Progressive DisciplineThis guide is intended to serve as a general reference for the Progressive...

Supervisors' Guide

To

ProgressiveDiscipline

CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION

JULY 2001

Andrea E. TuttleDirector

California Department of Forestry and Fire Protection

Mary D. NicholsSecretary of Resources

Gray DavisGovernor

State of California

For more information regarding the contents of this guide, please contact:

Human Resources Southern Region Northern RegionClassification & Pay Unit Administrative Officer Human Rights Officer

(916) 445-7874 (559) 243-4105 (530) 224-2458

i

SUPERVISORS' GUIDE TO PROGRESSIVE DISCIPLINE

Table of Contents

INTRODUCTION ......................................................................................................................... 1DISCIPLINE - A DEFINITION...................................................................................................... 1THE PREVENTATIVE PHASE (INFORMAL).............................................................................. 2

Reference Check..................................................................................................................... 2Duty Statement........................................................................................................................ 2Expected Conduct and Performance .................................................................................... 2Favorable Working Environment........................................................................................... 3Communication....................................................................................................................... 3A Good Example ..................................................................................................................... 3Fair, Impartial Control............................................................................................................. 4Training.................................................................................................................................... 4Performance Appraisals Summary........................................................................................ 4Employee Assistance Program ............................................................................................. 4

THE CORRECTIVE PHASE (INFORMAL).................................................................................. 6Accurate Statement of the Problem ...................................................................................... 6The Corrective Interview ........................................................................................................ 6Letter of Warning .................................................................................................................... 9Right to Representation for Informal Actions .................................................................... 10Documentation...................................................................................................................... 10Supervisory Files .................................................................................................................. 11Information Practices Act..................................................................................................... 11

THE ADVERSE PHASE (FORMAL) ......................................................................................... 13Types of Adverse Actions .................................................................................................... 13Responsibilities of Immediate Supervisor.......................................................................... 14Responsibilities of Region Chief or Deputy Director......................................................... 14Responsibilities of Legal Office........................................................................................... 14Formal Action to be Taken or Recommended.................................................................... 15Causes of Adverse Action.................................................................................................... 15Causes Defined ..................................................................................................................... 16Preparation of the Adverse Action ...................................................................................... 20Samples Statements of Acts or Omissions........................................................................ 23The "Skelly" Process: Answers to the Most Commonly Asked Questions .................... 26The State Personnel Board Hearing.................................................................................... 28The Board of Adjustment Hearing....................................................................................... 28Apprentice FFII and FAE Right to Appeal to Apprenticeship Committee ........................ 28Employee’s Right to Discovery............................................................................................ 29

SPECIAL ACTIONS .................................................................................................................. 29Administrative Leave............................................................................................................ 29Ordered Leaves of Absence................................................................................................. 29Amended Adverse Action .................................................................................................... 30Stipulated Settlement ........................................................................................................... 30Resignation/Retirement in Lieu of Adverse Action (Prior to the Effective Date)............. 30

ii

Withholds............................................................................................................................... 31WHEN AN EMPLOYEE IS DISMISSED.................................................................................... 31

Examination and Eligible Lists ............................................................................................ 31Salary and Accumulative Overtime ..................................................................................... 31Payment for Vacation Credit ................................................................................................ 31Timely Payment of Wages.................................................................................................... 31

OTHER EMPLOYER ACTIONS ................................................................................................ 32Denial of Special In-Grade Salary Adjustment ................................................................... 32Denial of Annual Merit Salary Adjustment (MSA)............................................................... 32Denial of Performance Salary Adjustment (PSA)............................................................... 33Rejection During Probationary Period ................................................................................ 33Timely Payment of Wages.................................................................................................... 34Resignation/Retirement in Lieu of Rejection During Probationary Period ...................... 34Drug and Alcohol Testing .................................................................................................... 34Failure to Meet "Conditions of Employment"..................................................................... 34Automatic Resignation (AWOL)........................................................................................... 35

SEPARATION OF UNSATISFACTORY NON-PERMANENT EMPLOYEES............................ 36Seasonal or Temporary Authorization (TAU) Employees.................................................. 36Timely Payment of Wages.................................................................................................... 36

EMPLOYEE'S RIGHT TO REPRESENTATION AT INVESTIGATORY INTERVIEWS............. 37Determining Whether a Meeting is Held With a Significant Purpose to Investigate Factsto Support Disciplinary Action ............................................................................................ 37Limitations on the Right to Representation........................................................................ 37Additional Information Regarding Representation ............................................................ 38

PUBLIC SAFETY OFFICERS' PROCEDURAL BILL OF RIGHTS........................................... 39The Public Safety Officers Procedural Bill of Rights Government Code Sections 3300 39

RETENTION SCHEDULE FOR MAINTAINING DOCUMENTED EMPLOYER ACTIONS FROMTHE EFFECTIVE DATE OF THE ACTION................................................................................ 45APPENDIX A............................................................................................................................. 46

Expectations.......................................................................................................................... 46APPENDIX B............................................................................................................................. 49

Supervisor's Checklist for Maintaining Effective Discipline ............................................. 49APPENDIX C............................................................................................................................. 50

Worksheet for Corrective Interview/Counseling ................................................................ 50APPENDIX D............................................................................................................................. 51

Letter Following Corrective Interview/Counseling............................................................. 51APPENDIX E ............................................................................................................................. 53

Letter of Warning (Informal)................................................................................................. 53APPENDIX F ............................................................................................................................. 54

Notice of Adverse Action (Formal) ...................................................................................... 54APPENDIX G............................................................................................................................. 64

Instructions: List of Materials/Documents Accompanying the Notice of Adverse Actionor the Notice of Rejection During Probationary Period..................................................... 64

APPENDIX H............................................................................................................................. 65Materials/Documents Accompanying the Notice of Adverse Action................................ 65

APPENDIX I............................................................................................................................... 66Notice of Upheld Adverse Action (Skelly Hearing) ............................................................ 66

iii

APPENDIX J.............................................................................................................................. 67Notice of Amended Adverse Action (Skelly Hearing) ........................................................ 67

APPENDIX K............................................................................................................................. 68Notice of Rejection During Probationary Period................................................................ 68

APPENDIX L ............................................................................................................................. 72Materials/Documents Accompanying the Notice of Rejection During ProbationaryPeriod..................................................................................................................................... 72

APPENDIX M............................................................................................................................. 73Notice of Upheld Rejection During Probation .................................................................... 73

APPENDIX N............................................................................................................................. 74Instructions: Declaration of Service; Mailing Procedures; Instructions for Server;Extension of Effective/Due Dates if Mailed......................................................................... 74

APPENDIX O............................................................................................................................. 77Declaration of Personal Service .......................................................................................... 77

APPENDIX P ............................................................................................................................. 78Declaration of Service by Mail ............................................................................................. 78

APPENDIX Q............................................................................................................................. 79Distribution: Notice of Adverse Action/Rejection of Probation/etc.;Materials/Documents Notice Based on List of Materials/Documents; Declaration ofService; Skelly Response, etc. ............................................................................................ 79

APPENDIX R............................................................................................................................. 81Letter for Denial of Special In-Grade Salary Adjustment or Merit Salary Adjustment .... 81

APPENDIX S ............................................................................................................................. 82Adverse Action Submittal Checklist ................................................................................... 82

APPENDIX T ............................................................................................................................. 83A Guide to Firefighter I Termination with Cause................................................................ 83

1

INTRODUCTION

This guide is intended to serve as a general reference for the Progressive Discipline Process. Itoffers supervisors a constructive approach for handling situations related to employee discipline.It, however, does not present any magic formula for solving the problems arising frominterpersonal relationships. No standards or procedures can ever substitute adequately forsound judgment. If you are experiencing personnel problems or if you are anticipatingcorrective actions, it is important to coordinate with your Region Office (for field staff) or with theDepartmental Human Resources Office (for Sacramento staff).

DISCIPLINE - A DEFINITION

As a State supervisor, you are responsiblefor efficiently accomplishing the work of yourorganizational unit through the efforts andabilities of other people. Effectivenessdepends largely on how well good workingrelationships are developed amongemployees and whether they maintain apositive attitude toward their assignment andthe departmental rules within which theywork.

Discipline is not synonymous withpunishment or penalties. It is the productof teaching, instructing, and training.

The conduct of well-disciplined employees isthe result of training that has caused them toaccept and work according to certainbehavioral patterns. They act voluntarily,almost without conscious thought or effort, inaccordance with established standards ofconduct. This is self- or group-discipline,which results from establishing andmaintaining proper working habits over along period of time. Proper working habitsthen become the regular behavior of everymember of the work group. High morale candevelop within such a group and a self-administered group discipline usuallyresults.

In addition to preventing situations fromdeveloping that demand corrective action,group attitudes can create, within

employees, the desire and determination toreach work objectives.

In state civil service, the concept ofprogressive discipline is used. This is asystem in which one or more in a series ofactions is taken by management to preventor to respond to an employee's failure tomeet work standards. It consists of threephases:

1. Preventive (Informal)2. Corrective (Informal)3. Adverse (Formal)

The preventive or corrective phases of theprogressive discipline process areconsidered informal phases. As such, eithera lead or supervisory employee mayadminister the responsibilities of these twophases of the process.

The adverse phase, however, is formal innature and may only be taken by adesignated supervisor or manager.

2

THE PREVENTATIVE PHASE (INFORMAL)

The following suggestions will help developand maintain proper discipline in staff. Theyare based on the belief that conditions mustbe created and maintained that makescorrective actions rarely necessary.

Reference Check

Before making a hiring commitment, contactprior supervisors or employers to determineif there have been performance problems,difficulty in getting along with otheremployees, attendance problems, etc.

You may also consider reviewing theapplicant's Official Personnel File (OPF).The review may be in person, if logisticallypossible, or may be accomplished bytelephone, if permitted by the applicant'sHuman Resources Office. The applicant'sHuman Resources Office will require writtenauthorization from the applicant to allowreview of their OPF and any additionalemployment information.

Duty Statement

The duty statement represents a contractbetween you and the employee. Theemployee's areas of responsibility areclearly delineated. It should be carefullyreviewed with the employee at the time ofhire, during the yearly performanceappraisal, and anytime there is a change induties. This also applies to temporaryassignments of "light duty" due to short-termmedical conditions.

Expected Conduct andPerformance

Set Clear Standards

Accepted standards of conduct should beplaced in writing. In cooperation withemployees, you can develop and write thestandards of conduct that are expected inyour section or unit and see that allemployees, particularly the new employees,receive a copy of these standards (seeAppendix A and B). Employees want andare entitled to know what is expected ofthem, and more readily accept and abide bystandards if they have been able toinfluence their establishment. Here, as inother supervisory contacts, follow the oldadmonition, "Do not overestimate theknowledge or underestimate the intelligenceof an employee."

When establishing or changing standards ofconduct or performance, consult with yourAdministrative Officer who will contact theLegal or Labor Relations Office to determinethe appropriateness of the proposed actionand to notify the employee union, ifnecessary.

Establishing standards of conduct andperformance and ensuring that employeesunderstand them will go a long way towardpreventing many instances of misconduct,thus reducing the need for corrective action.The nature of the standard set will varyaccording to the duties of the position. Forinstance, a position engaged in processingmay have a production standard such asforms processed per hour or words typedper minute. Standards for janitorial positionsmay consist of bathrooms cleaned per shift.

3

Other standards may be more qualitative.For instance, if writing reports is required,there may be a standard length of timerequired for completion. Also, arepresentative standard of quality may bedeveloped. It is important to remember thatall standards, whether in conduct orperformance, should be fair and reasonable.

Favorable Working Environment

A good working environment encouragesemployees to want to do their work. Thisinvolves not only physical conditions, butalso interpersonal relationships. Remember,a word of commendation and praise for a jobwell done can be as conducive to themaintenance of proper discipline ascorrection of an employee who has beenguilty of some act of misconduct.

Communication

Employees should feel free to offersuggestions for improvements in workingmethods and to bring problems to you whenand if they arise. What is important,however, is the willingness of employees toapproach you with suggestions. They willcome only when they know you will be bothopen-minded in evaluating theirrecommendations and fair in handling theirproblems.

Be ready at all times to:

• Listen to employees' concerns when theyarise. Through skillful, active listening,you may be able to assist youremployees in working through their ownproblems. An important point toremember is to encourage youremployees to solve problems that liewithin the scope of their own authority.

• Listen to job stewards representingemployee interests. Ongoing

communication with the steward builds arelationship with management that canbe helpful in resolving problems and mayalert management to future potentialproblems.

• Adjust a situation if it calls for anadjustment, and you are in a position totake the action.

• Stop infractions that have becomeaccepted by a group by making a publicannouncement of change followed byimpartial enforcement. This must befollowed by written confirmation to thegroup. If left alone, small infractions maybecome larger problems that may bemore difficult to change later on.

• Be familiar with collective bargainingagreements and formal grievanceprocedures.

• Those cases you cannot satisfactorilyresolve may be referred to a higherauthority. Do not deny employees theopportunity to discuss a problem with ahigher-level supervisor if they wish and ifthey follow the established lines ofauthority for such a request.

A Good Example

Good conduct starts at the top. Employeeswatch and evaluate you, the supervisor, whosets the pattern of acceptable conduct andperformance. Unless a good example is set,it may be difficult to obtain good workconduct. There is considerable truth in theold saying: "What you do speaks so loudly,I cannot hear what you say."

4

Fair, Impartial Control

Fair and impartial control creates respect.Do not allow infractions to go uncorrected.Otherwise, employees can come to regardthem as accepted practices. Nothing will domore to undermine the morale of youremployees and their confidence than thefeeling that you are being arbitrary andunfair. Beware of actions when strongfeelings make it difficult to handle thesituation objectively. At such times, consultwith your supervisor to assure that actionswill be fair and impartial.

Training

It is the mutual responsibility of thesupervisor and employee to assure thatnecessary and appropriate training isundertaken, whether it is on-the-job orthrough formal classes, such as those givenat the training academy. Planning fortraining is most appropriately accomplishedthrough the yearly Performance AppraisalSummary – Individual Development Plan(IDP) (Std 637).

Performance Appraisals Summary

Individual Development Plan (Std 637)

These forms are required on a yearly basisafter the end of probation. They may bedone more frequently if the employeeexperiences performance problemssubsequent to the time of the last report. Itis extremely important to be direct in statingperformance deficiencies. However,comments in conjunction with the annualperformance summary review should not bethe first time an employee is made aware ofproblem areas. After the performancereview, the employee completes the reverseside indicating his or her goals for the nextyear, including training and developmentthat addresses any deficiencies identified.

Next, review, discuss, and comment on thisplan. You need not approve all goals and/orrequested training but should acknowledgethese goals/training in writing.

Employee Assistance Program

The Employee Assistance Program (EAP) isa confidential short-term assessment,counseling, and referral program for allDepartment of Forestry and Fire Protectionemployees and eligible family members.This program should be offered toemployees throughout all phases of theprogressive discipline process.

You should encourage employees withpersonal or job performance problems thatmay be due to some external factor to useEAP. Factors causing employee problemsmay include alcohol and/or drug abuse;emotional, personal, and stress-relatedconcerns; marriage, family, and relationshipproblems; financial and credit difficulties;child/elder care or any other problem thatmay cause difficulties. Help ensure thatyour employees understand the EAP andhow to use its services.

Refer to bargaining unit contracts for specificinformation on EAP benefits.

There are three types of EAP referrals — aself-referral, informal supervisor referral(also known as a supervisorrecommendation), and a formal supervisorreferral.

The differences between the three kinds ofreferrals are outlined below:

Self-Referral

When employees recognize they have aproblem and call EAP on their own to set upan appointment, this is a self-referral. When

5

this happens, you are not aware of the calland are not involved in the EAP process.

Informal Supervisor Referral (SupervisorRecommendation)

When you become aware of an employee’sproblem, but their performance is notnecessarily affected, you should suggestthat your employee contact the EAP.Ensure the suggestion is made in a privateand supportive manner. You can also referto the EAP when an employee asks you forhelp in solving a personal problem or advicein dealing with the employee and theproblem.

Formal Supervisor Referral

When you recognize poor performance orbehavior changes that may be caused bypersonal problems, you can make a formalreferral to the EAP. In this situation, youprepare a letter to the workplace supporttechnician that describes the problem. Youthen need to encourage the employee to setup an appointment or you may schedule anappointment for the employee if theemployee prefers.

Employees who use the EAP are assuredthat their problem(s) and the source,treatment, and resolution will always beafforded the maximum confidentialitypermitted by law.

The EAP is strictly a voluntary program andemployees should be strongly encouraged,but not mandated, to use the program.Before recommending the EAP to anemployee, you should review theappropriate collective bargaining agreementfor information on benefit levels, leave creditusage, etc., in relation to the EAP.Counselors are available, with rareexception, within a 25-mile radius of thehome or work sites.

Critical incident debriefing for emergency,post-trauma counseling is also provided ona voluntary, per interest basis, for anemployee or employees who have beeninvolved in a traumatic situation or criticalincident on the job. This can be either groupor individual counseling.

For further information about EAP, contactthe Region or Headquarters EAPcoordinator.

EAP Consultation for Supervisors

The EAP is one of the most valuableresources you have available to you. Youcan call the EAP for a confidentialconsultation anytime you need assistancewith a work performance issue. A secondopinion can be very helpful when you arefacing a performance problem. The EAPoffers a professional and objectiveviewpoint. Most importantly, the EAP canhelp you to maintain a positive andproductive work environment.

Remember, asking for professionalassistance is a good management decision.Calling the EAP does not commit you toanything. The decision to confront anemployee, make a referral or takedisciplinary action is yours.

Also, available to assist you with employeeproblems or issues is the State PersonnelBoard's voluntary mediation program.Contact your Administrative Officer foradditional information.

6

THE CORRECTIVE PHASE (INFORMAL)

By emphasizing preventive rather thancorrective action, you can make greatstrides toward securing the cooperation ofemployees in developing and maintainingdiscipline. This task will receive supportsince most employees try to be competentand effective in their work and in theirrelations with others. In an organization ofany size, however, it is inevitable that a fewemployees unwittingly, thoughtlessly, orwillfully violate the established standards ofconduct and job performance. Suchinstances, if uncorrected, can undermine themorale of other employees, disrupt theirwork effort, and reflect unfavorably uponyou, as the supervisor, and the Department.These situations may require promptcorrective action. The following will assistyou in giving full consideration to any casewhen considering corrective action.

Accurate Statement of the Problem

Perhaps the most important step in thedisciplinary process is to be absolutelycertain that the problem calls for correctiveaction. The following questions should beanswered in order to determine if correctiveaction should be taken:

1. How long has the employee workedfor the Department? For the State?

2. Have the specific standards ofconduct/behavior and performancebeen explained to the employee?

3. Are the specific standards of

conduct/behavior and performance inwriting and have they been given tothe employee?

4. What is the employee's past history

of discipline?

5. What is the exact nature of thecurrent problem?

6. When and how does the problemoccur? Are the occurrencesdocumented?

7. What is the history of attempts tocorrect this problem? Are theydocumented?

8. What are the circumstancessurrounding the present problem?

9. What individual or individuals areinvolved?

10. Are there witnesses? If so, were theyinterviewed, and the informationrecorded?

11. What is the employee's side of thestory? Has he or she beeninterviewed? Have conflictingstatements been reconciled?

In answering these questions, keep in mindthat it is important to get the facts,investigate, and report the incident(s) with arecommended course of action to yoursupervisor. At this time, a correctiveinterview may be necessary.

The Corrective Interview

Although preventive measures have beenutilized and the employee has beeninformally counseled in an attempt to correctan undesirable situation the problem maystill exist. Intensified corrective action maybe necessary to put the employee clearly onnotice that there is still a problem. This canbe accomplished through a correctiveinterview.

