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DISCIPLINARY ACTION AND APPEAL PROCEDURE
Sections:
4.20.010 Disciplinary action.
4.20.020 Definitions.
4.20.030 Forms of disciplinary action.
4.20.040 Disciplinary procedure.
4.20.050 Appeal of disciplinary action.
4.20.060 Modification of disciplinary action.
4.20.070 Time limits.
4.20.010 Disciplinary action.
The City of Lakewood is committed to providing a productive, safe, and professional work environment. Inappropriate conduct is not tolerated. Disciplinary action may be taken for unsatisfactory performance or unacceptable conduct. Discipline need not be progressive, and the City may take any steps appropriate for the circumstances. Each disciplinary action is unique to the situation and does not set a precedent for future disciplinary actions against others. Medical separations are not considered disciplinary actions and are not subject to the disciplinary action procedure. See Chapter 4.07.030. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001; Ord. O-99-34 § 1, 1999; Ord. O-99-18 § 1, (part), 1999).
4.20.020 Definitions.
A. “Disciplinary authority” for the City of Lakewood shall be the City Manager, the department director, the division manager, and the appropriate supervisor. A department director shall have the authority to reprimand, demote, suspend without pay, and/or terminate. Division managers shall have the authority to reprimand and/or suspend without pay for up to two working days. Supervisors shall have the authority to reprimand and/or to effect temporary and immediate administrative leave with pay. Administrative leave is non-disciplinary (see definition in Section 4.01.060).
B. “Disciplinary action” refers to action taken by the disciplinary authority against an employee for cause, including reprimand, suspension, demotion, or termination. When a position is eliminated or reduction in force occurs, resulting demotions or terminations shall not be deemed disciplinary action, and therefore the employee is not entitled to any appeal rights under Sections 4.20.050 and 4.20.060. See applicable Administrative Regulations “Conduct of Appeals of Disciplinary Actions” and “Modification of Disciplinary Action by City Manager.”
C. “Cause” for disciplinary action includes, but is not limited to:
1. Unsatisfactory work performance, including a failure to demonstrate a reasonable competence, failure to perform the duties of the position in a satisfactory manner, or failure to demonstrate acceptable work conduct and behaviors as determined by management.
2. Violation of work hours or department attendance policies, including job abandonment. Job abandonment results when an employee does not report for work as scheduled or does not give reasonable notice of absence before his/her scheduled work shift. See Administrative Regulation “Unexcused Absences.”
3. Failure or refusal to follow a supervisor’s instructions.
4. Harassment, including physical or verbal abuse. Some examples are: intimidating, menacing, tampering, stalking, erratic or raging behavior, threats of violence, horseplay that results in physical or emotional harm, and threatening behavior. It may also include insults; comments or actions based on negative stereotypes; hostile acts, pranks, or remarks; and circulating offensive or demeaning materials. See Administrative Regulations “Workplace Violence” and “Harassment.”
5. Entry of a plea of guilty or nolo contendere or entry into a deferred judgment and sentence or conviction for a felony.
6. Failure to report an arrest and/or charge of a crime (excluding minor offenses and traffic offenses). An employee who does not wish his/her supervisor to know about the arrest or charge may inform the Department of Employee Relations instead.
7. Committing a morally vile crime, any crime that involves the abuse of public office, or any breach of law consistent with the terms of Section 24-34-402.5, C.R.S.
8. Conduct outside the workplace that interferes with the employee’s ability to properly perform his/her duties or that substantially prejudices the conduct of the City’s business. This also pertains to inappropriate conduct outside the workplace that affects the public trust by an employee in a position of authority, including, but not limited to, enforcement and child-care-related positions.
9. Violation of conflict of interest provision as set forth in Section 4.16.010. See Administrative Regulation “Conflict of Interest.”
10. Falsification or material omission in the employment application process, any City-related record, and/or any verbal or written communication.
11. Any conduct demonstrating dishonesty in the workplace.
12. Any theft, willful or negligent damage, waste, or unauthorized or improper use of property or assets belonging to the City, an employee, or anyone else. Unauthorized or improper employee use of City services, software, Internet, phone mail, e-mail, or equipment. Refer to Administrative Regulations “E-mail Systems Usage Policy” and “Internet Access and Usage Policy.”
13. Disclosing sensitive or confidential information.
14. Possession or use of alcohol or drugs or being under the influence of alcohol or drugs while on duty or on call. Testing positive on a drug or alcohol test, regardless of when or how the alcohol or drugs were consumed. If an employee is taking medication that could affect judgment, impair the ability to do the job well or safely, or makes the employee appear to be under the influence of drugs or alcohol, s/he shall bring medical documentation to his/her supervisor.
