Principles of Discipline

1. Principles of Discipline Lisa Truckenbrod Assistant General Counsel Department of Management Services

2. What is Discipline? Definition “Correction, chastisement, punishment, penalty. To bring order upon or bring under control.” - Black’s Law Dictionary “Punishment; instruction; a control gained by enforcing obedience or order; to train or develop by instruction and exercise” - Webster’s Ninth New Collegiate Dictionary

3. What is Discipline? Purpose To train and instruct the employee to function appropriately in his position. Function The means by which we give formal notice to an employee of 1) what the employee did wrong; 2) the rule or standard violated; and 3) what action is being taken against the employee

4. Authority for Discipline • Chapter 110, Florida Statutes • Chapter 60L-36.005, Florida Administrative Code • Collective Bargaining Agreements

5. Career Service System • “Any employee who satisfactorily completed at least a 1 year probationary period in his or her current position may be suspended or dismissed only for cause. . . .”. Ch. 110.227(1), Florida Statutes

6. Selected Exempt Service • “Employees in the Selected Exempt Service shall serve at the pleasure of the agency head and shall be subject to suspension, dismissal, reduction in pay, demotion, transfer or other personnel action at the discretion of the agency head. . . .” 110.604, Florida Statutes.

7. Senior Management Service System • No statutory provision relating to discipline • No cause required based on Rule 60L-36.005(3), F.A.C.

8. Rule 60L-36.005Disciplinary Standards • Identifies minimal conduct standards that apply to all employees in the State Personnel System • Permanent career service employees may be suspended or dismissed only for cause • Employees outside of the permanent career service may be dismissed at will

9. Cause Required Permanent, Career Service Employees Cause Not Required SES Employees SMS Employees Probationary Employees Cause Required for Discipline?

10. Collective Bargaining Agreements • Each collective bargaining agreement includes a discipline article which reflects the principles established by Chapter 110, Florida Statutes and Rule 60L-36.005, F.A.C. • Some agreements cover Career Service Employees and others cover SES Employees

11. Career Service AFSCME IUPA PBA SSU PBS SAU FSFSA FNA Selected Exempt Service FPD Physicians Unit FPD Supervisory Non-Professional Unit FPD State Employees Attorneys Guild (SEAG) Collective Bargaining Agreements

12. Role of the Supervisor • Establish work environment where employees feel they are treated fairly and can communicate openly with supervisor • Communicate performance expectations to employees • Communicate standards of conduct to employees • Counsel employees when necessary • Take disciplinary action when necessary; A good supervisor understand the proper use of discipline, and is prepared to take action that is fair, justified and necessary

13. Communicate Performance Expectations to Employees • Review performance standards with employees regularly • Emphasize success based on performance

14. Communicate Standards of Conduct to Employees • Provide employees access to Chapter 110, Florida Statutes, Rule 60L-36.005, F.A.C. • Provide employees with a copy of agency specific policies and procedures that govern employees conduct and performance • Ensure that employees understand policies, procedures and standards of conduct, as well as the consequences of failing to comply with them

15. Counseling • Used to help employee recognize a deficiency, accept the standard that is required, and understand the consequences of failing to meet the standard • Goal: Help the employee correct the problem or behavior • Counseling is not considered discipline • Typically used when behavior is not egregious but has potential for continuing or worsening over time, i.e. tardiness, absenteeism • Not necessarily appropriate in egregious situations such as fighting, theft, insubordination

16. Counseling Tips • Be a good listener • Be specific regarding expectations and consequences of failing to meet expectations • Maintain privacy • Maintain objectivity • Avoid hostility & defensiveness • Never make excuses for enforcing the rules

17. Administering DisciplineCareer Service System Employees • Agency policies and procedures and employee performance expectations must be explained and clearly defined • Disciplinary standards must be explained and made available to all employees with written documentation of receipt • Discipline should be administered fairly, promptly and in an expeditious manner • Delay raises question of whether discipline is necessary

18. Administering DisciplineCareer Service System Employees • Establish Cause • Determine level of discipline to be administered • Provide employee with Notice of intent and opportunity to appear before the agency • Take Disciplinary Action

19. Establishing Cause What is Cause? Cause is identified in Ch. 110.227(1), Florida Statutes and in Rule 60L-36.005, F.A.C. to include, but not be limited to: • Poor Performance • Negligence • Inefficiency or inability to perform assigned duties • Violation of law or agency rules • Conduct unbecoming a public employee • Misconduct • Habitual drug use • Conviction of any crime, including a plea of nolo contendere and a plea of guilty with adjudication withheld

20. Establishing Cause • Agency bears the burden of proof: “Before taking corrective action, an agency shall have evidence that an employee failed to comply with a standard or expectation.” Rule 60L-36.005(4), F.A.C. • Ensures that supervisors and managers do not take arbitrary or capricious action against a Career Service employee