7

The corrective interview is a very importantpoint in the disciplinary process. It markseither: (1) the beginning of acceptablebehavior and/or performance by theemployee, or (2) continuing documentationwhich will support formal adverse action (ifnecessary).

Technically, it is not an adverse action nor isit an annual performance appraisal. It is ameeting between you and your employee todevelop a plan to change the employee'sbehavior or performance by a certain time.This change is to avoid further corrective orformal adverse actions. (Appendix Cprovides a suggested format to follow inconducting a corrective interview.) Anemployee does not have a right torepresentation in the corrective interview asno adverse action is being contemplated atthat time.

A corrective interview has severalobjectives:

1. Complete understanding by theemployee of what behavior orperformance is unacceptable.

2. A definite plan for employeeimprovement.

3. A definite time by which the requiredimprovement shall be accomplished.

4. Creation of a written record tomemorialize the corrective discussionand plan.

It is easier to accomplish these objectives ifthe following dos and don'ts are observed.

DO

• Arrange privacy for the interview.

• Allow ample undisturbed time.

• Plan in advance what is to be covered,and note it for reference during theinterview.

• Tailor the approach to the individual--people react differently.

• Be sure the corrective interview isnecessary and have the facts.

• Make the next level of supervision awareof the situation and the intended courseof action.

• Explain to the employee that the purposeof the corrective interview is to discussspecific behavior and/or performanceproblems, and that it is not "adverseaction".

Explain to the employee that thediscussion will be documented with amemo to the employee and a copy in thesupervisor’s working file (the working fileis described in Supervisor’s Files onpage 11).

• Keep it job-oriented. Focus on correctingobservable behavior, not personalitytraits.

• State the problem clearly, as youunderstand it. Be specific.

• Stick to the subject. This is not a careerexploratory discussion.

• Use examples and relate them tostandards of performance or behavior.

• Be helpful—encourage employee to planfor change.

• Respect the employee's dignity and rightto a viewpoint.

8

• Stay calm.

• Be aboveboard—do not engage inharassment or entrapment.

• Explain EAP and encourage theemployee to use these services.

• Set the timeframe for the change to take

place. • Take notes freely during the course of

the interview. They will assist insummarizing and preparing a writtensummary of the discussion.

• Summarize verbally. Be sure that the

purposes of the discussion have beenmet:

- Communicate standards - Point out deviations or errors - Indicate remedy - Reiterate plan of follow-up • Set a specific time for the next progress

review. • Prepare a written summary of the

interview in memorandum formaddressed to the employee, have theemployee sign and date the summary,and furnish the employee with a copy(see Appendix D).

• Prepare a follow-up memo to the

employee at the time he or she issupposed to have accomplished theplanned change. A positive letter maymitigate the action but should be retainedfor one year of acceptable performanceor behavior. A negative letter can beused as part of your evidence, ifnecessary, in taking further action. Thefollow-up memo should also be signedand dated by the employee.

DON'T • Procrastinate. Go ahead with the

interview once you determine it isneeded.

• Exaggerate. Avoid insupportable

generalizations. • Apologize for the interview, or volunteer

excuses for the employee to use; avoid"reaching" to give praise or to findhumor.

• Be trapped into a prolonged discussion

of the merits of one example or of a non-related issue.

• Be angry. • Accuse or recriminate. Stick to a

discussion of the behavior orperformance that must change.

• Jump to conclusions. • Be afraid of listening to mitigating

circumstances.

• Win the argument and lose theemployee. Try to solve the problem.

• Require abject submission or agreement.It's the change in behavior orperformance that counts.

• Bluff or threaten what you don't mean orcan't carry out.

• Block the employee from taking thematter up the line of supervision, as thisis the employee's right.

9

• Allow the employee to control or redirectdiscussion away from his or her ownwork performance or behavior.

The corrective interview is not an adverseaction; therefore, nothing is filed with theState Personnel Board (SPB). However, besure to retain a copy of the written summaryand the follow-up memo in the working file.

As previously mentioned, both the writtensummary and the follow-up memo should besigned and dated by the employee. If theemployee refuses to sign, you shouldindicate this on the memo itself, along withyour signature and date. In such cases it isappropriate to have another supervisorverify the employee’s refusal to sign thememo. See Appendix D.

Letter of Warning

When the employee fails to improve his orher behavior or performance by the deadlineestablished during the corrective interview,you may serve the employee with a Letter ofWarning. The Letter of Warning notifies theemployee of the continued deficiencies thatneed to be corrected and the consequencesthat will result if correction is notaccomplished by the due date.

A Letter of Warning is an informal action andmay be placed in your working file and/orthe employee’s Official Personnel File (OPF)for up to one year. It should be used as aninstructive, corrective tool rather than anindefinite punitive device. It is intended tocorrect an unsatisfactory situation.However, if the behavior or performanceproblem is not corrected, it can serve asdocumentation for formal adverse action.The employee may submit a rebuttal that willbe attached to the Letter of Warning.

Once the letter has served its intendedpurpose, it should be destroyed. The

determination of when such a letter hasserved its purpose depends on commonsense and the circumstances. If theemployee has not improved his or her workperformance, the Letter of Warning shouldbe incorporated into the next AnnualPerformance Appraisal. Sample Letter ofWarnings is provided in Appendix E. ALetter of Warning may also be used tosupport taking Adverse Action.

A Letter of Warning should:

• Advise the employee of the deficiency(s)and identify previous corrective actionstaken.

• Tell the employee what corrective actionis necessary and directions to achieve it.

• Inform the employee when the improvedperformance should be achieved. Timeallowed for improvement should beappropriate for the correction expected; itshould not be an indeterminate threat toforce compliance and good behavior.

• Specify a date to review the employee'sprogress. Be sure to follow up.

• Inform the employee that more severeaction (adverse action) will berecommended if all attempts to correctbehavior at the corrective phase fail.

You should be aware that acts or omissionsthat give rise to informal corrective actionmay not be used as the basis for futureadverse action under circumstances wherethe informal corrective action constitutes"prior discipline"."Prior discipline" takes place when theDepartment communicates to the employeethat the action being taken is intended toresolve the act or omission.

10

However, if the work performance orbehavior is not corrected and the employeeis informed at the time of the Letter ofWarning, the Letter of Warning may be usedin formal adverse action. Suggestedlanguage for a Letter of Warning may be:“Your conduct of this occasion wasunacceptable and will not be tolerated bythis department. If you engage in similarconduct in the future, the Department maytake adverse action against you based onthe incidents cited in this memorandum, aswell as any future incidents”.

Right to Representation forInformal Actions

An employee does not have a right torepresentation during the corrective actionphase or routine business communications.However, the Department allows arepresentative to be present if requested bythe employee. Routine businesscommunications include:

1. Routine business discussions. 2. Performance evaluations. 3. Training discussions. 4. Job-related counseling. 5. Career development discussions. 6. Corrective action interview.

7. Preventive or corrective actions(includes Letter of Warning).

Such communications are consideredinformal actions and are part of thepreventive and corrective phases of theprogressive discipline process.

If, however, during any of thesecommunications, you receive information

that may lead to formal adverse action orrejection during probation, the employee hasa right to representation. You are requiredto inform the employee of his or her right torepresentation and postpone yourmeeting/discussion if representation isrequested.

Employees are entitled to representationduring the following activities:

1. Meetings with a Supervisor, and

2. where the employee is expected orrequired to respond to questions, and

3. the employee has reasonable beliefthat he or she may be disciplined forthe answers given or refusal toanswer.

Documentation

Complete and factual records permitappropriate action to be taken.

Documentation of a case may include, but isnot limited to, any of the following:

1. Notes dated and signed that set forth thefacts of the incident(s).

2. Witnesses and their statements, if any.

3. Substantiation of the course ofprior/continuous corrective action thatyou followed, including what was told tothe employee.

4. Informal letters or memoranda showingcorrective action, e.g. correctiveinterview memo. Documents should besigned by the employee acknowledgingreceipt. If the employee refused to sign,the you should indicate this on the memoalong with your signature and date.

11

5. Documents pertaining to the standards ofconduct or performance that have beenbreached, such as schedules, workrecords, mileage logs, accident reports,attendance reports and absencerequests.

6. A summary of pertinent dates anddescriptions of actions to delineatetimeline relationships.

7. Duty statements, previous annualappraisals, rejections from probation,MSA/PSA denials, and training records(if pertinent).

8. Written standards of conduct orperformance relative to the deficiency,such as Unit, Region or Headquarters'policies, the 1000 Personnel ProceduresHandbook sections, MOU provisions.

9. Comparisons of the employee's work topublished or known performancestandards. For example, where poorproduction is the problem, productionrecords should show the results of otheremployees performing similar tasksduring the same period.

Supervisory Files

Supervisory or working files are those filesyou, the supervisor, maintain on each ofyour employees. Your working file is not theemployee’s official personnel file (OPF).

These supervisory files will containdocuments such as your copy ofevaluations/appraisals, written standards ofperformance and conduct given to youremployees, written instructions for specialprojects or assignments, current dutystatements, leave balances, etc.

This file should not contain "secretdocuments” that are unknown to theemployee. The key to determining whetheror not a document may be retained is theword "secret." If the information has beenshared with the employee, it is not secretand may be kept in your working files. Youmay also keep calendars and log books ifyou are documenting an employee'sbehavior or performance problems.

However, you should first inform theemployee that you would be doing so. Forinstance, after informing the employee thatattendance is a problem and that arrivinglate at work, as well as any absences, willbe recorded and kept in your working file.Any questions you may have regarding theappropriateness of file maintenance andwhat may or may not be placed in yourworking files should be directed through theRegion Administrative Officer or theHeadquarters Human Resources Office orLegal Office.

Information Practices Act

It is very important to note and to rememberthat supervisory or working files are subjectto the provisions of the Information PracticesAct, §§ 1798.3 et seq. of the Civil Code.

The Information Practices Act providesthat each employee has the right to inquireand be notified as to whether thedepartment maintains a record about himselfor herself. It is essential to recognize that"[A]ny notice sent to an individual which inany way indicates that the agency maintainsany record concerning that individual shallinclude the title and business address of theagency official responsible for maintainingthe records, the procedures to be followed togain access to the records, and theprocedures to be followed for an individualto contest the contents of these recordsunless the individual has received this notice

12

from the agency during the past year." [See§ 1798.32 of the Civil Code].

Further, the department must permit theemployee upon request to inspect all thepersonal information in a supervisory orworking file within 30 days of the receipt ofsuch a request. The department must alsopermit the employee to have an exact copymade of all or any portion thereof within 15days of the inspection. [See § 1798.34 ofthe Civil Code].

The department must also allow anemployee to request in writing anamendment of their OPF or asupervisory/working file. Within 30 days ofthe date of receipt of such request, thedepartment must make each correction inaccordance with the individual's request, or,alternatively, inform the individual of itsrefusal to amend the record in accordancewith such employee's request. Such arefusal must include the reason for therefusal, the procedures established by theagency for the individual to request a reviewby the head of the agency or an officialspecifically designated by the head of theagency of the refusal to amend, and thename, title, and business address of thereviewing official. [See § 1798.35 of theCivil Code].

If the employee disagrees with the refusal ofthe department to amend an OPF orsupervisory/working file, he or she isstatutorily authorized to request a review ofsuch refusal by the Director or an officialspecifically designated by the Director. TheDirector, or her delegate, must, not laterthan 30 days from the date on which theemployee requests such review, completesuch review and make a final determinationunless, for good cause shown, the Directoror her delegate extends such review periodby 30 days. If, after such review, theDirector/delegate refuses to amend the

record in accordance with the request, thedepartment must permit the individual to filewith the agency a statement of reasonablelength setting forth the reasons for theindividual's disagreement. [See § 1798.36of the Civil Code].

Moreover, the department, with respect toany disclosure containing information aboutwhich the individual has filed a statement ofdisagreement, shall clearly note any portionof the OPF or supervisory/working file that isdisputed. The department must also makeavailable copies of such employee'sstatement, and copies of a concisestatement of the reasons of the departmentfor not making the amendment, to anyperson or agency to whom the disputedrecord has been or is disclosed. [See §1798.37 of the Civil Code].

It follows that a supervisory or working fileshould be concise and impeccably accurate.Inasmuch as there are exceptions to thedisclosure and inspection mandates of theInformation Practice Act [§1798.40 of theCivil Code], it is highly advisable to seekcounsel from the CDF Legal Services Officewhenever one is confronted with a requestby an employee to review a supervisory orworking file.

13

THE ADVERSE PHASE (FORMAL)

Types of Adverse Actions

There are five types of adverse actions thatmay be taken on an employee. Theseactions are progressive in nature, whichcontinues to allow the employee theopportunity to correct or eliminate thedocumented problem in behavior orperformance.

Collective bargaining contracts oftenaddress this issue and should be consulted,as well as, the Personnel ProceduresHandbook section 1000.

Official Letter of Reprimand — is used whenaction stronger than a corrective interview orLetter of Warning is necessary, but withoutfinancial penalty. It is often effective inmaking an employee realize that priorwarnings, verbal and written, are seriousand can be followed by more stringentactions. It is an appropriate action to takeagainst an employee whose performance isnot up to standard. By statute, OfficialLetters of Reprimand must be removed fromthe employee's official personnel file (OPF)after three years.

Suspension Without Pay — is used to barthe employee from working for a specifiedperiod of time and his or her salary issuspended accordingly. This action may betaken against employees with permanent,probationary, or limited-term status. Thelength of the suspension depends on theseverity of the offense, previous attempts tocorrect the problem (i.e., training andcounseling sessions), and prior progressivediscipline.

Suspensions for Fair Labor Standards Act(FLSA) exempt employees must be for aminimum of five (5) working days andthereafter in increments of five (5) workingdays (i.e. total suspension of 10 workingdays, 15, 20, etc.)

Reduction in Salary (within the salary rangefor the class) — is usually used in place of asuspension against an employee whosecontinued service on the job is of value butthe offense is such that serious adverseaction is warranted. The reduction is inincrements of five percent. It shouldgenerally be for a specific period but can bewithout a time limit so that the employee willbe required to earn his or her Merit SalaryAdjustments annually. This is considered apermanent reduction in salary. Normally,the length of salary reduction is set inrelation to the loss of pay that would haveresulted from an appropriate suspension. Afive-percent reduction in salary for onemonth is approximately equal to a one-daysuspension.

Salary reductions shall not be imposedon FLSA exempt employees.

Demotion — is usually used against anemployee whose continued service is ofvalue. It should be used only when anemployee is qualified for, and can beexpected to perform satisfactorily at thelower classification. Demotion can be to themaximum salary of the next lower class;however, it is possible to demote to a lowerlevel class at a salary less than themaximum. The action must contain theexact salary for each class. For a timespecific demotion, the employee will havemandatory reinstatement rights to return to

14

the higher class and salary on a specifieddate. For a demotion without specific returndate to the higher classification theemployee has permissive reinstatementrights.

Dismissal — is used for exceptionallyserious infractions, continued/repeatedfailures in work performance, and/orcontinuing offenses that can no longer betolerated. Care should be taken to determinethat the employee had adequate instructionand supervision, and was given everyopportunity to correct work performance orbehavior problems. Except in very unusualcircumstances, other forms of adverseaction must precede dismissals. Inconsidering dismissals, the Region orHeadquarters should consult with the LegalOffice or Labor Relations Office to ensureadequate grounds exist to sustain theaction.

Responsibilities of ImmediateSupervisor

When one or more incidents occur whichyou believe might require formal adverseaction against an employee, you shouldpromptly notify the Unit Chief, Region Chief,or Deputy Director, via your supervisor. Awritten report, including a recommendationof what action should be taken, is submittedfor review to your supervisor. See AppendixR.

You and/or your supervisor should thendiscuss the proposed action with yoursecond level supervisor. Upon agreement,discuss with the Region Chief or his or herrepresentative in the field, or the DeputyDirector in Headquarters. The Region/AreaChief and/or Deputy Director may be awareof the case, even though one of them mayeventually serve as the Skelly Officer.

Responsibilities of Region Chief orDeputy Director

The Region Chiefs and Deputy Directors aredelegated authority to take actions up to, butnot including, dismissals or charges ofunlawful discrimination includingharassment.

The Region Chief or Deputy Director (or hisor her representative) should review theemployee's record to ensure the employeehas been informed, both verbally and inwriting, how the employee's performancehas not met standards.

After a discussion with the Region staff, theUnit or Region Administrative Officerprepares the Notice of Adverse Action. Thecauses listed in the Notice of Adverse Actionmust be precisely those contained inGovernment Code Sections 19572 or19572.1. The notice must clearly statespecific allegations and incidents. Generalconclusions are not sufficient to sustain anadverse action. Appendix F illustrates theformat to be followed in preparation of theaction. The original Notice of Adverse Actionis either served in person or sent byregistered/certified mail, to the employee'slast address of record with the department.See Appendices M, N, and O. Also seeAppendix P on distribution of document.

Responsibilities of Legal Office

The Legal Office reviews the entire adverseaction for conformity with the governmentcode and State Personnel Board laws andrules governing adverse action.Additionally, it is reviewed for statewideuniformity.

Once the adverse action has been served,the Legal Office sends a copy of the actionto the State Personnel Board along with theoriginal Declaration of Service. The action

15

must be filed with the State Personnel Boardno later than 15 calendar days after theeffective date of the adverse action for theaction to be valid. If corrections need to bemade after this filing, an amended Notice ofAdverse Action must be served with a newDeclaration of Service.

The Region Office or Human ResourcesOffice is responsible for coordinating theadverse actions with the Legal Office, LaborRelations Office or other counsel, whennecessary. It is important to remember thatthe Region Office, Human Resources Office,or Legal Office should be initially involvedwhen any type of corrective action is beingconsidered.

Formal Action to be Taken orRecommended

When determining the type of formal actionneeded, consider:

1. The circumstances surrounding themisconduct

2. The seriousness of the employee'sconduct in relation to the employee'sparticular job and employment recordwith the State

3. The extent to which the employee’smisconduct resulted, or if repeated, islikely to result in harm to the publicservice.

4. The probable cause of the employee'sbehavior

5. What management has done to helpprevent this type of behavior

6. What corrective action would serve toeliminate the cause and prevent arecurrence (the California SupremeCourt clearly finds that the State may,

punish errant employees as long as thatpunishment is “just and proper.”

7. The probable impact of the action on theemployee

8. Types and severity of disciplineadministered in similar cases

9. The nature and cause of prior actionsagainst this individual

Causes of Adverse Action

The causes of adverse action are based onGovernment Code Section 19572 (alpha) orfor BU 8 19572.1 (numeric). Under Section19572 and 19572.1, each of the followingconstitutes cause for discipline of anemployee.

(a) (1) Fraud in securing appointment

(b) (2) Incompetency

(c) (3) Inefficiency

(d) (4) Inexcusable neglect of duty

(e) (5) Insubordination

(f) (6) Dishonesty

(g) (7) Drunkenness on duty

(h) (8) Intemperance

(i) (9) Addiction to the use of controlledsubstances

(j)(10) Inexcusable absence without leave

(k (11) Conviction of a felony or convictionof a misdemeanor involving moralturpitude. A plea or verdict of guilty,or a conviction following a plea ofnolo contendere, to a charge of

16

felony, or any offense involvingmoral turpitude is deemed to be aconviction within the meaning of thissection.

(l) (12)Immorality

(m)(13) Discourteous treatment of the publicor other employees

(n) (14) Improper political activity

(o) (15) Willful disobedience

(p) (16) Misuse of state property

(q) (17) Violation of this part or board rule

(r) (18) Violation of the prohibitions set forthin accordance with Section 19990

(s) (19) Refusal to take and subscribe anyoath or affirmation which is requiredby law in connection with theemployment

(t) (20) Other failure of good behavior eitherduring or outside of duty hourswhich is of such a nature that itcauses discredit to the appointingauthority or the person'semployment

(u) (21)Any negligence, recklessness, orintentional act which results in thedeath of a patient of a state hospitalserving the mentally disabled or thedevelopmentally disabled

(v) (22)The use during duty hours, fortraining or target practice, of anymaterial which is not authorizedtherefor by the appointing power

(w) (23)Unlawful discrimination, includingharassment, on the basis of race,religious creed, color, nationalorigin, ancestry, physical handicap,

marital status, sex, or age, againstthe public or other employees whileacting in the capacity of a stateemployee.

