• To insure fairness to the employee, the policy and procedure should be reduced to writing.
• An employee may be disciplined for failure to comply with a verbal command (direct order). It is more critical in a verbal, as opposed to a written, command that the command reflect it was legitimate, clear, concise, and reasonable under the particular circumstances.
• Within this area, a question should be posed: Who wrote (or made) the rule. In other words, fairness to the employee precedes formal establishment of a principle. If a person is attempting to establish rules which is beyond his or her ability, capacity and/or authority, the rule is voidable. It would be inappropriate for a mail clerk to write a policy for which a chief administrator must comply. If the chief administrator delegates policy writing duties to an inferior, it should be done under the chief administrator's active supervision. In the mail clerk example, if the chief administrator had delegated such duties and failed to actively participate as more than a mere figure head, the resulting policy would be subject to significant scrunity.

• If the rule is written, the employer can pass the opportunity test by providing the employee access to review the rule, i.e., the rule book is located in the Human Resource office. Access must be reasonable given the nature of the employee’s required duties and ability to exercise the provided access. Reasonable access is fluid, and particularized to the employee and nature of his or her duties. One size does not fit all.

Two out-and-out “no, no’s” – and a basic fairness concept – are that a disciplinary hearing officer cannot (under any circumstances):
• have witnessed the alleged act for which the employee is accused of having violated; and
• be the person making the accusation that the employee violated a rule.

The bottom line is, the reprimanding authority should be free of conflict, whether actual or perceived. The employee’s perception is a significant factor. For example, if a proposed reprimanding authority has persisted in a pattern of harassment toward the employee, it goes without saying that person should not be a reprimanding authority as it relates to that employee. For whatever reason, the person has illustrated prejudice and bias against the employee, which could carry over into a disciplinary decision-making process. The key word is “could,” rather than “would.”

As is true with all phases of a disciplinary process, the pre-hearing investigation must be conducted fairly. Fairness means that any person involved in the investigation be free of interest conflicts that might become entangled with the interests of the employee.

• By way of example, if an investigator is married to the person accusing the employee of violating policy, the husband cannot participate (directly or indirectly) in the investigation. This likewise applies to disqualify the wife as the reprimanding authority. While a written policy regarding nepotism exists, it does not necessarily remove actual conflicts that have or will occur on a day-by-day basis.
• In this example, even if the wife is not directly making the allegations against the employee, if in the past she has written policies or issued (formal or informal) work related directives to the husband (or others within his department), both the husband and wife are disqualified in their respective roles within the disciplinary process. In all likelihood, all members of the departments where both spouse's work are disqualfied.

The investigation must include the investigator’s conclusions of facts. (The investigators conclusions are determined subjectively, which furthers the extraordinary need for a conflict-free investigator).

• (Note that under PD-22, this is the first time the employee has a right to know that he or she has been the subject of an employer investigation. However, depending upon the circumstances, under other policies, case law and statutes, the employee may be entitled to know during the investigation that the employee is being investigated.)

  The employee has a right to timely and proper notice of a scheduled disciplinary hearing which should clearly set forth:

• the nature of the employer’s complaint:
• the location, date and time that the hearing will be held;
• the purpose of the hearing; and
• the identity of the designated reprimanding authority.
  In other words, if the employee receives notice, does it reasonably inform the employee and comply with agency imposed time restraints?

It allows the employee the opportunity to:
• review information upon which the reprimanding authority has relied in reaching a determination to proceed with disciplinary action; and
• determine whether there has been a policy violation.
  If necessary, it instructs the employer to determine appropriate discipline. (Punishment must fit the crime.)
• Note: As written, PD22 discourages disciplinary action against an employee, thus placing a high burden of proof on the reprimanding authority. In the event that the fairness process has been tainted in any manner (investigation, timely and proper notice, reprimanding authority’s status), a resulting disciplinary action is questionable.

• If the employer hand delivers to the employee a copy of PERS-184, the employer must obtain the employee's signature and date the form; or, if the employee refuses to sign and the refusal is done in the presence of a witness, the employer may obtain the witneses signature which acknowledges the employees refusal to sign the document. (It is important to note that the witness must not be a person who is bias or prejudice against the employee. If the witness had an ax to grind against the employee, the taint of fairness in the process is called into question.); or
• The employer may mail a copy of the PERS-184 to the employee, so long as the employer does so via U.S. Certified Mail (return receipt requested).

Notification of a scheduled hearing must afford the employee a minimum of twenty-four (24) hours prior to the hearing. The hearing must be scheduled on or before five (5) work days after the employee receives the notice.
• Although PD22 speaks to a 24-hour advance notice of hearing to the employee, it is silent as to whether this period is calculated in terms of a work hour advance notice. The policy otherwise lends itself to exact language in terms of work days versus non-work days. In keeping with the theme of policy language, It is reasonable for the employee to assume that he or she is entitled to 24 work hour advance notice.
• The employee (not the employer) has the option to waive the 24 hour notice. However, should the employee forego proper notification, the employee must sign and date a form which clearly sets out that the employee understands the consequences in waiving proper notice. Waiver of proper notification cannot be done in advance. The employee must be informed of pending charges prior to signing a waiver. A signed waiver is void as to any charges other than the charges pending and specified against the employee at the time the waiver was signed.