21. Considerations when Establishing Cause • Notice • Alleged violation reasonably related to employee’s job • Proof of Misconduct • Documentation • Investigatory Interviews • Appropriateness of Discipline

22. Proof of Misconduct • Disciplinary Investigation Interview – meeting in which employee is being question relative to alleged misconduct • Employee entitled to representation, i.e. Union or attorney • Management must advise employee in advance as to nature of meeting

23. Appropriateness and Level of Discipline • Oral Reprimand • Written Reprimand • Suspension • Dismissal • Reduction in pay • Demotion

24. Notice of Intent • Ch. 110.227(5)(a), Florida Statutes • Written notice of proposed action at least 10 days prior to date of action • Notice delivered personally or by certified mail • Must give employee opportunity to appear before the official taking the action to respond to charges

25. Notice of Intent • Ch. 110.227(5)(b), Florida Statutes • Employee may be disciplined without 10 days prior written notice in extraordinary circumstances, i.e. when retention of employee would result in: 1. Damage to state property; or 2. Detriment to best interest of the state; or 3. Injury to employee, fellow employee, or others

26. Notice of Discipline • Written notice of final action taken • Must include notice of employee’s right to appeal the disciplinary action: • To the Public Employees Relation Commission (PERC) • Under any applicable collective bargaining agreements • Pursuant to other applicable statutory provisions, i.e. Parts VI or VIII of Chapter 112, Florida Statutes.

27. Public Employee Relations Commission (PERC) • Notice of appeal must be filed with PERC within 14 days after the date on which the disciplinary action is received by the employee. • PERC hearing held within 30 calendar days following the filing of a notice of appeal • PERC determines whether or not cause existed for the agency action. • If no cause, employee may be reinstated with or without back pay. • PERC may not reduce the penalty imposed by the agency unless law enforcement, correctional officers, firefighters, professional health care providers

28. Collective Bargaining Grievance Procedure • Ch. 447.401, Florida Statutes provides that the State and the Union shall negotiate a grievance procedure which shall have an arbitration hearing as its final step • Each CB agreement that covers career service employees contains a discipline article which prohibits discipline without cause. • An employee covered by a collective bargaining agreement (even if not a member of the union) may file a grievance pursuant to Grievance Procedure set forth in the agreement, alleging a violation of the agreement’s discipline article, i.e. that the employer did not have just cause to discipline the employee.

29. Collective Bargaining Grievance Procedure • Oral Step • Step 1 • Step 2 – agency head or designee • Step 3 (AFSCME, FNA, PBA SSU, PBA SAU only) - DMS • Arbitration – neutral arbitrator

30. Collective BargainingGrievance Procedure • Grievances are to be filed at the at the lowest level of management having authority to adjust the grievance. • Disciplinary grievances – file at Step 2 • Grievance must include: • facts on which the grievance is based • specific provisions of the CB agreement allegedly violated • issues support alleged violation • relief requested

31. Collective Bargaining Grievance Meeting Purpose • Review all relevant facts • Identify facts that are in dispute • Attempt to resolve disputed facts • Address each argument raised in defense of the employee • Weigh the likelihood of success of failure at a higher level hearing.

32. Collective BargainingGrievance Meeting • Listen to Employee’s side of the story • Remain objective; avoid allowing personality conflicts to interfere with judgment • Provide grievant with all necessary information

33. Collective BargainingDisciplinary Grievance Response Grievance Review Procedures • Review the specific disciplinary standard the employee was alleged to have violated • Review the evidence. Look for inconsistencies or conflicting statements. Identify relevant documents to support the disciplinary action • Consider the availability of witness should the case go to an evidentiary hearing • Review the justification and severity of discipline. • Consider how an impartial reviewing party would evaluate the evidence and resulting discipline.

34. Collective BargainingGrievance Response Grievance responses should include the following: • A brief statement of the relevant facts • Identify the standards of conduct that were violated by the employee and that lead to the disciplinary action taken • Identify the contract article in the CB agreement alleged by the grievant to have been violated • Identify each issue raised by the grievant and respond to each issue • Include a statement of conclusions • Include a decision as to whether to sustain or deny the grievance base on the conclusions reached

35. Collective BargainingGrievance Arbitration If the grievant is not satisfied with the responses s/he has received at the various steps of the grievance procedure, s/he may file a request for arbitration. • DMS schedules arbitration • Arbitrator chosen in rotation from agreed upon panel • Arbitrator’s decision is final and binding – no appeal.

36. Grievance Resolution or Settlement • Parties can agree at any time prior to issuance of arbitrator’s award to settle a grievance. • Typically, the settlement of a disciplinary grievance includes a statement that the employee “resigns in lieu of termination”. • Settlement agreements may also address issues of back pay, references, eligibility for rehire.

37. Collective BargainingGrievance Representatives • Employee is entitled to Union representation in the Grievance meeting(s) • Collective bargaining agreement governs the rights and duties of grievance representatives

38. Administering Discipline“At Will” • SES Employees • SMS Employees • Probationary Employees