Chapter 3.75
DISCIPLINARY ACTION

Sections:

3.75.010    General policy.

3.75.020    Forms of discipline.

3.75.030    Oral reprimands, written reprimands and suspensions with pay.

3.75.040    Suspension without pay, demotion or dismissal, disciplinary hearings.

3.75.010 General policy.

The mayor or his or her designee will advise and assist department heads in the handling of all disciplinary matters. An employee may not be provided with notice of intent to suspend, demote or terminate without advance approval of the mayor. All terminations, and procedures utilized to terminate employees will be made in conjunction with attorney consultation and review. Discipline, up to and including termination, of a new, promoted, or rehired employee during a probationary period shall be governed by Section 3.50.070(C) of these rules instead of this Chapter 3.75. Discipline, up to and including termination, of confidential/managerial employees shall be governed by Section 3.85.030 of these rules instead of this Chapter 3.75. (Ord. 03-33(SUB)(AM) § 2 (part), 2003)

3.75.020 Forms of discipline.

A.    When the severity of the inappropriate conduct warrants and the city believes that the proposed form of discipline is in its best interests, any of the following forms of discipline shall be imposed (not necessarily in the following order) at any time so long as such discipline is supported by just cause:

1.    Oral reprimand;

2.    Written reprimand;

3.    Suspension with pay;

4.    Suspension without pay;

5.    Demotion;

6.    Dismissal. (Ord. 03-33(SUB)(AM) § 2 (part), 2003)

3.75.030 Oral reprimands, written reprimands and suspensions with pay.

A.    Oral reprimands, written reprimands and suspensions with pay may be administered without a pre-disciplinary hearing. Oral reprimands, written reprimands and suspensions with pay will be documented on a discipline action form and should be maintained in the departmental employee evaluation file described in Section 3.90.020(A)(2). The employee shall be given an opportunity to review the report with his or her department head. If the employee disagrees with the facts or conclusions contained in the report, he or she shall be permitted to submit, within five working days after reviewing the report with his or her department head, a statement of disagreement. The statement shall clearly and concisely set forth the employee’s reasons for disagreeing with the report. One copy of the employee’s statement shall be appended to the report and shall become a part of it.

B.    If the employee has no comment or has not responded within the required time frame, it shall be so noted and the report shall be forwarded to the mayor. The original will generally be maintained in the employee’s central personnel file in the human resources department. Disciplinary action reports which concern employees who have separated from city service shall remain a part of the files.

C.    The department head may, if appropriate, complete periodic reviews of the employee’s progress in correcting the cause of the original discipline. Such reports shall be made a part of the employee’s central personnel file. (Ord. 03-33(SUB)(AM) § 2 (part), 2003)

3.75.040 Suspension without pay, demotion or dismissal, disciplinary hearings.

A.    A suspension without pay, demotion, or a disciplinary dismissal, of an employee who is disciplined in accordance with this chapter, shall be accomplished and reviewed only in accordance with the procedures stated in this section.

B.    Before any department head may dismiss, demote or suspend an employee without pay, the employee shall receive written notice of intent to dismiss, demote or suspend without pay (hereafter referred to in this section as “discipline”) containing a reasonably specific statement of the basis for the intended discipline and a notice of the employee’s entitlement to request a hearing with the mayor at which time such intended discipline will be reviewed.

C.    The procedures for a pre-discipline hearing, if requested by the employee subject to discipline, shall be as follows:

1.    The hearing shall be before the mayor. The mayor may appoint a designee to hold the hearing and provide a written report containing finding of facts and recommending a final decision to the mayor. The mayor may accept, modify, or reject the designee’s recommendation, and shall issue a final decision.

2.    The employee’s request for a hearing must be in writing, signed by the employee (or representative or legal counsel of the employee) and delivered to the mayor’s office within five working days of receipt of the notice of intent to discipline described in subsection A of this section. The employee’s failure to request a pre-discipline hearing within the time and manner provided shall be deemed a waiver of his or her right to a hearing, and to any appellate review to which he or she might have otherwise been entitled, and in such an event the discipline, described in the notice of intent to discipline, shall be final.

3.    If the employee duly delivers his or her request for a hearing, the mayor or his or her designee (collectively referred to in this section as “mayor”) will hold a hearing within fifteen (15) working days from the date of receipt of the request unless the date for the hearing is extended. In no event will the hearing occur more than thirty (30) days following the employee’s request for a hearing absent exceptional circumstances. The mayor shall notify the employee of the date, time and place of the hearing.

4.    The employee, at his or her own expense, may be represented by legal counsel or another person of the employee’s choice.

5.    At the request of the employee, the hearing may be open to the public.

6.    All testimony shall be under oath. The proceedings shall be tape recorded. Upon written request, the employee is entitled to a copy of the tape at no charge. The employee or the employee’s representative, the city’s representative, and the mayor may question witnesses. Exhibits may be introduced. The hearing shall be informal, and the Alaska Rules of Evidence shall not apply. However, the mayor may exercise appropriate controls over the proceeding and the evidence presented, and irrelevant or unduly repetitious evidence shall be excluded.

7.    The mayor shall determine the order of presentation at the hearing. The hearing shall at a minimum include the following:

a.    Brief opening statement by the city;

b.    Brief opening statement by the employee;

c.    Presentation of evidence by city;

d.    Presentation of evidence by the employee;

e.    Rebuttal as necessary;

f.    Argument by city;

g.    Argument by employee;

h.    Rebuttal argument by city; and

i.    Surrebuttal argument by employee.

D.    The city shall prove, by a preponderance of the evidence that just cause exists to carry out the intended discipline, and then the employee must prove, by a preponderance of the evidence, that the city does not have just cause to carry out the intended discipline.

E.    Unless ordered otherwise by the mayor, the employee shall continue to be paid pending issuance of the mayor’s decision.

F.    The mayor shall exercise independent judgment as to the weight of the evidence presented by the parties.

G.    The mayor shall issue a written decision no later than fourteen (14) working days after the close of the hearing. The decision shall include findings of fact and a statement of the reason(s) for the decision.

H.    If the mayor denies the existence of just cause to support the recommended discipline, he or she may then impose a lesser form of discipline for the conduct at issue at the hearing or may determine that no discipline of any nature shall be imposed.

I.    The written decision will be placed in the employee’s central personnel file and a copy may be retained in the departmental performance appraisal file.

J.    The mayor has the authority to negotiate separation agreements as a result of disciplinary action separations.

K.    The affected employee may appeal the mayor’s decision by filing a written notice of appeal with the Alaska Superior Court for the Third Judicial District at Palmer in accordance with the Alaska Rules of Appellate Procedure. The Superior Court shall have no jurisdiction to hear the appeal unless the employee files the notice of appeal within thirty (30) days after the employee’s receipt of the mayor’s decision. The Superior Court shall limit its review of the decision to whether or not substantial evidence exists, in light of the whole record, to support the mayor’s decision.

L.    Disciplinary actions which have been the subject of a pre-discipline hearing may not be disputed by the grievance procedure provided in these personnel rules. (Ord. 03-33(SUB)(AM) § 2 (part), 2003)