DISCIPLINARY STANDARDS AND PROCEDURES
for the Classified Service
by Pam Williams
SUNY Office of Employee Relations
June 2002

This memorandum is intended to describe and analyze disciplinary procedures and techniques that can be utilized by campus management with respect to most of the classified staff. It is an up-to-date summary of material from a variety of sources that have been in use for a number of years.

The State of New York has negotiated disciplinary procedures with each of the unions representing State employees. Those procedures not only provide a means by which management may discipline employees, but also establish numerous employee rights in the face of discipline. These procedures uniformly call for final binding arbitration at their conclusion. Consequently, discipline is proposed with the knowledge that an impartial party who will evaluate management's decisions ultimately may review disciplinary action.

The balance of this memorandum provides a general description and analysis of the classified disciplinary procedures with particular emphasis on the points at which employees have rights to representation. In addition, general principles which arbitrators utilize when reviewing disciplinary cases are covered. If you have questions about specific classified service disciplinary procedures or wish to impose discipline on a professional employee, please contact a member of the System Administration Office of Employee Relations. [Although this document has been written as a comprehensive summary that should be read in its entirety, the following index is provided for those visitors returning to this document for a quick reference to a particular subject.

I. ARBITRATION STANDARDS

Before issuing a Notice of Discipline, the Human Resources Officer must conduct a thorough investigation of the incidents. Failure to conduct a thorough and appropriate investigation can result in adverse action by the arbitrator including the dismissal of charges. The investigation should include interviewing all individuals who might have knowledge of an event as well as reviewing any applicable written policies, guidelines, audit material, etc. Normally, if a particular individual is alleged to have committed an act warranting discipline, that person will be interrogated after all others have been interviewed. As you conduct your investigation, you should obtain answers to each of the following questions to help you evaluate your final course of action:

A. Was there a rule forbidding the alleged misconduct?

The employer is responsible for communicating work rules to employees. This responsibility may be discharged in a variety of ways, including issuing a personnel manual for which employees must sign and are required to read; circulating a memorandum to all appropriate staff which each employee is required to sign and return to the supervisor; sending either by certified mail or hand delivery, a counseling memorandum to a problem employee reminding him or her of the existence of certain work rules or expectations; or advising the employee of the existence of a rule verbally in the presence of appropriate witnesses.

Written communications or general policies can be found inadequate where the employer, regardless of formal communications to the contrary, has tolerated open disregard for the rule in question. Consequently, it is important where the enforcement of a rule has been lax that the employer warn all employees that the rule will be more strictly enforced before bringing a particular employee to task for its violation.

Finally, an employer is not always held responsible for communicating work rules where an employee's behavior is so egregious that it violates obvious standards of conduct. Thus, an employer need not formally advise an employee that he or she should not appear for work inebriated, or that he or she should not assault other employees.

B. Was the rule reasonable?

If an employee believes that a rule or order is unreasonable, he or she is still expected to obey the order, and file a grievance at a later time ("work now, grieve later"). However, if an employee sincerely feels that to obey the rule or order would seriously and immediately jeopardize his or her personal safety and the Arbitrator agrees, the employee may be said to have justification for the disobedience.

Thus, it is important that a Human Resources Officer probe the justification for the rule in question, and the motive for the employee's disobedience. Where there is no legitimate reason justifying the employee's disobedience, he or she may be charged not only with violating the rule, but also with insubordination.

C. Did the employee violate the rule?

Once having established that a reasonable rule had been communicated to the employee, management must decide whether the evidence at hand would support a finding of guilty by an Arbitrator. The burden of proof in arbitration cases clearly rests on management. It is not sufficient that management knows that the employee is guilty; management must be able to prove its charges. This means that not only the quantity, but also the credibility of the employer's evidence will be in question. (For example, an employee is charged with theft on May 1, 2002. We need to show through payroll records and attendance logs that he was at work, that he was the only person with access to the area of the theft and was observed going to the area.)

Arbitrators do not require that management prove a case "beyond a reasonable doubt." The evidence must be persuasive, or as described by the contracts, the State must prove guilt by "a preponderance of the evidence."

D. What constitutes an appropriate penalty?

Arbitrators apply the standards of progressive discipline when assessing penalties. In this view, the purpose of discipline is to encourage the employee to correct inappropriate or unacceptable behavior. Where an employee's conduct is not so severe as to warrant a serious penalty or termination, it is expected that management will work with the employee in an effort to alter the employee's performance and bring it within normal bounds. Arbitrators must be shown that employees were previously counseled (counseling is not considered discipline) for misconduct before they are apt to uphold formal disciplinary action; and severe disciplinary penalties must also be preceded by less onerous ones. Of course, there are certain offenses, such as theft or assault that can warrant the most severe of disciplinary actions regardless of the employee's work record.

