§ 16-194. Performance-related disciplinary actions.
(a)
Grounds. An appointing authority may initiate and take, or a supervisor may initiate, any of the disciplinary actions set forth in Subsection (b), below, against any employee under their respective jurisdictions where the appointing authority makes a determination that any such employee's performance has become "less than satisfactory" with respect to the execution of any or all of the duties, tasks, and/or responsibilities set forth in the employee's position description. In determining whether an employee's performance has become "less than satisfactory" to a degree which warrants disciplinary action, the employee's appointing authority shall rely upon any one (1) of the following criteria as justification for the taking of any of the disciplinary actions set forth in Subsection (b), below:
(1)
Where the employee's actions, inactions, and/or attitudes constitute a representative course of conduct characterized by a general inability, incapability, and/or unwillingness on the part of the employee to maintain a minimum standard of performance with respect to the quality and/or quantity of any or all of the duties, tasks, and/or responsibilities properly assigned to the employee;
(2)
Where the employee unjustifiably fails to carry out a particular work assignment which was within the scope of the duties, tasks, and/or responsibilities properly assigned to the employee; or
(3)
Where the employee loses or fails to maintain any of the requirements or standards set forth in the qualification requirements statement, as defined in Section 16-102(a)(39), applicable to the employee's position.
(b)
Authorized Actions. Whenever an appointing authority or supervisor makes a determination in accordance with grounds set forth in Subsection (a), above, that an employee's performance has become "less than satisfactory," the employee's appointing authority shall be authorized to initiate and take, or an employee's supervisor shall be authorized to initiate, any of the following disciplinary actions against the employee:
(1)
The appointing authority or supervisor may issue a written reprimand to the employee, provided that any such written reprimand shall state:
(A)
The specific violation or act of nonperformance causing the issuance of the reprimand; and
(B)
The fact that any subsequent violations or acts of nonperformance by the employee may warrant the taking of more severe disciplinary action against the employee;
(2)
The appointing authority may cause the employee to forfeit annual leave days the employee has accrued in an amount not to exceed twenty (20) such accrued leave days;
(3)
The appointing authority may fine the employee in an amount not to exceed five percent (5%) of the employee's base annual salary, provided that such fine, so imposed, may, at the employee's option, so long as the employee is employed by the County, be withheld from the employee's biweekly paychecks, until paid, in increments not to exceed five percent (5%) of the employee's gross biweekly wages;
(4)
The appointing authority may cause the employee to be suspended;
(5)
The appointing authority may reduce the employee's salary by an amount not to exceed ten percent (10%). Under no circumstances shall an employee's salary be reduced in this manner to a rate less than the entry rate of the applicable salary range;
(6)
The appointing authority may cause the employee to be demoted, subject to the provisions of Section 16-148(a)(6);
(7)
The appointing authority may cause the employee to be dismissed.
(c)
General Criteria. Whenever any appointing authority or supervisor makes a determination, in accordance with the grounds set forth in Subsection (a), above, that an employee's performance has become "less than satisfactory," the employee's appointing authority or supervisor, as the case may be, shall adhere to the general criteria set forth below in deciding what type of authorized disciplinary action, if any, should be initiated and taken against such employee.
(1)
Dismissal. The dismissal of an employee shall constitute the most severe of the three (3) types of performance-related, disciplinary actions authorized under Subsection (b), above. After an employee's appointing authority or supervisor has determined that the employee's performance constitutes grounds for disciplinary action, as set forth in Subsection (a), above, the employee's appointing authority shall be justified in causing the employee to be dismissed, provided that:
(A)
The employee's appointing authority or supervisor, as the case may be, has made a reasonable effort to counsel the employee with respect to the employee's performance and has afforded the employee a reasonable opportunity to take remedial actions with respect thereto; and,
(B)
The employee's appointing authority has made a reasonable determination that the employee will be unable, incapable and/or unwilling to perform satisfactorily in another position in a class with a lower grade; provided, however, that where the appointing authority has made a reasonable determination that the employee will be capable and able to perform satisfactorily in another position in a class with a lower grade, nothing in this subparagraph shall be construed to prevent the appointing authority from causing the employee to be dismissed notwithstanding such a determination if the appointing authority has made a reasonable effort to demote the employee and such demotion cannot be effectuated due to the unavailability of an appropriate vacant position, or due to the fact that the proposed demotion does not meet the conditions stipulated in Section 16-148(a)(6)(B).
(2)
Demotion. The demotion of an employee shall constitute a performance-related disciplinary action less severe in nature than a dismissal. After an employee's appointing authority or supervisor has determined that the employee's performance constitutes grounds for disciplinary action, as set forth in Subsection (a), above, the employee's appointing authority shall be justified in causing the employee to be demoted, provided that:
(A)
The employee's appointing authority or supervisor, as the case may be, has made a reasonable effort to counsel the employee with respect to the employee's performance and has afforded the employee a reasonable opportunity to take remedial actions with respect thereto; and,
(B)
The employee's appointing authority has made a reasonable determination that the employee will be capable and able to perform satisfactorily in the position to which the employee is to be demoted.