(x) (24)Unlawful retaliation against any otherstate officer or employee or memberof the public who in good faithreports, discloses, divulges, orotherwise brings to the attention of,the Attorney General, or any otherappropriate authority, any facts orinformation relative to actual orsuspected violation of any law of thisstate or the United States occurringon the job or directly related thereto.

Causes Defined

(a)(1) Fraud in securing appointment

This is generally used only when anemployee falsified his or hereducational and/or work experienceto so great a degree that he or shewould not have qualified for theposition/job, or he or she omitted anextensive criminal record with recentserious convictions. It can also referto falsification of a health or medicalquestionnaire. This cause is alsoused to cover cheating inexaminations or otherwise usingillegal help to obtain employment.

(b)(2) Incompetency

This is used only when the employeecannot, in the opinion of his or hersupervisors, satisfactorily perform thework required of the position.

(c)(3) Inefficiency

This cause includes the case of theemployee who appears to have thenecessary ability, but for some

17

reason, does not produce in asatisfactory manner or does not seethat the work is done; for example, apoor supervisor. It also includesfailure to perform adequately as aresult of other causes listed below.

(d)(4) Inexcusable neglect of duty

This charge is used when "anintentional or grossly negligent failureto use due diligence in theperformance of a known official duty"occurs (e.g. employee fails to followwell known and accepted policies andprocedures.)

If negligence has resulted in damageto state property, Government Code19572(p) and (t) should be cited inaddition to this cause or GovernmentCode 19572.1 (16) and (20) for BU8employee.

(e)(5) Insubordination

This charge implies a prevailingregularity of dissident, unreserved, orobstinate behavior. California Court ofAppeal has held that a tendency tofoment strife is a proper ground todischarge an employee. Use whenan employee is outspoken or argueswith those in charge, or a flauntingdisregard of authority of thesupervisor is exhibited, i.e., "You do itthis way" ["I won't"].

(f)(6) Dishonesty

This charge is used for any falsereport such as an attendance report,sick leave request, expense account,or other official document, and formisappropriation of state property.This charge may also be used when

employee makes untrue statementsduring fact-finding interviews.

The SPB has held that dishonesty ina peace office has been repeatedlycharacterized as a grave offensewhich can justify dismissal on thegrounds that it "is not an isolated ortransient behavioral act; it is more ofa continuing trait of character."Indeed, in speaking of high moralstandards to be expected from apeace officer, the SPB has sustaineda dismissal from service for two actsof dishonesty in a peace officer onthe grounds that they demonstrated a"propensity to be dishonest."

(g)(7) Drunkenness on duty

This means intoxication on duty butnot drinking on duty. A person whotakes drinks during working hours butdoes not get drunk is not chargedunder this particular cause. In thislatter case, it may be proper to use(c), (d), (h), or (t); BU8 employee -(3), (4), (8) or (20).

(h)(8) Intemperance

This applies to angry outbursts,violent actions, or other acts showinglack of moderation. This chargewould be used in cases of continuedor excessive drinking or use ofnarcotics.

SPB held that where misconductdemonstrates a lack of restraint tosuch an extent that the conduct maybe characterized as excessive orgoing to extremes, such conductconstitutes “intemperance.”

18

(i)(9) Addiction to the use of controlledsubstances

The word "addiction" can beconsidered to imply the continued useof drugs or the compulsion to usethem.

(j)(10) Inexcusable absence without leave

This applies to an employee who wasabsent without leave for any amountof time.

The parties to an employmentrelationship rely upon the precept thatthe employer is obligated to payagreed upon wages and benefits andthe employee is obligated to performhis or her work in a satisfactorymanner. Dependable attendance isone element of satisfactory work.The employee who does not report towork in a timely manner is notperforming satisfactory work in thather or she is failing to meet on of theprimary responsibilities as anemployee.

Employers have the right to expecttheir employees to report for work onthe day and at the time agreed, andmay discipline the employee for his orher failure to meet that expectations.

(k)(11)Conviction of a felony or conviction ofa misdemeanor involving moralturpitude. A plea or verdict of guilty,or a conviction following a plea ofnolo contendere, to a charge of afelony or any offense involving moralturpitude is deemed to be aconviction within the meaning of thissection

The phrase "involving moralturpitude" can be explained as

involving an element of baseness ordishonesty, so that other personswould generally hold the person indisrespect. For instance, stealing(whether the charge is petty theft orgrand theft), embezzlement, varioussexual crimes, use and possession ofnarcotics and drugs, etc., involvemoral turpitude.

(l)(12) Immorality

It has never been clearly establishedwhether this particular cause must beconnected with the work or not.Unless the immorality comes withinone of the other causes, it is betternot to base the action solely on thiscause.

(m)(13)Discourteous treatment of the publicor other employees

This cause is used to support actionagainst employee who shows angeror intimidation or swear at or takeviolent action against his or hersupervisors or fellow employees, orwho fail to give the public courteousand proper service.

The SPB precedential decisions statethat even if the employee had nohistory of past violence and no actualintention of harming those impactedby the threats, threatening statementsof this type may be so inherentlydisruptive to the workplace that theyjustify dismissal from employment.

It is frequently used with cause (t) or(20) for BU8 employee.

(n)(14)Improper political activity

This cause is based on Section19990 of the Government Code.

19

Further restrictions are found in theIncompatible Activities Statement. Aviolation under this cause would alsobe under cause (r) or (18) for BU8employee.

(o)(15)Willful disobedience

This cause includes any intentionalviolation of instructions, orders, rules,or regulations. Be prepared to provethe willfulness of the employee'sbehavior.

"Willful disobedience" is a specificviolation of a command or aprohibition, while "insubordination"implies a prevailing regularity ofdissident, unreserved, or obstinatebehavior.

The California Court of Appeal hasheld that a tendency to cause orinstigate strife is a proper ground todischarge an employee.

(p)(16)Misuse of state property

This cause would apply to any casewhere an employee took stateequipment without authorization,damaged or lost state equipmentbecause of lack of care, used stateequipment for personal business, ordemonstrated lack of good judgementin use of state equipment.

(q)(17)Violation of this part or board rule

Deleted as per SPB precedentialdecision.

(r)(18) Violation of the prohibitions set forthin accordance with Section 19990

All incompatible activities fall withinthis cause.

(s)(19)Refusal to take and subscribe anyoath or affirmation which is requiredby law in connection with theemployment

This cause is self-explanatory.

(t)(20) Other failure of good behavior eitherduring or outside of duty hours whichis of such a nature that it causesdiscredit to the appointing authority orthe person's employment

This is a "catch-all" cause andoccasionally is the only cause thatcan be used. It is generally usedwhere the employee's action hasbecome public knowledge or wherehis or her action would damage thedepartment or state employees ingeneral.

The SPB has long held that there is atwo-prong test to determine whetheran employee's conduct constitutes aviolation of subdivision (t). First, theconduct must bear some rationalrelationship to the employee'semployment. Second, the conductmust be of such character that it caneasily result in the impairment ordisruption of the public service.

(u)(21)Any negligence, recklessness, orintentional act which results in thedeath of a patient of a state hospitalor the developmentally disabled


(v)(22)The use during duty hours, fortraining or target practice, of anymaterial which is not authorizedtherefor by the appointing power

20

This pertains to the misuse orinappropriate use of weapons, ortraining material, or targets.

(w)(23)Unlawful discrimination, includingharassment, on the basis of race,religious creed, color, national origin,ancestry, physical handicap, maritalstatus, sex or age, against the publicor other employees while acting in thecapacity of a state employee

This cause is self-explanatory

(x)(24)Unlawful retaliation against any otherstate officer or employee or memberof the public who in good faithreports, discloses, divulges, orotherwise brings to the attention ofthe Attorney General, or any otherappropriate authority, any facts orinformation relative to actual orsuspected violation of any law of thisstate or the United States occurringon the job or directly related thereto.


Preparation of the Adverse Action

Appendix F provides an example of thegeneral format to be followed in the actualpreparation of the formal action. Followingare issues to be addressed in itspreparation.

Section I: Nature of Adverse Action

This section indicates which of the fivepossible actions are being taken, and whenthe action will be effective.

State Personnel Board Rule 52.3 requiresthat the Department give an employee withpermanent civil service status written noticeof the proposed action at least five working

days prior to the effective date of theadverse action.

Section II: Statement of Causes

This section contains a listing of the specificcauses, from Government Code Section19572 and 19572.1. These causes shouldbe broadly construed so that every causethat may be applicable to the acts oromissions, for which the employee is beingdisciplined, is alleged.

Section III: Current Assignment andRelevant Duties andResponsibilities

This section gives a synopsis of theemployee's current assignment andprevious assignments relevant to the actionbeing taken. It also describes relevantduties, responsibilities, and trainingreceived.

Section IV: Statement of Acts orOmissions

This section contains, in chronological order,the specific acts or omissions for which theadverse action is taken.It is very important that the acts or omissionsincluded within this section are describedwith as much specificity as possible.Ordinary language should be used to ensurethe appellant is clearly informed of thespecific acts or omissions for which he orshe is being disciplined. (Korman SPB 91-04). The statement of facts regarding aparticular act or omission should include:

(1) WHO - The names and classifications ofother persons involved in the act oromission;

(2) WHAT - Citation of the specific

California or Federal regulation orstatute, Department regulation, policy,

21

procedure, training, or other standardwhich was violated. When the act oromission is related to Departmenttraining which the employee hadreceived, a short description of whereand when this training was receivedshould be included;

(3) WHEN - The date and, if applicable,

time of the act or omission (thedescription should allege, "On or aboutdate..." if unsure of the exact date.);

(4) WHERE - The location where the act or

omission occurred. (5) WHY - The details of the act or omission

which occurred; (6) CONSEQUENCES - Any resulting harm

or potential liability to the Department,the employees, or public if applicable;

Supporting documents should not be reliedupon to provide the employee with notice ofthe charges against him or her. However,where the supporting documents will providethe employee with additional clarity into thespecific details of a charge, the supportingdocuments which provide such a descriptionshould be referenced in this section. SeeAppendix G and H.

Please see samples of "Statement of Actsor Omissions" for some examples of wrongand right statements to be used in preparingactions.

The "Statement of Acts or Omissions"section cannot include incidents which werethe subject of "prior discipline", whetherformal or informal. To determine if "priordiscipline" for an act or omission has takenplace, consider whether the Departmentsomehow communicated to the employeethat the action taken was intended to resolvewith finality the matter and that only future

occurrences would form the basis ofadverse action. This would be consideredinformal "prior discipline" and, as such,would be described in "Section V: "PriorProgressive Disciplinary Actions" andsupporting documentation should beincluded with the action. Prior adverseactions would also be described in SectionV.

Section V: Prior ProgressiveDisciplinary Actions

This section focuses on progressivediscipline and may not be applicable for afirst time offense. In this section, you shouldreference other prior disciplinary actions,formal or informal, and any other attemptswhich have been undertaken to correct theperformance or behavior such as trainingprovided, counseling sessions, etc.

This section is distinguished from SectionIV: Statement of Acts or Omissions, in thatthe actions described in this section are notacts upon which the adverse action isbased.

If there have been no prior disciplinaryaction, eliminate this section and renumberthe remaining sections.

Section VI: Materials and Documents

This section is boilerplate language. Thissection notifies the employee whom to call ifthey have a request regarding thesupporting documents. The supportingdocuments should include transcribedinterviews and a copy of every specificCalifornia or Federal regulation or statute,Department regulation, policy, procedure ortraining which was violated. Supportingdocuments should be clean, readablecopies.

22

Verbiage regarding the EmployeeAssistance Program (EAP) is included in thissection.

Section VII: Right to Respond toAppointing Power (Skelly)

This section is boilerplate language. Thissection identifies an employee's rights torespond or appeal the adverse action to theappointing power. Enter the name of theperson who will be the "Skelly Officer" andwill serve as the contact point to receive oraland written responses. Be sure to includehis or her phone number and work address.

See Skelly Rights, page 24 - 26 foradditional information.

Section VIII: Right of Appeal

This section states the employee's right toappeal the action to the State PersonnelBoard or the Board of Adjustment (checkbargaining contracts). The employee canexercise this right of appeal whether or nothe or she responds to the appointing power(Skelly Hearing).

Collective bargaining contracts should beconsulted.

Section IX: Separate and Distinct Rights

This section is boilerplate language. Thissection further delineates the rightsdescribed in Sections VII and VIII above.

23

Samples Statements of Acts or Omissions

RIGHT WRONG1. Be Specific.

You were tardy (or late to work) onthe following dates:

September 5, 2000 - 25 minutes September 6, 2000 - 10 minutes September 8, 2000 - 12 minutes September 10, 2000 - 31 minutes September 19, 2000 - 15 minutes

The employee is often tardy.

2. Avoid conclusions or support themwith facts.

When arriving for you 3:00p.m. shiftat 2:55p.m. on November 2, 2000,you staggered as you walked, youslurred your speech, tripped on thecurb and there was a strong smellof alcohol about you. FC Joneswitnessed your behavior.

The employee was drunk.

3. Be thorough - include all facts thatare relevant to the situation.

Include:a. Who did whatb. Who saw whatc. When did activity [situation]

occur - dates and timesd. Importance of offense

Fire Captain J. Thomas andFirefighter II J. Smith observed youdrinking alcoholic beverages at thePelican City bar on September 9,2000 at 3:45p.m. Drinking alcoholicbeverages while on duty is aviolation of CDF policy memo#xxxxxx.

Employee John Jones has twicebeen seen drinking on duty by aFire Captain and a Firefighter II.This is against the rules.

4. Do not exaggerate - a factualaccounting will describe theproblem and support therecommendation.

24

You did not finish the three budgetestimates assigned to you with adue date of April 4, 2000. Peter,Paul, and Mary were each assignedfive estimates and these estimateswere completed on time. The unitis not meeting its deadlinesbecause of your delays. P. Brownand M. Charles complained directlyto me about your lack of production.

Employee has really been a bigheadache to me on getting herpart of the budget done. Theother staff is ready to throw theirhands in the air and mutiny.

5. Avoid in-house slang andterminology - others who may notbe familiar with local ordepartmental terminology will useyour information.

Mr. Jack Smith, Area SupervisorArea 14

Travel Expense ClaimStd. Form 262 (5/78)

Area supervisor

Form 262

6. Make reference to the statue,regulation, departmental policy,procedure, guideline, or temporarydirective that the employee violated.Also include how the employee wasinformed of the same.

On or about July 4, 1999, BattalionChief Arnold McDoughal observedyou backing up engine #5757without using a backup personduring a non-emergency drivingsituation. Firefighter II Joe Smithwas sitting in the engine cab withyou and was available to act as abackup guide at the time. As perthe basic academy training manual(see attached) a CDF Fire Captainis required to use a backup guide, ifone is available, when backing uphis or her engine in a non-emergency driving situation. Youreceived the basic engine training in

You backed up your enginewithout a backing guide.

25

July 1998 at the CDF Academy.

On or about July 4, 2000, FireApparatus Engineer George Jonesobserved you watching television atthe Hardluck Station at 3:30a.m.Captain Smith has an establishedpolicy at the Hardluck Station thatrequired no television watching aftermidnight. Captain Smith informedyou of this policy during your stationorientation on or about the firstweek of May 2000.

You were watching televisionlate at night.

26

Per State Personnel Board (SPB) Rule 52.3,an employee has the right to respond tocharges contained in the adverse actionprior to the effective date. An employeemust be notified at least five working daysprior to the effective date of the action whichensures the employee of this right. Theemployee is served with written notice of theproposed action and materials upon whichthe action is based. The employee mayrespond either verbally or in writing to theappointing authority. This is known as the"Skelly" process.

The "Skelly" Process: Answers tothe Most Commonly Asked

Questions

What is a "Skelly Hearing?"

On September 16, 1975, the CaliforniaSupreme Court announced its decision inSkelly vs. State Personnel Board. Dr. Skelly,a physician employed by the state, wasdismissed and appealed to the court basedon the fact that the decision to dismiss himwas made by one supervisor, without ahigher review, and without opportunity forconsideration of his perspective.

SPB Rule 52.3 defines a Skelly hearing asfollows:

At least five working days prior to theeffective date of any adverse actionagainst an employee with permanentcivil service status, the appointingpower or any person authorized by itshall give the employee written noticeof the proposed action, the reasonsfor such action, a copy of the chargesand material upon which the action isbased, and the right to respond,either verbally or in writing, to theauthority proposing the action prior toits effective date.

The "Skelly" response is the employee’s firstlevel of appeal to an adverse action. Theemployee can request a Skelly in writing orverbally. Upon this request, an informalmeeting called a Skelly Hearing is held.This meeting is the employee's opportunityto be heard. No response is expected fromthe Skelly Officer at the time of the meeting;however, a response in writing is necessary.

The Skelly hearing is not intended to be aformal hearing with examination ofwitnesses, etc. However, someone mayrepresent the employee such as an attorneyor an employee organization, in presenting aresponse.

Who is the Skelly Officer?

The Skelly Officer is a departmentalemployee, selected by either the RegionChiefs or the Deputy Directors. The SkellyOfficer selected should reflect the intent ofSPB Rule 52.3. The person must (1) bereasonably impartial and non-involved (theSkelly Officer should not be the person whosigned the action) and (2) be at least oneorganizational level above the supervisorwho initiated the action. The Skelly Officerhas the authority to effectively recommendand/or sustain, amend, modify, or revokeany or all of the charges. See Appendix Iand J.

It is entirely proper for the Skelly Officer toconsult with whomever he or she sees fit,including the investigator, supervisors,Administrative Officers, Chief of HumanResources Office, Legal Council, LaborRelations Officer, etc., before rendering adecision.

EMPLOYEE'S RIGHT TO APPEAL ADVERSE ACTIONS

27

Can the employee request a differentSkelly Officer?

Management maintains the right todetermine the Skelly Officer. It may occur,due to circumstances of a particular action,that it would be in management's bestinterest during an intensive appeal/litigationprocess to have a third party outside of thechain of command serve as Skelly Officer.This should be considered and determinedby management prior to serving the action.Once the Skelly Officer is identified, it wouldestablish an ill-advised precedent to changethe officer based on employee request.

Where is the Skelly Hearing held?

The meeting should be held in an office thatwill ensure privacy for the employee. Thelocation of the hearing may be at theemployee’s worksite, region or unit office, oranother unit or region office. Should travelbe required of the employee who wasserved the adverse action, travel expenses(i.e., mileage, per diem) shall be borne bythe employee’s payroll reporting unit. Everyeffort should be made to schedule the Skellyhearing during the employee’s normalworkday. No expenses shall be paid for anemployee’s representative.

Who represents the employee?

It is the employee's choice to representhimself or herself or to choose arepresentative, e.g., a union representative,friend, relative, other legal counsel, etc.Supervisors may select another supervisoror personal advisor or counsel. Therepresentative may not be disruptive duringthe Skelly hearing. Usually, therepresentative is striving to gain theconfidence and empathy of the SkellyOfficer and, therefore, is professional andconstructive. However, if the representative

is disruptive and/or uncooperative, themeeting can be recessed.

Can the Skelly Officer have someonetake notes in the Skelly Hearing?

Yes. The goal is to create a supportivesetting in which the employees may freelyexpress themselves. If a note taker wouldinterfere in this effort, the Skelly Officer isencouraged to take his or her own notes.

Can the Skelly Hearing be tapedrecorded?

