1

Discipline and DischargeA Guide For Municipal Officers

Presented By:The Local Government Academy

John Lasky, Esquirejwlasky@aol.comMarch 13, 2008

2

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.

3

Agenda

1. Preliminary Matters2. Basic Framework3. Fundamental Protections4. The Codes and Procedure5. Prevention

4

Part 1

Preliminary Matters

5

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?

6

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

7

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

8

Part 2

Basic Framework

9

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?

10

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)

11

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)

12

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.

13

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.

14

Big moral #2

• Municipal employees without a property right in their employment are “at will.”

• Remember: property rights in municipal employment derive from statute.

15

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?

16

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)

17

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.).

18

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.

19

• 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

20

Part 3

Fundamental Protections

21

The Constitution of the United States

22

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.”

23

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.

24

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.

25

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.

26

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?

27

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

28

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.

29

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.

30

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.

31

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

32

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

33

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 . . . .”

34

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?

35

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)

36

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).

37

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.

38

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.

39

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.”

40

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?

41

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.

42

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)

43

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.

44

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

45

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?

46

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.

47

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?

48

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.

49

Part 4

The Codes

50

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

51

The Borough Code“No person employed in any police or fire force of any borough 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 cases the person shall receive an honorable discharge from service.   (2) Neglect or violation of any official duty.   (3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.   (4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer.   (5) Intoxication while on duty.   (6) Engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage.”

53 P.S. § 46190 

52

First Class Township Code“No person employed in any police or fire force of any township 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 cases the person shall receive an honorable discharge from service; (2) neglect or violation of any official duty; (3) violation of any law of this Commonwealth 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; (6) engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage. 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 with the commission.”

53 P.S. §55644

53

2nd Class City CodeSection 9.1 (a) :“No employee in the competitive or non-competitive class in the bureau of police, except any such employee who has been convicted of a felony and whose appellate remedies have been exhausted, shall be removed, discharged, suspended, demoted or placed on probation, except for just cause which shall not be religious or political. The procedure for an employee to challenge a removal, discharge or suspension or placement on probation is subject to collective bargaining.”

54

Remember the slide “Pennsylvania Employment”: fair employment statutes.

55

Discipline: Real Life Example A• Chief threatened bodily harm to Township Supervisor

and threatened his officers with retaliation if they complained to the Supervisors about him or otherwise disagreed with him. 

• While in uniform, Chief visited School Superintendent and attempted to secure a Township Supervisor's school and employment records in an attempt to discredit him. 

• Chief threatened litigation to try to control officers and Supervisors.

• Chief treated subordinate police officers in an intimidating and demeaning manner. 

Do you discipline the Chief?

56

Scott Township (ColumbiaCounty) Did, and It Stuck

“The courts have defined the term 'conduct unbecoming and officer' under Section 2 of the Act as conduct tending to destroy public respect and confidence in the operation of municipal services or affecting the morale or efficiency of the police department.”  Powell v. Middletown Township Board of

Supervisors, 2001 WL 920769, 2 (Pa.Cmwlth.).

57

The Scott Twp. Court Also Cited:

    ”We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions.  It is a standard that demands more than forbearance from overt and indictable illegal conduct.  It demands that in both an officer's private and official lives he do nothing to bring dishonor upon his noble calling and in no way contribute to a weakening of the public confidence and trust of which he is repository.” Cerceo v. Darby, 3 Pa.Cmwlth. 174, 281 A.2d 251, 255 (Pa.Cmwlth. 1971)

58

Discipline: Real Life Example B• Officer initiated a pursuit of a motorcycle. The

motorist abandoned the motorcycle and fled.• Officer took custody of the motorcycle and

placed it in the Borough Building where it was secured as evidence. Officer removed the motorcycle to the residence of his brother-in-law. Officer and brother-in-law rode the motorcycle recreationally on numerous occasions.

What would you do, and why?What happened?

59

Discipline: Real Life Example B• Borough discharged Officer. He arbitrated.• The Arbitrator reinstated Officer, relying on the

following: – (1) Borough did not give Officer forewarning of the

possible disciplinary consequences of his actions; – (2) There was neither a written policy nor a directive,

and there was a lack of a clear unwritten policy; – (3) The former and current Mayor and all police

officers knew where the motorcycle was and did nothing for an extended period of time;

– (4) Borough inefficiently conducted an internal investigation.

