APPLICABILITY & PURPOSE

This Personnel Management Regulation (PMR) specifies the bases and rules for disciplinary action for County employees.

CONTENTS

47.1 Authority
47.2 Types of Disciplinary Action
A. Oral Warning
B. Written Warning
C. Suspension
D. Reduction in Compensation
E. Demotion
F. Dismissal
47.3 Grounds for Disciplinary Action
47.4 Discipline of Exempt Employees
47.5 Possible Investigation
47.6 Procedures for Taking Disciplinary Action and Related Appeal Rights
A. Oral Warning
B. Written Warning
C. Suspension/Reduction in Compensation/Demotion/Dismissal
D. Immediacy Required
47.7 Appeal Hearing Request by Employee
A. Suspension of Five Days or Less
B. Suspension of More than Five Days, Reduction in Compensation, Demotion and Dismissal
C. Peace Officers
D. Waiver of Hearing
47.8 Procedure for Hearing Before Personnel Commission
47.9 Written Findings and Decision
47.10 Judicial Review
A. Petition for Writ of Mandate
B. 90 Days from Final Decision
APPROVAL

FORMS AND ATTACHMENTS

Not applicable.

47.1 Authority

County officers designated as having appointing authority may demote, suspend, reduce in compensation or dismiss regular employees in the Merit System. Managers and supervisors, as well as the appointing authority, may provide written or oral warnings.

47.2 Types of Disciplinary Action

A. Oral Warning. A formal discussion with an employee, usually by the employee’s immediate supervisor, about performance or conduct problems, the need for the employee to improve, what specific improvement is expected, and further consequences if improvement is not made.

B. Written Warning. A formal written notice to an employee, usually by the employee’s immediate supervisor, regarding performance or conduct problems, the need for the employee to improve, what specific improvement is expected, a statement of any prior disciplinary action, and the further consequences if improvement is not made.

C. Suspension. Removal of an employee from duty without pay for a specified period.

D. Reduction in Compensation. A reduction in pay from the employee’s current step within a pay range to any lower step within that same range.

E. Demotion. A reduction in status and salary from one classification to another classification having a lower salary range.

F. Dismissal. Separation from employment of an employee for cause.

47.3 Grounds for Disciplinary Action

A. The maintenance of regular status in the Merit System by an employee requires appropriate behavior and competent service. Any regular employee is subject to disciplinary action, including dismissal, suspension, reduction in compensation, demotion, written warning and oral warning. Listed below are examples of causes which will be deemed sufficient for such action by the appointing authority. Grounds for disciplinary action are not limited to the examples enumerated below:

1. Fraud, misrepresentation of fact, or concealment in securing appointment or during employment.

2. Falsification in any information provided to the County including information provided on employment records, timesheets or reimbursement requests.

3. Unauthorized, unexplained absence.

4. Insubordination, a willful failure to conform to directives, duly established orders of supervision, or insulting or demeaning the authority of a supervisor or manager.

5. Incompetence, i.e. inability to comply with the minimum standard of performance of an employee’s position for a significant period of time.

6. Inefficiency or inexcusable neglect of duty, i.e. failure to perform duties required of an employee within his or her position, or wasting time, energy, or materials.

7. Abuse of sick leave, i.e., taking sick leave, without a doctor’s certificate when one is required, or misuse of sick leave, i.e. claiming sick leave when one or one’s family member is not sick.

8. Disorderly or immoral conduct.

9. Dishonesty.

10. Possession, distribution, sale, use or being under the influence of alcohol or illegal drugs or narcotics while on duty or while operating a County vehicle or potentially dangerous equipment leased or owned by the County.

11. Any action which indicates a lack of concern for injury to him or herself or others.

12. Gross negligence, willful damage to public property or waste of public supplies or equipment.

13. Unauthorized use of County property or equipment, including driving on County business without a driver’s license and/or insurance.