Sometimes the investigation will reveal that unacceptable conduct was the employee's way of dealing with problems at home. These could include financial problems, substance abuse or illness in the family. In these cases, holding a disciplinary penalty in abeyance pending evidence of satisfactory participation in an Employee Assistance Program and improved job performance may be an option.

The CSEA, PEF, Council 82 and NYSCOPBA contracts specifically permit the agency to propose certain penalties in the Notice of Discipline. These include, in part, a written reprimand, a fine, a suspension without pay, loss of accrued leave credits, demotion, or discharge. In addition, 33.5 of the CSEA contract has a schedule for Time and Attendance infractions. This separate process details the offenses and, based on the employee's work history, the range of acceptable penalties.

II. LIMITATIONS

An employee may not be disciplined for every act of misconduct or incompetence. For example, Article 33.3(a)(2) of the CSEA Agreement states that; "An employee shall not be disciplined for acts, except those which would constitute a crime, which occurred more than one year prior to the notice of imposition of discipline." By contrast, the NYSCOPBA and Council 82 contracts only allow management nine months to issue a disciplinary notice. Despite this limitation, a campus -- as well as an Arbitrator -- may take the employee's entire work record into consideration when devising a penalty.

Further, the contracts specifically prohibit management from making "...shift, pass day, job assignment, transfer or reassignment to another institution, station or work location..." for disciplinary purposes. For example, management is not free to place an employee on an undesirable shift in order to punish him or her for a particular purpose. Of course, this section does not prohibit management from making legitimate shift changes consistent with appropriate contract language.

In addition, not all unacceptable behavior warrants discipline. Where an infraction is minor or, in the case of the first offense by a long term employee, counseling may be more appropriate.

III. COUNSELING

Counseling is not discipline. Rather, it is management's opportunity to provide an employee positive and/or negative feedback regarding on the job activity. It should be done face to face in a private setting. The session should clarify what occurred and what is expected. The discussion should be very specific. The first counseling should be verbal, but should be noted by the supervisor in a date book or the supervisor's personal file. Subsequent counseling, if necessary for similar activity, may be in writing. After the Counseling Session, the supervisor should write a memo to the employee citing the time, date and place of the counseling. Then the memo should detail what was discussed including the actions cited and the proposed acceptable behavior. Both the supervisor and the employee should sign this memorandum. (A refusal to sign should be noted by the supervisor on the bottom of the form and dated.) The employee is entitled to a copy and a copy should be sent to the Official Personnel File in the Human Resources Department. The supervisor should retain his own copy. The employee should be advised that s/he may write a rebuttal and put it in his Official Personnel File. (Attachment F)

Since Counseling is an effort to correct behavior and not discipline, an employee is not entitled to a union representative unless more than one supervisor is present.
Caveat - Once an employee has been counseled about a specific incident, he may not be disciplined subsequently for the same incident.

IV. INTERROGATIONS

One of the most perplexing problems which Human Resources Officers and supervisors face when investigating potential disciplinary problems concerns the point at which an employee must be given the opportunity to have a union representative or an attorney present before discussing the matter. Articles 33.2 (b) and 35 of the CSEA Agreement, the Bill of Rights in the NYSCOPBA and Council 82 contracts, and Articles 33.3(b) and 35 of the PEF contract establish the general principles for conducting an Interrogation. It is critical that these procedures be observed. Failure to do so will result in evidence being excluded from consideration in any subsequent disciplinary arbitration and the nullification of any resignation obtained.

1) The Human Resources Officer or supervisor must not interrogate or question an employee who, at the time of the questioning, appears a likely or potential target of disciplinary action unless the employee is notified in advance of the interrogation that he or she has a right to have a union representative or attorney present. The employee must be given a reasonable amount of time to obtain such representation.

2) The Human Resources Officer or supervisor must not discuss the substance of a disciplinary charge with an employee after serving a Notice of Disciplinewithout first advising the employee that he or she has the right to have a union representative or an attorney present. If the employee does not want a representative, he or she should sign a document to that effect.

3) The Human Resources Officer or supervisor must not discuss the substance of allegations made at the meeting for the purpose of requesting an employee's resignation after that meeting without first advising the employee that he or she has the right to have a union representative or an attorney present. Prior to interrogation or the other discussions with employees in the situations listed above, the supervisor or Human Resources Officer must notify an employee of his or her right to representation by handing the employee a copy of the statement in Attachment A.

4) When an employee is alleged to be guilty of misconduct or incompetence, and is therefore asked to resign, the employee must be advised in writing of the right to representation and the right to refuse to resign and face disciplinary charges. This is fully outlined in Attachment D and described in greater detail in Section VII below.

