Discipline and Discharge A Guide For Municipal Officers

Discipline and DischargeA Guide For Municipal Officers Presented By: The Local Government Academy John Lasky, Esquire jwlasky@aol.com March 13, 2008

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.

Agenda • Preliminary Matters • Basic Framework • Fundamental Protections • The Codes and Procedure • Prevention

Part 1 Preliminary Matters

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?

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

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

Part 2 Basic Framework

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?

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)

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)

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.

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.

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

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?

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)

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.).

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.

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

Part 3 Fundamental Protections

The Constitution of the United States

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.”

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.

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.

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.

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?

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

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.

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.

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.

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

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

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 . . . .”

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?

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)

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).

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.

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.

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.”

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?

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.

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)

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.

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

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?

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.

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?

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.

Part 4 The Codes

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

Discipline and Discharge A Guide For Municipal Officers