are “at will.”
• Remember: property rights in municipal
employment derive from statute.
14
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?
15
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)
16
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 Com’n, 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.).
17
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
person’s mistake could unwind all your
good work.
• Think about employee relations and
morale.
18
• 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
19
Part 3
Fundamental Protections
20
The Constitution of the United States
21
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.”
22
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 Bob’s
locker and finds stolen evidence.
• Borough discharges Bob. He sues, citing
unreasonable search and seizure.
What is the proper result?
What if Bob’s locker was locked?
Change the facts: substitute “e-mail” for
locker.
23
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.
24
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.
25
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?
26
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
27
Drug/Alcohol Lessons
• The test must be reasonable; look to:
– Employee’s 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.
28
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.
29
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.
30
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
31
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)
• Let’s discuss relationships medical
providers
32
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 . . . .”
33
5th Am.: Real Life Example
• You have reliable reason to believe an onduty 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?
34
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)
35
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).
36
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.
37
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.
38
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.”
39
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?
40
14th Am.: Answer:
You Violated Tom’s 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.
41
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)
42
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.
43
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
• Employee’s duty to request
• Check the CBA
– It may enhance rights
44
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?
45
Answer: Maintain Your Authority
• A reasonable delay is acceptable.
– Otherwise, Officer must choose an alternate.
– The key is availability.
• Remember, an Officer’s requesting an
union rep is like a Law & Order suspect’s
“lawyering up.”
– Do not attempt to get additional information.
– In such cases, do not ask for a written
statement.
– Let’s discuss written statements.
46
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?
47
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)
• Let’s discuss the Pennsylvania Labor
Relations Board.
48
Part 4
The Codes
49
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
50
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
51
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
52
2nd Class City Code
Section 9.1 (a) :
“No employee in the competitive or noncompetitive 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.”
53
Remember the slide “Pennsylvania
Employment”: fair employment statutes.
54
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?
55
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.).
56
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)
57
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?
58
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)
59
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)
60
“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
61
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 woman’s
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.
62
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 Trooper’s 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)
63
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”
– Arbitrator’s award are very difficult to overturn;
the PA Supreme Court upheld this award.
64
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?
65
Discipline: Real Life Example D
[Officer’s] 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.
[Officer’s] 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)?
66
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)
67
Discipline: Real Life Example E
• Officer was having a difficult time with his exwife.
• 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?
68
Discipline: Real Life Example E
• Discharge upheld
– Despite children’s alleged exposure to drugs when in
wife's custody.
– Rejected argument that all administrative orders be in
writing, holding “[v]iolation 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)
69
Discipline: Real Life Example F
• Officer agreed to work 4.5 overtime hours until 7:30 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?
70
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)
71
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?
72
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 crossexamination, 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.
73
Discipline Checklist
1.
2.
3.
4.
Investigate; gather information/data
Issue Loudermill (earlier is necessary)
Review employee’s response
Communicate determination
•
•
Recommendation
Offer opportunity for local agency hearing OR
grievance (if appropriate)
5. Carry through – sending appropriate
communications and using appropriate
decision makers
74
Election of Remedies
Township of Falls v. Whitney, 730 A.2d 557 (Pa. Cmwlth. 1999)
[T]he 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 “[e]lection 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.
75
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
Borough’s jurisdiction. You eventually wrecked the Borough’s
police vehicle.
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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.”
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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 1:00 p.m. on Monday, April 5,
2004.
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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
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“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.
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Part 5
Prevention
(In brief)
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“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, I’d spend the first
hour sharpening the axe.”
Abraham Lincoln
82
“Don’t 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
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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
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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 retool it into a real predictive function.
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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.
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Hiring: Tests
• Written
– “Off-the-shelf” is not always tied to your needs
• Oral
– Bulk of officer’s job is communication and judgment
– No “yes” or “no” questions
• Performance
– If the job is physical, don’t you want to know whether the
applicant can perform?
– Caution: Americans With Disabilities Act
• Psychological
– Required for police
– Know the doctor
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Hiring: Qualifications
•
•
•
•
Education
Experience
Certifications
Verification
– Reference check – be thorough
– Background check – criminal history
– Polygraph
– Drug Test (Caution: ADA)
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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
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Questions
and
Discussion
90