In cases where an act of misconduct is the subject of an interrogation by the campus Department of Public Safety, these rules still apply. Therefore, where a public safety officer interrogates an employee for actions which may be the subject of later discipline, the officer must notify the employee of the above rights (i.e. a union official or an attorney must be offered) using the appropriate forms. Failure to do so can compromise management's ability to use information so obtained in subsequent disciplinary actions. If the interrogation is for criminal activity, then Miranda Rights are given. If the right to union representation is not offered, evidence gleaned from such an interrogation cannot be used in a disciplinary action under the agreement. If evidence from an interrogation by public safety is to be used in a disciplinary arbitration, then contract rights such as notice and union representation must be given. If the Office of Public Safety has not followed these rules, the Human Resources Office may conduct a separate, independent interrogation using correct procedures and employee safeguards. If it can show that the source of information used in the charge was not the result of an improper interrogation, it may use the information obtained.

V. DISCIPLINARY PROCEDURE

Once the Human Resources Officer, in consultation with other administrative representatives, has decided a Notice of Discipline should be issued, the collective bargaining agreements require that the following actions be taken:

A. The Agreements require that the Notice shall contain "...the specific acts for which discipline is being imposed and the penalty proposed...," and "... a detailed description of the alleged acts and conduct including references to dates, times, and places." (see Attachment B for a sample of a Notice of Discipline)

B. The employee must be given two copies of the Notice when served.

C. Service of the Notice should be by personal service, if possible, and otherwise should be served by registered or certified mail, return receipt
requested.

D. The Agreements require that the campus must advise the various unions by certified mail, return receipt requested, of the name and work location of the employee upon whom the Notice of Discipline was served.

E. The Notice served on the employee must contain a copy of "Statement Required to Accompany Notice of Discipline."

F. The Notice served on the employee must also contain a copy of the applicable disciplinary Article (33 or 8, Disciplinary Procedure).

G. It is important that the Notice of Discipline be signed by the President or designee. In order to avoid any confusion with respect to those
management persons authorized to impose discipline, the President should authorize the designee in writing to act in his or her stead with respect
to the appropriate disciplinary Article. Failure to establish clear-cut authority from the President to the person signing the Notice of Discipline has, in certain instances, invalidated an otherwise flawless case.

VI. SUSPENSION WITHOUT PAY PRIOR TO A HEARING

Relatively few employees are suspended without pay prior to exhaustion of the disciplinary procedures. These cases are usually limited to situations where an employee has assaulted another employee, committed a theft, or endangered a patient. There also exist rare cases where an employee exhibits such extremely anti-social behavior that he or she severely interferes with the ability of a particular department to conduct business.

The Agreements permit the employer to suspend an employee without pay prior to the service of a Notice of Discipline or the exhaustion of the grievance procedure only where "...the appointing authority determines that there is probable cause to believe that the employee's continued presence on the job represents a potential danger to persons or property or would severely interfere with operations." (Emphasis added). Thus, the decision to suspend should be based upon the results of an investigation pursuant to the preceding section of this advisory.

Prior to the suspension, three steps, separate and distinct from the Interrogation and Notice of Discipline process, need to be followed as the result of recent court decisions:

A. Notice - An Notice of Discipline will be sufficient. In circumstances where an NOD cannot be prepared PRIOR to the suspension the employee should receive a letter that contains some notice of the nature of the charges. Where it is not possible to prepare a written statement, an oral summary is acceptable, although it may be subject to subsequent arguments about its adequacy, whereas the adequacy of a written statement is self-evident. The letter should include a notice that the employee will have the opportunity to respond. Copy the union on this letter. (Attachment E-1)

B. Explanation of Evidence - The employee is entitled to be informed in general terms of the evidence against him or her. There should be mention of the fact that there is evidence to prove wrongdoing. We need not disclose names of witnesses. We should be aware that we should not disclose more information during this pre-suspension phase than we will be able to prove later in the hearing on its merits. (Attachment E-2)

C. Rebuttal - Before suspension an employee must be given the opportunity to respond to the charges with his or her side of the story. The response from the employee need not be in person. It can be submitted in writing. At the time the suspension letter is given it should be made clear to the employee that the door is always open if the employee wants to make a statement, even after the suspension has begun. You should acknowledge receipt of said response (especially it is verbal) to preclude subsequent allegations that no opportunity to respond was afforded. These three steps can happen expeditiously during a single meeting, provided management takes a reasonable time to consider any rebuttal before taking the suspension action. The right to notice, explanation of evidence and rebuttal are constitutional protections and must be scrupulously observed.

