February 2002 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

TERMINATION BASED UPON VAGUE CHARGES

What do you do when you are terminated or disciplined based upon charges that do not specify what you did wrong? This was the issue in two recent arbitration cases I handled, one involving the Medical Center and one involving the County Clerk's office. The answer is that an application to dismiss the charges based on due process grounds should be made. In both cases the arbitrators found the charges or portions of the charges were defective and that the charges had to be dismissed. In one case, the charge read simply "theft of services". The arbitrator held that the phrase "by itself, is plainly inadequate and is made more so by dint of the fact that the Employer is charging Grievant with a pattern of theft of services… the compound deficiencies mandate that the Notice of Personnel Action be dismissed, without prejudice, and that, accordingly, the Employer be directed to reinstate Grievant and make him whole." In that case, the Employer was given the opportunity to re-charge the employee since the statute of limitations to charge the employee had not expired.

A similar result occurred in the County Clerk's case. In that case I made a motion to dismiss the charges against the Grievant claiming that they lacked specificity thereby violating contractual and due process rights by inhibiting my ability to mount a full and proper defense to the charges. The arbitrator held "… all references related to the Grievant's absences that were included as part of the … Notice of Personnel Action, which charged the Grievant with 'Dereliction of Duty' were removed from being a part of the charge. This is so, because:

(a) That part of the charge did lack specificity, in that no dates for the absences were cited;

(b) The absences referred to are contained in a separate charge which was grieved and a final determination had yet to be rendered;

(c ) Departmental actions, other than termination, had already been initiated against the Grievant for the referenced absences…"

Therefore, a two-fold attack on the charges, based upon lack of specificity and "double jeopardy" i.e., that the Grievant had already been previously charged for the same matters that he was now being terminated for led to a successful outcome and the Grievant was reinstated with full back pay minus a five day suspension without pay.

As can be seen, there are many issues that have to be analyzed in any disciplinary case besides the issue of whether misconduct or incompetence occurred.

Therefore, if you are ever the subject of discipline, pay particular attention to the language of the charges and let your CSEA representative know whether you have been previously disciplined for the same incidents or whether the charges are unduly vague so as to prevent you from forming a proper defense.