Discipline

I-16-18


Effective Date: Expiration Date: Chapters:
June 22, 2016 When Superseded 16  

Overview

NOTE: This instruction supersedes E-DPM Instruction No.16-13, same subject, dated February 23, 2016. The purpose of this instruction is to add a standalone copy of the table of illustrative actions and new sample final decision templates for reprimands and suspensions.

The District of Columbia takes a positive approach toward employee management to achieve organizational effectiveness by using a progressive system to address performance and conduct issues. Managers must reliably establish and communicate reasonable performance and conduct standards that serve the public trust. Each employee has a responsibility to perform his or her duties to the best of his or her ability and to those standards established by management. When an employee fails or refuses to meet applicable standards, management has an obligation to take appropriate action, to ensure governmental integrity.

This instruction outlines general procedures for progressively addressing employees who fall short of performance and conduct standards.


Reasonable, Fair, and Consistent

As with any organization, the District government operates with required standards of behavior, conduct and performance. While many standards are written, such as the D.C. personnel regulations and agency-level policies, there are general standards of behavior that are implied in any employer/employee relationship.

It is important that the disciplinary process is viewed as a means by which employees are helped and encouraged to achieve and maintain the required standards of conduct and behavior. Chapter 16 of the D.C. personnel regulations, Corrective and Adverse Actions; Enforced Leave; and Grievances, and this instruction help ensure – for the benefit of both the District government as an employer and its employees – that any shortfalls in an employee's conduct are dealt with effectively and in a reasonable, fair, and consistent manner.

In summary, “reasonable” and “fair” mean:

  • Managers should raise and deal with issues promptly and should not unreasonably delay meetings, decisions, or confirmation of those decisions;
  • Managers should act consistently;
  • Managers should carry out any necessary investigations to establish the facts of the case before any decisions are made;
  • Managers should inform employees of the basis of the problem and give them an opportunity to offer an explanation and to put the employee’s version of the facts forward before any decisions are made;
  • Managers should allow employees to be accompanied at any formal disciplinary meeting by a union representative or other representative of their choice; and
  • Managers should allow an employee to appeal any formal disciplinary decision made under the proper disciplinary procedures.

Employee and Employer Responsibilities

Supervisor and Managers

The District government, as the employer, must ensure that employees are aware of applicable standards of conduct and behavior and provide those employees with a reasonable opportunity to fulfill and understand the consequences of not meeting those requirements. These obligations are typically met through documents issued by the personnel authority (typically the D.C. Department of Human Resources (DCHR)), the employing agency, and applicable labor agreements, which advise employees about District and agency rules, procedures and standards, and through managers advising and reminding employees of these rules, procedures and standards.

In particular, managers should:

  • Ensure that employees are aware of any rules, procedures and standards applicable to their role and function, and understand what is required of them;
  • When necessary, provide guidance and training to employees to enable them to meet these standards; and
  • Ensure that employees are aware of the consequences of not complying with these rules, procedures and standards.

Employees

There are general standards of conduct which are implicit in any employment contract and, therefore, form contractual expectations which the District government can expect of its employees. In particular, employees are expected to:

  • Act in a manner congruent with the interests and standards of the District of Columbia government, both at work and outside of work;
  • Devote their full attention while at work to the duties of their position;
  • Act with responsibility, judgment and good faith when exercising the duties of their position;
  • Carry out any reasonable instruction given by a District officer, manager or supervisor relating to those duties; and
  • Never, under any circumstances, divulge to any unauthorized person, or make personal use of, confidential information connected with the District of Columbia, its employees, residents, businesses or visitors.

In addition to the above implied rules, all employees are expected to comply with published District policies, procedures and standards, including, but not limited to, the D.C. Municipal Regulations, District Personnel Manual, the Ethical Code of Conduct, Mayor’s Orders, and policies published by the employing agency.


Gathering the Facts

Before a supervisor can take any action, he or she must obtain all the relevant facts. A “fact” is an actual event or circumstance.

