D06 Legal Aspects of Discipline

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boconnell
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206001
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D06 Legal Aspects of Discipline
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2013-03-10 21:08:18
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D06 Legal Aspects Discipline Camden
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D06 Legal Aspects of Discipline S. Camden
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  1. Who is the best choice to investigate discipline issues?
    Internal Affairs

    ...because of impartiality and no bias.
  2. Is it permissible for a Supervisor to receive a 1 day suspension for the same infraction an officer does who receives no time off?
    Yes, Supervisory staff members are held to a higher standard
  3. _________ discipline imposes more serious penalties with each repeat infraction.  It communicates the goal of conformity.
    Progressive Discipline

    • The progression can:
    • --depend on the seriousness of the misconduct
    • --be accelerated for serious offenses
    • --requires more accountability from supervisors
  4. Arbitray discipline against public employees is prevented by __________.
    Just Cause
  5. Just Cause creates ______ ________ for the employee - An aggregate of rights which are guaranteed and protected by government
    Property Interest

    Just Cause=Property Interest=Due Process
  6. There is a requirement in the public sector that the basis for discipline has a ___________ to the employees' job.
    Nexus or Link

    There has to be a connection wo what the employee did wrong that impacts the agency.  This is more difficult to prove with off-duty incidents
  7. Garrity/Gardner Rights gives the officer ____ Amendment Rights.
    5th Amendment Rights

    Provides the right against self incrimination and allows officers to remain silent when questioned under the threat of termination if those responses can be introduced in a criminal case against the officer
  8. There are no 5th Amendment Rights in an _______________ Investigation.
    Administrative Investigation.
  9. If you decline to answer questions in an administrative hearing, you can be fired or disciplined for ____________.
    Insubordination
  10. Protection from presecution is called?
    Immunity
  11. There is no constiutional right to representation in disciplinary interviews under the 6th Amendment. 

    However, there is a right to Union representation pursuant to NLRB v. Weingarten during an interview if:
    • 1.  Representation is requested, and
    • 2.  The employee reasonably believes the interview will result in disciplinary action.
  12. The Peace Officer's Statutory Bill of Rights, absent a union contract, provides officers protection by:
    Giving statutory requirements for how interrogation, interview and/or discipline is handled.
  13. An _______ _______ will determine the disciplinary rules and procedures that an employer must follow.
    Employee's Status (Employment Status)
  14. A Civil Service/Merit Board/Poice and Fire Commission have 2 functions:
    1.  Administrative Function-establishes the ability to classify and grade positions, administer ezams, certify lists of available candidates, fill open positions, and provide a set process for hiring to avoid the appearance of unfairness in hiring

    2. 
    Quasi-Legal Function- investigate facts, hold hearings, and draw conclusions as a basis for their official action and to exercise their discretion in a judicial manner
  15. To appeal administrative decisions of the Police Commission to a trial court, the plaintiff must have ________ all administrative rememdies prior to appealing to the courts
    Exhausted
  16. For appeals of discipline to the trial court on the administrative board's ruling, their decision must be found to be:
    • 1.  Unreasonable
    • 2.  Arbitrary
    • 3.  Capricious   (against the manifest of weight of the evidence)
  17. When dealing with unionized employees, the _____________ will address discipline.

    The CONTRACT will provide a grievance procedure to address desciplinary appeals.
    Collective Bargaining Agreement
  18. Are elected or appointed employees immune to discipline?
    No

    • Elected can be indicted, voted out, or addressed in consitution or statute for mid-term removal
    • Appointed can be removed at the pleasure of the higher official, can be affected by public opinion
  19. "At Will" employees are subject to __________ at any time for anreason or no reason.
    Termination

    Any reason cannot include an unlawful reason (Termination due to race, sex, gender, age, etc.) 

    No Due Process for At Will Employees
  20. Do probationary employees have rights?
    They are generally not subject to just cause requirements for termination.

    Must document proficiencies or lack there of.

    Both at will and probationary employees are afforded legal rights in disciplinary cases which can be modified by statute, agency policy, or labor agreement.
  21. Due Process for State Actions can be found in the _____ Amendment.
    14th Amendment.

    The 14th Amendment applies to the consitutional protections to state actions

    "No state shall deprive any person of life, liberty, or property without due process of law."
  22. Just Cause gives you a ______ _______.
    Property Interest

    For discipline that requires just cause or cause, a property interest is created. This is significant because it requires that due process be afforded to the officer.
  23. What is Due Process?
    The notice and opportunity to be heard.

    (Entitled to a hearing after, unless it's in your contract otherwise.)
  24. A Liberty Interest is an interst in ________ and __________ within the community; the freedom to pursue a trade or profession.
    Good Name and Reputation
  25. If an employee's good name or reputation is impacted by disciplinary actions, they may be entitled to a _________________.
    Name Clearing Hearing
  26. The concept of fundamental fairness of the actual proceeding; was the agency's conduct appropriate and not arbitrary.
    Substantive Due Process ("The Rules")
  27. If an officer is speaking as an employee and done as a part of your job, your freedom of speech is or is not protected?
    Is NOT Protected.
  28. Membership in an organization cannot be regulated absent of showing of a specific intent by the individual, not the group, to carry out illegal aims
    Freedom of Association
  29. Can an officer be terminated from an appointed position for political reasons?
    Yes.

    Appointed officers can, civil service and tested ranks can NOT (lower and mid-level public employees)
  30. The standard for Administrative Searches:
    • -No Warrant and less probable cause
    • -Can be for Reasonable Suspicion (workplace misconduct)
    • -Less than Reasonable Suspicion (No reasonable expectation of privacy)
  31. A _______ sample for a drug test gives one test to the employer and one for the employee
    Split
  32. Random drug testing must truley be random.  The burden is on the ________ to prove it's truely random.
    Agency
  33. In a disciplinary case, the employer must establish (Burden of Proof):

    "By the preponderance of the evidence" 51% Rule
    • 1.  There was a rule violation
    • 2.  There is some link or nexus between the violation and the efficiency of the agency
    • 3.  The penalty imposed was reasonable

    All 3 must be there to establish Just Cause
  34. A claim or legal finding that an employee who purportedly voluntarily left a position should be treated as though that employee was actually discharged by the employer

    In other words, would a reasonable person quit and did the employer make the situation intolerable.  This triggers legal protections normally only available if a person was fired.
    Constructive Discharge

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