After the employee is suspended the campus must:

A. Notify the Local Union President and Arbitration Administrator of CSEA within four (4) days (PEF is 5 days; NYSCOPBA and Council 82 must have the letter to the union sent within 1 day) of the suspension by certified mail, return receipt requested, and

B. Serve a Notice of Discipline on the employee in accordance with the respective agreements within seven days following the suspension if the notice of discipline was not served at the time of suspension.

VII. TEMPORARY REASSIGNMENT

Occasionally there is an employee whose behavior has been egregious or interfered with the operational needs of the campus, but management believes that a temporary reassignment would be better than suspension. For example, a nurse who has consistently made errors in patient charts could, perhaps, be safely reassigned to the duties of an orderly. The employee must be advised of the reassignment in writing, but may elect to refuse it and, then, be suspended without pay. The employee shall, if reassigned, be paid at his or her normal rate of pay.

VII. RESIGNATION

Where the appointing authority advises an employee that he or she is alleged to be guilty of misconduct or incompetence, the employee may be asked to resign. If the Human Resources Office makes such a request, it must:

A. Give the employee the opportunity to invite a CSEA representative or an attorney to be present at the meeting consistent with Article 33.2 (a) and (d).

B. The employee's decision to resign must be voluntary. Evidence of coercion on the part of management will render the resignation null and void. A way to avoid any appearance of coercion is to discuss the offer of resignation as a resolution of the notice of discipline with the union representative separately from the grievant. The union representative should make the offer to the grievant, thus protecting the voluntary nature of the process.

C. Give a copy of the Resignation Form to the employee to sign (See Attachment D). That form contains written instructions to the employee regarding his or her rights to representation and to decline to resign. Failure to follow this procedure will render any resignation null and void.

IX. SETTLEMENT

The collective bargaining agreements provide that "...a disciplinary matter may be settled at any time following service of the Notice of Discipline." (CSEA Article 33.4(e); PEF Article 33.6; Council 82 Article 8.3; NYSCOPBA Article 8.3) Where the campus wishes to execute a settlement, it must:

A. Notify the employee that he or she has the right to representation by a union representative or attorney (consistent with Article 33.4(e));
B. Execute the settlement in writing, preferably on the form provided (See Attachment E); and,
C. Advise the Arbitration Administrator of CSEA, or the union Presidents of the other bargaining units, in writing by certified mail, return receipt requested, within 24 hours of the settlement.

The SUNY System Office of Employee Relations has developed an advisory on settlement strategies that you may wish to consult.

Remember, even though management and the union representative agree upon a particular settlement, it is vital that the settlement be acceptable to the employee. The Agreement permits an employee to file an appeal in a disciplinary case with the Chancellor's designee and pursue the appeal to arbitration; and, although the individual's union may not actively support the employee's position, the union may provide Counsel or pay the cost of a private attorney retained by the grievant.

X. JOB ABANDONMENT

Employees sometimes are absent from work for an extended period of time and fail to notify the employer of their absence or whereabouts. If the employer is
unable to contact the employee, this may be considered "job abandonment". However, court cases and arbitration decisions have limited the usefulness of this
contractual provision. In order to qualify, the absence must be unauthorized and the employee's whereabouts must be totally unknown. To apply, this means that the employer has no knowledge directly or through any other source that the employee is, for example, incarcerated. If management truly has had no contact for the
requisite period of time and has no knowledge, the provisions of the job abandonment article may be invoked. These provisions are strictly construed so the time frames must be scrupulously observed. (CSEA Article 36; NYSCOPBA Article 14.10; Council 82 Article 14.10; PEF Article 35.3)

Finally, the SUNY Office of Employee Relations has a wealth of experience on all aspects of the disciplinary procedure with these bargaining units as well as the others representing employees in the University. Please contact us for assistance, particularly at the early stages before the campus has taken formal action. This Office will serve as the hearing officer and subsequently as your advocate at appeal stages of the process, so it is important to keep communications open.

Reference(s)

CSEA Agreements Article 33
Council 82 Article 8
Appendix C (Counseling)
PEF Article 33
NYSCOPBA Article 8

See also UUP Agreement Article 19

ATTACHMENT A

STATEMENT OF EMPLOYEE RIGHTS
TO BE READ AND GIVEN TO EMPLOYEES PRIOR TO INTERROGATION
(Use the appropriate bargaining unit contract article)

As an employee subject to Article 33 (PEF/CSEA) or Article 8 (Bill or Rights for NYSCOPBA/Council 82) and about to be interrogated pursuant to Section 33.2(b), you have the following rights:

a. An employee shall be entitled to representation by his union or an attorney selected at his or her own expense at each step of the disciplinary procedure.