14. Theft of County equipment, supplies, or property.

15. Discourteous, offensive or abusive treatment of the public or other employees.

16. Refusal to participate as directed in an investigation conducted by the County.

17. Working overtime without authorization.

18. Any willful act, conduct undertaken, or statements made in bad faith, either during or outside of duty hours, which is of such a nature that it causes discredit to the County or the employee’s department or division.

19. Outside employment not specifically authorized.

20. Acceptance from any source of a reward, gift, or other form of remuneration in addition to regular compensation to an employee for the performance of his or her official duties.

21. Improper political activity. Example: Campaigning for or espousing the election or non-election of any candidate or issue in national, state, county or municipal elections while on duty and/or during working hours or in County uniform on or off duty; or the dissemination of political material of any kind while on duty and/or during working hours or in uniform.

22. Possession of weapons on agency property unless authorized.

23. Disclosure of confidential and/or privileged information.

24. Willful violation of any of the provisions of the Merit System, these Personnel Management Regulations, County rules or Departmental rules, regulations, policies, and procedures.

25. Engaging in sexual activity while on duty.

47.4 Discipline of Exempt Employees

Except for a violation of a major safety rule, exempt employees not eligible for overtime are not subject to (1) suspensions other than in full work week increments, (2) temporary demotions (with a beginning and ending date) or (3) temporary reductions in pay.

47.5 Possible Investigation

When an act of an employee that may be cause for disciplinary action is reported to the employee’s supervisor, it may be necessary to conduct an investigation to determine the facts and/or to confirm the allegations. The investigation may be performed by the employee’s supervisor or assigned to an administrative employee, outside investigator or other designee of the department head. The object of the investigation will be to determine if a disciplinary offense did occur, and if so, by whom. Investigations will be conducted as confidentially as possible. As much as possible, the employee will receive notice as to the purpose of the meeting, and of the right to representation if the employee believes the investigation could lead to disciplinary action for him or her.

Return to Top

47.6 Procedures for Taking Disciplinary Action and Related Appeal Rights

A. Oral Warning. Following a formal discussion, a supervisor or manager may summarize the oral warning, provide the summary to the employee, or supervisor, and place it in the employee’s department personnel file. At a minimum, a notation that the oral warning was given must be kept by the supervisor or manager. An oral warning may not be challenged or appealed, except that as provided under the Public Safety Officers’ Procedural Bill of Rights, any such adverse written information must be with employee’s knowledge and right to view.

B. Written Warning. A written warning will be prepared, discussed with, and given to the employee. A copy will be placed in the employee’s official personnel file in the Human Resources Department. The employee may, within ten days of receipt of the warning, file a written response with the department head for placement in the personnel file. Employees covered under the Public Safety Officers’ Procedural Bill of Rights have 30 days to file a response and the opportunity for administrative appeal pursuant to 47.6C.2 below.

C. Suspension/Reduction in Compensation/Demotion/Dismissal

1. Notice of Proposed Discipline. Whenever the appropriate authority intends to suspend an employee, demote the employee, reduce the employee in compensation or dismiss the employee, the appropriate authority will give the employee a written notice of proposed discipline which sets forth the following. Such notice will not be issued without prior consultation with and review by County Counsel and Human Resources Director or their designee(s).

a. The disciplinary action intended;

b. The specific charges upon which the action is based;

c. A summary of the facts upon which the charges are based;

d. Identification of the rule, regulation, personnel management regulation, or policy violated;

e. A copy of all written materials, reports, tape recordings or documents upon which the discipline is based, or notice that the employee may request and will be given such information;

f. Notice of the employee’s right to respond to the charges either orally or in writing to the appropriate authority;

g. The date, time and person before whom the employee may respond. Said time will be no less than seven calendar days from receipt of the notice;

h. Notice that failure to respond at the time specified will constitute a waiver of the right to respond prior to final discipline being imposed;

i. The employee’s right to a representative.