Evidence

For each fact supporting an allegation of misconduct, the supervisor must have corresponding evidence proving that fact. Sources of fact include:

  • Documents (both physical and electronic);
  • Tangible objects; or
  • Witness statements.
Witness Statements: Whenever your “facts” are proven by the statements of others, it is strongly advisable to secure a witness statement. This could be in the form a written witness statement, an e-mail, or affidavit. Employees have multiple avenues of appeal, particularly in actions involving lengthy suspensions or removal. Often, witnesses become unavailable at later stages of litigation, and written statements are indispensable.

Employment History

In addition to evidence that may support a specific allegation of misconduct, supervisors must also gather evidence that supports the appropriate corrective response. This evidence includes, but is not limited to:

  • Employment and work history (i.e., official personnel folder, performance evaluations);
  • Agency personnel file (including notifications of policies and procedures);
  • Position description;
  • Disciplinary record; and/or
  • Past discipline imposed by the agency for similar conduct.

Progressive Discipline

Once all the facts are known, the employee’s supervisor is in a position to ascertain the most appropriate corrective response. For minor concerns, an informal and collaborative approach may be the best response (see the next section, Informal Resolution.)

When an employee’s conduct fails to meet expectations and informal resolution is not appropriate, management must turn to the progressive disciplinary system, which includes the following steps:

  1. Verbal counseling;
  2. Reprimand;
  3. Corrective action; and
  4. Adverse action.

While the District employs a progressive disciplinary process, strict adherence to the progressive steps will not always be appropriate. The resulting agency action will be dictated by applying the factors outlined at § 1606.2 of the regulations, which may produce an action that skips one or more of the progressive discipline steps.

For example, if an employee gets into a physical fight with a customer and, without justification, seriously injuries the customer, corrective or adverse action might be the appropriate first response, even if the employee has no disciplinary history.

Using the Proposing Official’s Rationale Worksheet

In order to choose the appropriate action, agencies must apply the factors outlined in § 1606.2. These factors include, but are not limited to, an employee’s work history, the impact of the behavior on the agency, and the potential of the employee to be rehabilitated. Consideration of these factors should be made by utilizing the Proposing Official’s Rational Worksheet (Attachment 5). The worksheet asks a series of questions related to the factors that includes an analysis of the facts gathered during the initial investigation and should help the agency decide what type of action should be taken based on the egregiousness of the behavior in juxtaposition to the factors. Upon completion of the worksheet, the agency should prepare the notice of proposed action.


Informal Resolution

Many potential disciplinary issues can be resolved by the manager or supervisor intervening at an early stage as part of their normal day-to-day responsibilities. In many instances, good management should prevent recourse to formal procedures. The probation process is particularly important for communicating standards of conduct and performance.

In cases of minor breaches of discipline (e.g. lateness for work, careless mistakes, lack of attention to detail/instructions/procedures), the immediate supervisor should discuss these concerns with the employee to ensure that the employee is:

  • Aware of the concerns;
  • Knows what is required to meet expected standards of conduct;
  • Made aware of the timescale over which an improvement is required; and
  • Made aware of the consequences of not achieving the required standard.

This is not a stage in the formal progressive disciplinary process. It is part of the standard day-to-day relationship between managers and the people they manage. However, in certain circumstances, it will be necessary for the discussion and outcome to be confirmed in writing as it may become necessary to pursue the issue through the formal process if there is a reoccurrence or a failure to improve to the required standard.

Preparation

Before speaking to the employee, the manager should consider the following points:

  • What are the facts, what is the evidence?'
  • What are the standards expected? Are these standards clear?
  • Are there any factors you are aware of which may be relevant (e.g., health, domestic difficulties, lack of training or supervision)?
  • How can the issue be corrected, what should be done differently in the future?
  • Remember that the objective is to improve conduct to the required standard.