b. No employee shall be required to submit to an interrogation by a department or agency (1) if the information sought is for use against such employee in a disciplinary proceeding pursuant to this Article or (2) after a notice of discipline has been served on such employee, or (3) after the employee's resignation has been requested, unless such employee is notified in advance of the interrogation, that he or she has the right to have union representation or an attorney provided at his or her own expense present or to decline such representation and that if such representation is requested a reasonable period of time will be afforded for that purpose. If the employee requests representation and the union or employee fails to provide such representation within a reasonable time, the interrogation may proceed An arbitrator shall have the power to find that a delay in providing such representation may have been unreasonable.

c. No employee shall be asked to sign any statement regarding his or her incompetence or misconduct unless the employee is offered the right to have union representation or an attorney provided at his or her own expense present. Unless the employee declines such representation and the union or employee fails to provide such representation within a reasonable time, the employee may be asked to sign such a statement. An arbitrator under this Article shall have the power to find that a delay in providing such representation may have been unreasonable. A copy of the Statement shall be supplied to the employee at the time the employee is asked to sign the statement. Any statements or admissions signed by the employee without having been so supplied to the employee may not subsequently be used in any disciplinary proceeding.

d. No recording devices or stenographic or other record shall be used during an interrogation unless the employee (1) is advised in advance that a transcript is being made, and (2) is offered the right to have union representation or an attorney provided at his or her own expense present. Unless the employee declines such
representation, he or she will be given a reasonable period of time to obtain representation. If the employee fails to provide such representation within a reasonable time, the interrogation and taking of a record thereof may proceed. An arbitration under the Article shall have the power to find that a delay in providing a representation may have been unreasonable. A copy of any stenographic record (verbatim transcript) and/or tape recording made at an interrogation shall be supplied to the employee upon the request of the employee and/or his representative.

(1) For the purposes of this Article, the term "interrogation" shall be defined to mean the questioning of an employee who, at the time of such questioning, appears to be a likely or potential target or subject for disciplinary action.

(2) If an employee is improperly subjected to an interrogation, an arbitrator appointed pursuant to this Article shall have the authority to exclude information obtained thereby or other evidence derived solely through such interrogation. The State shall have the burden of proof to show that, upon the preponderance of the evidence, such evidence sought to be introduced was not derived solely by reason of such interrogation and was obtained independently from the statements of evidence so provided by the employee.

f. In all disciplinary proceedings, the employee shall be presumed innocent until proven guilty and the burden of proof on all matters shall rest upon the employer. Such burden of proof, even in serious matters which might constitute a crime shall be preponderance of the evidence on the record and shall in no case be proof beyond a reasonable doubt.

g. An employee shall not be coerced, intimidated or caused to suffer any reprisals, either directly or indirectly, that may adversely affect his or her hours, wages or working conditions as the result of the exercise of his or her rights under this Article.

The above statement has been read to me and I have been give a copy of it.

__________________________ _______________________________________
Date Signature

ATTACHMENT B

SAMPLE NON-SUSPENSION NOTICE OF DISCIPLINE

Via Certified Mail

Name: Date:
Address: Social Security #:

Title/Salary Grade: E.g., Electrician
Worksite/Shift/Passdays: E.g., West Campus, Physical Plant/Days/Sat./Sun.
Representation Unit: E.g., 03

Dear :

According to Article ___ of the Agreement between the State of New York and the [name of bargaining unit], a Notice of Discipline is being brought against you. The reason(s) for this disciplinary action and the penalty I am proposing are contained in the attached Statement of Charges.

The proposed penalty will take effect fourteen (14) calendar days from the date you receive this Notice of Discipline, subject to [appropriate disciplinary article] of the Agreement.

If you wish to grieve this Notice of Discipline, you may do so by completing a Disciplinary Grievance Form (OER-5) and filing it within fourteen (14) calendar days from the date of service of this Notice of Discipline, in person or by certified or registered mail, return receipt requested, with the Office of Employee Relations, State University of New York System Administration, SUNY Plaza, T-7, Albany, NY 12246.

You have been provided with two (2) copies of this Notice of Discipline so that you can give one to your union representative or private counsel. The Civil Service Employees Association (CSEA) represents employees in your negotiating unit. Also enclosed are Statement of Rights and copies of [disciplinary article/resignation article] of the Agreement. You should read all of this material carefully.