2. Response by Employee. The employee will have the right to respond to the appropriate authority orally or in writing. The employee will have a right to be represented at any meeting set by the appropriate authority to hear the employee’s response. In cases of suspensions, demotions, reductions in compensation or dismissal, the employee’s response will be considered before final action is taken.

3. Final Notice. After the response or the expiration of the employee’s time to respond to the notice of proposed discipline, the appointing authority or designee will either: (1) dismiss the proposed discipline and take no disciplinary action against the employee, (2) modify the recommended disciplinary action, or (3) uphold the recommended disciplinary action. The appointing authority or designee will prepare and serve upon the employee a final notice of disciplinary action. The final notice of disciplinary action will include the following. Such notice will not be issued without prior consultation with and review by County Counsel and Human Resources Director or their designee(s).

a. The disciplinary action taken;

b. The effective date of the disciplinary action taken; (for suspension, reductions in compensation and demotions the effective date is generally after the hearing or time to request a hearing has expired).

c. Specific charges upon which the action is based;

d. A summary of the facts upon which the charges are based;

e. The written materials, reports, tape recordings, and documents upon which the disciplinary action is based;

f. The employee’s right to appeal.

4. Appeal Rights. For suspensions of five days or less, the employee may appeal to the County Administrator. For suspensions in excess of five days, reductions in compensation, demotion and dismissal, the employee has the right to appeal to the Personnel Commission. Peace officers covered under Public Safety Officers Procedural Bill of Rights are entitled to a hearing as set forth in PMR 47.8 for all suspensions and for a transfer for disciplinary purposes that results in a loss of pay. For written reprimands and punitive transfers that do not result in a loss of pay the public safety officer will have the right to respond as set forth in PMR 47.6.C.2.

5. Within 72 hours of issuance of the final notice, it will be filed in the employee’s personnel file. If an employee is dismissed, the employee will no longer receive salary or benefits after the time to request a hearing has expired.

D. Immediacy Required

1. If the appointing authority believes that the public interest requires that a suspension or dismissal have immediate effect, the proposed action and its basis will be submitted to the Director of Human Resources. After notice to the affected person, the Director of Human Resources or designee will conduct a hearing to determine:

a. If there is a probable cause for the order; and

b. Whether the public interest requires that the order take immediate effect.

2. If upon completion of the hearing the Director of Human Resources or designee so finds, the order will take effect upon the date designated by the Human Resources Director or designee. The Director’s or designee’s determination will not be appealable, but this determination will not affect the rights to appeal and hearing set forth in the remaining sections.

3. Notwithstanding the above, in some cases (e.g. fighting, theft, intoxicated while on duty, and belligerent insubordination), immediate, on the spot, administrative leave may be appropriate, followed by the immediacy hearing.

Return to Top

47.7 Appeal Hearing Request by Employee

A. Suspension of Five Days or Less. A regular employee will have the right to an appeal hearing before the County Administrator. The employee must, within ten calendar days of the date of the final notice, file an answer to the charges and a request for a hearing before the County Administrator. The request must be submitted in duplicate to the Executive Secretary to the Personnel Commission (Director of Human Resources).

B. Suspension of More than Five Days, Reduction in Compensation, Demotion and Dismissal. A regular employee will have the right to an appeal hearing before the Personnel Commission. The employee must, within ten calendar days of the date of the final notice, file an answer to the charges and a request for a hearing before the Personnel Commission. The request must be submitted in duplicate to the Executive Secretary of the Personnel Commission (Director of Human Resources). The request should contain the charges, an admission or denial of the charges and reasons why the final order should be reversed or modified.

C. Peace Officers. A regular employee covered by the Public Safety Officers’ Procedural Bill of Rights may request an appeal hearing for any suspension or more severe disciplinary action. Such hearing may be before the Personnel Commission or other neutral fact-finding body designated by the Board of Supervisors. The request must be submitted within 30 calendar days of the final disciplinary action decision and must be submitted in writing to the Executive Secretary to the Personnel Commission (Director of Human Resources) indicating the basis on which the employee disputes the disciplinary action.