This is permissive. It is recommended thatshould the employee or representative showup with a tape recorder, the Skelly Officerhas the choice either to (1) not tape themeeting, or (2) delay the meeting until theSkelly Officer can set up his or her owntaping equipment.

Can the Skelly Officer investigate thecase and, if so, who is available for

consultation?

At any time before, during or after thehearing, the Skelly Officer can questionanyone involved in the action including thesupervisor, witnesses to actions,administrative and Chief of HumanResources Office, and other employees.The Skelly Officer can also obtain advicefrom Legal Council or the Labor RelationsOffice.

Can the Skelly Officer entertain asettlement offer?

It is not improper for an employee who hasbeen served with an adverse action to waivehis right to an appeal. CDF commonly entersinto settlements where the adverse action ismodified in exchange for the employee’swaiver of appeal rights.

28

The Skelly Officer is in a position to entertaina settlement offer from an employee againstwhom adverse action has been taken.However, the Skelly Officer should neverinitiate or even suggest settlementnegotiations. After consultation with otherinterested parties, including the employee'sUnit Chief, if applicable, the Skelly Officermay agree to modify the adverse action inexchange for the employee's waiver ofappeal rights.

The State Personnel Board Hearing

When an employee does not request aSkelly Hearing or is dissatisfied with theSkelly Hearing response, he or she mayappeal, directly to the State PersonnelBoard. Collective bargaining contracts oftenaddress these issues and should beconsulted. When an appeal is filed, ahearing before an Administrative Law Judge(ALJ) appointed by the State PersonnelBoard is scheduled. The legal office usuallyrepresents the department. Actual witnessesto the actions and representatives ofmanagement generally attend the hearings.Legal office staff handling the case willspecify who will be needed at the hearing.Following the hearing, the ALJ prepares adecision and submits it to State PersonnelBoard members for approval. The ALJ mayrevoke, sustain, or modify the action. Often,a settlement is reached between thedepartment and the employee during theappeals process. The SPB generallyapproves the decision of the ALJ assubmitted, but may revise the decision,assign the case to the same or anotherauthorized representative to take additionalevidence, or conduct a hearing themselves.The five-member State Personnel Boardalso may modify or cancel the actionentirely. If the action is modified or revoked,the employee must be paid for such a periodof time as the adverse action was improperlyin effect. Conditions of payment are

contained in Section 19584 of theGovernment Code.

The employee or department may file arequest for rehearing within 30 days ofreceipt of the State Personnel Board'sdecision. The State Personnel Board shalleither grant or deny the petition within 60days. The employee, either with or withouta rehearing, may petition to the SuperiorCourt for A Writ of Mandate so that the courtmay hear the case.

Concern regarding a possible appeal shouldnot deter a supervisor from taking adverseaction, if warranted. If the facts aredocumented and the adverse action isproperly prepared, an appeal should presentno problem.

The Board of Adjustment Hearing

Consult the appropriate Bargaining UnitMemorandum of Understanding to check ifthis option is available to the employeewhen writing the adverse action.

Apprentice FFII and FAE Right toAppeal to Apprenticeship

Committee

In addition to the employee’s appeal rightsdiscussed, apprentice Fire Fighters II andapprentice Fire Apparatus Engineers mayappeal disputes regarding theirapprenticeship training to the California FireFighter Joint Apprenticeship Committee(CFFJAC). The apprentice or arepresentative may contact the CFFJACwhen there is an issue regarding theapprenticeship-training program only. TheCFFJAC will not review any othercomplaints or issues. For further informationpertaining to the appeal right of apprenticeFire Fighters II or Fire Apparatus Engineers,contact the Labor Relations Office.

29

Employee’s Right to Discovery

Once an employee has been served anadverse action the employee and his or herdesignated representative have the right todiscovery of information at times and placesreasonable to both theemployee/representative and the appointingpower. As stated, all documents relevant tothe decision to take adverse action should

be attached to the Notice when served. Inaddition, employees who have been servedhave a right to interview other employeeshaving knowledge of the acts or omissionsupon which the adverse action is based.The Department will make the employeesavailable, even though the employee canrefuse to be interviewed.

SPECIAL ACTIONS

Administrative Leave

Occasionally, in cases of workplace violenceor pending a dismissal, it is desirable thatthe employee not be present at the work siteprior to and subsequent to the service ofnotice. The department may grant up to 40hours (typically five Monday –Friday workingdays) of administrative time off (ATO). Thisprovides for full pay during that period oftime, but the employee does not report towork. This time may be extended beyondfive days with approval from the Departmentof Personnel Administration (DPA). Thismust be coordinated through theHeadquarters Human Resources Office.

Note: If you put an employee on ATO priorto service, you must order the employee tocall in each day and be available for work. Ifthe supervisor so requests, the employeemay be required to remain in their homeduring normal working hours. This will allowthe supervisor to order the employee in towork so that the action can be served. If theemployee doesn't call in, he or she is AWOLfor that day. The employee must be advisedof these restrictions in writing.

Ordered Leaves of Absence

An employee may be suspendedimmediately for reasons listed inGovernment Code Section 19574.5. This israrely used. G.C. 19574.5 states: Pendinginvestigation by the appointing power of theaccusations against an employee involvingmisappropriation of public funds or property,drug addiction, mistreatment of persons in astate institution, immorality, or acts whichwould constitute a felony or a misdemeanorinvolving moral turpitude, the appointingpower may order the employee on leave ofabsence for not to exceed 15 days. Theleave may be terminated by the appointingpower by giving 48 hours notice in writing tothe employee. If adverse action is not takenon or before the date such a leave isterminated, the leave shall be with pay. Ifadverse action is taken on or before the datesuch leave is terminated, the adverse actionmay be taken retroactive to any date on orafter the date the employee went on leave.Notwithstanding the provisions of Section19574, the adverse action, under suchcircumstances, shall be valid if written noticeis served upon the employee and filed withthe board not later than 15 calendar daysafter the employee is notified of the adverse

30

action. This process should be coordinatedthrough Region Office or SacramentoHeadquarters Human Resources Office andthe Legal Office.

Amended Adverse Action

Adverse Actions may be amended by theappointing authority or as a result of a SkellyHearing at any time prior to the employee'sappeal. The amended action will be servedon the employee and filed with the originalaction. The letter resulting from the SkellyHearing may be used as an amendment tothe action. Additional time to prepare for thehearing or an additional Skelly Hearing mayneed to be provided where substantialchanges have occurred. (See Appendix J fora sample of an amended action.)

Stipulated Settlement

Where the employee has appealed theadverse action, the action may be amendedby stipulation. In those instances where theemployee has not filed an appeal,agreements reached with the employeewhich alter the terms of the adverse action,must be received by the Board prior to theexpiration of the appeal period or the actionwill become final. Departments areprohibited by the Board from entering intostipulated settlements that: 1) exempt theemployee from indicating on theirapplications for state employment that theirresignation was under unfavorablecircumstances; and, 2) provide that thedepartment would not communicate to otheragencies the circumstances of theemployee's resignation if asked.

Resignation/Retirement in Lieu ofAdverse Action (Prior to the

Effective Date)

When faced with an adverse action, anemployee may announce intent to

resign/retire or ask to resign/retire. Theadverse action does not become effective ifthe employee resigns/retires before theeffective date of the action. It is theemployee’s right to do so under anycircumstances, and they cannot beprevented from doing so. Theresignation/retirement must be entirelyvoluntary. If a supervisor says, "Unless youresign, you will be dismissed," or a similarstatement, the action could be set asidebecause it was given by "mistake, fraud,duress, or undue influence". If theemployee inquires about the effect ofresignation/retirement, you should be carefulto give the correct information in answer toany questions that the employee may haveconcerning the employee's status if he orshe resigns. If you are unsure of a response,the employee should be referred to thepersonnel or region office for advice. Anexception to the above are instances wherean employee fails to meet the "Conditions ofEmployment." (Please see "Failure to MeetConditions of Employment.") A resignationunder duress is subject to appeal to theDepartment of Personnel Administrationwithin 30 days of the effective date.

It should be noted that with certain actions ifthe employee decides to resign or retireafter service and after the action was filed,the lump sum payment for vacation creditmight be affected. This occurs when theserved action is a reduction in pay or ademotion. Under those circumstances, thelump sum payment beginning with theeffective date of the adverse action will bemade at the lower rate of pay specified inthe action, provided that the amount ofvacation credits does not exceed the periodof the demotion or pay decrease. If it does,then the employee will be paid at the regularrate for the excess time. Be sure to give theemployee a letter explaining this fully.

31

Withholds

The Department may request that aperson’s name be removed from any openor promotional employment list.Government Code (G.C.) 18935 providesthe circumstances under which a person’sname may be removed from employmentlists. Each Region and Unit has theresponsibility of assessing the actions of itsemployees. Using the criteria in G. C.18935 Regions are responsible forrecommending to Headquarters'Examination Unit that the affectedemployee’s name be withheld fromemployment lists.

When an adverse action cites G. C. 19572(w) or 19572.1 (23) which is unlawful

discrimination including Sexual Harassment,an automatic WITHHOLD is placed on anyCDF promotional or open list which theperson's name appears.

Withholding an individual’s name from anemployment list is not an “adverse action."However, a list withhold will often be basedon the same set of facts that gave rise to anadverse action. Withholding a candidate’sname from an employment list is not “doublejeopardy” when coupled with an adverseaction; and it is not considered“punishment.” Instead it is simply a result ofthe candidate demonstrating that he or sheis not ready for employment in theclassification which he or she gained listeligibility.

WHEN AN EMPLOYEE IS DISMISSED

Examination and Eligible Lists

In addition to terminating the employee fromstate service, a dismissal will remove theperson's name from all eligible lists andmakes him or her ineligible to take anothercivil service examination without StatePersonnel Board approval.

Salary and Accumulative Overtime

A dismissal terminates the salary of theemployee on the effective date of theadverse action. Except for pay purposes, allaccumulated overtime is credited as of theday of dismissal.

Payment for Vacation Credit

Upon being dismissed, the employee mustbe paid lump sum payment for allaccumulated leave balances up to the dateof separation. As a general rule, when there

has been no direct loss to the state inmoney or property as a result of actions bythe employee, payment in full is granted. Ifthe employee owes the employer money,this may be withheld from the employee’swages paid upon separation, however CDFMUST pay everything that we reasonablybelieve and acknowledge is due.

Timely Payment of Wages

Passage of legislative bill AB 2410 amendsSection 220 of the Labor Code to removethe State employer’s exemption to the LaborCode provisions applicable to the paymentof wages and the resolution of wagedisputes, effective January 1, 2001.

When an employee is discharged(terminated from State service other thanvoluntary), the wages earned must bepaid immediately.

32

The employer must make payment todischarged employees at the place oftheir discharge.

Any person, agent, manager, superintendentor officer of the State is guilty of amisdemeanor, who: (a) Having the ability to

pay, willfully refusing to pay wages due andpayable after demand has been made. (b)Falsely denying the amount of wages owed,or with intent to annoy, harass, oppress,hinder, delay, or defraud, the person towhom such indebtedness is due.

OTHER EMPLOYER ACTIONS

In addition to defined Adverse Actions, thereare other actions a supervisor should beaware of in the interest of good personnelmanagement. While not consideredadverse actions, the following require similarjustification and collection of facts.

Collective Bargaining Contracts should beconsulted.

Denial of Special In-Grade SalaryAdjustment

A full-time probationary employee in a class,which may receive a special in-grade salaryadjustment (SISA), is eligible for an increaseat the end of six months. Supervisorsshould be careful to review and analyze theprobationer's work performance todetermine if the employee should receivethis special in-grade adjustment. If theemployee's probationary work performancehas been in any way less than satisfactory,the adjustment should be denied. This is notan adverse action. The letter of denial (seeAppendix Q) must include specific exampleswith dates, times, and places ofunsatisfactory work performance. Thespecifics about the employee's performanceshould be noted. If, at the end of theprobationary period, the employee showssome tendency to improve to the pointwhere he or she may be allowed to attainpermanent status, the special in-gradeadjustment may not be reconsidered for

three months after denial, but must bereconsidered at the end of six months.

Denial of Annual Merit SalaryAdjustment (MSA)

Supervisors should carefully considerannual merit salary adjustments (MSA).MSAs for full-time employees are at the endof 12 months. If an employee's performancehas been less than satisfactory, it isessential that the annual salary adjustmentbe denied (see Appendix Q). If poorperformance is being documented bycounseling sessions, corrective interviews,letters of warning, and annual performanceappraisals, these specifics may be used forthe salary denial.

If a salary adjustment is not denied, it isdifficult to use any documentation of poorperformance prior to the effective date of thesalary adjustment to support a futureadverse action.

When either a SISA or MSA is denied, theemployee should be given writtennotification no later than the 16th of themonth prior to the month in which theincrease is due. Denials should not be asurprise to the employee, but should be anextension of ongoing discussions regardingperformance.

33

An employee may file a request forreconsideration within 10 days of beinginformed of an MSA denial. Additionally, theemployee may appeal to DPA within 15days of exhausting the departmentalremedy. When an MSA denial is appealedto DPA, the appointing power's decision towithhold the MSA shall be sustained by DPAif the decision is supported by substantialevidence. A denied MSA may bereconsidered at any time after three monthshave elapsed but must be reconsidered afterone year.

Denial of Performance SalaryAdjustment (PSA)

An employee whose performance salaryadjustment is denied may grieve that actionusing the discipline process outlined in theemployee’s respective collective bargainingcontract. At the discretion of the appointingpower, employees who are not granted aPSA may be reconsidered for a PSA at anyfuture time, but at least within 90 days.

Rejection During ProbationaryPeriod

Rejection of a probationary employee is thelast phase of the selection process and isnot an adverse action. However, the sameprocedures and types of documentationused for adverse actions are required forrejection of a probationary employee. Aprobationary employee may be rejected forreasons relating to the probationer'squalifications, the good of the service, orfailure to demonstrate merit, efficiency,fitness, or moral responsibility.

You should take special care and effortduring an employee's probationary period todocument all significant aspects ofperformance. Notification to the employeethat progress at the rate expected is not

being met should not wait until aprobationary report is due. Deficientperformance and suggestions forimprovement should be called to theemployee's attention both verbally and inwriting as soon as the deficiencies occur.

The first probationary report should containas many specific examples of unsatisfactoryperformance as is necessary to inform theemployee of all items that needimprovement. You may reject a probationerafter the first report of performance or earlierif you have extremely strong data to supportyour belief that the employee cannotimprove over the course of the probationaryperiod. Performance reports not given at theproper time intervals could prejudice aneffort to reject an employee. Timelyfeedback is essential.

If at the time the second probationary reportis due the employee's performance is stillunsatisfactory, the employee should beinformed in writing that a rejection from theposition is being considered. The Notice ofRejection During Probationary Period mustbe served either personally or by certifiedmail and shall include: (a) the effective dateof the rejection, which cannot be later thanthe last day of the employee's probationaryperiod (the Notice of Rejection must beserved at least five working days prior to theeffective date of the action; however, anextension of up to 5 working days ispermitted beyond the end of theprobationary period to allow sufficient noticerequired by Rule 52.3); (b) a statement ofthe reasons for the rejection, including allacts and omissions with dates, times,places, and witnesses, if any, as well aswhen and how the employee wascounseled; and (c) a statement advising theemployee that within 15 calendar days of theeffective date of rejection, he or she may filewith the State Personnel Board a writtenrequest for an investigation of the reasons

34

for the rejection. It should also include alldocumentation to support the rejection. SeeAppendix L.

If applicable, the written Notice of RejectionDuring Probationary Period should alsoinclude: (a) a statement advising theemployee when he or she has the right ofreturn to a former position and that it is theemployee’s responsibility to make a requestfor reinstatement to the appointing power ofhis or her former position within ten workingdays after the effective date of rejection; (b)a statement advising the employee who isbeing rejected after appointment from ageneral reemployment list that he or shemay file a written request with the StatePersonnel Board to have his or her namerestored to the reemployment list from whichoriginally certified. However, the employee'sname shall not be certified to the departmentthat rejected the employee, except with theconsent of that appointing power.

Appendix K is a sample of a written Noticeof Rejection During Probationary Period.




The employer must make payment todischarged employees at the place oftheir discharge.Any person, agent, manager, superintendentor officer of the State is guilty of amisdemeanor, who: (a) Having the ability topay, willfully refusing to pay wages due and

payable after demand has been made. (b)Falsely denying the amount of wages owed,or with intent to annoy, harass, oppress,hinder, delay, or defraud, the person towhom such indebtedness is due.

Resignation/Retirement in Lieu ofRejection During Probationary

Period

When faced with a rejection, an employeemay announce intent to resign/retire or askto resign/retire just as with a dismissaladverse action. Please see"Resignation/Retirement in Lieu of AdverseAction."

Drug and Alcohol Testing

CDF employees required to possess acommercial driver’s license or a commercialpilot’s license in order to perform their dutiesare subject to the U.S. Department ofTransportation Drug and Alcohol Testingregulations.

For additional information please consult theCDF 1000 Personnel Handbook, Section1084, “Employees Under the Influence ofAlcohol or Drugs.”

Failure to Meet "Conditions ofEmployment"

Whenever a permanent or probationaryemployee fails to meet the "Conditions ofEmployment," such as no longer maintainingthe valid license or credential which may belegally required as part of the minimumqualifications for the position orclassification, the employee may beseparated from state service. It is importantto remember that this type of action is notconsidered to be a "punitive action" by theState Personnel Board. Government Code

35

19585 provides for separation in lieu ofadverse action.

If separation is necessary, an employeeshould be told that he or she has the optionto choose voluntary resignation from theposition prior to separation by thedepartment. If the employee voluntarilyresigns, he or she should be told that thereis no eligibility for reinstatement to his or herformer classification unless the "Conditionsof Employment" which caused theseparation from the position are met.

For more detailed information, refer toSection 1013 of the CDF 1000 PersonnelProcedures Handbook.

Automatic Resignation (AWOL)

The Department of Forestry and FireProtection do not use this form ofresignation. Instead, the preferred methodof terminating an employee who is absentwithout approved leave (AWOL) is underadverse action "inexcusable absencewithout leave," Government Code Section19572 (j) or for Bargaining Unit 8 19572.1(10).

Another option would be the AWOLSeparation as outlined in Section 1091.6.4of the CDF 1000 Personnel ProceduresHandbook.

For seasonal employees, the method ofseparation is Termination With Cause. SeeAppendix S.

36

SEPARATION OF UNSATISFACTORY NON-PERMANENT EMPLOYEES

Limited-term Employees

A limited-term employee may be terminatedwith cause by giving the employee writtennotice stating the reasons for the terminationon or before the effective date. Limited-termemployees should be afforded anopportunity to respond to the charges withina "Skelly-type setting". When the employeehas permanent status in anotherclassification, inform the employee of theright to return to prior position.

The employee may appeal to the StatePersonnel Board only to remove the "withcause" from the record. The employee hasno other appeal from this action except onthe grounds that temporary or emergencyemployees in limited-term positions remainemployed in violation of SPB Rule 282.

Seasonal or TemporaryAuthorization (TAU) Employees

Please refer to the CDF 1000 PersonnelHandbook, Section 1091.6.5, Separation ofUnsatisfactory Nonpermanent Employees,for guidance. Seasonal or TAU employeesmay be separated at any time at thediscretion of the employer. Such atermination may be "with" or "without"cause.

If the termination is "with cause", theemployee should be given written notice ofthe deficiencies and an opportunity todiscuss the circumstances of the separationwith someone at a higher level of authority(i.e., second level supervisor or the Deputy

Director). This is not a "Skelly" hearing, asseasonal employees have no rights to ahearing under SPB Rule 61. The employeemay appeal to the State Personnel Board toremove the "with cause". The employeedoes not have the right to appeal to bereinstated.

For sample letter of Fire Fighter ITermination With Cause see Appendix S.




