Principles of DisciplinePrinciples of Discipline

Lisa TruckenbrodLisa Truckenbrod

Assistant General CounselAssistant General Counsel

Department of Management Department of Management Services Services

What is Discipline?What is Discipline?

DefinitionDefinition

““Correction, chastisement, punishment, Correction, chastisement, punishment, penalty. To bring order upon or bring under penalty. To bring order upon or bring under

control.”control.”- Black’s Law Dictionary- Black’s Law Dictionary

““Punishment; instruction; a control gained Punishment; instruction; a control gained by enforcing obedience or order; to train or by enforcing obedience or order; to train or develop by instruction and exercise” develop by instruction and exercise”

- - Webster’s Ninth New Collegiate Webster’s Ninth New Collegiate DictionaryDictionary

What is Discipline?What is Discipline?

PurposePurpose

To train and instruct the employee to function To train and instruct the employee to function appropriately in his position. appropriately in his position.

FunctionFunctionThe means by which we give formal notice to The means by which we give formal notice to

an employee of 1) what the employee did an employee of 1) what the employee did wrong; 2) the rule or standard violated; and wrong; 2) the rule or standard violated; and 3) what action is being taken against the 3) what action is being taken against the employeeemployee

Authority for DisciplineAuthority for Discipline

Chapter 110, Florida StatutesChapter 110, Florida Statutes

Chapter 60L-36.005, Florida Chapter 60L-36.005, Florida Administrative CodeAdministrative Code

Collective Bargaining AgreementsCollective Bargaining Agreements

Career Service SystemCareer Service System

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

Selected Exempt ServiceSelected Exempt Service

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

Senior Management Service Senior Management Service SystemSystem

No statutory provision relating to No statutory provision relating to disciplinediscipline

No cause required based on Rule No cause required based on Rule 60L-36.005(3), F.A.C.60L-36.005(3), F.A.C.

Rule 60L-36.005Rule 60L-36.005Disciplinary StandardsDisciplinary Standards

Identifies minimal conduct standards Identifies minimal conduct standards that apply to all employees in the State that apply to all employees in the State Personnel SystemPersonnel System

Permanent career service employees Permanent career service employees may be suspended or dismissed only may be suspended or dismissed only for causefor cause

Employees outside of the permanent Employees outside of the permanent career service may be dismissed at willcareer service may be dismissed at will

Cause Required for Discipline?Cause Required for Discipline?

Cause RequiredCause Required

Permanent, CareerPermanent, Career

Service EmployeesService Employees

Cause Not Cause Not RequiredRequired

SES EmployeesSES Employees SMS EmployeesSMS Employees Probationary Probationary

EmployeesEmployees

Collective Bargaining AgreementsCollective Bargaining Agreements

Each collective bargaining Each collective bargaining agreement includes a discipline agreement includes a discipline article which reflects the principles article which reflects the principles established by Chapter 110, Florida established by Chapter 110, Florida Statutes and Rule 60L-36.005, F.A.C.Statutes and Rule 60L-36.005, F.A.C.

Some agreements cover Career Some agreements cover Career Service Employees and others cover Service Employees and others cover SES EmployeesSES Employees

Collective Bargaining Agreements Collective Bargaining Agreements

Career ServiceCareer Service

AFSCMEAFSCME IUPAIUPA PBA SSUPBA SSU PBS SAUPBS SAU FSFSAFSFSA FNAFNA

Selected Exempt Selected Exempt ServiceService

FPD Physicians UnitFPD Physicians Unit FPD Supervisory FPD Supervisory

Non-Professional Non-Professional UnitUnit

FPD State FPD State Employees Attorneys Employees Attorneys Guild (SEAG)Guild (SEAG)

Role of the SupervisorRole of the Supervisor Establish work environment where Establish work environment where

employees feel they are treated fairly and employees feel they are treated fairly and can communicate openly with supervisorcan communicate openly with supervisor

Communicate performance expectations Communicate performance expectations to employeesto employees

Communicate standards of conduct to Communicate standards of conduct to employeesemployees

Counsel employees when necessaryCounsel employees when necessary Take disciplinary action when necessary; A Take disciplinary action when necessary; A

good supervisor understand the proper good supervisor understand the proper use of discipline, and is prepared to take use of discipline, and is prepared to take action that is fair, justified and necessaryaction that is fair, justified and necessary

Communicate Performance Communicate Performance Expectations to EmployeesExpectations to Employees

Review performance standards with Review performance standards with employees regularlyemployees regularly

Emphasize success based on Emphasize success based on performanceperformance

Communicate Standards of Communicate Standards of Conduct to EmployeesConduct to Employees

Provide employees access to Chapter 110, Provide employees access to Chapter 110, Florida Statutes, Rule 60L-36.005, F.A.C.Florida Statutes, Rule 60L-36.005, F.A.C.