D. Waiver of Hearing. If the employee does not answer the charges and file the request for a hearing within ten calendar days after the date of the final notice (30 days under the Public Safety Officers’ Procedural Bill of Rights), the right to appeal is forfeited.

Return to Top

47.8 Procedure for Hearing Before Personnel Commission

A. Upon receipt of an appeal from a dismissal, suspension in excess of five days, reduction in compensation or demotion for cause, or any suspension or more severe disciplinary action under the Public Safety Officers’ Procedural Bill of Rights, the Personnel Commission will schedule the appeal for a hearing. At that time, the Commission may also schedule a preliminary and/or pre-conference hearing. The Personnel Commission will conduct a hearing and, upon the conclusion thereof, either affirm, modify, or revoke the action being appealed. The hearings will be in accordance with the General Hearing Procedures in PMR 3 and as detailed below. The Commission, upon request of the employee, may determine that the hearing be closed to the public.

1. Pre-Hearing Procedure

a. Preliminary or Pre-Hearing Conferences. At a meeting prior to the date of the formal hearing, or immediately prior to opening the record on the date of the hearing, the Commission will conduct, as it deems appropriate, a preliminary conference and/or a pre-hearing conference. At these times the Commission will rule as necessary on preliminary or jurisdictional motions, on the parties’ lists of requested witnesses previously submitted in response to the Commission’s notice of hearing, on any an all documents anticipated to be given at the hearing, and on any outstanding subpoena issues.

b. Subpoenas. The Personnel Commission is authorized to issue subpoenas at the request of either party prior to the commencement of the hearing. After the commencement of the hearing, subpoenas will be issued by the Commission only for good cause. The Human Resources Department will prepare subpoenas for all witnesses; however, they will only serve subpoenas on individuals who are currently employed by the County. It will be the responsibility of the employee and the department and/or department’s counsel to submit the names of current employees to be subpoenaed at least fourteen (14) calendar days before the date of the hearing in which they are requesting the witnesses to appear, unless otherwise set forth at a preliminary hearing.

c. Exhibits and Witness Lists. Fourteen (14) calendar days prior to the date set for the hearing, unless otherwise set forth at a preliminary conference, each party will serve upon the other party and submit to the Human Resources Department a list of all witnesses and a list and copy of all exhibits. An original and ten (10) copies of the exhibits will be presented to Human Resources in 3 hole notebooks which are tabbed down the side with the exhibit numbers. The employer’s exhibits will be designated by number. The employee’s exhibits will be designated by alphabetical letter. Neither party will be permitted to call during the hearing a witness not identified pursuant to this section nor use any exhibit not provided pursuant to this section unless that party can show that they could not reasonably have anticipated the prior need for such witness or such exhibit.

2. Submission to the Personnel Commission. Prior to the date set for the hearing, the Human Resources Department will present the Personnel Commission with a copy of the jurisdictional documents. Those documents include the notice of intent to take disciplinary action, the final notice of disciplinary action and any response from the employee to these documents.

3. Record of Proceedings and Costs. All disciplinary appeal hearings of dismissal will be recorded by a court reporter at County expense. All other appeal hearings will be tape recorded unless either party requests a court reporter. The requesting party will pay the cost of the court reporter. The cost of the transcript will be borne by the requestor.

4. Employee Witness Compensation. Employees of the County who are subpoenaed to testify during working hours will be released with pay to appear at the hearing. The Personnel Commission may direct that these employees remain on call until called to testify. Employees who are subpoenaed to testify during non-working hours will not be compensated, unless the County agrees to a different arrangement.

