Disciplinary Responsibilities

This guideline is intended to augment any discipline or due process provisions in the various collective bargaining agreements and handbooks. It is extremely important to read any pertinent sections of the appropriate collective bargaining agreement or handbook which covers the employee being disciplined. Supervisors and managers should pay particular attention to items concerning personnel files, discipline, demotion, and due process. Most law suits or arbitration cases are lost because of the failure of a party to follow its own process, rather than on the merits of the case. Exceptions to these instructions may be made by the Assistant Chancellor of Human Resources when not in conflict with agreements, handbooks, the Education, Labor or Government Codes.

The District reserves the right to discipline employees in cases where work performance or behavior is deemed unacceptable or inappropriate. Discipline includes such actions as counseling, warnings, reprimands, suspensions, demotions, and dismissals.

A supervisor or manager should review the collective bargaining agreement or handbook to determine whether there are any limitations regarding the ability to discipline for incidents occurring more than a specified time before charges are issued. In no event, shall disciplinary action be taken for any cause which arose prior to the employee becoming permanent, nor for any cause which arose more than two (2) years preceding the date of the filing of the notice of cause unless such cause was concealed or not disclosed by such employee when it could be reasonably assumed that the employee should have disclosed the facts to the District.

All permanent classified employees are eligible for a pre-disciplinary hearing prior to any disciplinary action more severe than a one (1) day suspension. For actions less than that, a post-disciplinary conference with the employee, including a written statement of the charge and the particular level or type of discipline imposed, will be sufficient. Regardless of the severity of the corrective action, hourlies have only a right to a conference and written notice.

Components of a good disciplinary system protect both the employee and the supervisor or manager from the concerns of discrimination, and capricious and arbitrary actions. These components include:

1. The violation should be clear to the employee. The rule, policy, or practice should be known, by publication and, if feasible, specific counseling or warning should be known. The potential penalty or penalties should also be known.

2. Discipline should be progressive.

3. Any investigation must be fair and impartial.

4. There must be adequate and substantiating evidence; a "preponderance of evidence" requires superiority (50+ %) in amount, weight, power, influence, or importance.

5. The penalty or action must be proportionate to the offense(s).

6. Decisions must be objective and non-emotional.

The primary principle supporting a good discipline policy is that of progressive actions. Approaching a problem employee with the idea of remediating unsatisfactory performance or behavior requires careful, considerate, step-by-step counseling and assistance. To that end it is proper to insure that the employee is made totally aware of the deficiencies and is encouraged to change or correct them as soon as possible. These sessions should be presented positively and provide an opportunity for the supervisor or manager to offer suggestions and assistance in support of the employee. Again, the purpose of any discipline is to improve the performance of the employee.

It is also important that an employee know the consequences of his/her behavior. As a supervisor or manager counsels an employee at any one level of disciplinary action, he/she should inform the employee of the possible consequences and further discipline which will result from a lack of significant improvement in the deficient behavior or performance. In most cases, where discipline may be a possible result of the meeting, employees are entitled to representation.

In all cases of discipline, proper notice to the affected employee is important. This may be done by having him/her sign an acknowledgement statement at the bottom of the notice, hand deliver with a note stating it was hand delivered with the signature of a witness, or send by registered mail, return receipt requested. If the employee refuses to sign or accept the mail, this fact should be noted and witnessed and such information added to the file.

BP 3410 Nondiscrimination

Circumstances may arise where an employee's actions may endanger the safety of staff/students and/or District property. Under such circumstances where a supervisor or manager has reasonable cause to believe that an employee has willfully disrupted the orderly operation of District business or the operation of a college or site, immediate action may be taken to place the employee on paid administrative leave. The supervisor or manager shall advise the employee that pending the conclusion of an expeditious investigation he/she is immediately placed on leave. The supervisor or manager may consider advising the employee of the availability of the Employee Assistance Program.

Based upon the findings of the investigation, if discipline is indicated, procedures appropriate for any proposed disciplinary action shall be carried out at the earliest possible date.

PROGRESSIVE STEPS IN DISCIPLINE

1. Counseling - This is not a formal disciplinary action, but rather an informal session establishing communication of any concerns that both parties may have, and exploring possible solutions to those problems.
   