Sincerely,

Director of Human Resources

Attachments: Statement of Charges, Grievance Form (OER-5), Statement of Rights (OER-9), Article 33 or 8 (as appropriate) (OER-10), Article 35 (OER-11 or /Bill of Rights), Additional Copy of Notice of Discipline

c: 2nd Step Reviewer, Union Contract Administrator, Union President, Personnel File, NOD Folder, Regular Mail

ATTACHMENT B-1

STATEMENT OF CHARGES

Name: Date:
Address:
Social Security #:

Title/Salary Grade: E.g., Electrician
Worksite/Shift/Passdays: E.g., West Campus, Physical Plant/Days/Sat./Sun.
Representation Unit: E.g., 03

The charge of misconduct or incompetence is preferred against you for:

Charge 1: On __date , you were insubordinate and failed to follow written and verbal directives given to you by your supervisor to fix the Film Festival banner in the Main Entrance to the campus.

Charge 2: On __date____, you were insubordinate to your supervisor when he told you he expected the banner to be fixed prior to your departure at 3:30 p.m. and you told him, "I'll fix it on Monday."

Charge 3: On __date____, at approximately 3:10 p.m., you were insubordinate to your supervisor when he told you to take care of it now and you told him, "Paul, you kill me."

You have previously received the following Notice(s) of Discipline which resulted in a finding of guilt or in a settlement:

Date(s) of Notices of Discipline Type Penalty Assessed
None

In arriving at the proposed penalty for the above charges, your entire work record has been taken into consideration.

The penalty is: TWO (2) WEEKS SUSPENSION WITHOUT PAY

ATTACHMENT C

STATEMENT REQUIRED TO ACCOMPANY NOTICE OF DISCIPLINE
PURSUANT TO ARTICLE 33.3(C)/ARTICLE 8 OF THE COLLECTIVE AGREEMENTS BETWEEN THE STATE OF NEW YORK AND
[APPROPRIATE BARGAINING UNIT]

1. You have a right to object to the charges made against you in the accompanying Notice of Discipline by filing* a grievance with your department or agency head or his or her designee within fourteen (14) calendar days of the service** of the Notice of Discipline upon you. You may file your grievance either personally or by registered or certified mail, return receipt requested.

2. The grievance procedure provides for a hearing by an independent arbitrator as its final step.

3. You are entitled to representation either by CSEA or by private counsel selected at your own expense or you may decline such representation at every step of the proceeding. If you request representation, you will be given a reasonable period of time to obtain representation.

4. If you file a grievance, no penalty can be implemented until the matter is settled or the arbitrator renders a determination.

5. Copies of Article 33 (CSEA; PEF) (Discipline)/Article 8 (Council 82; NYSCOPBA) and Article 35 (CSEA; PEF) (Resignation) are also enclosed herewith.

-________________

*&** "Filing" and "Service" requirements are described in Sections 33.3(e) and 33.6(b) of Article 33 and Article 8.2 and the Bill of Rights.

ATTACHMENT D

STATE OF NEW YORK RESIGNATION FORM

INSTRUCTIONS FOR USE:

AGENCY: If you advise an employee that he or she is alleged to be guilty of misconduct or incompetence and request a resignation pursuant to Article 35, rather than proceeding with discipline under Article 33, the following statements must be read to the employee and a copy of the statement must be given to him. [not explained in NYSCOPBA/Council 82 Contracts, but use this format so have complied with case law.

EMPLOYEE: An employee being asked to resign pursuant to Article 35 should be aware of the following :
a. That I have a right to consult a representative of [name of union] or private counsel selected at my own expense or the right to decline such representation before executing the resignation and a reasonable period of time to obtain such representation, if requested, will be afforded for such purposes.

b. That I may decline the request to resign and that in lieu thereof, a notice of discipline must be served upon me before any disciplinary action or penalty may be imposed pursuant to the procedures provided in Article 33 of the Agreements between the State and [name of union]..

c. That in the event a notice of discipline is served, I have the right to object to such notice by filing a grievance.

d That such disciplinary grievance procedure terminates in binding arbitration.

e. That the Agreement provides further that I would have the right to representation by [name of union] or private counsel selected at my own expense at every stage of the procedure.

f. That I have the right to refuse to sign the resignation and that my refusal in this regard cannot be used against me in any subsequent proceeding.

A resignation that is requested and secured in a manner that fails to comply with this procedure shall be null and void.

The above statement has been read to me and I have been given a copy of it.

______________________________ ____________________
Signature Date

ATTACHMENT D-1

RESIGNATION

I _______________________________________ hereby resign my position.

as _____________________________ effective_________________________.
Date (Immediately)

______________________________ __________________________
Signature Date

DO NOT SIGN UNTIL YOU HAVE READ THE REVERSE SIDE OF THIS FORM.

ATTACHMENT E

STATE/CSEA - DISCIPLINARY SETTLEMENT FORM
(If Applicable)

Instructions: This form may be used to record settlements of disciplinary grievances as provided by Section 33(e)(4) and (5) of the Agreement.