Outcome

Ideally, the manager should aim to reach an agreement with the employee on the following points. However, where it is not possible to reach a consensus, the manager should make clear:

  • The standards expected;
  • Where the employee is currently falling short of these standards (i.e., the gap between current conduct and the standards required);
  • The action required to close that gap – what the employee is going to do, what you are going to do, the timescale for improvement (e.g., what support, training or other advice and guidance will be provided, who is responsible for organizing and providing it and what are the timescales for these interventions);
  • Follow up and review;
  • Summarize what you have agreed to avoid a misunderstanding; and
  • Make a record if necessary – this will be helpful if the employee’s conduct does not improve to the standard required.

Next steps

After speaking to the employee, the manager should:

  • Continue to monitor the employee’s conduct over the agreed upon timescale and provide regular reviews and give feedback;
  • Make sure he or she delivers on the agreed-upon action (e.g., training, additional support);
  • If the employee’s conduct does improve to the standard required, then make a point of telling the employee and encourage the employee to continue to improve his or her conduct;
  • If the employee’s conduct does not improve to the standard required – i.e., if there is no improvement, or what improvement there has been still falls short of the standard required – then it will be necessary to speak to the employee again; and
  • Take advice from DCHR’s employee relations team as to whether it is necessary to move forward to the formal disciplinary procedure.

Verbal Counseling

As noted previously, management should initially attempt to correct minor lapses in conduct and performance through informal means. However, when such corrective steps are not successful, or for more serious conduct concerns, the first step in the formal disciplinary process is verbal counseling.

Performance Issues. Performance concerns are addressed through Chapter 14 of the District Personnel Manual. This instruction focuses primarily on misconduct issues.

Preparation

When counseling the employee is deemed appropriate to the circumstances, the manager should first:

  • Gather and assess the relevant facts;
  • Schedule an uninterrupted period of time with the employee and his or her union representative (if any); and
  • Review and be aware of the relevant facts, conduct standards, and plan for improving the employee’s behavior.

Counseling Session

At the counseling session, the manager must:

  1. Articulate the relevant conduct standard(s);
  2. Explain how the employee has failed to meet those standards;
  3. Explain management’s conduct expectations; and
  4. Explain the potential consequences if those expectations are not met prospectively.

Follow-up

Within 5 days after the counseling session, the manager must memorialize the conversation in writing. This may be done through a letter or e-mail. The correspondence shall establish the date, time, and content of all verbal counseling. Managers shall retain a copy of the correspondence for a period of no less than two years, but it shall not be made a part of employee’s Official Personnel Folder (OPF). (See Attachment 1, Sample Verbal Counseling Follow-up.)

VERBAL COUNSELING AT A GLANCE
Fully investigate the facts of the situation
Schedule an uninterrupted time with the employee and his/her representative
Discuss what happened, the standards, expectations, and potential consequences
Within 5 days follow-up and restate the verbal counseling in writing
Maintain a copy of the written correspondence for two years (not in OPF)

Formal Actions

Formal disciplinary actions include corrective and adverse actions. A corrective action is a reprimand, reassignment, or suspension of less than 10 workdays. An adverse action is a reduction in grade, suspension of 10 or more workdays, or removal.

Proposing Official

Formal actions are initiated by a “proposing official.” A proposing official can be any management official superior to the employee. A proposing official can also be any management official designated by DCHR (if an agency needs a proposing official to be designated by DCHR, the agency should contact DCHR’s employee relations team).

Deciding Official

Formal actions are completed by a “deciding official,” who reviews the proposed action, a response from the employee and any recommendations from an administrative review officer, and then issues a final decision. The deciding official is the agency head or a management official designated by the agency head, who did not already serve as the proposing official.

Proposing and Deciding Officials in small agencies. In most cases, the proposing and deciding official cannot be the same person. However, in some agencies, with small staffs, the overlap may be unavoidable and is technically permitted. However, in those cases, it is advisable to include another entity in the final decision (such as a Deputy Mayor, the City Administrator or the Director of DCHR.)

Reprimands

A reprimand is a corrective action in the form of a written document issued by an employee’s supervisor that identifies a specific conduct fault by an employee. A reprimand should be considered when counseling has failed, or when verbal counseling is an inadequate disciplinary response to address the conduct.