   This step may be an extension of the employee performance evaluation and goal setting process. Counseling, in effect, will be a part of many levels of disciplinary action, but at this level it should be an open, non-threatening discussion of the issues or problems. The supervisor or manager should keep a record of the date and nature of the counseling. (See sample memo attached.)

2. Warnings - Either orally or in writing, this level is the first action of a supervisor or manager which constitutes discipline. Anything in writing must be signed by both parties, recognizing that the warning had taken place with a copy to Human Resources for inclusion in the employee's District personnel file.

3. Reprimands - This is a written communication which spells out the deficient behaviors, the policies, rules or practices violated, and must include the consequences if such behavior continues. Reprimands must be signed by both parties with a copy to Human Resources.
   
   The employee has the right to appeal this decision. Attached is a grievance form, the completion, signing and filing of which with the Human Resources Department constitutes a denial of all charges and demand for hearing. The form must be presented to the Human Resources Department no later than date (refer to the appropriate collective bargaining agreement or handbook). A copy of the sections of the collective bargaining agreement relating to the employee's appeal rights is attached hereto.

4. Suspension - This step requires a pre-disciplinary hearing for suspensions greater than one (1) day. Actions of this severity should be initiated only after consultation with Human Resources. The length of suspension should always be commensurate with the charges filed against the employee. Actions of this nature must be in writing and signed by both parties with a copy to Human Resources.

5. Demotion-in-Compensation - This action may be in lieu of suspension and requires a pre-disciplinary or post disciplinary hearing depending upon the level of severity. For example, a demotion from Step D to Step C for twenty (20) working days equates to one (1) day suspension where the step is 5%.

6. Demotion-in Rank - This action is normally used when an employee has been promoted or elevated to a job classification for which he/she is not fully able to perform, and in the case of a classified employee, has attained permanent status with the District. The employee must be given a pre-disciplinary hearing which is initiated only after consultation with Human Resources. (If probationary, an employee may fail probation and revert back to the former classification. In such cases, these disciplinary procedures do not apply.)

7. Discharge - Supervisors and managers should consider recommending this action as a final resort, and at the failure of other less severe actions to remedy the deficient behavior or performance. Only in severe cases, and after consultation with Human Resources, should this action be contemplated without benefit of previous progressive discipline (i.e., theft of District property, sabotage). A pre-disciplinary hearing is mandatory when discharge is the discipline being contemplated for a permanent employee. Any proposed dismissal of a regular employee requires review by the Board of Trustees in advance of the effective date.

PRE-DISCIPLINARY HEARING

In all cases involving suspension of more than one (1) day, demotion, or discharge, the permanent employee has the right to an informal, pre-disciplinary hearing. This right accrues through the extension of the "due process" protections guaranteed by the state and federal constitutions. The hearing is informal and should not be an adversary proceeding. There is no right to cross examine witnesses, and it is not considered an evidentiary proceeding. Pre-disciplinary hearings involve the following components:

1. The employee must be given written notice of the proposed disciplinary action, including: (Refer to the appropriate bargaining agreements/handbooks to verify unique requirements)

   1. statement of causes or charges;

   2. citation of rule, regulations, practice or policy violated;

   3. statement of employee's right to review, or receive copies of any documents or evidence supporting charge;

   4. statement of employee's right to respond orally or in writing or both; and

   5. right of employee to have representation at the informal hearing.

2. The hearing date should be set no sooner than five (5) days after delivery of the written notice, or other reasonable time commensurate with the complexity of the charge(s), severity of proposed action, and urgency of the situation. (Refer to provisions in the appropriate collective bargaining agreement/handbook.) The rule is one of reasonableness to allow the employee adequate time to review the charges and any evidence, and to develop his/her defense. The date is set by management, but in the best of circumstances, should be mutually acceptable. The proposed date and time should be reasonably adjusted to provide for the availability of the employee's representative if requested.

3. The hearing should be chaired by the first level manager next in line above the recommending supervisor. Therefore, the hearing should normally involve the employee, the immediate supervisor, and the next higher authority in a management position. The hearing may be chaired by any higher manager as appropriate or desirable.