5. Conduct of the Hearing

a. The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses but hearings will be conducted in a manner most conducive to determination of the truth. Hearings shall be informally conducted.

b. Any relevant evidence may be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rules which might make improper the admission of such evidence over objection in civil actions.

c. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but will not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

d. The rules dealing with privileges will be effective to the same extent that they are now or hereafter may be recognized in civil actions.

e. Irrelevant and unduly repetitious evidence may be excluded.

f. The Personnel Commission will determine relevancy, weight and credibility of testimony and evidence. Decisions made by the Personnel Commission will not be invalidated by any informality in the proceedings.

g. During examination of a witness, all other witnesses, except the parties, will be excluded from the hearing upon motion of either party, or by direction of the Personnel Commission.

6. Burden and Standard of Proof. In a disciplinary appeal the department imposing the disciplinary action has the burden of proof by preponderance of the evidence.

7. Request for Continuance. Request for continuance should be made pursuant to PMR 3. At the hearing, each side should be asked if it is ready to proceed. If either side is not ready and wishes a continuance, good cause must be stated.

8. Testimony under Oath. All witnesses will be sworn in for the record prior to offering testimony at the hearing. The chairperson or designee will request the witnesses to raise their right hand and respond to the following:

“Do you swear that the testimony you are about to give at this hearing is the truth, the whole truth and nothing but the truth?”

9. Presentation of the Case. The hearing will proceed in the following order unless the Personnel Commission for special reason directs otherwise:

a. The party imposing disciplinary action (department) will be permitted to make an opening statement.

b. The appealing party (employee) will be permitted to make an opening statement, or reserve an opening statement until presentation of its case.

c. The party imposing disciplinary action (department) will produce its evidence.

d. The party appealing from such disciplinary action (employee) may then offer its evidence.

e. At the discretion of the Commission, the party imposing discipline (department) followed by the appealing party (employee) may offer rebutting evidence.

f. At the discretion of the Commission, closing arguments will be permitted. The party with the burden of proof will have the right to go first and to close the hearing by making the last argument. The Personnel Commission may place a time limit on closing arguments. The Personnel Commission or the parties may request the submission of written briefs. After a party’s request for submittal of written briefs, the Personnel Commission will determine whether to allow the parties to submit written briefs and determine the number of pages of said briefs.

10. Procedure for the Parties. Objections may be ruled upon summarily or argument may be permitted. The Personnel Commission reserves the right to terminate argument at any time and issue a ruling regarding an objection or any other matter, and thereafter the representative will continue with the presentation of its case.

11. Right to Control Proceedings. While the parties are generally free to present their case in the order that they prefer, the Personnel Commission reserves the right to control the proceedings, including, but not limited to, altering the order of witnesses, limiting redundant or irrelevant testimony, or by the direct questioning of witnesses.

12. Hearing Demeanor and Behavior. All parties and their attorneys or representatives will not, by written submission or oral presentation, disparage the intelligence, ethics, morals, integrity or personal behavior of their adversaries or the Personnel Commission.

47.9 Written Findings and Decision

A. The Personnel Commission will render findings and a decision. The findings and decision or recommended decision will be rendered as soon after the conclusion of the hearing as possible. A finding must be made on each charge and/or material issue.

B. The decision may sustain or reject any or all of the charges filed against the employee. The decision may sustain, reject or modify the disciplinary action invoked against the employee. If the Personnel Commission reinstates the dismissed employee, the employee is only entitled to back pay as set forth in the decision. At a maximum this will be pay during the period of absence minus the sum the employee has earned elsewhere and minus any amounts attributable to delays caused by the employee in the hearing process. If a discharge is not sustained, the proposed decision will set forth a recommended effective date the employee is to be reinstated.

47.10 Judicial Review

A. Petition for Writ of Mandate. Judicial review of any decision of the Personnel Commission may be had pursuant to Section 1094.5 of the California Code of Civil Procedure only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section.

B. 90 Days from Final Decision. Pursuant to Code of Civil Procedure 1094.6 any such petition will be filed not later than the ninetieth (90th) day following the date on which Personal Commission gives proper written notice of the final decision.

APPROVAL

Effective Date: January 2005
Revisions No. : 0
Prepared By: Laura Armor

Approved: ss/President, Board of Supervisors