The Written Reprimand

The proposing official should gather all the supporting evidence and draft the reprimand against the employee. The reprimand should include:

  1. A short narrative concerning the factual circumstances warranting the reprimand;
  2. A description of the conduct standards at issue and how these standards were not met;
  3. A brief narrative on how the employee should conduct himself or herself prospectively to alleviate the conduct fault;
  4. The potential consequences if the conduct requirements are not met;
  5. A notice informing the employee that he or she may submit a written response to the reprimand; and
  6. Notification to the employee of his or her right to grieve the final decision pursuant to Chapter 16 of the regulations.

As a best practice, the reprimand should be reviewed by agency counsel and approved by the agency head (or his or her designee). A sample reprimand appears at Attachment 2.

Service

The reprimand must be served on the employee. This is best achieved in person as follows:

  1. Schedule a meeting time during an uninterrupted period of time with the employee and his or her representative (if any).
  2. At the meeting, discuss the conduct standards expected, how they were not met, what is expected in the future, and the potential consequences for failing to meet expectations.
  3. Explain the need to issue a formal reprimand, what a reprimand is, and the employee’s right to submit a response, and, if he or she chooses, a right to file a grievance.
  4. Serve the reprimand on the employee.

Employee Response

The employee who is served the reprimand has a right to submit a written response within 10 days of service. The response must be delivered to the supervisor issuing the reprimand.

Based on the written response, the supervisor may sustain, modify, or rescind the reprimand. (Note: if the supervisor takes no action, the reprimand is automatically sustained.) In the event the supervisor modifies the reprimand, the revised reprimand must be served on the employee and he or she will have a new 10 days to submit a revised response.

Record Keeping

A reprimand becomes final upon the filing of the employee’s response or the expiration of the time for the employee to file a response. A copy of the final reprimand must be filed in the Official Personnel Folder (OPF) and may be considered in future disciplinary matters for up to 3 years.

REPRIMANDS AT A GLANCE
Fully investigate the facts of the situation
Draft the written reprimand
Schedule an uninterrupted time with the employee and his/her representative
Discuss what happened, the standards, expectations, and potential consequences
Explain the reprimand process to the employee and serve the reprimand
The employee has 10 days to file a written response; consider any response and, if appropriate, modify or rescind the reprimand
File a sustained reprimand and any response in the OPF for up to three 3 years

Suspensions (Less than 10 Days)

Corrective action also includes suspensions of less than 10 workdays. Suspensions are appropriate when counseling and reprimands have failed to correct breaches of conduct standards, and as otherwise indicated by application of the factors set forth at § 1606.2 of the regulations.

When a suspension of less than 10 days is to be imposed, the process includes:

  1. Notice of the proposed corrective action being served on the employee;
  2. Affording the employee an opportunity to respond to the proposed action;
  3. Final notice of the corrective action being imposed; and
  4. Notifying the employee of his or her opportunity to grieve the final action.

Notice of Proposed Action

The proposing official should gather all the supporting evidence and draft the proposed suspension against the employee. (See Attachment 3, Sample Notice of Proposed Suspension.) The notice should be a relatively short document (2-3 pages in length) that includes:

  1. A concise statement of the action being taken (a suspension of less than 10 work days), the general reason for the action, and the proposed effective date of the suspension;
  2. Enumerated independent cause(s) for which the suspensions are being proposed;
  3. For each independent cause, a specific proposed action (supported by a factors analysis worksheet, See Attachment 5.)
  4. An explanation of the employee’s rights, including the right to review supporting materials, submit a written response, be represented, and the name and contact information of the deciding official.
Notice of Proposed Action. As a best practice, a notice of proposed action should be reviewed by agency counsel.

Service

The proposed action must be served on the employee. This is best achieved in person as follows:

  1. Schedule a meeting time during an uninterrupted period of time with the employee and his or her representative (if any).
  2. At the meeting, discuss the conduct standards expected, how they were not met, what is expected in the future, and the potential consequences for failing to meet expectations.
  3. Explain the need to take corrective action, the suspension being proposed, and the employee’s rights.
  4. Serve the proposed action on the employee.

