Discipline Discharge Michigan Sheriffs Association New Sheriffs Leadership

Discipline & Discharge Michigan Sheriffs’ Association: New Sheriffs Leadership Institute Presented By: Randolph T. Barker, Esq. Senior Attorney, Abbott Nicholson, P. C. 1900 W. Big Beaver Road, Suite 203 Troy, Michigan 48084 Telephone (313) 566 -2500 Email: rtbarker@abbottnicholson. com This presentation is © 2020 by Randolph T. Barker. All rights reserved. Reproduction or transmission without the express written consent of the author is prohibited.

General Concepts The terms and conditions of employment for unionized law enforcement officers are typically detailed in a collective bargaining agreement (CBA). Virtually all CBAs define the processes under which employees may be investigated and disciplined for workplace misconduct – “Just Cause” Employees subject to a CBA may appeal disciplinary actions through contractual grievance and arbitration procedures. Public employers and unions must comply with the Public Employees Relationship Act (PERA). The U. S. Supreme Court ruled that public employment terminable for just cause is a personal property right that may not be taken without due process – Cleveland Bd of Educ. v. Loudermill 420 US 532 (1985). Antidiscrimination laws apply to disciplinary decisions, in addition to CBA requirements.

Types of Disciplinary Action There are four general types of disciplinary action available when employees fail to meet expected levels of performance or conduct. Verbal counseling Written warning (might also include a PIP or Last Chance Agreement) Suspension Discharge Most CBAs establish a progressive discipline process with exceptions in situations where the nature of the misconduct reasonably permits deviation. Some CBAs also allow employees to remove disciplinary memoranda when they have no other violations for an established period. Employees may periodically review their files to facilitate this process. 3

Loudermill and Due Process All public employees subject to discipline and discharge under a “just cause” standard are entitled to due process: Notice of the charges A hearing (Loudermill Hearing) where the employee is given a reasonable opportunity to respond to the charges before any adverse employment action is taken.

Weingarten Rights US Supreme Court case establishing an employee’s right to union representation during disciplinary interviews. Employee must reasonably believe that the employer’s interview might lead to discipline before exercising the right to union representation. The Michigan Employment Relations Commission (MERC) began following this standard in the 1970 s.

What is “Just Cause” in this Context? Arbitrator Carroll Daugherty’s Seven Questions 1. Is there a rule governing the action of the Employee? 2. Does the Employee know the rule? 3. Was the Employee aware of the consequences for violating it? 4. Did the Employer fairly and objectively investigate the alleged violation? 5. Did the evidence provide clear evidence of guilt? 6. Has the rule/discipline been applied evenhandedly and without discrimination? 7. Does the penalty fit the violation?

Elements of Due Process Work rules must be reasonably related to the legitimate interests of the employer. The Employee is aware of the rules and the potential consequences/penalties for violating them. Full, Fair, and Unbiased IA/Management Investigation. Resulting charges are reasonably specific and linked to rules. Timeliness of action in relation to offense. Union representation if requested. Is the evidence of a violation sufficient? Penalty fits the violation and the violator. Are there mitigating circumstances? Consistent application and enforcement of the rules and imposition of penalties. ◦ Most offenses appropriate for progressive discipline. ◦ Avoids claims that others were treated differently.

Importance of Documentation Building a case for discipline depends significantly (if not entirely) on the employer’s documentation habits and practices. Conversely, an employer’s poor documentation habits favor employees who grieve disciplinary action and/or sue the employer for discrimination or wrongful termination.

Six Goals of Documentation Must Communicate – evidence that the employee had notice of deficiencies and consequences of conduct; the employee should know that documentation is being generated and why. Must be in Writing – the facts and circumstances supporting the proposed action should be detailed (the more serious the violation, the more detail required) and should reference any prior disciplinary action involving the employee’s same or similar work rule violations. Must be Timely – reasonably close in time to the misconduct. Must Reflect Consistency – all employees are treated fairly and in the same manner. Must be Constructive – actions short of discharge should provide meaningful feedback and be a growth opportunity for the employee. Must Deter Future Misconduct – by the employee receiving the discipline and by others who might engage in it.