The employer must make payment todischarged employees at the place oftheir discharge.

Any person, agent, manager, superintendentor officer of the State is guilty of amisdemeanor, who: (a) Having the ability topay, willfully refusing to pay wages due andpayable after demand has been made. (b)Falsely denying the amount of wages owed,or with intent to annoy, harass, oppress,hinder, delay, or defraud, the person towhom such indebtedness is due.

37

EMPLOYEE'S RIGHT TO REPRESENTATION AT INVESTIGATORY INTERVIEWS

The Third District Court of Appeal has heldthat, "A state employee has a right to unionrepresentation at a meeting with hissuperiors held with a significant purpose toinvestigate facts to support disciplinaryaction and may not be dismissed forattempted exercise of the right." Robinson v.State Personnel Board (1971) 97 Cal. App.3rd 994.

"Disciplinary action" refers to formal adverseaction and includes dismissal, demotion,reduction of pay, suspension without pay,and Official Letter of Reprimand.

Determining Whether a Meeting isHeld With a Significant Purpose to

Investigate Facts to SupportDisciplinary Action

Whether or not a meeting is held with asignificant purpose to investigate facts tosupport adverse action is an objectiveinquiry based upon reasonable evaluation ofall the circumstances, not upon thesubjective reaction of the employee or thesubjective opinion of the interviewer.

It must be reasonably foreseeable thatadverse action may be a consequence ofthe meeting. In Robinson, referencedabove, a counseling session was found togive rise to the right to representationbecause the facts showed:

1. Adverse action was in the minds of theemployee's superiors, and

2. A significant purpose of the meeting wasto elicit a response from the employeeupon which adverse action might in partbe based.

If the meeting is disciplinary in character, butexplanatory in the sense that the employee

is only told what the employer intends to doand is not required to respond, there is noright to representation.

A routine counseling session may at anytime transform into an investigatory interviewthat may lead to adverse action. Forexample, a "witness" in an investigation maybecome a "subject" of the investigation. Ifthis happens, the meeting should beterminated, the employee told of his or herright to have representation, and themeeting rescheduled.

Limitations on the Right toRepresentation

As a matter of State policy, you shouldinform the employee of the right torepresentation when the matter to bediscussed at a meeting may supportadverse action that is probable or is beingseriously considered.

Employees may select another employeefrom their same bargaining unit, a personaladvisor, or legal counsel as arepresentative. (See Public Safety Officers'Procedural of Bill Rights (POBR) section3303 (i).

An employee who requests a specificrepresentative should be accommodated, ifreasonably possible. However, the interviewneed not be postponed if the employeeinsists on a specific representative who isunable to attend a meeting within areasonable period of time and anotherrepresentative is available.

The interview should be handled in a settingof cooperation among the employee, you,and the employee’s representative. If therepresentative becomes unduly disruptive,the interview should be recessed. If the

38

representative refuses to cooperate andanother representative is not reasonablyavailable, the interview may proceed withouta representative.

The representative is present to assist andadvise the employee regarding his or herrights, not negotiate appropriate discipline.Disagreements concerning any adverseaction, which may be taken, can be dealtwith in the appeals process.

In the extremely rare situation of a bona fideemergency when the employer mustconduct a prompt investigation andrepresentation is not reasonably available,the right to representation does not applyand the employee is so informed. (SeePOBR section 3303)

Such emergencies may involve possiblecriminal conduct. In these situations, if theemployee is placed under arrest and theinterrogation is conducted by a peaceofficer, remember that the employee has theright to legal counsel.

Additional Information RegardingRepresentation

If the employee refuses to be interviewed ina situation where there is no right torepresentation, inform the employee whythere is no right to representation and thatthe employee may be disciplined forinsubordination for refusing the interview.As management, you are free to act on thebasis of information obtained from sourcesother than the employee.

If the employee wants a representative butdoes not know where to obtain one, informthe employee he or she may choose anyrepresentative other than a designatedmanagerial, supervisory or confidentialemployee.

Uncertainties over an employee's right torepresentation should be resolved in favor ofrepresentation. This will protect theemployee while generally imposing littleburden on the employer.

When in doubt regarding the appropriatecourse of action in particular situationsconsult with your Labor Relations Office orRegion Human Rights Officer.

39

PUBLIC SAFETY OFFICERS' PROCEDURAL BILL OF RIGHTS

The Public Safety Officers Procedural Billof Rights Act

The Public Safety Officers Procedural Bill ofRights Act, Title 1, Division 4, GovernmentCode Sections 3300 through 3311, providesthat all employees designated as "peaceofficers" have the right to representationupon request whether or not an interrogationfocuses on matters which are likely to resultin punitive action against the officer.Additional provisions in this regard are setforth in Government Code Section 3303 andare entirely consistent with the Robinsoncase.

The Public Safety OfficersProcedural Bill of Rights

Government Code Sections 3300

3300. Short title This Chapter is known andmay be cited as the Public Safety OfficersProcedural Bill of Rights Act.

Definition; legislative findings anddeclaration

3301. For purposes of this Chapter, theterm "public safety officer" means all peaceofficers specified is Sections 830.1, 830.2,830.3, 830.31, 830.32, 830.33 exceptSubdivision (e), 830.34, 830.35, exceptSubdivision (c), 830.36, 830.37, 830.38,830.4, and 830.5 of the Penal Code.

The Legislature hereby finds and declaresthat the rights and protections provided topeace officers under this Chapter constitutea matter of statewide concern. TheLegislature further finds and declares thateffective law enforcement depends upon themaintenance of stable employer-employeerelations, between public safety employees

and their employers. In order to assure thatthroughout the state and to further assurethat effective services are provided to allpeople of the state, it is necessary that thischapter be applicable to all public safetyofficers, as defined in this section, whereversituated within the State of California.

Political activity; membership on schoolboard

3302. (a) Except as otherwise provided bylaw, or whenever on duty or in uniform, nopublic safety officer shall be prohibited fromengaging, or be coerced or required toengage, in political activity.

(b) No public safety officer shall beprohibited from seeking election to, orserving as a member of, the governingboard of a school district.

Investigations and interrogations;conduct; conditions; representation;Reassignment

3303. When any public safety officer isunder investigation and subjected tointerrogation by his or her commandingofficer, or any other member of theemploying public safety department, thatcould lead to punitive action, theinterrogation shall be conducted under thefollowing conditions. For the purpose of thischapter, punitive action means any actionwhich may lead to dismissal, demotion,suspension, reduction in salary, writtenreprimand, or transfer for purposes ofpunishment.

(a) The interrogation shall be conducted at areasonable hour, preferably at a time whenthe public safety officer is on duty, or during

40

the normal waking hours for the publicsafety officer, unless the seriousness of theinvestigation requires otherwise. If theinterrogation does occur off-duty time of thepublic safety officer being interrogated, thepublic safety officer shall be compensatedfor any off duty time in accordance with theregular procedures, and the public safetyofficer shall not be released fromemployment for any work missed.

(b) The public safety officer underinvestigation shall be informed prior to theinterrogation of the rank, name, andcommand of the officer in charge of theinterrogation, the interrogating officers, andall other persons to be present during theinterrogation. All questions directed to thepublic safety officer under interrogation shallbe asked by and through no more than twointerrogators at one time.

(c) The public safety officer underinvestigation shall be informed of the natureof the investigation prior to any interrogation.

(d) The interrogating session shall be fora reasonable period taking intoconsideration gravity and complexity of theissue being investigated. The person underinterrogation shall be allowed to attend to hisor her own personal physical necessities.

(e) The public safety officer underinterrogation shall not be subjected tooffensive language or threatened withpunitive action, except that an officerrefusing to respond to questions or submit tointerrogations shall be informed that failureto answer questions directly related to theinvestigation or interrogation may result inpunitive action. No promise of reward shallbe made as an inducement to answeringany question. The employer shall not causethe public safety officer under interrogationto be subjected to visits by the press ornews media without his or her expressconsent nor shall his or her home address or

photograph be given to the press or newsmedia without his or her express consent.

(f) No statement made duringinterrogation by a public safety officer underduress, coercion, or threat of punitive actionshall be admissible in any subsequent civilproceeding. This subdivision is subject tothe following qualifications:

(1) This subdivision shall not limitthe use of statements made by a publicsafety officer when the employing publicsafety department is seeking civilsanction against any public safetyofficer, including disciplinary actionbrought under Section 19572.

(2) This subdivision shall notprevent the admissibility of statementsmade by the public safety officer underinterrogation in any civil action, includingadministrative actions, brought by thatpublic safety officer, or that officer’sexclusive representative, arising out of adisciplinary action.

(3) This subdivision shall notprevent statements made by a publicsafety officer under interrogation frombeing used to impeach the testimony ofthat officer after an in camera review todetermine whether the statements serveto impeach the testimony of the officer.

(4) This subdivision shall nototherwise prevent the admissibility ofstatements made by the public safetyofficer under interrogation if that officersubsequently is deceased.

(g) The complete interrogation of a publicsafety officer may be recorded. If a taperecording is made of the interrogation, thepublic safety officer shall have access to thetape if any further proceedings arecontemplated or prior to any further

41

interrogations at a subsequent time. Thepublic safety officer shall be entitled to atranscribed copy of any notes made by astenographer or to any reports or complaintsmade by investigators or other persons,except those which are deemed by theinvestigating agency to be confidential. Nonotes or reports that are deemed to beconfidential may be entered in the officer’spersonnel file. The public safety officerbeing interrogated shall have the right tobring his or her own recording device andrecord any and all aspects of theinterrogation.

(h) If prior to or during the interrogation ofa public safety officer it is deemed that he orshe may be charged with a criminal offense,he or she shall be immediately informed ofhis or her constitutional rights.

(i) Upon the filing of a formal writtenstatement of charges, or wherever aninterrogation focuses on matters which arelikely to result in punitive action against anypublic safety officer, that officer, at his or herrequest, shall have the right to berepresented by a representative of his or herchoice who may be present at all timesduring the interrogation. The representativeshall not be a person subject to the sameinvestigation. The representative shall notbe required to disclose, nor be subject toany punitive action for refusing to disclose,any information received from the officerunder investigation for non-criminal matters.

This section shall not apply to anyinterrogation of a public safety officer in thenormal course of duty, counseling,instruction, or informal verbal admonishmentby, or other routine or unplanned contactwith, a supervisor or any other public safetyofficer, nor shall this section apply to aninvestigation concerned solely and directlywith alleged criminal activities.

(j) No public safety officer shall beloaned or temporarily reassigned to alocation or duty assignment if a swornmember of his or her department would notnormally be sent to that location or wouldnot normally be given that duty assignmentunder similar circumstances.

Lawful exercise of right; insubordination;administrative appeal; 1-year limitation;exceptions; written notification ofdecision

3304. (a) No public safety officer shallbe subjected to punitive action, or deniedpromotion, or be threatened with any suchtreatment, because of the lawful exercise ofthe rights granted under this chapter, or theexercise of any rights under any existingadministrative grievance procedure.

Nothing in this section shall preclude a headof an agency from ordering a public safetyofficer to cooperate with other agenciesinvolved in criminal investigations. If anofficer fails to comply with such an order, theagency may officially charge him withinsubordination.

(b) No punitive action, nor denial ofpromotion on grounds other than merit, shallbe undertaken by any public agency againstany public safety officer who hassuccessfully completed the probationaryperiod that may be required by his or heremploying agency without providing thepublic safety officer with an opportunity foradministrative appeal.

(c) No chief of police may be removed bya public agency, or appointing authority,without providing the chief of police withwritten notice and the reason or reasonstherefor and an opportunity foradministrative appeal.

42

(d) Except as provided in this subdivisionand subdivision (f), no punitive action nordenial of promotion on grounds other thanmerit, shall be undertaken for any act,omission, or other allegation of misconduct ifthe investigation of the allegation is notcompleted within one year of the publicagency’s discovery by a person authorizedto initiate an investigation of the allegation ofan act, omission or other misconduct. Thisone-year limitation period shall apply only ifthe act, omission, or other misconductoccurred on of after January 1, 1998. In theevent that the public agency determines thatdiscipline may be taken, it shall complete itsinvestigation and notify the public safetyofficer of its proposed disciplinary actionwithin that year, except in any of thefollowing circumstances:

(1) If the act, omission, or other allegation ofmisconduct is also the subject of acriminal investigation or criminalprosecution, the time during which thecriminal investigation or criminalprosecution is pending shall toll the one-year time period.

(2) If the public safety officer waives theone-year time period in writing, the timeperiod shall be tolled for the period oftime specified in the written waiver.

(3) If the investigation is a multi-jurisdictionalinvestigation that requires a reasonableextension for coordination of the involvedagencies.

(4) If the investigation involves more thanone employee and requires a reasonableextension.

(5) If the investigation involves an employeewho is incapacitated or otherwiseunavailable.

(6) If the investigation involves a matter incivil litigation where the public safety isnamed as a party defendant, the one-year time period shall be tolled while thatcivil action is pending.

(7) If the investigation involves a matter incriminal litigation where the complainantis a criminal defendant, the one-yeartime period shall be tolled during theperiod of that defendant’s criminalinvestigation and prosecution.

(8) If the investigation involves an allegationof worker’s compensation fraud on thepart of the public safety officer.

(e) Where a predisciplinary response orgrievance procedure is required or utilized,the time for this response or procedure shallnot be governed or limited by this chapter.

(f) If after investigation and anypredisciplinary response or procedure, thepublic agency decides to impose discipline,the public agency shall notify the publicsafety officer in writing of its decision toimpose discipline, including the date that thediscipline will be imposed, within 30 days ofits decision, except if the public safety officeris unavailable for discipline.

(g) Notwithstanding the one-year timeperiod specified in subdivision (c), aninvestigation may be reopened against apublic safety officer if both of the followingcircumstances exist:

(1) Significant new evidence has beendiscovered that is likely to affect theoutcome of the investigation.

(2) One of the following conditions exist:

(A) The evidence could not reasonablyhave been discovered in the normalcourse of investigation withoutresorting to extraordinary measuresby the agency

(B) The evidence resulted from thepublic safety officer’s predisciplinaryresponse or procedure.

(h) For those members listed insubdivision (a) of Section 830.2 of the PenalCode, the 30-day time period provided for in

43

subdivision (e) shall not commence with theservice of a preliminary notice of adverseaction, should the public agency elect toprovide the public safety officer with such anotice. (Effective January 1, 1998).

Administrative appeal instituted by apublic safety member

3304.5 An administrative appeal institutedby a public safety officer under this chaptershall be conducted in conformance withrules and procedures adopted by the localagency. (Effective January 1, 1999 –Senate Bill 1662 (Ayala).

Comments adverse to interest; entry inpersonnel file or in other record;opportunity to read and sign instrument;refusal to sign

3305. No public safety officer shall have anycomment adverse to his interest entered inhis personnel file, or any other file used forany personnel purposes by his employer,without the public safety officer having firstread and signed the instrument containingthe adverse comment indicating he is awareof such comment, except that such entrymay be made if after reading suchinstrument the public safety officer refusesto sign it. Should a public safety officerrefuse to sign, that fact shall be noted onthat document, and signed or initialed bysuch officer.

Response to adverse comment enteredin personnel file; time

3306. A public safety officer shall have 30days within which to file a written responseto any adverse comment entered in hispersonnel file. Such written response shallbe attached to, and shall accompany, theadverse comment.

Polygraph examination; right to refuse;effect

3307. (a) No public safety officer shall becompelled to submit to a lie detector testagainst his or her will. No disciplinary actionor other recrimination shall be taken againsta public safety officer refusing to submit to alie detector test, nor shall any comment beentered anywhere in the investigator's notesor anywhere else that the public safetyofficer refused to take a lie detector test, norshall any testimony or evidence beadmissible at a subsequent hearing, trial, orproceeding, judicial or administrative, to theeffect that the public safety officer refused totake or was subjected to, a lie detector test.

(b) For the purpose of this section, “liedetector” means a polygraph deceptograph,voice stress analyzer, psychological stressevaluator, or any other similar device,whether mechanical or electrical, that isused, or the results of which are used, forthe purpose of rendering a diagnosticopinion regarding the honesty or dishonestyof an individual.

Financial disclosure; right to refuse;exceptions

3308. No public safety officer shall berequired or requested for purposes of jobassignment or other personnel action todisclose any item of his property, income,assets, source of income, debts or personalor domestic expenditures (including those ofany member of his family or household)unless such information is obtained orrequired under state law or proper legalprocedure, tends to indicate a conflict ofinterest with respect to the performance ofhis official duties, or is necessary for theemploying agency to ascertain thedesirability of assigning the public safetyofficer to a specialized unit in which there isa strong possibility that bribes or otherimproper inducements may be offered.

44

Search of locker or storage space;consent; search warrant

3309. No public safety officer shall have hislocker, or other space for storage that maybe assigned to him searched except in hispresence, or with his consent, or unless avalid search warrant has been obtained orwhere he has been notified that a search willbe conducted. This section shall apply onlyto lockers or other space for storage that areowned or leased by the employing agency.

Public safety officer; applicability ofchapter; violations; jurisdiction;remedies

3309.5. (a) It shall be unlawful for anypublic safety department to deny or refuse toany public safety officer the rights andprotections guaranteed to them by thischapter.

(b) The superior court shall have initialjurisdiction over any proceeding brought byany public safety officer against any publicsafety department for alleged violations ofthis chapter.

(c) In any case where the superior courtfinds that a public safety department hasviolated any of the provisions of this chapter,the court shall render appropriate injunctiveor other extraordinary relief to remedy theviolation and to prevent future violations of alike or similar nature, including, but notlimited to, the granting of a temporaryrestraining order, preliminary, or permanentinjunction prohibiting the public safetydepartment from taking any punitive actionagainst the public safety officer.

Procedures of public agency providingsame rights or protections; application ofchapter

3310. Any public agency which hasadopted, through action of its governing

body or its official designee, any procedurewhich at a minimum provides to peaceofficers the same rights or protections asprovided pursuant to this chapter shall notbe subject to this chapter with regard tosuch a procedure.

Mutual aid agreements; effect of chapterupon3311. Nothing in this chapter shall in anyway be construed to limit the use of anypublic safety agency or any public safetyofficer in the fulfilling of mutual aidagreements with other jurisdictions oragencies, nor shall this chapter beconstrued in any way to limit anyjurisdictional or interagency cooperationunder any circumstances where suchactivity is deemed necessary or desirable bythe jurisdictions or the agencies involved.

45

RETENTION SCHEDULE FOR MAINTAINING DOCUMENTED EMPLOYERACTIONS FROM THE EFFECTIVE DATE OF THE ACTION

EMPLOYER ACTION

Informal Action (i.e.,documented correctiveinterviews/counseling)

Letter of Warning

Formal Adverse Action(excluding dismissals)

Dismissal

Rejection DuringProbationary Period

Denial of SISA, MSA, orPSA

Termination for Failure toMeet "Conditions OfEmployment"

Termination “With Cause”of Non-PermanentEmployees

RETAIN

Up to one year or untilincorporated in the annualperformance appraisal

Up to one year or until itserves its purpose

Three years

Until age 70

Three years

Three years

Three years followingseparation

Three years

WHERE

Supervisor’s working file

Supervisor’s working fileand/or Official PersonnelFile

Official Personnel File






46

APPENDIX AExpectations

DATE

To: Employee NameClassification

From: Supervisor Name

Welcome to CDF! As your supervisor I want you to know what my expectations are regardingyour schedule and Articles 8 and 19 in the Bargaining Unit 1 Agreement. You have been givena copy of the BU 1 Agreement.

Schedule: Your workweek is Monday through Friday. Your shift is from 8:00 a.m. until 5:00p.m. Work at home is unauthorized unless pre-approved.

