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

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

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

Authority for Discipline Chapter 110, Florida Statutes Chapter 110, Florida Statutes Chapter 60L , Florida Administrative Code Chapter 60L , Florida Administrative Code Collective Bargaining Agreements Collective Bargaining Agreements

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 (1), Florida Statutes “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 (1), Florida Statutes

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....” , Florida Statutes. “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....” , Florida Statutes.

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

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

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

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

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

Role of the Supervisor Establish work environment where employees feel they are treated fairly and can communicate openly with supervisor Establish work environment where employees feel they are treated fairly and can communicate openly with supervisor Communicate performance expectations to employees Communicate performance expectations to employees Communicate standards of conduct to employees Communicate standards of conduct to employees Counsel employees when necessary 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 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

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

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

Counseling Used to help employee recognize a deficiency, accept the standard that is required, and understand the consequences of failing to meet the standard 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 Goal: Help the employee correct the problem or behavior Counseling is not considered discipline 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 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 Not necessarily appropriate in egregious situations such as fighting, theft, insubordination

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

Administering Discipline Career Service System Employees Agency policies and procedures and employee performance expectations must be explained and clearly defined 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 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 Discipline should be administered fairly, promptly and in an expeditious manner Delay raises question of whether discipline is necessary Delay raises question of whether discipline is necessary

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

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

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 (4), F.A.C. 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 (4), F.A.C. Ensures that supervisors and managers do not take arbitrary or capricious action against a Career Service employee Ensures that supervisors and managers do not take arbitrary or capricious action against a Career Service employee

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

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

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

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

Notice of Intent Ch (5)(b), Florida Statutes Ch (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: 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

Notice of Discipline Written notice of final action taken Written notice of final action taken Must include notice of employee’s right to appeal the disciplinary action: 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.

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. 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 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. PERC determines whether or not cause existed for the agency action. If no cause, employee may be reinstated with or without back pay. 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 PERC may not reduce the penalty imposed by the agency unless law enforcement, correctional officers, firefighters, professional health care providers

Collective Bargaining Grievance Procedure Ch , Florida Statutes provides that the State and the Union shall negotiate a grievance procedure which shall have an arbitration hearing as its final step Ch , 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. 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. 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.

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

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

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

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

Collective Bargaining Disciplinary Grievance Response Grievance Review Procedures Review the specific disciplinary standard the employee was alleged to have violated 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 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 Consider the availability of witness should the case go to an evidentiary hearing Review the justification and severity of discipline. Review the justification and severity of discipline. Consider how an impartial reviewing party would evaluate the evidence and resulting discipline. Consider how an impartial reviewing party would evaluate the evidence and resulting discipline.

Collective Bargaining Grievance Response Grievance responses should include the following: A brief statement of the relevant facts 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 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 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 Identify each issue raised by the grievant and respond to each issue Include a statement of conclusions Include a statement of conclusions Include a decision as to whether to sustain or deny the grievance base on the conclusions reached Include a decision as to whether to sustain or deny the grievance base on the conclusions reached

Collective Bargaining Grievance 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 DMS schedules arbitration Arbitrator chosen in rotation from agreed upon panel Arbitrator chosen in rotation from agreed upon panel Arbitrator’s decision is final and binding – no appeal. Arbitrator’s decision is final and binding – no appeal.

Grievance Resolution or Settlement Parties can agree at any time prior to issuance of arbitrator’s award to settle a grievance. 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”. 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. Settlement agreements may also address issues of back pay, references, eligibility for rehire.

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

Administering Discipline “At Will” SES Employees SES Employees SMS Employees SMS Employees Probationary Employees Probationary Employees