PLEASE TYPE OR PRINT

SETTLEMENT

CERTIFICATION OF OFFER OF RIGHT TO REPRESENTATION
This settlement has been made in accordance with the provisions of Section 33.4(e) (4)and (5) Agreement. We certify the required opportunity for representation was offered and that no threats of reprisal or promises of special consideration were made by agency representatives as an inducement to execute this settlement the full terms of which are attached hereto.

_________________________________ _________________________________________
Employee Employer Representative

______________________ _________ _________________________________________
Employee's Representative Date Title

Note: The Executive Director of CSEA shall be advised of this settlement in writing by registered or certified mail, return receipt requested, within one day of the execution of the settlement.

ATTACHMENT E-1

NOTICE OF INTENT TO SUSPEND WITHOUT PAY PENDING DISCIPLINARY ACTION

Date

Dear :

This is to inform you that we intend to serve you with disciplinary charges and suspend you without pay until final disposition of the disciplinary charges.

Attached to this notice is a copy of the proposed charges that will be served to you and a summary of the evidence.

As you were previously advised of the allegation(s) under investigation during your interrogation, the information you provided at that time has been taken into account.

You will have the opportunity to present additional information to support your case. Please submit this information in a written response to the Human Resources Office within
24 hours. Your reply will be considered before a final decision is made regarding your suspension without pay. If, however, a written response is not received within 24 hours, you will be suspended without pay.

You are entitled to appropriate representation at all times throughout the disciplinary process.

Sincerely,

Director of Human Resources

Attachments

ATTACHMENT E-2

PROPOSED CHARGES - PRE-SUSPENSION

Date

Re: Proposed Charges and Summary of Evidence

Charge 1: On ___date , between approximately 2:30 and 3:10 p.m., after your afternoon break, in a stairwell landing by an emergency exit door, you sexually harassed laundry employee
___name____, when you came up behind her, held her arms against the wall and door, rubbed your lower body against her lower body, turned her around and kissed her on the mouth, placed your tongue in her mouth, and fondled her breasts with your hands.

Charge 2: On ___date___, you violated Campus Policy on Sexual Harassment when you sexually harassed _____________, as described in Charge 1.

Charge 3: On ___date___, you violated Campus University Police Department Manual of Rules and Regulations on Sexual Harassment when you sexually harassed ______, as described in Charge 1.

Charge 4: On ___date___, you were charged with Sexual Abuse in the third degree (§130.55) as defined in the New York State Penal Law. "A person is guilty of sexual abuse in the third degree when he subjects another to sexual contact without the latter's consent.

Charge 5: You failed to safeguard the I.D. badge that was issued to you in that it was altered with a stickum tag reading, "OBS/GYN PREP/EXAM TEAM," which covers the SECURITY designation imprinted on the official I.D. badge.

SUMMARY OF EVIDENCE:

Charge 1: Testimonial Evidence
Charge 2: Documentary Evidence
Charge 3: Documentary Evidence
Charge 4: Documentary Evidence
Charge 5: Physical Evidence

PROPOSED PENALTY: Termination from State Service

ATTACHMENT E-3

SAMPLE NOTICE OF SUSPENSION

Date
Name
Address

Dear :

In accordance with the provisions of Article ___ of the applicable representation unit
collective bargaining agreement, you are hereby informed that you are suspended from duty without pay effective __date__, as it has been determined that you are a potential danger to persons or property, or that your continued presence would severely interfere with ongoing operations.

You are hereby prohibited from entering or remaining on the premises of the ____Campus__.

( ) Attached is a Notice of Discipline containing charges and
the penalty proposed for these charges.

( ) You will be sent a Notice of Discipline within seven (7) days
of this suspension, containing charges and the proposed penalty.

( ) Since you have been charged with the commission of a crime,
you will be sent a Notice of Discipline within thirty (30) days of
this suspension, containing charges and the proposed penalty.

Pursuant to your collective bargaining agreement, you may elect to use accrued annual or personal leave credits, holiday leave or compensatory time (not sick leave credits), during the period of your suspension from duty be completing the accompanying form and returning it to this office. Your existing health insurance coverage will be continued only if you pay the employee share of the premium.

Any further communication with you concerning this Notice will be mailed to your latest address of record with Human Resources. Your current address of record is indicated above.

Sincerely,

Director of Human Resources

Attachment: Election to Use Earned Credits while Suspended from Duty Form

ATTACHMENT E-4

ELECTION TO USE EARNED CREDITS WHILE SUSPENDED FROM DUTY

In accordance with the State/Council 82 1995-1999 negotiated agreement, I hereby elect to use my earned credits, excluding sick leave, effective twenty (20) calendar days from the date of my suspension.