15. Any action or condition that poses a direct threat to anyone’s health or safety or to City property.
16. Failure to maintain specified department physical or mental fitness levels.
17. Conduct that violates any federal or state anti-discrimination law pertaining to employment, including all forms of harassment or discrimination.
18. Refusal or neglect to work overtime as directed, to work a designated shift or schedule, working overtime without authorization, or to answer or efficiently operate pagers or cell phones.
19. Violation of state or federal law or City policies, procedures, ordinances, administrative regulations, or department rules.
20. Conduct that would compromise or harm the City’s or the public’s interest, such as damaging a reputation or sabotaging a negotiation.
21. Any other unsatisfactory performance, breach of confidentiality, or unacceptable conduct which, in the opinion of management, affects the employee’s performance or the effective functioning of other employees, or undermines public trust in the integrity of the City.
D. Administrative leave with pay may be effected by a disciplinary authority when there is need to remove the employee from the workplace promptly because of a possibility of violence, disruption of work, insubordination, damage to property or persons, and apparent use of intoxicants or drugs, or for any other reason that requires prompt removal. When the City needs to conduct an in-depth investigation, a disciplinary authority may place the employee on administrative leave with pay. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001; Ord. O-99-34 § 1, 1999; Ord. O-99-18 § 1, (part), 1999).
4.20.030 Forms of disciplinary action.
A. Reprimand. A disciplinary authority may reprimand an employee in writing.
B. Suspension. A disciplinary authority may suspend an employee from employment without pay. An employee who is charged with a crime may be placed on administrative leave with or without pay, suspended with or without pay, or terminated at the discretion of the City. While the employee awaits criminal prosecution, the City may keep the employee on suspension and delay the disciplinary process.
C. Demotion. A disciplinary authority, upon consultation with the Department of Employee Relations, may demote an employee.
D. Termination. A disciplinary authority, upon consultation with the Department of Employee Relations, may terminate an employee.
Medical separations are not considered disciplinary and do not fall within the scope of the disciplinary procedure set forth in Section 4.20.040. See Section 4.07.030, Transitional status and medical separations. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001; Ord. O-99-34 § 1, 1999; Ord. O-99-18 § 1, (part), 1999).
4.20.040 Disciplinary procedure.
A. Reprimand. A disciplinary authority may reprimand an employee in writing. A written reprimand shall become a permanent record in the employee’s personnel file. The employee shall receive a copy of a written reprimand and may write a response. A copy of any response submitted shall also be kept permanently in the employee’s personnel file.
B. Suspension of up to two work days. A division manager or department director, in consultation with a representative from the Department of Employee Relations, may suspend an employee for up to two work days. Prior to imposing the suspension, the disciplinary authority shall meet with the employee to discuss the matter and proposed action. The employee will receive a written suspension notice for his/her personnel file. The employee is entitled to write a response, which shall also be permanently placed in the personnel file
C. Suspension of more than two days, demotion and termination. When an employee, by behavior or performance, shows the supervisor or other disciplinary authority that these disciplinary actions may be required, the following procedures shall be employed:
1. Within a reasonable time period after determining that a disciplinary action is warranted, the supervisor will prepare a “Recommendation of Disciplinary Action” memorandum
containing a rationale and recommended action. The supervisor should submit the recommendation through the line of authority to the appropriate department director. This memorandum will not be available to the employee or made part of the employee’s personnel file.
2. The department director shall, in consultation with the Department of Employee Relations, conduct an appropriate review. If s/he decides that disciplinary action is appropriate, the department director shall notify the employee in writing why s/he is considering disciplinary action. This “Notice of Consideration of Disciplinary Action” outlines the Recommendation of Disciplinary Action memorandum, excluding the recommended action to be taken. It also sets a time and place for the employee to meet with the department director to respond to the notification. It offers the chance for the employee to submit a written or verbal response. This memo and any subsequent response shall be permanently placed in the employee’s personnel file.
3. After the employee receives this memorandum, s/he will meet with the department director to review any response. The employee is not entitled to any representation, including legal counsel, at this meeting. At the department director’s discretion, the employee’s supervisor may be present. The department director shall then determine what disciplinary action, if any, shall be taken. If disciplinary action is taken, the employee shall receive a memorandum explaining the discipline, which could be termination, demotion, or suspension of more than two days. This memorandum shall include reasons and the effective dates of the action, and will be placed in the employee’s personnel file as a permanent record. If the disciplinary action is termination, demotion, or suspension of more than two days, the notice shall advise the employee of his/her appeal rights. The disciplinary action takes effect as recommended in the memorandum regardless of any subsequent appeal. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001; Ord. O-99-34 § 1, 1999; Ord. O-99-18 § 1, (part), 1999).