Sick Leave: Each day that you cannot work your schedule because of illness, injury, etc., youneed to telephone me prior to the beginning of your work schedule stating your illness, etc. If Iam unavailable, leave a voicemail message with the above information. I may call you back if Idon’t talk to you. You also need to call the receptionist so they are on board. For plannedsick leave usage (i.e., doctor/dental appointments), email information with your vacationrequests at the beginning of each month, or as soon as scheduled.

Vacation: Send me an email at the beginning of each month letting me know if you anticipatetime off needed for that specific month. If you anticipate a two-week or longer vacation, let meknow two months in advance or sooner, if you know.

Overtime: All overtime is pre-approved. You need to notify me via email for approval andidentify what the workload priorities are, what workload is pending, including deadline dates/timeframes, and anticipated time needed to accomplish the specific task(s).

Meal Periods: Your scheduled lunch hour is from 12:00 p.m. to 1:00 p.m., unless you notify meof a need to change.

Rest Periods: You are entitled to two breaks, per your bargaining agreement, during each fourhours of your work shift. They may not be accumulated, nor used to “make-up” time.

Since you work in a controlled temperature environment I encourage you to leave yourimmediate work area and take in some fresh air at meal and rest periods when possible.

Other than your meal period you need to notify the Receptionist when you leave the compoundand for how long you anticipate being gone in case of an emergency.

If you have any questions please feel free to ask me anytime.

"I have read and understand the above expectations".____________________________________ _________________________________Employee Signature and Date Supervisor Signature and Date

47

State of California The Resources Agency

M e m o r a n d u m

To: Date:

Telephone:

From: Department of Forestry and Fire Protection

Subject: 1000 PERSONNEL MANAGEMENT BATTALION EXPECTATIONS

! "By the book" maintenance and upkeep of all vehicles and fire equipment. Clean top andbottom, inside and out. All associated fire equipment maintained and in serviceable condition.All paperwork and compliance inspections completed.

! Training and required certifications-Keep accurate and up to date records on yourself and allseasonal personnel.

! Assure that all facilities are properly maintained and are free of hazards. Conduct continualsafety inspections and submit semi-annual reports to the Unit Safety Officer.

! I need monthly performance appraisals on all seasonal and limited term employees utilizingeither the Performance Appraisal Summary STD 637 for the LT employees and the SeasonalEmployee's Performance Record CDF-212 for the seasonal employee's.

! All paperwork correct and on time. OUR LIVES ARE A LOT SWEETER IF WE DO NOTIMPACT SUPPORT SERVICES. Get things done before the date they are due. Do not waituntil the last minute. Being on anyone's "Late List" is not acceptable. If a situation, out ofyour control, occurs that could cause something to be late, contact the affected person andme and let us know of the delay.

! I expect all fire and preliminary fire investigation reports (LE-66) reports to be completed bythe end of your duty shift. Overtime is authorized to complete reports that need to be donewhen justified by unusual circumstances.

! Our cooperators and the public deserve our respect.! Work the assigned hours of your duty shift unless otherwise excused.! Report all accidents to your supervisor, irrespective of the damage.! I expect your appearance to be of the highest caliber. This means the approved CDF uniform

at all times. In the non-fire season time, foot wear with the exception of your wildland boots,will be highly polished black. Highly polished wildland boots look good too.

! I expect time slips to be completed and turned in to me or on the duty Battalion Chief the lastday of the work period.

! I expect that you provide me with a doctor's excuse when you are sick more than 3 days.! If you are sick or not going to report for work for any reason, I expect to be notified.! I expect you to be familiar with all CDF procedures, state laws and regulations.! At least one Fire Captain will be on duty during the Fire Season.

48

PAGE TWOExpectations/Priorities

! When the vehicle of a Battalion Chief or above comes into the compound the windshield willbe washed if possible.

! When you are assigned an out of Unit assignment as overhead, ensure that someone willreplace you on the engine AND notify me by pager, if possible.

! I expect everyone to adhere to the established chain of command. The on-duty supervisor, ofcourse, will handle emergencies. Not everything is an emergency.

! Any legal order from any chief officer will be completed within the time frame expected. I'lldeal with the chain of command issue in an appropriate manner.

! Stop for stranded motorists. I have issued business cards to all of you, even the Fire Fighters.A little bit of marketing will go a long way in the future.

"I have read and understand the above expectations".

_____________________________ __________________________________Employee Signature and Date Supervisor Signature and Date

49

APPENDIX BSupervisor's Checklist for Maintaining Effective Discipline

Employee's NameClassification

Steps Action Date1. Employee informed of unit rules of conduct/standards. ______

2. Employee provided with and instructed in expected jobperformance/standards. See Appendix A ______

3. Observation of employee performance and self-discipline. ______

4. Informal counseling - Offer EAP! ______

5. Repeat informal counseling as necessary. Write a record of the discussion,including employee comments and the expected standards required. OfferEAP! ______

6. If improvement is needed, write a Corrective Interview Memo (see AppendixC) to include: a) A description of the behavior which needs to be corrected;b) What is required to be improved by the employee; c) Timeframe forimprovement; d) What help will be provided, e.g. training; and, e) Whatdisciplinary action may be taken if behavior does not improve. ______

7. Discuss Corrective Interview memo with your Supervisor. ______

8. Complete Corrective Interview with employee, sign and give employee acopy of the Corrective Interview memo. ______

9. Follow through on corrective schedule and identified training. ______

10. After the Corrective Interview Memo is issued, follow up with employee everytwo to three weeks to discuss overall progress and write summaries ofdiscussions. Let employee know you are documenting the follow-ups. ______

_________________________________________Supervisor's Name

50

APPENDIX C

Worksheet for Corrective Interview/Counseling

Complete Parts A and B before the interview; complete Parts C and Dduring the interview.

A. Supervisor's Record of Corrective Interview with (employee's name and classification)regarding (describe the behavior that needs correction and state the required standards).

B. Examples -- Note specific instances. Discuss each and support with appropriatedocumentation, e.g., rules, policies, MOUs, sick leave records, etc.

1.2.3.4.

C. Actions to be taken by employee to correct behavior:

1. By when2. By when3. By when4. By when

D. The employee will be assisted in accomplishing the foregoing changes in behavior in thefollowing ways:

1.2.3.4.

A review of employee's progress/accomplishments under this plan of action will be held (date).If at that time, these matters are fully settled as planned, this record will be so noted. If thesematters are not settled satisfactorily, this record may be made an attachment to such plan offurther corrective action or adverse action as may be necessary.

Date Supervisor's Signature

51

APPENDIX DUSE LETTERHEAD OF UNIT

Letter Following Corrective Interview/Counseling

Date

Employee’s nameClassification

On (date), I discussed with you some of the problems you have had in meeting the workrequirements in this office.

Specifically, we discussed the following items:

1. On several occasions you failed to turn in your completed work to me promptly sothat I may have time to review it and obtain the supervisor's approval and necessarysignatures. For example, (date), you handed me a letter at (time), dated (date), forthe Region/Unit/Program Chief's signature.

2. You delayed correcting an error in the letter of (date) to the U.S. Forest Service;therefore, it could not be sent out until (date). You argued about the necessity formaking the change.

3. You did not record the receipt on (date), of a report from the unit. Your failure to dothis caused an unnecessary trace for the report.

4. On (date(s)), you left the office without being sure someone was available to answerthe telephone. I verbally admonished you for this on (date).

We agreed that the following actions would be taken by you to correct this behavior:

1. Your completed work will be turned in promptly for my review, then forwardedimmediately to the supervisor for approval and necessary signatures.

2. All errors in letters are to be corrected on a timely basis.

52

Employee’s NameDatePage Two

3. You are to record all receipts of reports immediately.

4. If you need to leave the office, you will let me or someone else know to assure thetelephones are covered.

Your transcription of dictation is generally good. I am pointing out your deficiencies in workperformance so that you may be able to correct them to achieve acceptable performance. I will beavailable to answer your questions if you do not understand some phase of your work and willassist you in learning our procedures and requirements. This will help you to complete your workpromptly. I will review your progress toward improvement with you during the week of (date).

If these matters are not settled satisfactorily, the Department may take further correctiveaction against you based on the incidents cited in the memo, as well as any future incidents.

___ Supervisor Signature Employee Signature

___ (Date of signature) (Date of signature)

53

APPENDIX E

STATE OF CALIFORNIA___THE RESOURCES AGENCY GRAY DAVIS, Governor

DEPARTMENT OF FORESTRY AND FIRE PROTECTIONComplete Region/Unit Address

PERSONAL & CONFIDENTIAL

Letter of Warning (Informal)

July 9, 2001

Name of EmployeeCivil Service ClassificationAddress

[If Peace Officer show in home address space - PEACE OFFICER -CONFIDENTIAL]

Upon review of your traffic accident report, which you prepared on ----------------, it ismy opinion that the responsibility of the accident that day rests with you. Although thevehicle you hit was apparently hit while parked and no one was injured, it is yourresponsibility to --------------------------------------------------------.

Such an incident although not causing significant damage does create anunacceptable “hit” against the Department’s driving record. I trust in the future you will bemuch more cautious when driving for the State of California, or for that matter any vehicle.It is imperative that you drive defensively and alert, as there is no substitute for either ofthese two critical elements.

You will be scheduled for a refresher defensive driver training course and a reviewof the department’s policies with me. I will notify you when the training is scheduled.

Since attendance and work performance problems are sometimes characteristics ofan outside problem you are being reminded of the department’s Employee AssistanceProgram that is available to you.

You are entitled to submit a written rebuttal to this Letter of Warning. The Letter ofWarning and Rebuttal may be placed in your Personnel file and/or your Supervisor’sworking file for up to one year. The department may take adverse action against youbased on the incidents cited in this memorandum, as well as any future incidents.

XxxxxxxxxxxxxxUnit Chief

By:

SupervisorClassification

54

APPENDIX FSTATE OF CALIFORNIA___THE RESOURCES AGENCY GRAY DAVIS, Governor

DEPARTMENT OF FORESTRY AND FIRE PROTECTIONREGIONComplete Name and address of whom is going to sign the action

Notice of Adverse Action (Formal)

Full Name of EmployeeSocial Security NumberCivil Service ClassificationDepartment of Forestry and Fire ProtectionName of UnitWork Address

Home Address: StreetCity, CA 00000


I

NATURE OF ADVERSE ACTION

Pursuant to Government Code Section 19574, you are hereby notified that adverseaction is being taken against you as follows:

IF THE ADVERSE ACTION IS A DISMISSAL INSERT:

You are dismissed from your position as a (classification) effective at theclose of business on (effective date).

OR

IF THE ADVERSE ACTION IS A DEMOTION FOR NO SPECIFIC TIME PERIOD:

You are demoted from your position as a (present classification) to theclassification of (new classification at the salary rate of $-----) effective at thecommencement of business on (effective date).

55

Page 2Employee's Name (Set up HEADER)

OR

IF THE ADVERSE ACTION IS A DEMOTION FOR A SPECIFIC TIME PERIOD:

You are demoted from your position as a (present classification) to theclassification of (new classification at the salary rate of $____) commencing on(effective date) through (expiration date).

OR

IF THE ADVERSE ACTION IS A SUSPENSION:

You are suspended for (number of) working (Monday through Friday) days(weeks or months) commencing on (effective date) through (expiration date).

OR

IF THE ADVERSE ACTION IS A SALARY REDUCTION:

Your salary is reduced (5%) five percent for (number of) pay periodscommencing on (effective date) through (expiration date).

OR

IF THE ADVERSE ACTION IS AN OFFICIAL LETTER OF REPRIMAND:

You are Officially Reprimanded effective (date).

56

Page 3Employee's Name

II

STATEMENT OF CAUSES

This adverse action is being taken against you for (for BU8 add; just causeand) the causes specified in the following subsections of Government Code Section19572 (For BU8 use 19572.1):

List the applicable causes specified in Government CodeSection 19572 (alpha) or 19572.1 (numeric), such as:

a) or 1) Fraud in securing appointment

f) or 6) Dishonesty

m) or 13) Discourteous treatment of the public or other employees

III

CURRENT ASSIGNMENT ANDRELEVANT DUTIES AND RESPONSIBILITIES

You are employed as a permanent Fire Apparatus Engineer (FAE) for theDepartment of Forestry and Fire Protection (CDF) assigned to the xxxxxx FireStation in the xxxxxxx Unit. You began your career with CDF on June 21, 1983 asa Firefighter I and after four fire seasons separated on October 15, 1986. You werethen hired as a permanent FAE on April 27, 1987. You also have several fireseasons as a limited term Fire Captain.

· This is an informational paragraph that gives the Administrative LawJudge synopsis of "basic" facts.

· It should state the employee's current assignment ("name" of office orunit, location, hours, etc. as applicable), previous assignments andtraining that are relevant to the action.

As a Fire Apparatus Engineer, one of your primary duties and responsibilitiesis for the safe operation and maintenance of the Department’s emergency responsevehicles. Routinely you are asked to drive the structural-type fire engines inemergency (Code 3, red lights and siren) and non-emergency situations with due

57


regard for the safety of the public, your passengers, and yourself in both rural andurban environment. You have attended several training classes in regards toemergency vehicle response that included the Department’s policies and theCalifornia Vehicle Code.

· This paragraph states the duties/responsibilities relevant to the "actsor omissions" the employee is being charged with--it informs theAdministrative Law Judge of what was/is expected so that when theJudge reads the "Statement of Acts or Omissions” he or she cancorrelate each "act or omission" to what should have been done.

IV

STATEMENT OF ACTS OR OMISSIONS

This adverse action is being taken against you for the acts or omissionsstated below.

· This is the "heart" of the adverse action. It contains theallegations/charges and any necessary information.

· The components for each allegation/charge are:

· When - Date, time or time period: On or about June 25, 1991;between the hours of 2 p.m. and 4 p.m.; at approximately 10:30a.m., etc.

· Where - Location: in the reception area; in the accountingoffice; in the emergency command center; in the hallwayoutside the records room; in the dormitory at the Academy.

· Who - Names, titles, and/or relationships: in the presence ofFire Captain (FCA) John Smith and Fire Apparatus Engineer(FAE) Mary Parker, you tossed a glass of water on ward JayRay (YA# 11111), in the presence of Youth Counselors PatriciaJoin, Daniel Elbow, Senior Youth Counselor Julie Strick, andGroup Supervisor Steve Plum, you … .

· What - Describe the act or omission, being specific: (1) youwere insubordinate to your supervisor FCA (name) in thatwhen ordered to complete your monthly report prior to leavingfor lunch, you stated, "no way, it's already a day late, what doesanother couple of hours matter. I'm hungry and I'm going"; (2)You are responsible for completing the time records by the 5thof each month. In September and October 1991 these timerecords were not completed until the 8th and 10th, respectively.

58


There were no extenuating circumstances regarding yourfailure to perform this job responsibility in a timely manner.

· What - Policy and/or procedure was violated. List specificmanual title and section number; it is not necessary to quotethe language from the policy/procedure. Be sure to use themanual and section that was in effect at the time the act oromission occurred.

· Why - Should the employee be disciplined? What was theeffect, actual or potential? Possible effects are: adverseimpact on morale of unit or peers; overtime had to be paid(absences or tardiness); deadlines not met (deadlines shouldhave a purpose); injury occurred; placed department in positionof being liable for act or omission; other departments impacted;public impacted; security of unit jeopardized; safety of staff,public, etc. impacted.

· Potential effects are: (1) your failure to file the reports in atimely manner caused the records department a delay incompleting their job responsibility in ensuring that theinstitution's report was mailed to central office by the 10th dayof every month; (2) this insubordination is detrimental to anefficient and harmonious work place; (3) it is fortunate that Mr.Doe was not injured by your actions but the fact is that youractions could have caused an injury.

V

PRIOR PROGRESSIVE DISCIPLINARY ACTIONS

(Eliminate this section if not applicable. Renumber remaining sections.

This section puts the Administrative Law Judge on instant notice of theemployee's previous formal disciplinary proceedings and as such, these areevidence of progressive discipline.

A. You have received the following prior formal disciplinary actions, referencedpursuant to Government Code Section 19582(d):

59


1. In September 1992, you received an adverse action consisting of a10-day suspension. Your appeal of this action was SPB Case No.12345. Final disposition of this case has not occurred.

2. In February 1992, you received an adverse action consisting of a fivepercent (5%) salary reduction for one (1) year. Your appeal of thisaction was SPB case No. 23456. The State Personnel Board upheldthe action with the modification that the salary reduction is for a periodof six (6) months.

3. In July 1991, you received an adverse action consisting of an OfficialLetter of Reprimand. You did not appeal this action.

4. In April 1990, you received an adverse action consisting of a 30-daysuspension. Your appeal of this action is SPB Case No. 54321. TheState Personnel Board upheld this action.

B. You have received the following prior informal progressive disciplinarymemoranda:

This section contains all memorandum discussions, warnings, etc. of aninformal/corrective nature that the supervisor(s) had with the employee.Include denial of MSA (Merit Salary Adjustment) if the allegations areregarding performance upon which the denial of the MSA was based.

1. On March 3 and June 25, 1991, you received counseling memorandafor insubordination. Additionally, on November 3, 1991, you wereverbally counseled by your supervisor for inappropriate interactionwith a co-worker.

Be sure to include copies of prior adverse or corrective actions noted in the sectionin Section V, "Materials and Documents".

VI

MATERIALS AND DOCUMENTS

Pursuant to State Personnel Board rule 52.3, a copy of all materials anddocuments upon which this Adverse Action is based, accompany this Action with acover sheet denoting each material/document.

Additionally, pursuant to Government Code Section 19574.1, you, or yourdesignated representative, have the right to inspect any documents in thepossession of, or under the control of, this Department which are relevant to this

60


Action or which would constitute "relevant evidence" as defined by Evidence Code19574.1, you should contact (name) at (phone #).

Work performance problems are sometime characteristic(s) of an outsideproblem. You are advised that the Department’s Employee Assistance Program (EAP)is available to you.

VII

RIGHT TO RESPOND TO APPOINTING POWER

Pursuant to State Personnel Board Rule 52.3, you have the right to respondto this Notice of Adverse Action, either in writing or verbally, prior to (effectivedate), the effective date of this Action. If you wish to respond verbally, pleasecontact Skelly Officer (name) at (phone #) to schedule your meeting so that it maytake place prior to the effective date, (effective date). You have the right to arepresentative at this meeting; however, at this stage of the proceedings you are notentitled to a formal hearing with examination of witnesses. You are entitled to areasonable amount of State time to prepare your response to thecharges/allegations. If you wish to respond in writing, please submit your responseto (name), (title), at (address). Your written response should be mailed or hand-delivered to ensure receipt prior to (effective date).

Whether you choose to respond verbally or in writing, the individual to whomyou respond will be representing the appointing power and shall have the authorityto amend, modify or revoke any or all of the foregoing allegations.

VIII

RIGHT OF APPEAL TO THE STATE PERSONNEL BOARD

Regardless of whether you choose to respond as detailed in Section VII (ifyou renumbered your document this # will change) above, pursuant to GovernmentCode Section 19575, you may appeal this Action to the State Personnel Board.You, the employee, have 30 calendar days after the effective date of this AdverseAction to file with the State Personnel Board a written answer (appeal) to the Noticeof Adverse Action. The answer shall be deemed a denial of all of the allegations ofthe Notice of Adverse Action not expressly admitted and a request for hearing orinvestigation as provided in this article. With the consent of the State PersonnelBoard, or its authorized representative, an amended answer may subsequently befiled. If the employee fails to answer within the time specified, or after answerwithdraws his or her appeal, the Adverse Action taken by the appointing power shallbe final. A copy of the employee’s answer and of any amended answer shallpromptly be given by the board to the appointing power. This appeal shall be sent

61

Page 8Employee’s Name

to: State Personnel BoardAttention: Hearing OfficeP.O. Box 944201Sacramento, CA 94244-2010

You may also file your appeal in person with the State Personnel Board at801 Capitol Mall in Sacramento, California. Business hours are 8 a.m. to 5 p.m.Monday through Friday, and closed holidays.