Provide employees with a copy of agency Provide employees with a copy of agency specific policies and procedures that govern specific policies and procedures that govern employees conduct and performanceemployees conduct and performance

Ensure that employees understand policies, Ensure that employees understand policies, procedures and standards of conduct, as procedures and standards of conduct, as well as the consequences of failing to well as the consequences of failing to comply with themcomply with them

CounselingCounseling Used to help employee recognize a deficiency, Used to help employee recognize a deficiency,

accept the standard that is required, and accept the standard that is required, and understand the consequences of failing to understand the consequences of failing to meet the standardmeet the standard

Goal: Help the employee correct the problem Goal: Help the employee correct the problem or behavioror behavior

Counseling is not considered disciplineCounseling is not considered discipline Typically used when behavior is not egregious Typically used when behavior is not egregious

but has potential for continuing or worsening but has potential for continuing or worsening over time, i.e. tardiness, absenteeismover time, i.e. tardiness, absenteeism

Not necessarily appropriate in egregious Not necessarily appropriate in egregious situations such as fighting, theft, situations such as fighting, theft, insubordinationinsubordination

Counseling TipsCounseling Tips

Be a good listenerBe a good listener Be specific regarding expectations Be specific regarding expectations

and consequences of failing to meet and consequences of failing to meet expectationsexpectations

Maintain privacyMaintain privacy Maintain objectivityMaintain objectivity Avoid hostility & defensivenessAvoid hostility & defensiveness Never make excuses for enforcing Never make excuses for enforcing

the rulesthe rules

Administering DisciplineAdministering DisciplineCareer Service System EmployeesCareer Service System Employees

Agency policies and procedures and Agency policies and procedures and employee performance expectations must employee performance expectations must be explained and clearly defined be explained and clearly defined

Disciplinary standards must be explained Disciplinary standards must be explained and made available to all employees with and made available to all employees with written documentation of receipt written documentation of receipt

Discipline should be administered fairly, Discipline should be administered fairly, promptly and in an expeditious mannerpromptly and in an expeditious manner

Delay raises question of whether discipline Delay raises question of whether discipline is necessaryis necessary

Administering DisciplineAdministering DisciplineCareer Service System EmployeesCareer Service System Employees

Establish CauseEstablish Cause Determine level of discipline to be Determine level of discipline to be

administeredadministered Provide employee with Notice of Provide employee with Notice of

intent and opportunity to appear intent and opportunity to appear before the agencybefore the agency

Take Disciplinary ActionTake Disciplinary Action

Establishing CauseEstablishing Cause

What is Cause?What is Cause?Cause is identified in Ch. 110.227(1), Florida Cause is identified in Ch. 110.227(1), Florida

Statutes and in Rule 60L-36.005, F.A.C. to Statutes and in Rule 60L-36.005, F.A.C. to include, but not be limited to:include, but not be limited to:

Poor PerformancePoor Performance NegligenceNegligence Inefficiency or inability to perform assigned dutiesInefficiency or inability to perform assigned duties Violation of law or agency rulesViolation of law or agency rules Conduct unbecoming a public employeeConduct unbecoming a public employee MisconductMisconduct Habitual drug useHabitual drug use Conviction of any crime, including a plea of nolo Conviction of any crime, including a plea of nolo

contendere and a plea of guilty with adjudication contendere and a plea of guilty with adjudication withheldwithheld

Establishing CauseEstablishing Cause

Agency bears the burden of proof: Agency bears the burden of proof: “Before taking corrective action, an “Before taking corrective action, an agency shall have evidence that an agency shall have evidence that an employee failed to comply with a employee failed to comply with a standard or expectation.” Rule 60L-standard or expectation.” Rule 60L-36.005(4), F.A.C.36.005(4), F.A.C.