Wyoming Valley Lodge v. Wyoming Borough, Cmwlth. Ct., No. 1335 C.D. 2007 (not reported)

60

Discipline: Real Life Example B

• Lessons:– Must follow process– Arbitrator and courts closely analyze

municipal behavior– There are very few “no-brainers”– Be aware of internal policies (or lack thereof)

61

“Just Cause” Standard

1.) Notice to the grievant of the rules to be followed and the consequences of non-compliance;

2.) Proof that the grievant engaged in the alleged misconduct;

3.) Procedural regularity in the investigation of the misconduct; and

4.) Reasonable and even-handed application of discipline, including progressive discipline when appropriate.

See Hill & Sinicropi, Remedies in Arbitration, 2nd Ed. (BNA Books; 1991) p.137-145

62

Discipline: Real Life Example C• Off-duty Trooper spent the afternoon drinking at a bar.

Upon leaving, he approached his ex-girlfriend.  An argument ensued concerning money.  Trooper jammed his loaded, police-issued weapon into the woman’s mouth and threatened to kill her.  He then drove away to continue drinking, but later returned to the scene where police arrested him. 

• Trooper was charged with three counts of driving under the influence and one count each of simple assault and making terroristic threats; he subsequently pled guilty to all five charges.

• State dismissed him. He appealed through arbitration. 

63

Discipline: Real Life Example C• Arbitrator concluded that although the Trooper

had committed the acts in question, the discipline of dismissal was excessive.  – Thirteen years of exemplary service had been– Trooper had been under a great deal of stress prior to

the incident as a result of his working at the crash site of the USAir jet near Pittsburgh

– Main focus: because Trooper’s conduct was less egregious than actions committed by troopers whom the State Police had merely suspended, dismissal was inappropriate. 

• Result: reinstatement without back pay. Pa. State Police v. Pa. State Troopers Ass'n, 741 A.2d 1248 (Pa. 1999)

64

Discipline: Real Life Example C

• Lessons– Discipline will not survive on its own merits.

Rather, reviewer will compare to similar cases.

– Do not lose sight of “mitigating factors”– Arbitrator’s award are very difficult to overturn;

the PA Supreme Court upheld this award.

65

Discipline: Real Life Example D

• Officer had 13 on-duty vehicle accidents during his 13-year career.

• After the last accident, the Township had enough and terminated his employment.

• Officer appealed, citing his clean driving record for the previous three years.

What result?

66

Discipline: Real Life Example D[Officer’s] history reveals that most if not all of the accidents resulted from his following too close to another vehicle, his inability to anticipate obstacles, his consistent failure to exercise good judgment, and his lack of awareness of surrounding conditions. [Officer’s] failure to improve his driving and his inability to respond to emergencies without endangering himself, the public, and his patrol car at the very least constitute neglect, inefficiency, and conduct unbecoming a police officer, which has been defined to include conduct that adversely affects the morale and efficiency of the police force or tends to destroy public respect for, and confidence in, the police force . . . . Moreover, the Township was justified in terminating Brooks' employment  given his lengthy history of such accidents and its legitimate concerns about liability, public safety, and the efficiency and public perception of its police department.

Brooks v. Civil Serv. Comm'n, 755 A.2d 115 )Cmwlth. Ct., 2000) What if the officer was suspended 30 days for running

a red light (otherwise clean record)?

67

Discipline: Real Life Example D-1

• Officer was suspended for 3 days w/o pay for “conduct unbecoming.” Offense: a single motor vehicle accident when he ran a red light while responding to an emergency call using lights but no siren.

• Court reversed the suspension: a police vehicle responding to an emergency is entitled to go through a red signal and is exempt from the highway  right-of-way rules when using emergency lights and sirens.

• Also, the department rules made use of sirens a judgment call, and the officer adequately explained his decision to proceed without sirens.