Pursuant to Government Code Section 19578, the State Personnel Board, orits authorized representative, shall hold a hearing within a reasonable time. You willbe notified of the time and place of the hearing. You are responsible for notifyingthe State Personnel Board of any changes in your address that occur after theeffective date of this Action.

The following paragraph should be added only for dismissals:

Pursuant to State Personnel Board Rule 52.4, you or the department mayrequest the use of the expedited appeal process by writing to the State PersonnelBoard Hearing Officer within 10 calendar days of the filing of the appeal. Staff ofthe Board will contact the opposing party to determine if the party is prepared andconcurs with the request. If the party concurs, a hearing will be scheduled within 15calendar days of the concurrence of both parties. A proposed hearing officerdecision will be prepared within 5 calendar days of the concurrence of both partiesand considered at the next appropriate Board meeting. If concurrence is notobtained, the appeal will be processed through the normal scheduling system.

Check Bargaining Unit Contracts to see if the employee if entitled to a Boardof Adjustment appeal. If so, use Section VIII below instead of the aboveSection VIII.

VIII

RIGHT TO GRIEVE ACTION OR, ALTERNATIVELY,TO APPEAL TO THE STATE PERSONNEL BOARD

Regardless of whether you choose to respond as detailed in Section VII above,you have the choice of filing a discipline grievance with the Department’s LaborRelations Office, pursuant to Article XIX of the Bargaining Unit 8 Memorandum ofUnderstanding (MOU), OR, alternatively, you may appeal this Action to the StatePersonnel Board, pursuant to Government Code Section 19575.

If you do not grieve this adverse action as described in subsection A below or ifyou do not file an answer as described in subsection B below, then the adverse action

62


taken by the appointing power shall be final. IF YOU DO NOT DISPUTE THISADVERSE ACTION AS PROVIDED HEREIN IT WILL BECOME FINAL.

A. Departmental Discipline Grievance:

If you elect to grieve this Action pursuant to Article XIX of the Bargaining Unit 8MOU, your discipline grievance must be on an official discipline grievance form or awriting that contains the same information, and, further, an “Acknowledgment andWaiver” form must be signed by you and submitted with your discipline grievance. Yourdiscipline grievance must be filed with the Department’s Labor Relations Office withinthirty (30) calendar days following the effective date of the action. The disciplinegrievance should be sent to:

Department of Forestry and Fire ProtectionAttention: Labor Relations OfficerP.O. Box 944246Sacramento, CA 94244-2460

You may also file your discipline grievance in person with the Department ofForestry and Fire Protection’s Labor Relations Office at 1416 Ninth Street, Room 1653-3,in Sacramento, CA. Business hours are 8 a.m. to 5 p.m. Monday through Friday andclosed holidays.

B. State Personnel Board Appeal:

If you elect to appeal this Action pursuant to Government Code Section 19575,you, the employee, have thirty (30) calendar days after the effective date of this AdverseAction to file with the State Personnel Board a written answer (appeal) to the Notice ofAdverse Action. The answer shall be deemed a denial of all of the allegations of theNotice of Adverse Action not expressly admitted and a request for hearing orinvestigation. With the consent of the State Personnel Board, or its authorizedrepresentative, an amended answer may subsequently be filed. A copy of theemployee’s answer and of any amended answer shall promptly be given by the board tothe appointing power. This appeal should be sent to:

State Personnel BoardAttention Hearing OfficeP.O. Box 944201Sacramento, CA 94244-2010

You may also file your appeal in person with the State Personnel Board at 801Capitol Mall in Sacramento, California. Business hours are 8 a.m. to 5 p.m. Mondaythrough Friday, and closed holidays.

63


Pursuant to Government Code Section 19578, the State Personnel Board, or itsauthorized representative, shall hold a hearing within a reasonable time. You will benotified of the time and place of the hearing. You are responsible for notifying the StatePersonnel Board of any changes in your address that occur after the effective date of theAction.

The following paragraph should be added only for dismissals:

Pursuant to State Personnel Board Rule 52.4, you or the department mayrequest the use of the expedited appeal process by writing to the State PersonnelBoard Hearing Officer within 10 calendar days of the filing of the appeal. Staff ofthe Board will contact the opposing party to determine if the party is prepared andconcurs with the request. If the party concurs, a hearing will be scheduled within 15calendar days of the concurrence of both parties. A proposed hearing officerdecision will be prepared within 5 calendar days of the concurrence of both partiesand considered at the next appropriate Board meeting. If concurrence is notobtained, the appeal will be processed through the normal scheduling system.

IX

SEPARATE AND DISTINCT RIGHTS

Your right to respond prior to the effective date of this Action as detailed in SectionVII, (check renumbering) is separate and distinct from your appeal rights as detailed inSection VIII (check renumbering) above. You may exercise both rights as long as you doso within the time limits provided.

DATED: _______________________________

SIGNATURE: ____________________________Name (Type under signature)Classification

NOTE: If dismissal is proposed or discrimination is charged, including sexualharassment, signature of Director is required!

64

APPENDIX G

Instructions: List of Materials/Documents Accompanying the Notice ofAdverse Action or the Notice of Rejection During Probationary Period

The person compiling the list and copying the materials/documents shouldensure/be aware of the following:

1. The copies of the materials/documents should be readable.

2. A copy of the entire investigation report and file should be served withthe Notice.

3. If interview tapes have not been transcribed, copies of the tapes,contents clearly identified, should be supplied upon request.

4. In addition, to the investigative report and file, the employee is alsoentitled to copies of all other materials/documents upon which theNotice is based. For example, memoranda, statements anddocuments might have been sent and obtained both prior andsubsequent to the investigation.

5. Drafts of documents, which are subsequently revised and finalized,should not be included in the materials/documents, as their presenceis confusing. Drafts should be destroyed once they are no longerapplicable.

6. Any materials/documents, which are privileged or confidential, shouldnot be included. If a portion of a memorandum or document isprivileged or confidential, that portion should be "blacked-out" in somemanner and the notation "attorney-client privilege" (or other privilege),or "confidential" should be made in the empty space.

65

APPENDIX H

Materials/Documents Accompanying the Notice of Adverse Action

To: Employee's Name

I have compiled the following copies of the materials/documents upon whichthe Notice of Adverse Action is based:

1. Investigation Report by (name), (date), (pages) with attachment of Listof Exhibits (# of pages).

2. Supplemental Report by (name), (date), (pages) with attachment ofList of Exhibit (# of pages).

3. Attendance Reports from March 1991 through June 1991 (3 pages)

Dated:____________________ by:___________________________________

To be completed by receiving individual:

I have received a copy of this list accompanied by the materials/documentsitemized above. If any of the above are omitted, or, in my opinion, unreadable, orany of the page calculations are not accurate, I will contact the appointing authoritytaking this Action to discuss the matter.

Date List and Materials/Documents Received:_________________________

Received by:____________________________________________________

For subsequent pages, place in upper left-hand corner:

Employee's NameMATERIALS/DOCUMENTSPage 2

66

APPENDIX I

USE LETTERHEAD OF UNIT

Notice of Upheld Adverse Action (Skelly Hearing)

Personal and Confidential

(The information below comes from page one of the Adverse Action)

Name of EmployeeSSN:Civil Service ClassificationDepartment of Forestry and Fire ProtectionWork Address

Home Address:

[If Peace Officer, show in home address space - PEACE OFFICER -CONFIDENTIAL]

To: Employee's Name

On (date), in Room (No.) at (time), a Right to Respond to Appointing Powermeeting (Skelly) was held concerning the adverse action (or probationary report)served to you on (date). In attendance were .

In this second paragraph, you may indicate any additional research and/orinformation obtained subsequent and pertinent to the hearing.

After considering the testimony, I conclude that the adverse action (rejectionduring probation) is appropriate and therefore stands. As indicated in the adverseaction notice, this action is effective on (date) through (date).

______________________________NameSkelly Officer

______________________________Date

Note: Declaration of Service is required

67

APPENDIX JUSE LETTERHEAD OF UNIT

Notice of Amended Adverse Action (Skelly Hearing)


(The information below comes from page one of the Adverse Action)

Name of EmployeeSSN:Civil Service ClassificationDepartment of Forestry and Fire ProtectionWork Address

Home Address:


To: Employee's Name

On (date), in Room (No.) at (time), a Right to Respond to Appointing Powermeeting (Skelly) was held concerning the adverse action (or probationary report)served on you on (date). In attendance were .

In this second paragraph, you may indicate any additional research and/orinformation obtained subsequent and pertinent to the hearing.

As a result of the (date) meeting during which you responded to the adverseaction of--(suspension, demotion, etc.), effective (date), the following conclusionshave been reached. The amended adverse action is (suspension, demotion, etc.)and will be effective (date) and concludes on (date).

All other terms and conditions of the Adverse Action remain unchanged.

_____________________________________NameSkelly Officer

_____________________________________Date

Note: Declaration of Service is required

68

APPENDIX K

STATE OF CALIFORNIA___THE RESOURCES AGENCY GRAY DAVIS, Governor

DEPARTMENT OF FORESTRY AND FIRE PROTECTIONREGIONComplete Name and address of whom is going to sign the action

PERSONAL & CONFIDENTIAL

Notice of Rejection During Probationary Period

Name of EmployeeSocial Security NumberCivil Service ClassificationDepartment of Forestry and Fire ProtectionName of UnitWork Address

Home Address: StreetCity, CA 00000


I

NATURE OF ACTION

Pursuant to Section 19173 of the Government Code, you are hereby notifiedthat you are Rejected During Probation from your position as a (civil serviceclassification) effective at the close of your business on (effective date).

II

STATEMENT OF CAUSES

Pursuant to Government Code Section 19173, you are rejected during yourprobationary period for reasons relating to your qualifications, the good of the service,and/or failure to demonstrate merit, efficiency, fitness, and moral responsibility.

III

CURRENT ASSIGNMENT ANDRELEVANT DUTIES AND RESPONSIBILITIES

You were appointed as a (classification) on (official date of appointment).

69


A. You have spent your entire probationary period assigned to (department/section etc.)

OR

A. During your probationary period you have had the following assignments forthe dates indicated: (list dates and assignments).

IV

STATEMENT OF ACTS OR OMISSIONS

This rejection is being taken against you for the acts or omissions stated below.

NOTE: Refer to Section IV of the Adverse Action Sample (see Appendix F)

V

PROBATIONARY REPORTS ANDCORRECTIVE ACTIONS

A. Your first and second probationary reports specifically stated your deficienciesand areas in which you needed to improve.

B. During your probationary period you have received timely corrective counselingon (dates). To facilitate your improvement, additional training and instructionwas provided to you on (date(s) in the area(s) of (state the area(s)).

VI

MATERIALS AND DOCUMENTS

Pursuant to State Personnel Board Rule 52.3, a copy of all materials anddocuments upon which this Notice of Rejection During Probation is based, accompanythis Action with a cover sheet denoting each material/document.

Additionally, pursuant to Government Code Section 19574.1, you, or yourdesignated representative, have the right to inspect any documents in the possessionof, or under the control of, this Department which are relevant to this Action or whichwould constitute “relevant evidence” as defined by Evidence Code Section 210. If youhave such a request pursuant to Government Code Section 19574.1, you shouldcontact (name) at (phone number).

70


Work performance problems are sometime characteristic(s) of an outsideproblem. You are advised that the Department’s Employee Assistance Program(EAP) is available to you.

VII

RIGHT TO RESPOND TO APPOINTING POWER

Pursuant to State Personnel Board Rule 52.3, you have the right to respond tothis Notice of Rejection, either in writing or verbally, prior to (effective date), theeffective date of this Action. If you wish to respond verbally, please contact (name) at(phone #) to schedule your meeting so that it may take place prior to the effectivedate, (effective date). You have the right to a representative at this meeting; however,at this stage of the proceedings you are not entitled to a formal hearing withexamination of witnesses. You are entitled to a reasonable amount of State time toprepare your response to the charges/allegations. If you wish to respond in writing,please submit your response to (name), (title), at (address). Your written responseshould be mailed or hand-delivered to ensure receipt prior to (effective date).

Whether you choose to respond verbally or in writing, the individual to whomyou respond will be representing the appointing power and shall have the authority toamend, modify or revoke any or all of the foregoing allegations.

VIII

RIGHT OF APPEAL TO THE STATE PERSONNEL BOARD

Regardless of whether you choose to respond as detailed in Section VIIabove, pursuant to Government Code Section 19175 (if BU8 use 19175.3) you mayappeal this Rejection to the State Personnel Board. Such an appeal must be filed inwriting no later than fifteen (15) calendar days after the effective date of Rejection.The effective date of Rejection is (effective date). This appeal should be sent to:

State Personnel BoardAttention: Hearing OfficeP.O. Box 944201Sacramento, CA 94244-2010

You may also file your appeal in person with the State Personnel Board,which is located at 801 Capitol Mall in Sacramento, California. Business hours are8 a.m. to 5 p.m. Monday through Friday, and closed holidays.

71


Your appeal shall be deemed to be a request for hearing or investigation asprovided in Section 19175 (if BU 8 use 19175.3) of the Government Code. If youfail to file an appeal within the times specified, or withdraw your appeal, thisRejection shall be final.

Pursuant to Government Code Section 19175 (if BU8 use 19175.3), theState Personnel Board, or its authorized representative, may hold a hearing on yourappeal of this Rejection. If a hearing is scheduled, you will be notified of the timeand place of the hearing. You are responsible for notifying the State PersonnelBoard of any changes in your address that occur after the effective date of thisRejection.

IX

SEPARATE AND DISTINCT RIGHTS

Your right to respond prior to the effective date of this Rejection as detailed inSection VII, is separate and distinct from your formal State Personnel Board appealrights as detailed in Section VIII above. You may exercise both rights as long asyou do so within the time limits provided.

X

MANDATORY RIGHT OF RETURN TO FORMER POSITION

Pursuant to Government Code Section 19140.5 you have a mandatory rightof return to your former position as a (classification) with (former department). TheDepartment of Forestry and Fire Protection will notify your former department thatyou are being rejected; however, it is your responsibility to request reinstatement inwriting within ten (10) working days after the effective date of this Rejection.

OR

Pursuant to Government Code Section 19140.5 you have a mandatory rightof return to your former position as a (classification) at the (Name of Unit) with theDepartment of Forestry and Fire Protection. Your former supervisor (or manager,unit chief, etc.) will be notified that you have mandatory return rights; however, it isyour responsibility to request reinstatement in writing within ten (10) working daysafter the effective date of this Rejection.

Dated:_______________________________

Signature:___________________________NameClassification

72

APPENDIX L

Materials/Documents Accompanying the Notice of Rejection DuringProbationary Period

To: Employee's Name

I have compiled the following copies of the materials/documents upon whichthe Notice of Rejection During Probationary Period is based:

1. First Probationary Report

2. Letter from Corrective Interview (dated)

3. Second Probationary Report

Dated:____________________ by:___________________________________

To be completed by receiving individual:

I have received a copy of this list accompanied by the materials/documentsitemized above. If any of the above are omitted, or, in my opinion, unreadable, orany of the page calculations are not accurate, I will contact the appointing authoritytaking this Action to discuss the matter by________________.

Date List and Materials/Documents Received:_________________________

Received by:____________________________________________________

For subsequent pages, place in upper left-hand corner:

Employee's NameMATERIALS/DOCUMENTSPage 2

73

APPENDIX M

USE LETTERHEAD OF UNIT

Notice of Upheld Rejection During Probation

(Right to Respond to Appointing Power Hearing)


(The information below comes from page one of the Rejection During Probation)

Name of EmployeeSocial Security NumberCivil Service ClassificationDepartment of Forestry and Fire ProtectionRanger UnitStreetCity, CA 00000

Home Address: Street AddressCity, CA 00000


On (date), in Room (No.) at (time), a Right to Respond to Appointing Power hearing washeld concerning the Notice of Rejection During Probation served to you on (date). In attendancewere ----------------------------------------------------------------------------.

The information you provided during this hearing -------------------------------------. In thissecond paragraph, you may indicate any additional research and/or information obtainedsubsequent and pertinent to the hearing.

As a result of the (date) hearing in which you responded to the Rejection During Probation,effective (date), the following conclusions have been reached. The amended Rejection DuringProbation is appropriate and, therefore, stands. As indicated in the Notice of Rejection DuringProbation, this action is effective -------------------------------close of business..

_____________ Type NameType Classification of Signer

Date __________________________

74

APPENDIX N

Instructions: Declaration of Service; Mailing Procedures; Instructions forServer; Extension of Effective/Due Dates if Mailed

The person preparing the service document(s) and giving instructions to the server,should ensure/be aware of, the following:

1. APPLICABLE TO ALL SERVICE DOCUMENTS ONCE COMPLETEDEXCEPT FOR SIGNATURE AND DATES

a. Make one copy.

b. The original is served on the employee, either by personal service orby mailing, without any signature and dates.

c. The person who personally serves or does the service by mail thencompletes the copy with his or her signature and the date. This copybecomes the "original" and proof that the personal service or serviceby mail occurred. This "original" is sent to the State Personnel Boardwith a copy of the Notice. (Prior to forwarding to SPB, copies of this"original" should be made for attachment to the departmental copies ofthe Notice.)

2. DECLARATION OF PERSONAL SERVICE

a. The person performing the personal service must view the Notice,Materials/Documents, and List prior to these being placed in anenvelope and sealed. (If the server does not view these, then he orshe will only be able to testify, or complete an affidavit, that anenvelope was served as he or she will have no knowledge of whatwas inside.)

b. The server is not required to review the materials/documents and thelist with the employee.

c. The person performing the personal service should complete (dateand sign) the Declaration and return it to the preparer as soon aspossible.

75

Page 2INSTRUCTIONS:DECLARATIONS OF SERVICE;MAILING PROCEDURES, ETC.

3. DECLARATION OF SERVICE BY MAIL

a. The business address is contained twice on this declaration.

b. Service/mailing is by both registered and first class mail.

c. Mailing is to the last known address of the employee, whether it is theemployee’s official address (the one given by the employee to theHuman Resources Office) or one that is known to the supervisor ascurrent (possibly the employee has not yet filed an official change ofaddress).

d. If the envelopes are returned marked "moved, no forwarding address."or some other notation indicating that delivery was not completed, areasonable effort should be made immediately to ascertain theemployee's current address where mail can be received. The"reasonable effort" should be documented. If a new address isidentified, then a new Declaration of Service should be completedreflecting the new address, and service should again be attempted.The effective dates contained in the Notice should be adjusted asappropriate. The envelope(s) returned with the postal notation shouldbe preserved and placed in the employee's "discipline" file. If no newaddress can be ascertained, then a copy of the envelope returned withthe postal notation should be forwarded with the Notice andDeclaration to the State Personnel Board.

4. EXTENSION OF EFFECTIVE/DUE DATES IF MAILED

a. Code of Civil Procedure Section 1013 mandates that wheneverservice or notice is by mail, the "effective" or due date must beextended according to the location where the service or notice is to bemailed. This applies to "... any prescribed period of notice and anyright or duty to do any act or make any response within any prescribedperiod or on a date certain after the service of such document servedby mail...." Regarding times to file an appeal, however, this statutestates: "... the extension shall not apply to extend the time for filing ...notice of appeal." Therefore, only the effective date (Skelly period) isextended if mailed.

b. Be sure to peruse your entire document and adjust all effective, due,or response dates accordingly.

c. If the place of address is within the State of California, extend the date5 calendar days.

76

Page 3INSTRUCTIONS:DECLARATIONS OF SERVICE;MAILING PROCEDURES; ETC.

d. If the place of address is outside California but within the UnitedStates, extend the date 10 calendar days.

e. If the place of address is outside the United States, extend the date 20calendar days.

f. If you are going to serve a Notice of Adverse Action, the effective dateis 5 working days after personal service. If you serve the Notice bymail to an address in California, the effective date is 5 working daysplus an additional 5 calendar days.