Cardinal Rules of Documentation Arbitrators, juries and government agencies (e. g. , EEOC, MDCR, DOL and MERC) will generally find complete, contemporaneous documentation of the events and underlying investigations leading to adverse employment decisions to be more credible than after-the-fact statements in defending such decisions. Discharge decisions should be reviewed and approved by senior command, and the job-related reason(s) for the discharge should be carefully documented. Legal counsel’s involvement in advanced disciplinary matters is critical.

Investigations: Key Documentation Prior verbal and written disciplinary action. Prior performance evaluations. Witness statements and witness interview notes regarding the alleged violation (evaluated for potential bias). On-scene investigation – also consider impact of time between incident and visiting of scene. Objective evidence: attendance records, drug test results, photos, body and dash cam recordings, Visionhawk/GPS data, and dispatch recordings. Incident reports (including damage reports, logs and use-of-force reports).

Investigations: Union Involvement Labor unions have a duty of fair representation of their members and are entitled to information necessary to perform its duty. The union may request information and documents as the investigation proceeds. The union is not permitted to interfere with the investigation; providing information before the investigation concludes might taint it. Employers might have legally-justifiable reason for withholding information. Employers have a duty to provide the union with information relevant to the grievance or arbitration proceeding: ◦ Witness identities and the substance of their knowledge ◦ Information sufficient to allow the union to make an intelligent evaluation of the grievance. ◦ Does not necessarily mean you must produce witness statements or investigator notes.

Evidentiary Rules of Thumb… Withholding information increases the likelihood that the union will advance the grievance to arbitration. Most arbitrators are not sympathetic to employers, particularly where the employer has withheld relevant, requested information from the union. Generally, it makes sense to provide more, rather than less; unions tend to back down when provided with the most damaging evidence.

Arbitration Proceeding The authority of the arbitrator is established by the CBA and applicable law. On arbitrable matters, arbitrators generally consider three primary issues: Did the grievant engage in the misconduct of which he/she was accused? Was the grievant afforded due process? Did the Employer consider any mitigating circumstances when imposing the discipline?

Evidence at Arbitration Generally, the burden is on employer to show misconduct and propriety of chosen discipline by a preponderance of the evidence (i. e. , more than 50%). Arbitrator will consider both objective and nonobjective evidence, the latter including: ◦ Witness testimony - What did they see, are they credible, are they biased and were they involved? ◦ Arbitrator visit to the scene – What happened, why did it happen, and are there other possible explanations? ◦ Is the grievant’s explanation consistent with the evidence?

Potential Remedies Sustain the grievance in full and reinstate with full back pay and benefits. ◦ Evidence did not establish misconduct. Reinstate without back pay ◦ Evidence might show that grievant engaged in misconduct but there was a due process violation and/or mitigating circumstances May place conditions on reinstatement (e. g. , last chance agreement for drugs/alcohol) Reinstate with partial back pay and/or reduction of penalty ◦ Evidence might show that grievant engaged in misconduct, but their discharge was not warranted Perhaps mitigating circumstances existed or there was sufficient evidence of disparate treatment in connection with the penalty. Grant any other appropriate remedy permitted by the CBA or the law (e. g. , costs of the arbitration and arbitrator fees).

Unique Disciplinary Issues Employee Prosecution and their Fifth Amendment Privilege Employee Privacy Rights Employee Free Speech Rights Disclosure of Employer Documents

Fifth Amendment Implicated when the work rule violation could also be deemed criminal misconduct. Employees have an absolute right to not answer incriminating questions. But… Law enforcement agencies may adopt rules and regulations compelling employees to answer job-related questions from supervisors and during IA investigations. The employer has the right to elicit confessions of misconduct under the threat of disciplinary action where the employee is adequately protected through “Use Immunity. ”

Use Immunity Garrity v. New Jersey, 385 US 493 (1967) Officers accused of traffic ticket fixing advised of their Fifth Amendment rights but told they would be fired if they did not answer investigator questions. The officers cooperated and were later convicted based upon their statements. The US Supreme Court overturned the convictions, holding that involuntary statements given under these circumstances may not be used against the officers in a criminal proceeding. Disclosures by Law Enforcement Officer Act - MCL 15. 391 et seq. ◦ 2006 statute that codified Garrity in Michigan ◦ Protects law enforcement officers, corrections officers and dispatchers ◦ Mention of the statute or Garrity is not required to be protected.