Appeal of Leis, 455 A.2d 1277 (Pa. Cmwlth. 1983)

68

Discipline: Real Life Example E• Officer was having a difficult time with his ex-

wife.• He brandished his service revolver; recklessly

drove the wrong way on a street, endangering a child; disobeyed a standing administrative order and the order of a superior officer at the scene

• Borough terminated Officer's employment for neglect of official duty and conduct unbecoming an officer under the Borough Code.

• Officer appealed to civil service commission.What was the result?

69

Discipline: Real Life Example E• Discharge upheld

– Despite children’s alleged exposure to drugs when in wife's custody.

– Rejected argument that all administrative orders be in writing, holding “[v]iolation of a specific written direction is not prerequisite to finding of disobedience of orders.”

– Evidence of the genesis of Feliciano's ongoing marital dispute did not minimize the seriousness and character of the conduct.

– In the interest maintaining a high degree of respect for the police, officers may be held to a higher standard of conduct that other citizens and even other public employees.

Feliciano v. Borough of Norristown, 758 A.2d 295 Pa. Cmwlth. 2000)

70

Discipline: Real Life Example F• Officer agreed to work 4.5 overtime hours until 7:30 a.m. • He informed sergeant and chief that because of personal

business after his overtime shift, he could be exhausted and might miss a meeting with the mayor.

• He missed the meeting.• He was suspended for 3 days for direct disobedience of

orders. • Officer appealed. His defense: he did not willfully

disobey the order, but failed to awaken in time.

What was the result?

71

Discipline: Real Life Example F

• Suspension was proper.– An act of disobedience does not requires

willfulness.– Officer conceded that he "certainly was aware

of the meeting".– Different result in another case, in which

officer was charged with “knowing refusal to obey an order,” but officers were not informed of the order.

Amendola v. Civil Service Com., 139 Pa. Commw. 76 (1991) 

72

Discipline: Real Life Example F• Officer involved in an off-duty accident while was

charged with violating Vehicle Code. • The board of supervisors suspended officer for

nine months without pay. • Officer appealed to trial court, which conducted

a full hearing.• Court modified the penalty to a six-month

suspension and directed the board to reinstate Officer to his former position with three months back pay. Does a court get to conduct a full hearing?

73

Discipline: Real Life Example F

• No, if the municipality properly performs its duty– Provides proper notice, advises of right to

counsel, responds to proper discovery requests, allows testimony and cross-examination, etc.

– In this case, the court merely reviews for irregularities and abuse of discretion.

• But if the municipality abuses it duty, a court may order a full-blown hearing.

74

Discipline Checklist1. Investigate; gather information/data2. Issue Loudermill (earlier is necessary)3. Review employee’s response4. Communicate determination

• Recommendation• Offer opportunity for local agency hearing OR

grievance (if appropriate)5. Carry through – sending appropriate

communications and using appropriate decision makers

75

Election of RemediesTownship of Falls v. Whitney, 730 A.2d 557 (Pa. Cmwlth. 1999)

[T]he trial court determined that the doctrine of election of remedies operated as a bar to the grievance arbitration. We agree. This court has held that an “[e]lection of remedies includes the deliberate and knowing resort to one of two inconsistent paths to relief.” . . . "Further, the doctrine of election of remedies applies only when the available remedies are inconsistent; and to be inconsistent the remedies in question must be different means of adjudicating the same issues.

76

Sample Loudermill HearingBased on the reasons described below, you may be

subject to disciplinary action up to and including discharge. The purpose of this memorandum is to provide you with timely notice of the potential for disciplinary action against you, to explain to you the evidence that suggests you may have engaged in improper conduct, and to provide you with an opportunity to offer any and all information that could cause me to reconsider taking or recommending disciplinary action, or could impact the level of discipline, if any, that I may take or recommend.

My preliminary determination that you could be subject to disciplinary action up to and including discharge stems from your conduct on November 15, 2003. On that date, you were involved in a vehicular pursuit of an unidentified automobile. During that pursuit, you operated the Borough police vehicle at high speed while the siren and lights were engaged. You pursued the unidentified vehicle well beyond one (1) mile outside of the Borough’s jurisdiction. You eventually wrecked the Borough’s police vehicle.