Ensures that supervisors and Ensures that supervisors and managers do not take arbitrary or managers do not take arbitrary or capricious action against a Career capricious action against a Career Service employeeService employee

Considerations when Establishing Considerations when Establishing CauseCause

Notice Notice Alleged violation reasonably related Alleged violation reasonably related

to employee’s jobto employee’s job Proof of MisconductProof of Misconduct

• DocumentationDocumentation• Investigatory InterviewsInvestigatory Interviews

Appropriateness of DisciplineAppropriateness of Discipline

Proof of MisconductProof of Misconduct

Disciplinary Investigation Interview – Disciplinary Investigation Interview – meeting in which employee is being meeting in which employee is being question relative to alleged question relative to alleged misconductmisconduct

Employee entitled to representation, Employee entitled to representation, i.e. Union or attorneyi.e. Union or attorney

Management must advise employee in Management must advise employee in advance as to nature of meeting advance as to nature of meeting

Appropriateness and Level of Appropriateness and Level of DisciplineDiscipline

Oral ReprimandOral Reprimand Written ReprimandWritten Reprimand SuspensionSuspension DismissalDismissal Reduction in payReduction in pay DemotionDemotion

Notice of IntentNotice of Intent

Ch. 110.227(5)(a), Florida StatutesCh. 110.227(5)(a), Florida Statutes Written notice of proposed action at Written notice of proposed action at

least 10 days prior to date of actionleast 10 days prior to date of action Notice delivered personally or by Notice delivered personally or by

certified mailcertified mail Must give employee opportunity to Must give employee opportunity to

appear before the official taking the appear before the official taking the action to respond to chargesaction to respond to charges

Notice of IntentNotice of Intent

Ch. 110.227(5)(b), Florida StatutesCh. 110.227(5)(b), Florida Statutes Employee may be disciplined without 10 Employee may be disciplined without 10

days prior written notice in extraordinary days prior written notice in extraordinary circumstances, i.e. when retention of circumstances, i.e. when retention of employee would result in:employee would result in:

1. Damage to state property; or1. Damage to state property; or

2. Detriment to best interest of the 2. Detriment to best interest of the state; orstate; or

3. Injury to employee, fellow 3. Injury to employee, fellow employee, or employee, or othersothers

Notice of DisciplineNotice of Discipline

Written notice of final action takenWritten notice of final action taken Must include notice of employee’s Must include notice of employee’s

right to appeal the disciplinary right to appeal the disciplinary action:action:

To the Public Employees Relation Commission To the Public Employees Relation Commission (PERC)(PERC)

Under any applicable collective bargaining Under any applicable collective bargaining agreementsagreements

Pursuant to other applicable statutory provisions, i.e. Pursuant to other applicable statutory provisions, i.e. Parts VI or VIII of Chapter 112, Florida Statutes.Parts VI or VIII of Chapter 112, Florida Statutes.

Public Employee Relations Public Employee Relations Commission (PERC)Commission (PERC)

Notice of appeal must be filed with PERC within Notice of appeal must be filed with PERC within 14 days after the date on which the disciplinary 14 days after the date on which the disciplinary action is received by the employee.action is received by the employee.

PERC hearing held within 30 calendar days PERC hearing held within 30 calendar days following the filing of a notice of appealfollowing the filing of a notice of appeal

PERC determines whether or not cause existed PERC determines whether or not cause existed for the agency action.for the agency action.

If no cause, employee may be reinstated with or If no cause, employee may be reinstated with or without back pay.without back pay.

PERC may not reduce the penalty imposed by the PERC may not reduce the penalty imposed by the agency unless law enforcement, correctional agency unless law enforcement, correctional officers, firefighters, professional health care officers, firefighters, professional health care providersproviders

Collective Bargaining Collective Bargaining Grievance ProcedureGrievance Procedure

Ch. 447.401, Florida Statutes provides that the State Ch. 447.401, Florida Statutes provides that the State and the Union shall negotiate a grievance procedure and the Union shall negotiate a grievance procedure which shall have an arbitration hearing as its final which shall have an arbitration hearing as its final stepstep

Each CB agreement that covers career service Each CB agreement that covers career service employees contains a discipline article which employees contains a discipline article which prohibits discipline without cause.prohibits discipline without cause.

An employee covered by a collective bargaining An employee covered by a collective bargaining agreement (even if not a member of the union) may agreement (even if not a member of the union) may file a grievance pursuant to Grievance Procedure set file a grievance pursuant to Grievance Procedure set forth in the agreement, alleging a violation of the forth in the agreement, alleging a violation of the agreement’s discipline article, i.e. that the employer agreement’s discipline article, i.e. that the employer did not have just cause to discipline the employee.did not have just cause to discipline the employee.

Collective Bargaining Collective Bargaining Grievance ProcedureGrievance Procedure

Oral StepOral Step Step 1 Step 1 Step 2 – agency head or designeeStep 2 – agency head or designee Step 3 (AFSCME, FNA, PBA SSU, PBA Step 3 (AFSCME, FNA, PBA SSU, PBA

SAU only) - DMSSAU only) - DMS Arbitration – neutral arbitratorArbitration – neutral arbitrator

Collective BargainingCollective BargainingGrievance ProcedureGrievance Procedure

Grievances are to be filed at the at the Grievances are to be filed at the at the lowest level of management having lowest level of management having authority to adjust the grievance.authority to adjust the grievance.