Employee Response

The employee who is served a proposed corrective action has a right to submit a written response within 5 days of service. The response must be delivered to the proposing official.

Final Decision

Within 45 days of the employee’s written response (or the expiration of the employee’s time to respond), the deciding official must serve a final decision on the proposed suspension. Service of the final decision must be done in person or by courier to the employee’s address of record (with delivery confirmation.)

The final decision must be based on the proposed action and the employee’s written response (if any.) (See Attachment 6, Sample Final Decision – Suspension [of less than 10 workdays].) The final decision must:

  1. Provide a concise summary of the action(s) being taken and the effective date of the action(s);
  2. Succinctly enumerate each independent cause for which the corrective action is being taken; specifications shall not be used in any final written decision;
  3. Provide for an independent suspension (or other corrective action) for each enumerated cause;
  4. Demonstrate reasoned consideration of the relevant factors set forth in 6B DCMR § 1606.2 for each independent action; and
  5. Articulate the employee’s grievance rights.
Final Decisions. Final decisions should be fairly similar to the proposed action and may rely upon the factor analysis worksheets used at the proposing phase.

Record Keeping

A suspension of less than 10 workdays becomes final upon service of the final decision on the employee. The service date of the final decision is the date the document is sent to the employee’s address of record. A copy of the final decision, including any attachments and the proposed suspension (if incorporated), must be filed in the OPF and may be considered in future disciplinary matters for up to three years.

SUSPENSIONS (LESS THAN 10 DAYS) AT A GLANCE
Fully investigate the facts of the situation
Draft the written proposed suspension notice
Schedule an uninterrupted time with the employee and his/her representative
Discuss what happened, the standards, expectations, and potential consequences
Explain the suspension process to the employee and serve the proposed action
The employee has 5 days to file a written response; consider any response and, if appropriate, modify or rescind the proposed suspension
File a final suspension along with any referenced documents in the OPF for up to 3 years

Adverse Actions

An adverse action is a suspension of ten (10) or more workdays, a reduction in grade, or removal. Whenever a corrective action fails to improve a conduct problem, a performance improvement plan has failed to improve performance, when an employee cannot carry out an essential duty of his or her employment, or if the employee has engaged in conduct that cannot be remediated by any other means, adverse action may be warranted.

When an adverse action is to be taken, the process includes:

  1. Notice of the proposed adverse action being served on the employee;
  2. For proposed removal actions, providing for an independent review by a hearing officer;
  3. Affording the employee an opportunity to respond to the proposed action;
  4. Final notice of the adverse action being imposed; and
  5. Notifying the employee of his or her opportunity to grieve or appeal the final action.

Notice of Proposed Action

The proposing official should gather all the supporting evidence and draft the proposed adverse action against the employee. (See Attachment 6, Sample Notice of Proposed [Adverse Action].) The notice should be a relatively short document (2-3 pages in length) that includes:

  1. A concise statement of the action being taken (a suspension of 10 work days or more, a reduction in grade, or removal), the general reason for the action and the proposed effective date of the action;
  2. Enumerated independent cause(s) for which the action(s) is being proposed;
  3. For each independent cause, a specific proposed action (supported by a factors analysis worksheet, See Attachment 5.); and
  4. An explanation of the employee’s rights, including the right to review supporting materials, submit a written response to a deciding official (or to a hearing officer in the case of a removal), be represented, and the name and contact information of the deciding official (or, in the case of a removal, the hearing officer).
Notice of Adverse Action. As a best practice, a notice of adverse action should be reviewed by agency counsel.

Service

The proposed adverse action must be served on the employee no less than 15 days prior to the effective date of the proposed action. This is best achieved in person as follows:

  1. Schedule a meeting time during an uninterrupted period of time with the employee and his or her representative (if any).
  2. At the meeting, discuss the conduct standards expected, how they were not met, and, except in the case of removal, what is expected in the future and the potential consequences for failing to meet expectations.
  3. Explain the need to take the adverse action, the action being proposed, and the employee’s rights.
  4. If the employee will be placed on administrative leave, explain the administrative leave process and collect any government property in his or her possession.
  5. Serve the proposed action on the employee.