77

Sample Loudermill, ContinuedAs you are aware, the Borough has issued a policy and

procedure with regard to pursuits which, in pertinent part, provides:MANDATORY STANDARDS FOR PURSUITS OUTSIDE THE BOROUGH LIMITSOfficers shall not engage in high speed pursuits outside the borough limits except in accordance with the following standards:Serious Crimes – When the officer has probable cause to believe the subject has committed a serious crime as defined in this order.Officer(s) pursuing a fleeing person who they have probable cause to believe has committed a felony wherein immediate interest is the only means whereby the person may be identified and brought to justice, may continue a pursuit beyond the borough limits.Officers pursuing persons they believe have committed misdemeanors shall not continue a high speed pursuit beyond approximately three (3) miles past the borough limits unless apprehension is imminent.Officers pursuing persons who have committed a summary offense or summary offenses shall not continue a high speed pursuit beyond one (1) mile of the borough limits unless apprehension is imminent.

Note that the policy and procedure defines “serious crimes” as “Homicides, rape, robbery, arson, aggravated assault, burglary and Kidnapping.”

78

Sample Loudermill, ContinuedThe conduct described above may constitute violations of your duties and responsibilities as an [ x ] Borough Police Officer as set forth under the Borough Code:

“Neglect of violation of any official duty” (53 P.S. § 46190 (2)); and/or“Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer” (53 P.S. § 46190 (4)).

This type of conduct, if confirmed, is unacceptable under any circumstance and may be more egregious when it involves an officer in a leadership position.

You now have an additional opportunity to provide to me any and all information that could cause me to reconsider taking or recommending disciplinary action to the Borough Council. Such information may include that which could impact the level of discipline, if any, that I will take or recommend. This information must be in writing. If you chose to respond, you must deliver the information to my office no later than 1:00 p.m. on Monday, April 5, 2004.

79

Grievance Arbitration

• Guaranteed by law• Final step in the grievance process (after

meetings)• Driven by the “just cause” standard• Arbitrator selection process: usually “strike”

method• Hearing• Briefs v. closing statements• Appeals

80

“Just Cause” Standard

1.) Notice to the grievant of the rules to be followed and the consequences of non-compliance;

2.) Proof that the grievant engaged in the alleged misconduct;

3.) Procedural regularity in the investigation of the misconduct; and

4.) Reasonable and even-handed application of discipline, including progressive discipline when appropriate.

See Hill & Sinicropi, Remedies in Arbitration, 2nd Ed. (BNA Books; 1991) p.137-145.

81

Part 5

Prevention(In brief)

82

“The time to repair the roof is when the sun is shining.”

John F. Kennedy

“If I had six hours to chop down a tree, I’d spend the first

hour sharpening the axe.” Abraham Lincoln

83

“Don’t wrestle a pig in a mud hole. You both get dirty, and the pig enjoys it.”

Anonymous

“Great ideas often receive violent opposition from mediocre minds.”

Albert Einstein

84

Preempting the Need for Discipline

• Discipline is evidence of failure– By the disciplined employee based on

conduct– Often by management for allowing the

situation to get so bad• Prevention keys

– Hire right– Promote right– Engage staff

85

Hiring

• The one time you have all the power.• The one time employee will be on best

behavior.• The problem: most municipalities (and

private entities) do not focus appropriate energy on the process.

• Solution: examine your process, and re-tool it into a real predictive function.

86

Hiring: Advertising

• Word-of-mouth or other informal hiring processes risk violating the ADA, Title VII (prohibiting, among other things, racial discrimination) and federal civil rights law created by our courts.

• Be sure to advertise publicly and in a manner of general circulation.

87

Hiring: Tests• Written

– “Off-the-shelf” is not always tied to your needs• Oral

– Bulk of officer’s job is communication and judgment– No “yes” or “no” questions

• Performance– If the job is physical, don’t you want to know whether the

applicant can perform?– Caution: Americans With Disabilities Act

• Psychological– Required for police– Know the doctor

88

Hiring: Qualifications

• Education• Experience• Certifications• Verification

– Reference check – be thorough– Background check – criminal history– Polygraph– Drug Test (Caution: ADA)

89

Post-Hire

• Emphasize the probation period– Evaluate throughout– Use it as a training tool

• Engage your managers– They should model engagement– Employees will follow– Challenge the employees

90

Questionsand

Discussion