4. The purpose of the hearing is to afford the employee an opportunity to respond and provide pertinent facts and information related to the cause of action. It is not the intent of such a hearing to argue or debate an issue.
   
   The manager conducting the hearing may ask for clarification which will assist him/her in making the final decision. The manager should advise the employee and/or representative that he/she will give a written decision at a later time.

5. After hearing all information provided by the employee and the representative and accepting any documents or other materials, the manager shall conclude the hearing by advising the employee that all facts and information shall be evaluated and, if necessary, investigated further prior to a final determination. The employee shall be notified of the final decision in writing, and in the case of discipline to be imposed, the letter shall constitute the notice and order of disciplinary action.

If discipline is deemed appropriate, the employee shall be given a letter or notice which spells out the specific charges which have been sustained and supporting facts upon which the discipline is then based. The notice must also contain the following:

• names and titles of those present at the hearing;
• the number of days of suspension, and the start and end date, or the effective date of the demotion or discharge;
• distribution of copies;
• a statement of the employee's right to a hearing;
• the time within which a hearing must be requested; and
• a separate statement, the signing and filing of which constitutes a denial of all charges and a demand for hearing.

Refer to the appropriate collective bargaining agreement or handbook for any relevant time limits for giving the employee the final decision after the pre-disciplinary hearing.

CAUSES FOR DISCIPLINARY ACTION

The following is a list of some major reasons or causes for which discipline may be proposed. To the extent possible, supervisors and managers should cite these whenever applicable in the disciplinary notices. Depending upon the severity, consequence(s), and frequency of any cause(s), the level of appropriate discipline may vary from "warning" to "discharge".

1. Falsification of personnel records or other documents;

2. Absence without reasonable cause and proper authority;

3. Unauthorized absence from the assigned duty station during the scheduled work day;

4. Threatening, coercing, intimidating, assaulting, or interfering with employees or supervisors at any time;

5. Unauthorized soliciting or collecting of contributions for any purpose on District premises;

6. Unauthorized distribution of literature, or written or printed matter on District premises;

7. Misuse, unauthorized removal from the premises of records, equipment, files, documents, or confidential information;

8. Making or publishing of false, vicious or malicious statements concerning any employee, supervisor, or manager;

9. Theft or misappropriation of property of employees or of the District;

10. Permanent or chronic physical ailment or defect which incapacitates the employee from the proper performance of assigned duties even with accommodations; (refer to Human Resources instruction EA 4045, ADA Accommodations - Employees)

11. Conviction of a criminal offense involving moral turpitude, which shall be construed to mean any act of baseness, vileness or depravity; or any act contrary to justice and honesty; or any act done with deception, or through corrupt motives. The commission of certain minor offenses does not fall within the scope of this definition.

12. Negligence or willful misconduct which has caused damage to public property or waste of public supplies;

13. Any conduct of such a nature that it causes discredit to the agency, or his or her employment;

14. Absence without leave, or failure to report after leave of absence has expired, or after such leave of absence has been disapproved or revoked and canceled. However, if such absence or failure to report is excusable, the supervisor may dismiss the charges.

15. Incompetence or inefficiency in the performance of assigned duties;

16. Violation of any lawful or official policy, procedure, regulation or order, or failure to obey any lawful and reasonable direction given by the employee's supervisor when such an act results in loss, inconvenience, or injury to the District, the public, or other employees or students;

17. Soliciting or taking for personal use, a fee, gift, or other valuable thing in the course of assigned work, or in connection with the contributing party's expectation or hope of receiving favorable or better treatment than that afforded other persons;

18. Hindering the regular or normal operation of the office or site because of excessive absenteeism, disorderly conduct, neglect of duty, or performance while under the influence of alcohol or any illegal intoxicants;

19. Engaging in any activity which is deemed a conflict of interest;

20. Any other act of an employee which is deemed negligent or unsatisfactory, and is in conflict with the furtherance of organizational goals and objectives;

21. Insubordinate behavior or conduct or insolent behavior;

22. Sexual harassment;

23. Failure to submit to drug or alcohol testing when there is individualized reasonable suspicion.

Date: 3/97

Authorized by: Murphy/ Witt