Disciplinary grievances – file at Step 2Disciplinary grievances – file at Step 2 Grievance must include:Grievance must include:

facts on which the grievance is basedfacts on which the grievance is based specific provisions of the CB agreement specific provisions of the CB agreement

allegedly violatedallegedly violated issues support alleged violationissues support alleged violation relief requestedrelief requested

Collective Bargaining Collective Bargaining Grievance MeetingGrievance Meeting

PurposePurpose Review all relevant factsReview all relevant facts Identify facts that are in disputeIdentify facts that are in dispute Attempt to resolve disputed factsAttempt to resolve disputed facts Address each argument raised in Address each argument raised in

defense of the employeedefense of the employee Weigh the likelihood of success of Weigh the likelihood of success of

failure at a higher level hearing.failure at a higher level hearing.

Collective BargainingCollective BargainingGrievance MeetingGrievance Meeting

Listen to Employee’s side of the storyListen to Employee’s side of the story Remain objective; avoid allowing Remain objective; avoid allowing

personality conflicts to interfere with personality conflicts to interfere with judgmentjudgment

Provide grievant with all necessary Provide grievant with all necessary informationinformation

Collective BargainingCollective BargainingDisciplinary Grievance ResponseDisciplinary Grievance Response

Grievance Review ProceduresGrievance Review Procedures Review the specific disciplinary standard the Review the specific disciplinary standard the

employee was alleged to have violatedemployee was alleged to have violated Review the evidence. Look for inconsistencies or Review the evidence. Look for inconsistencies or

conflicting statements. Identify relevant conflicting statements. Identify relevant documents to support the disciplinary actiondocuments to support the disciplinary action

Consider the availability of witness should the Consider the availability of witness should the case go to an evidentiary hearingcase 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 Consider how an impartial reviewing party would

evaluate the evidence and resulting discipline.evaluate the evidence and resulting discipline.

Collective BargainingCollective BargainingGrievance Response Grievance Response

Grievance responses should include the following:Grievance responses should include the following: A brief statement of the relevant factsA brief statement of the relevant facts Identify the standards of conduct that were Identify the standards of conduct that were

violated by the employee and that lead to the violated by the employee and that lead to the disciplinary action takendisciplinary action taken

Identify the contract article in the CB agreement Identify the contract article in the CB agreement alleged by the grievant to have been violatedalleged by the grievant to have been violated

Identify each issue raised by the grievant and Identify each issue raised by the grievant and respond to each issuerespond to each issue

Include a statement of conclusionsInclude a statement of conclusions Include a decision as to whether to sustain or deny Include a decision as to whether to sustain or deny

the grievance base on the conclusions reachedthe grievance base on the conclusions reached

Collective BargainingCollective BargainingGrievance ArbitrationGrievance Arbitration

If the grievant is not satisfied with the If the grievant is not satisfied with the responses s/he has received at the responses s/he has received at the various steps of the grievance various steps of the grievance procedure, s/he may file a request for procedure, s/he may file a request for arbitration.arbitration.

DMS schedules arbitrationDMS schedules arbitration Arbitrator chosen in rotation from Arbitrator chosen in rotation from

agreed upon panelagreed upon panel Arbitrator’s decision is final and Arbitrator’s decision is final and

binding – no appeal.binding – no appeal.

Grievance Resolution or SettlementGrievance Resolution or Settlement

Parties can agree at any time prior to Parties can agree at any time prior to issuance of arbitrator’s award to issuance of arbitrator’s award to settle a grievance.settle a grievance.

Typically, the settlement of a Typically, the settlement of a disciplinary grievance includes a disciplinary grievance includes a statement that the employee statement that the employee “resigns in lieu of termination”.“resigns in lieu of termination”.

Settlement agreements may also Settlement agreements may also address issues of back pay, address issues of back pay, references, eligibility for rehire.references, eligibility for rehire.

Collective BargainingCollective BargainingGrievance Representatives Grievance Representatives

Employee is entitled to Union Employee is entitled to Union representation in the Grievance representation in the Grievance meeting(s)meeting(s)

Collective bargaining agreement Collective bargaining agreement governs the rights and duties of governs the rights and duties of grievance representativesgrievance representatives

Administering DisciplineAdministering Discipline“At Will”“At Will”

SES EmployeesSES Employees SMS EmployeesSMS Employees Probationary EmployeesProbationary Employees