4.20.050 Appeal of disciplinary action.
Persons terminated, demoted, or suspended for more than two working days, shall be entitled to appeal. An appeal may be initiated only by filing written notification with the Director of Employee Relations within 10 calendar days of receiving written notification of the disciplinary action.
A. The Director of Employee Relations shall maintain a list of impartial and qualified hearing officers. Upon receipt of any notice of appeal of disciplinary action, the Director of Employee Relations shall provide the employee with this list, and the employee shall select a hearing officer based on availability. If the employee does not select a hearing officer from this list within 10 calendar days after receiving the list, the City will choose a hearing officer. It is the Department of Employee Relations’ responsibility to schedule a hearing within 90 days of the appeal. If within 10 days after the selection of a hearing officer, the appellant and/or the appellant’s attorney have failed to cooperate in the scheduling of the hearing, the appeal is dismissed. If the hearing is not scheduled in a 90-day time period of choosing a hearing officer, due to the appellant and/or the appellant’s attorney, the appeal is dismissed.
B. The hearing officer shall conduct a hearing according to the Administrative Regulation “Conduct of Appeals of Disciplinary Actions,” which provides for notice, procedures to be employed during the hearing, and the right of the appellant to be represented by a layperson or attorney.
The hearing officer may issue subpoenas for witnesses, books, records, documents, and other evidence, and shall have the power to administer oaths. The hearing officer shall be responsible for the conduct of the hearing. No subpoena shall be issued for records pertaining to the discipline or the investigation of any other City employee. No parties shall be entitled to subpoena any evidence not admissible at the hearing. Either party may apply to the hearing officer for the issuance of a subpoena. Subpoenas so issued shall be served and, upon application to the District Court of Jefferson County by a party or the hearing officer, enforced in a manner provided by law for the service and enforcement of subpoenas in civil actions. After a party or the hearing officer submits an application to the District Court of Jefferson County, subpoenas shall be served and enforced according to the civil action statutes. No party shall be entitled to subpoena any inadmissible evidence. The hearing officer has no authority to order the taking of depositions, responses to interrogatories, responses to requests for production of documents, or physical or mental examination of any persons.
The City may be represented by anyone of its choice, including the City Attorney. The Director of Employee Relations will attend.
The hearing shall be held at a location designated by the City.
The hearing officer shall decide the outcome within 30 calendar days after the hearing is completed, unless good cause exists for additional time. The hearing officer’s sole purpose is to determine whether or not cause for disciplinary action existed; s/he has no authority to modify disciplinary action. Hearings are closed to the public. After considering the evidence, the hearing officer shall make findings of fact and conclusions in writing, stating whether cause for discipline exists. Those findings shall be sent to the City Manager, the appellant or his/her representative, the representative of the City, and the Director of Employee Relations. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001; Ord. O-99-34 § 1, 1999; Ord. O-99-18 § 1, (part), 1999).
4.20.060 Modification of disciplinary action.
The City Manager may modify any disciplinary action taken in any instance where cause is found for disciplinary action. See Administrative Regulation “Modification of Disciplinary Action by City Manager.” If the appellant requests a modification in writing, the City Manager may consider changing the level of discipline. This notification should include reasons for modification, including discipline imposed upon others; his/her own work and discipline record; and any other mitigating circumstances. This request must be submitted directly to the City Manager within 10 calendar days of notification of the hearing officer’s findings. This request should be focused on the original cause(s) for disciplinary action, but is not to further review whether there was cause for disciplinary action.
After reviewing the findings of fact and conclusions, the City Manager may accept, reject, or modify the decision of the hearing officer. In addition, the City Manager may conduct a hearing de novo or a limited supplemental hearing. Administrative Regulation “Modification of Disciplinary Action by City Manager” shall provide for notice, procedures to be employed during any hearing, and the right of an employee to representation. The City may be represented by anyone of its choice, including the City Attorney. The City Manager shall conduct the review and render a decision. The City Manager shall notify the person appealing, the department director, and the Director of Employee Relations of his/her decision and shall order whatever action, if any, is necessary to implement his/her decision. The City Manager may modify the disciplinary action where cause is found. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001).
4.20.070 Time limits.
If the appellant or his/her representative fail to meet the deadlines stated in Chapter 4.20, the disciplinary action and appeal process will be invalidated and the disciplinary action decision will be upheld. City failure to meet any of these time limits shall not invalidate the process or disciplinary action taken. (Ord. O-2009-43 § 1, 2009; Ord. O-2007-7 § 1, 2007; Ord. O-2004-39 § 1, 2004; Ord. O-2001-49 § 1, 2001).
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