(3)
Salary Reduction. The requirement that an employee's salary be reduced by an amount not to exceed ten percent (10%) shall constitute the type of performance-related disciplinary action which shall generally be considered to be comparable in severity to demotion where an employee's appointing authority or supervisor, as the case may be, has determined that the employee's performance constitutes grounds for such disciplinary action. In deciding whether an employee's salary should be reduced by an amount not to exceed ten percent (10%) in lieu of demotion, the employee's appointing authority or supervisor, as the case may be, shall make the determination based upon an evaluation that there is no appropriate available vacant position to which the employee could be demoted, or that the employee's performance will improve under continued close supervision in the same position. After an employee's appointing authority or supervisor, as the case may be, has determined that the employee's performance constitutes grounds for disciplinary action as set forth in Subsection (a), above, the appointing authority shall be justified in causing the employee's salary to be reduced the equivalent of one (1) step rate, provided that:
(A)
The employee's appointing authority or supervisor, as the case may be, has made a reasonable effort to counsel the employee with respect to the employee's performance and has afforded the employee a reasonable opportunity to take remedial actions with respect thereto; and
(B)
The employee's appointing authority has made a reasonable determination that the employee's performance will improve to a satisfactory level in the same position.
(4)
Suspension. The suspension of an employee shall constitute the type of authorized disciplinary action which shall generally be considered to be less severe in nature than a dismissal action, a demotion, or a salary reduction, yet more severe in nature than the issuance of a written reprimand to an employee. In deciding whether the act or acts of the employee which constitute the grounds for disciplinary action are of such a nature as to warrant suspension, the appointing authority shall rely upon any one (1) of the following criteria as justification for the taking of a suspension action against an employee:
(A)
Where the employee commits an act or acts which constitute justification for the dismissal of the employee under the provisions of paragraph (c)(1), (A) and (B), above, the employee may be suspended rather than dismissed where the employee's appointing authority determines that the employee's past conduct and/or performance record and/or other extenuating circumstances mitigate against the taking of a dismissal action against the employee, provided that no such suspension shall exceed twenty (20) working days in duration;
(B)
Where the employee's appointing authority or supervisor has issued two (2) or more related, written reprimands to the employee and where the issuance of such reprimands has not resulted in the cessation of the act or acts of the employee which constituted the grounds for the issuance of the written reprimands in the first instance, the employee may be suspended for a period not to exceed ten (10) working days, provided that the foregoing shall not be construed to prevent the employee's appointing authority from suspending the employee following the issuance of one (1) written reprimand to the employee where:
(i)
The employee commits the same act or acts which resulted in the issuance of the written reprimand within a period of six (6) months following the issuance of the reprimand; and
(ii)
The act or acts committed by the employee have clearly caused a disruptive effect on the efficient and/or safe operations of the employee's department, agency, or office and/or the government as a whole.
(5)
Forfeiture of Accrued Annual Leave. The requirement that an employee forfeit accrued annual leave days shall constitute the type of authorized disciplinary action which shall generally be considered to be comparable in severity to the suspension of an employee where an employee commits an act or acts which would justify a suspension under the provisions of paragraph (c)(4), above. In deciding whether an employee should be required to forfeit accrued annual leave days in lieu of a suspension as would otherwise be justified under the provisions of paragraph (c)(4), above, the employee's appointing authority shall make such determination based upon an evaluation of the effect the employee's absence from work would have on the operations of the appointing authority's department, agency, or office. Where the employee's appointing authority determines that the absence of an employee from work under a suspension action would cause a detrimental effect on the operations of the department, agency, or office in terms of undue losses in the efficiency of operations or a curtailment in the provisions of services to the general public, the appointing authority shall be justified in causing the employee to forfeit accrued annual leave days in an amount equal to the number of days the employee would have been otherwise suspended under, and subject to, the conditions set forth in paragraph (c)(4), above; provided, however, that no such forfeiture of accrued annual leave by an employee shall be in an amount in excess of the number of annual leave days the employee had accrued as of the effective date of any such action.
(6)
Fine. The requirement that an employee pay a monetary fine shall constitute the type of authorized disciplinary action which shall generally be considered to be comparable in severity to the suspension of an employee where an employee commits an act or acts which would justify a suspension under the provisions of paragraph (c)(4), above, and may be used as an alternative to suspension or forfeiture of accrued annual leave. When a fine is imposed in lieu of suspension or forfeiture of accrued annual leave, the appointing authority shall be justified in requiring the employee to pay such fine in an amount not greater in value than the number of days the employee would have been otherwise suspended under, and subject to, the conditions set forth in paragraph (c)(4), above, or the amount of accrued annual leave the employee would have otherwise been caused to forfeit under, and subject to, the conditions set forth in paragraph (c)(3), above; provided, however, that in no case may an employee be required to pay a monetary fine in an amount in excess of five percent (5%) of said employee's base annual salary.
(7)
Written Reprimand.
(A)
The issuance of a written reprimand to an employee shall constitute the least severe type of all authorized disciplinary actions. An employee's appointing authority or supervisor shall be justified in issuing a written reprimand to the employee if the act or acts of the employee which constitute the grounds for disciplinary action are minor in nature.
(B)
Any employee to whom a written reprimand is issued shall be entitled to respond in writing to any such reprimand within five (5) working days after the date of the issuance thereof by the employee's appointing authority or supervisor, as the case may be.
(C)
Whenever an appointing authority or supervisor, as the case may be, files or causes to be filed a written reprimand or a copy thereof in an employee's official personnel file and/or in a departmental personnel file, any such written reprimand or copy thereof:
(i)
Shall have appended thereto a copy of the employee's written comments in response thereto if such comments are provided in accordance with subparagraph (B), above; or, in the alternative,
(ii)
Shall be signed by the employee so as to indicate that the employee received and reviewed the reprimand, provided that such signature by the employee shall not be construed as an indication that the employee concurs with the contents of the reprimand; or, in the alternative,
(iii)
Shall be accompanied by a signed certification by the employee's appointing authority or supervisor, as the case may be, to the effect that the appointing authority or supervisor issued the written reprimand to the employee and that the employee did not elect to respond in writing to the reprimand or to sign the reprimand.
(CB-1-1976; CB-22-2000)