5. IDENTIFYING WHAT DOCUMENTS ARE BEING SERVED

a. In completing a Declaration of Service ("Declaration") of any type, it isrequired that you identify what is being served with enough specificitythat what documents were served will not be in dispute. If thedocuments have a specific title, use the title; if there is not title, identifythe nature or purpose of the document. If the documents have"version" numbers or "revision" numbers or "amendment" numbers, besure to include the appropriate number(s).

b. By giving each document a number, you can use the Declaration toserve different documents (all relative to the same matter) on differentpeople--or, as in the samples, you can delineate which documentswere sent by one method of mailing/postage and which by anothermethod.

77

APPENDIX OUSE LETTERHEAD OF UNIT

Declaration of Personal Service

I, (Print Name of Server) ______________ , declare:

I am and was at the time of the service of the attached, described below, over the age of 18 yearsand not a party to the within action.

On _(Date served)_______________, I served originals and copies, as indicated below, on:

Name of Employee: _________________

Classification: _____________________

(1) Notice of Adverse Action, OR Rejection During Probationary Period, etc. (original)

(2) Materials/Documents upon which the notice is based (copies)

(3) A list denoting each of the materials/documents (copy)

Service was effected by:

__Personal Service. By personally delivering to and leaving with the person named abovea copy at the address below:

Address: _____________________

City, CA, Zip: __________________

I declare under penalty of perjury that the foregoing is true and correct.

Executed on ______________ _ at _____________, CA.

_____________________________________(Signature of Person Serving)

78

APPENDIX PUSE LETTERHEAD OF UNIT

Declaration of Service by Mail

I __(Print Name of Server) __ , declare:

I am a citizen of the United States and employed in the County of _______ , State ofCalifornia. I am over the age of 18 years, and not a party to the within action. My businessaddress is:

California Department of Forestry and Fire Protection,

Address:____________________________

City, CA, Zip:________________________

On ____________, I placed originals and copies, as indicated below, of the following:

(1) Notice of Adverse Action OR Rejection During Probationary Period, etc. (original)

(2) Materials/Documents upon which the notice is based (copies)

(3) A list denoting each of the materials/documents (original to sign and return and copy tokeep) in an envelope addressed as indicated below. I then sealed the envelope(s) andplaced it/them for collection and mailing, in the course of ordinary business practice, withother correspondence of the California Department of Forestry and Fire Protection.

Name: _______________________

Address: _____________________

City, CA, Zip: _________________

I declare under penalty of perjury that the foregoing is true and correct, and that this declarationwas executed by me on:

DATE:_______ SIGNATURE:____________________________

79

APPENDIX Q

Distribution: Notice of Adverse Action/Rejection of Probation/etc.;Materials/Documents Notice Based on List of Materials/Documents;

Declaration of Service; Skelly Response, etc.

A. THE EMPLOYEE

1. The disciplined/rejected/etc. employee receives the original of theNotice, copies of the Materials/Documents, Copy of the List ofMaterials/Documents, original of the Skelly response, and a copy ofany settlement agreement.

2. Except for the Skelly response and settlement agreement, all theabove are served on the employee prior to the effective date of theNotice.

3. There is no requirement that the written Skelly response be served onthe employee or mailed by registered mail; therefore, first classmailing is satisfactory.

B. THE DEPARTMENTAL LEGAL OFFICE

1. The Legal Office receives three copies of the Notice, the original andtwo copies of the Declaration of Service, and one copy of theMaterials/Documents and list.

2. A transmittal memorandum should accompany the documents sent tothe Legal Office.

C. THE STATE PERSONNEL BOARD

1. The Legal Office sends to the State Personnel Board (SPB) a copy ofthe Notice and the fully executed "original" Declaration of Service,after served but no later than 15 calendar days after. If service bymail was not completed due to no current address for the employee, acopy of the envelope returned with the notation from the PostalService should also be forwarded to SPB. A transmittal memorandumshould accompany the Notice and Declaration. If the employee couldnot be located, that fact should be stated in the transmittalmemorandum.

80

Page 2DISTRIBUTION:NOTICE OF ADVERSE ACTION/REJECTION/ETC.;MATERIALS/DOCUMENTS NOTICE BASED ON;LIST OF MATERIALS/DOCUMENTS;DECLARATION OF SERVICE;SKELLY RESPONSE; ETC.

2. The Legal Office sends SPB a copy of the Skelly hearing results andthe original Declaration of Service.

3. SPB does not receive a copy of the materials/documents and list.

D. CDF LABOR RELATIONS OFFICE

1. The Legal Office, upon request from the Labor Relations Office willsend a copy of the Notice and supporting documentation to their officefor the Discipline Grievance process outlined in the appropriateBargaining Unit contract.

E. THE HUMAN RESOURCES/PERSONNEL OFFICE WHERE THEEMPLOYEE'S OFFICIAL PERSONNEL FILE IS LOCATED

1. A copy of the Notice only should be sent to the Personnel Specialist atthe employee's Unit under confidential seal.

2. A transmittal memorandum should accompany the Notice andDeclaration requesting that the Notice be processed (suspension,salary reduction, demotion, etc.) and then placed in the employee'sOfficial Personnel File. If the Notice is an Official Letter of Reprimandor if it has been agreed that the Notice will be removed from theOfficial Personnel File on a specific date, then this date of removalshould be noted in the transmittal memorandum. Official Letters ofReprimand, by statute, are to be removed no later than three yearsfrom the effective date.

3. The forwarding of the above should be in a confidential manner.

F. OTHER

1. One copy of all documents should be sent to the Region Office.

81

APPENDIX RUSE LETTERHEAD OF UNIT

Letter for Denial of Special In-Grade Salary Adjustment or Merit SalaryAdjustment

Date

Name of EmployeeSSN:ClassificationDepartment of Forestry and Fire ProtectionWork Address

Home Address:


Your job performance does not meet the standards of quality and quantityexpected at this stage of experience in your position. I have thereforerecommended that your special in-grade salary increase effective with the (month)(year) pay period not be granted.

Specific examples of your unsatisfactory performance are:

Appeal rights may depend upon the contract language.Please refer to the individual employee's contract for theappropriate appeal rights.

Granting of a special in-grade salary adjustment may bereconsidered at any time but must be reconsidered atthe end of six months.

_(Supervisor’s signature)__________NameClassification

82

APPENDIX S

Adverse Action Submittal Checklist

Upon deciding to pursue formal adverse action against an employee for disciplinary reasons theUnit Chief, or his or her designee, should:

! Notify the Region Chief Deputy Director of the nature of the action.

Reports, documents, and/or materials represented in the checklist below should be assembledand forwarded to the Region Administrative Officer with CONFIDENTIAL AND PERSONALdesignation:

! One hard copy of the action, to include:1. Nature of adverse action, including recommended penalty and date action is to be

implemented2. Statement of causes, including all applicable Government code violations3. Current assignment and relevant duties and responsibilities, including employee

history, length of service, relevant duties and training history4. Statements of acts or omissions relevant to the adverse action.5. NOTE: If action involves dismissal or “cause w” use Sacramento’s address for

letterhead and set up signature block for Director.

! Position Duty Statement (PO-199) for employee.

! Total 12-line PAR history of employee. (Not from PACMAN)

! Completed form, “MATERIALS/DOCUMENTS ACCOMPANYING THE NOTICE OFADVERSE ACTION.”

! Three legible copies of all materials and documents upon which the action is based.Documentation must be suitable for subsequent photocopying. Documentation mustinclude employee’s response to allegations obtained by interviewing the employee.

! Three, color prints of any photographs used to support the action. Scannedreproduction of color prints may be used.

! Diskette containing, at minimum, proposed adverse action format and form“MATERIALS/DOCUMENTS ACCOMPANYING THE NOTICE OF ADVERSEACTION.”

Standard adverse action formats developed in Microsoft Word must use Arial 12 font. Theseformats may be obtained by contacting the Region Administrative Officer or your UnitAdministrative Officer.

83

APPENDIX T

A Guide to Firefighter I Termination with Cause

84

Page 1

Overview

This Guide will assist station supervisors with progressive discipline up to and including atermination with cause. Failure of a supervisor to follow the correct procedures can causeneedless extra work and follow-up for the supervisor as well as the administration and theDepartment's legal staff.

It is very important, when considering termination with cause of a Firefighter I, that you keep yourBattalion Chief (BC) “in the loop” from the onset of the issue(s). The BC can assist you in ways tohelp you help your employee succeed. The BC will keep the Administrative Officer and/or UnitChief informed throughout the process.

When progressive discipline fails, it is time to inform the Firefighter I of the termination with causeand give the employee his or her rights. This has to be done in writing. Only the Unit Chief ordesignee has the authority to sign the termination with cause letter to the employee. In theNorthern Region only the Unit Chief has authority to terminate with cause.

There are various types of separations that occur with Firefighter Is:

Voluntary Resignation - Voluntary Resignation occurs when a Firefighter I decides to go backto school, goes to other employment, etc.

Separation without cause - Separation without cause may occur when CDF is downsizing atthe end of Fire Season; the department has a need to layoff firefighters due to budgetconstraints; etc.

Termination with cause - Termination “With Cause” can occur when a supervisor determinesand has documented that performance, behavior, or other deficiencies cannot be corrected, eventhough the supervisor has worked with the employee to improve his or her deficiencies.

It has been assumed that a Firefighter I, as a seasonal employee, has no rights when terminatedwith cause. Although seasonal employees do not have the same rights as permanent civilservice employees, there are still procedures that must be followed when termination with causebecomes necessary.

Recommendation “not to rehire" - A recommendation not to rehire can occur when asupervisor has set appropriate standards for acceptable performance and the employee has notbeen able to reach those standards. There must be detailed documentation of the work-relatedreasons and corrective counseling sessions that the supervisor has also documented in detail.

Employees not being recommended for rehire must be counseled/informed verballyprior to separation along with detailed documentation. Those who receive arecommendation “not to rehire” have the right to appeal that decision to their BC inwriting within 10 calendar days of receipt of the performance evaluation, CDFForm-212. The BC shall respond in writing to the appeal within 10 calendar daysof receipt of the appeal. If the employee does not agree with the BC’s decision, theemployee may re-file the appeal with the Division Chief (DC) in writing within

85

Page 2

10 calendar days of the BC’s response. If no response is received from the BCwithin the 10 calendar days, the employee may re-file with the DC within 20calendar days of the original request. The DC shall respond in writing within 10calendar days.

Procedures for Termination With Cause

DOCUMENT! DOCUMENT! DOCUMENT! DOCUMENT! DOCUMENT! DOCUMENT!

Do the documentation. Whether an employee is being terminated for one “major” incident or aseries of smaller incidents, documentation must be done and it must be timely. Supervisors needto be fair and tell employees what they can do to improve.

When a supervisor is terminating a Firefighter I for one major incident the supervisor shoulddocument what happened. Be able to complete the questions--Who, What, When, Where, Why,and How, if applicable. Be specific by documenting who did what; date/ time; where it happened;what happened; who else was there; what were the circumstances; why and how.

When a Firefighter I has shown long-term performance deficiencies, the supervisor shoulddiscuss and document the performance deficiencies in a memo similar to a documentedcorrective counseling memo. (See sample attachment) Again, the supervisor needs to identifyspecific performance problems, dates and times, and how the Firefighter I can improve theperformance. The department needs to be able to show what we are doing to help the employeesucceed.

Once a supervisor makes the decision to terminate a seasonal Firefighter I, the supervisor writesthe letter, which lists the specific reasons the employee is being terminated with cause. For theNorthern Region a termination with cause letter has to be signed by the Unit Chief (ordesignee). Be sure to put the date the termination is effective. Due to a side letter agreementbetween CDF and the CDF Firefighters, there is new language for appeal rights of a Firefighter Iwho is terminated with cause. (See Sample letter attached). Be sure to include this language inall termination with cause letters to Firefighter Is. This is an opportunity for the employee todiscuss the termination with the person who has the authority to render a final decision.

The employee also has the right to appeal the “with cause” portion to the State Personnel Board(SPB). The SPB will make a determination as to whether the appeal was filed timely and if thenature of the charge(s) entitles the employee to a hearing. The only remedy the SPB can providein the event of a successful appeal is the removal of the “with cause” designation from the record.The SPB does not look favorably upon supervisors who do not give the employee his or herrights. The sample letter attached has the language you should use in your letter of termination.

Once a termination letter has been served, a copy of the letter, the original Declaration of Servicealong with supporting documentation, including the exit interview, will be forwarded to theappropriate Administrative Officer.

86

Page 3

Grounds for Terminating Firefighter I "With Cause"

Below is a list of possible reasons for terminating Firefighter I. This list is by no means completeand is only meant to provide some examples to help you determine when these actions might benecessary. In all cases, you must be fair in your assessment of the individual, and your disciplinemust be applied equally to all of your employees. Do not use government code causes whenwriting a termination with cause for a Firefighter I employee.

1. When you have an employee who regularly challenges you when given assignments, itmay become a safety hazard in an emergency situation. If employee does not followinstructions. Employee unwilling to submit to authority.

2. Lack of physical ability to do the job: When you have an employee who is physicallyunable to do the job, you need to allow them a fair amount of time to meet the standard.Normally this will be a one-month time period and can be extended if you see theemployee is making a concerted effort. It will also require you to work with the employeeto establish a specific plan, to address the employee’s area(s) of weakness. A goodsource for information on developing a plan is the Unit Physical Fitness Coordinator(s).

3. When the crew has to continually pick up after the employee, the employee disappearswhen there is work to be done, or when the employee continually asks others to assist ordo the job: Employee does not have respect or pride for the station or equipment, or showsno motivation, despite your best efforts to teach the employee his responsibilities, anddrags down the whole crew.

4. Multiple instances of violating safety policies: Failure to wear seat belt in moving vehicle,backing the engine with no back-up person, not wearing goggles while operating achainsaw, etc.

5. The use of State equipment without authorization or longer than allowed at the station,after repeatedly being reprimanded, which can include telephone usage, computer usage,etc.

6. Use of inappropriate language or behavior after repeated warnings (in writing).

7. Failure to report to work on the days and/or times scheduled. The employee who does notreport to work in a timely manner is not performing satisfactory work in that he or she isfailing to meet one of the primary responsibilities as an employee.

87

USE UNIT LETTERHEAD

Corrective Counseling Memo

DATE: June 18, 2000

TO: Firefighter I Steve Smith

FROM: Captain William Wilder

This memo is a follow-up of the corrective-counseling meeting we had yesterday,June 17, 2000 at which time I informed you that your performance to date has been unacceptablefor the following reasons:

On 6/5/00 at 0700, you were given specific verbal instructions not to operate any of the engineswithout first being cleared and given approval. At 0830 on that date you were observed by myselfpulling engine 2661 out of the garage. You are not to operate any State automotive equipmentuntil you have been given instructions to do so by a station supervisor.

On 6/10/00 at 1045 you were given instructions to rake leaves at the rear of the Barracks buildingand to have this done by noon. When I checked on your progress at 1200, the leaves had notbeen raked and you were loitering in the garage area, talking to other firefighters. In the future,when given specific instructions, carry out the assignment in a timely manner, as instructed.

On 6/15/00 I observed you once again operating one of the Engines assigned to the stationwithout prior approval. When I asked you about it, you stated that FAE Don Slurry asked you tomove the engine. When I asked FAE Slurry if this was the case, he stated that it was not. As Ipreviously discussed with you on 6/5/00, you are not to operate State automotive equipmentwithout being cleared to do so. Your dishonesty about this incident is intolerable and cannotcontinue.

You need to improve in these areas. If these issues are not settled satisfactorily, I willrecommend this record become part of a termination package. If you wish to write a rebuttal tothis memo, I will attach it to the copy in my working file.

Bill Wilder Steve Smith__________Captain William Wilder Firefighter I Steve Smith

88

USE UNIT LETTERHEADDate

Firefighter (Name)Home Address

You are hereby notified that you are being terminated with cause from your seasonal employmentas a Fire Fighter I with the California Department of Forestry and Fire Protection effective (date).

The reasons for termination with cause is:

1. You have been absent from your duty station since (date).

2. You have not made any contact with your immediate supervisor, (class/name) since (date)and your absence has been without knowledge or approval.

3. As of this date, your unapproved absence has totaled xx duty days. You were told whenyou reported to work what your shift was, where to report and whom to contact shouldsomething come up where you would not be able to make it to work. Your absence hascaused other firefighters to give up their days off to cover your absence. The departmentalso had to spend overtime dollars to cover your absence.

If you would like the opportunity to meet with your Unit Chief (or his or her designee), you haveten (10) calendar days following the date you receive this notice to contact Chief (Name,address, phone number) to request a meeting.

The Unit Chief (or designee) will schedule a meeting with you and your representative withinseven (7) calendar days following your request. At this meeting you will be given the opportunityto present the reasons why you should not have been terminated. The Unit Chief (or designee)shall render a final decision regarding the termination with cause within 30 calendar daysfollowing the date of the meeting.

As a temporary employee, you may appeal this termination with cause in writing to the StatePersonnel Board, 801 Capitol Mall, Sacramento, California 95814 within 30 calendar days ofthe effective date of this termination. The Board will make a determination as to whether thenature of the charge(s) entitles you to a hearing. The only remedy that can be provided in theevent of a successful appeal of a termination with cause is the removal of the ‘with cause’designation from your record. You will not be entitled to return to your former position orclassification.

_________________________Unit Chief (or designee)

cc: Region

89

USE UNIT LETTERHEAD

Date

Firefighter (Name)Complete Address

You are hereby notified that you are being terminated with cause from your seasonal employmentas a Fire Fighter I with the California Department of Forestry and Fire Protection effective (date).

The reasons for termination with cause is:

1. Your performance deficiencies while at xxxxxxx station have been substandard andare in need of improvement. Since (date) you have displayed difficulty in performingfire ground tasks without supervision even though you have been given additionaltraining by FC xxxxxxxx.

2. On (date) you were dispatched to Incident xxxxxx. While there, you appearedlethargic, even though structure protection activities were being performed aroundyou. Around 2:00 p.m. you were found asleep by FAE xxxxxxx in the back ofEngine xxxx. Your safety as well as the others on your crew could have beenplaced in jeopardy.

3. Your attitude is disrespectful towards your co-workers. You leave station hosesunrolled apparently hoping that someone else will come along and roll it. You spillfood and juice in the kitchen without taking the time to clean up the mess. FAExxxxxx found cereal left out by you and cups half full of juice on (date and date).FAE xxxxx talked with you on (date) and (date) about the need for you to clean upafter yourself. You do not do your share of the work in general and the crew resentsit.

If you would like the opportunity to meet with your Unit Chief (or his or her designee), you haveten (10) calendar days following the date you receive this notice to contact Chief (Name,address, phone number) to request a meeting.

The Unit Chief (or designee) will schedule a meeting with you and your representative withinseven (7) calendar days following your request. At this meeting you will be given the opportunityto present the reasons why you should not have been terminated. The Unit Chief (or designee)shall render a final decision regarding the termination with cause within 30 calendar daysfollowing the date of the meeting.

As a temporary employee, you may appeal this termination with cause in writing to the StatePersonnel Board, 801 Capitol Mall, Sacramento, California 95814 within 30 calendar days ofthe effective date of this termination. The Board will make a determination as to whether thenature of the charge(s) entitles you to a hearing. The only remedy that can be provided in the

90

Page 2Firefighter xxxxxxxxxxxx

event of a successful appeal of a termination with cause is the removal of the ‘with cause’designation from your record. You will not be entitled to return to your former position orclassification.

__________________________Unit Chief

cc: Region

Progressive DisciplineThis guide is intended to serve as a general reference for the Progressive...

Documents

Transcript of Progressive DisciplineThis guide is intended to serve as a general reference for the Progressive...