Use Immunity (cont. ) Gardener v. Broderick, 392 US 273 (1968) Police officer subpoenaed before a grand jury investigating alleged bribery of police officers in a gambling ring. The officer was advised of his Fifth Amendment rights but warned he would be fired if he did not waive his immunity. Supreme Court held the discharge was unlawful since it was based upon an exercise of rights.

Fifth Amendment: Bottom Line Under Garrity, Gardener and MCL 15. 391 et seq. there can be no justification for a covered employee to disobey an order to answer questions related to their employment activities when advised that their answers may not be used against them in a criminal proceeding.

Employee Privacy Rights O’Connor v. Ortega, 480 US 709 (1987) Public employees have a reasonable expectation of privacy under the Fourth Amendment in their individual offices, desks and personal effects. Those items may be searched without a warrant if there is reasonable grounds that evidence of misconduct will be found, or if the search is necessary for a non-investigatory work purpose, such as to retrieve a file. Factors: accessibility to others in the workplace, private lockers, existence of a narrowly-tailored inspection policy subjecting personal items to search. Police officers have a lower expectation of privacy in the workplace considering the public interest in maintaining integrity and discipline in the ranks.

Protected Speech Pickering v. Board of Educ. , 391 US 563 (1968) Unlawful to discipline a public employee for “speaking on a matter of legitimate public concern” upon which, free and open debate is vital to informed decision-making by the electorate. ” Employer must show compelling governmental interest to restrict employee speech.

Protected Speech (cont. ) Connick v. Myers, APA circulated a questionnaire among fellow workers to air grievances about employer. Circulation followed unfavorable transfer notice involving APA Narrowed Pickering to clarify that employee speech in furtherance of personal interest (rather than on matters of public concern) is not protected if it threatens “the authority of the employer to run the office. ” Is this concerted activity? Probably not. Waters v. Churchill, 511 US 661 (1994) Nurse discharged for disparaging department and her supervisor while speaking with a co-worker. Government as an employer has more latitude to restrict speech vs. as a sovereign to avoid what it reasonably anticipates would be harm to the workplace functionality. No showing of actual harm is needed. Disruptive speech, even if indicia of public concern, is not protected.

Disclosure of Employer Documents Michigan sheriffs can discipline employees for releasing employer documents to third parties without prior approval. Ingham County v. Capitol City Lodge No. 141, FOP, 275 Mich App 133 (2007). ICSD had a policy prohibiting employee release of internal documents, including employee memos, to the public without advanced permission. Detective/local union president received an internal memo concerning use of pagers by detectives, called the union attorney about it and faxed a copy to him – all without prior approval. Historically, all dissemination requests of this detective were granted. The detective thus assumed this would also be acceptable and did not ask first. Sheriff discovered the disclosure and issued a reprimand. Union filed an unfair labor practice charge (interference with employee rights under PERA to engage in protected activity).

Disclosure of Employer Documents (cont. ) MERC upheld the ULP charge: Employee right to discuss terms and conditions of employment with union representative permitted secret disclosure of the memo so union would know “exactly” what it said. Employers have the initial right to decide upon a dissemination request. But this otherwise legitimate work rule may not justifiably be enforced in the case where the dissemination had no provable, detrimental effect on the employer. MERC ruling reversed by Michigan Court of Appeals: It makes no sense to allow an employee to violate legitimate work rule if, after the fact, no provable harm results. Recognized employer right to comply with internal document controls. Also recognized the obvious fact that employees should not be able to surreptitiously remove employer documents to avoid discovery of what they are discussing with their union representatives.

Q&A

Thank You! Please feel free to drop me a line with any other questions or individual needs! Presented By: Randolph T. Barker, Esq. (313) 566 -2500 Email: rtbarker@abbottnicholson. com