___________________________________
Employee's Signature

___________________________________
Date

c: Grievant
Time and Attendance

ATTACHMENT E-5

CSEA/PEF NOTICE OF DISCIPLINE
Via Certified Mail

Name Date:
Address
City, State Zip Social Security #:

Title/Salary Grade: E.g., Keyboard Specialist/SG-6
Worksite/Shift/Passdays: E.g., Residence Halls/Days/Sat./Sun.
Representation Unit: E.g., 02

Dear:

According to Article 33/Article 8 of the Agreement between the State of New York and the [appropriate union], a Notice of Discipline is being brought against you. The reason(s) for this disciplinary action and the penalty I am proposing are contained in the attached Statement of Charges.

The proposed penalty will take effect fourteen (14) calendar days from the date you receive this Notice of Discipline, subject to Article ____of the Agreement.

If you wish to grieve this Notice of Discipline, you may do so by completing a Disciplinary Grievance Form (OER-5) and filing it within fourteen (14) calendar days of service of this Notice of Discipline, in person or by certified or registered mail, return receipt requested, with the Office of Employee Relations, SUNY System Administration, T-7, State University Plaza, Albany, NY 12246.

You have two (2) copies of this Notice of Discipline so that you can give one to your union representative or private counsel. Employees in your negotiating unit are represented by the [appropriate union]. Also enclosed are: Statement of Rights (OER-9) and copies of the [disciplinary article/resignation article] of the Agreement. You should read all of this material carefully.

Very truly yours,

Director of Human Resources

Attachments: Statement of Charges, Grievance Form (OER-5), Statement of Rights (OER-9), Article 33 (OER 10), Article 35 (OER 11) or/Bill of Rights, Additional Copy of NOD

cc: 2nd Step Reviewer, Union Contract Administrator, Union President, Supervisor, Personnel File, NOD Folder, Regular Mail

ATTACHMENT E-6

STATEMENT OF CHARGES

Name Date:
Address Social Security No:

Title/Salary Grade: E.g., Keyboard Specialist/SG-6
Worksite/Shift/Passdays: E.g., Residence Halls/Days/Sat./Sun.
Representation Unit: E.g., 02

The charge of misconduct or incompetence is preferred against you for:

Charge 1: On ___date , between approximately 2:30 and 3:10 p.m., after your afternoon break, in a stairwell landing by an emergency exit door, you sexually harassed laundry employee
___name____, when you came up behind her, held her arms against the wall and door, rubbed your lower body against her lower body, turned her around and kissed her on the mouth, placed your tongue in her mouth, and fondled her breasts with your hands.

Charge 2: On ___date___, you violated Campus Policy on Sexual Harassment when you sexually harassed _____________, as described in Charge 1.

Charge 3: On ___date___, you violated Campus University Police Department Manual of Rules and Regulations on Sexual Harassment when you sexually harassed ______, as described in Charge 1.

Charge 4: On ___date___, you were charged with Sexual Abuse in the third degree (§130.55) as defined in the New York State Penal Law. "A person is guilty of sexual abuse in the third degree when he subjects another to sexual contact without the latter's consent.

Charge 5: You failed to safeguard the I.D. badge that was issued to you in that it was altered with a stickum tag reading, "OBS/GYN PREP/EXAM TEAM," which covers the SECURITY designation imprinted on the official I.D. badge.

You have previously received the following Notice(s) of Discipline which resulted in a finding of guilt or in a settlement:

Date(s) of
Notice of Discipline Type: Penalty Assessed:
None

In arriving at the proposed penalty for the above charges, your entire work record has been taken into consideration.

The penalty is: TERMINATION FROM STATE SERVICE

ATTACHMENT F

FORMAL COUNSELING MEMO

To:

From:

Date:

Re: Counseling Memorandum - E-Mail

This counseling memorandum serves as a follow-up to our discussion on
___date _ , concerning the complaint I received about your use of e-mail for non-business purposes. As I told you, you were observed ordering clothes from Land's End during business hours on several occasions. You acknowledged that you had done so. We also discussed SUNY's policy that allows only incidental personal use of SUNY's
e-mail and internet. You acknowledged that you were familiar with that policy. Enclosed is a copy of that policy.

I advised you that verification of your personal use on the network server revealed downloads from twenty-five (25) non-business sites in a one month period. This use not only violates SUNY's e-mail, internet usage policy, but also is a non-productive use of your work time.

You are counseled to refrain from any personal use of e-mail or the internet in accordance with SUNY's policy, except on a incidental basis. Your failure to comply with this counseling memo may result in disciplinary action against you.

I acknowledge that I received and read this memorandum.

_________________________________________
Employee Signature Date

Enclosure
c: Personnel File