Assignment of Hearing Officers

When an agency proposes removal, the District must provide for an impartial review by a hearing officer.

Selecting the Hearing Officer

The agency should assign the individual who will serve as the hearing officer. However, if needed, an agency may contact DCHR’s employee relations team for assistance in identifying a suitable officer. Hearing Officers must meet the following criteria:

  1. Be at grade CS-13 or above, or its equivalent;
  2. Be a licensed attorney, if available;
  3. Not be in the supervisory chain of command between the proposing and deciding official; and
  4. Have no direct knowledge of the matter under consideration.

Notifying the Hearing Officer

Once a Hearing Officer has been selected, a complete record along with a cover memo should be submitted to the individual for his or her consideration. The complete record includes the entirety of the notice of proposed adverse action, along with any referenced documents or evidence, and proof of service of the proposed notice on the employee.

Employee Response

The employee who is served a proposed adverse action has a right to submit a written response within 10 days of service. For proposed removals, the written response must be provided to the assigned Hearing Officer. Otherwise, the written response must be served on the deciding official.

Final Decision

Within 45 days of the employee’s written response (or the expiration of the employee’s time to respond), or, in the case of removal, receipt of the Hearing Officer’s report, the deciding official must issue a final decision on the proposed adverse action. Service of the final decision must be done in person or by courier to the employee’s address of record (with delivery confirmation.)

The final decision must be based on the proposed action and the employee’s written response (if any.) (See Attachment 7, Sample Final Decision – [Adverse Action].) The final decision must:

  1. Provide a concise summary of the action(s) being taken and the effective date of the action(s);
  2. Succinctly enumerate each independent cause for which the adverse action is being taken; specifications shall not be used in any final written decision;
  3. Provide for an independent suspension (or other adverse action) for each enumerated cause;
  4. Demonstrate reasoned consideration of the relevant factors set forth in § 1606.2 of the regulations for each independent action; and
  5. Articulate the employee’s appeal and grievance rights.
Final Decisions. Final decisions should be fairly similar to the proposed action and may rely upon the factor analysis worksheets used at the proposing phase.

Record Keeping

An adverse action becomes final upon service of the final decision on the employee. The service date of the final decision is the date the document is sent to the employee’s address of record. A copy of the final decision, including any attachments and the proposed action (if incorporated), must be filed in the OPF and may be considered in future disciplinary matters for up to three years.

ADVERSE ACTIONS AT A GLANCE
Fully investigate the facts of the situation
Identify a suitable Hearing Officer (for removal cases)
Draft the written proposed adverse action notice
Schedule an uninterrupted time with the employee and his/her representative
Discuss what happened, the standards, and, if appropriate, future expectations and potential consequences
Explain the adverse action to the employee and serve the proposed action
The employee has 10 days to file a written response
Consider any response and Hearing Officer report (if applicable) and, if appropriate, sustain, modify or rescind the proposed adverse action
Serve the final decision on the employee
File the final decision along with any referenced documents in the OPF for up to 3 years

Legal

Authorities

The information provided in this instruction is pursuant to D.C. Official Code § 1-616.51 (2014 Repl.) and Chapter 16 of the D.C. personnel regulations, Corrective and Adverse Actions; Enforced Leave; and Grievances.

Applicability

The information in this instruction is not applicable to employees serving in a probationary period or temporary appointment in the Career Service; employees organized under the Office of the Chief Financial Officer; Attorneys in the Legal or Senior Executive Attorney Services; employees in the Executive Service; employees of the Board of Trustees of the University of the District of Columbia, or employees in the Management Supervisory Service, except as provided in § 1600.3 of the regulations.


Additional Information

For additional information concerning this instruction, please contact DCHR’s Policy and Compliance Administration, by calling (202) 442-9700 or by sending an e-mail to dchr.policy@dc.gov.


Attachments

  1. I-16-18