Executive Orders

E.O. 16:  Use of internet

Agency did not establish violation of E.O. 16, for excess use of the internet by accessing Colorado Public Radio (CPR) and Google websites, where agency did not rebut appellant’s evidence that he listened to music through CPR’s website while working, and used Google to research work-related ergonomic assessments.  In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

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Executive Order 65

Agency did not violate executive order requiring it to have a safety professional where agency designated an employee from another agency to perform that function, and executive order did not require an agency's safety professional to be on that agency's payroll.  In re Sanders, CSA 62-09, 7 (9/24/10); E.O. 65, § 5.4.     

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E.O. 94:  Drug and alcohol policy

Generally

Executive Order 94 (E.O. 94) prohibits city employees from being under the influence of drugs or alcohol while performing city business. In re Delgado, CSB 75-08, 1 (7/2/09). 

Under this executive order, a first time drug or alcohol violator may avoid mandatory dismissal by entering into a stipulation and agreement, which includes treatment and follow-up testing. In re Delgado, CSB 75-08, 1 (7/2/09) citing E.O. 94. 

Executive Order 94 applies to all city employees, separate and apart from DOT regulations that apply specifically to commercial driver’s license holders. In re Delgado, CSB 75-08, 1 (7/2/09).

The federal DOT regulations grant employers broad discretion in disciplining employees who hold commercial drivers’ licenses and who test positive for drug use.In re Delgado, CSB 75-08, 3 (7/2/09) citing United Food and Commercial Workers Intern. Union v Foster Poultry Farms, 74 F 3d 169, 171 (9th Cir. 1995); 59 Fed.Reg. 7502 (1994).

Employers and employees have the right to negotiate appropriate discipline and conditions of employment following a positive drug or alcohol test. In re Delgado, CSB 75-08, 3 (7/2/09) citing Eastern Associated Coal Corp. v United Mine Workers of America. 531 U.S. 57, 65 (2000).

Follow-up random testing under a stipulation and agreement after employee’s positive drug test is not subject to DOT regulations governing testing of CDL license holders. In re Delgado, CSB 75-08, 3 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

At career service hearing on appeal of dismissal for violation of stipulation and agreement under EO 94, city’s drug and alcohol policy, agency needed to prove only that the tests performed by the breath alcohol technician accurately measured excessive blood alcohol level. In re Delgado, CSB 75-08, 4 (7/2/09). 

Executive order 94, the city-wide policy concerning drugs and alcohol, is enforced in the same manner as the career service rules. In re Delgado, CSA 75-08, 2 (1/30/09).

Denver’s career service system provides for merit-based appointment of applicants and performance-based retention of city employees.  In re Sample, CSA 72-07, 5-6 (6/12/08), citing D.R.M.C. §18-1, rev’d on other grounds, CSB 10/16/08.

Violation Found 

Follow-up drug and alcohol testing, required for continued employment under a stipulation and agreement, need not comply with DOT regulations controlling holders of CDL licenses.   In re Delgado, CSB 75-08, 4 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

Agency’s failure to produce a printed blood-alcohol test pursuant to DOT regulations did not invalidate test under a stipulation and agreement pursuant to city alcohol policy.   In re Delgado, CSB 75-08, 4- 5 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

Where appellant was to refrain from any alcohol consumption under his stipulation and agreement, and he told his supervisor he consumed alcohol the night before his alcohol test, appellant’s admission is evidence, independent of his alcohol test, that he failed to comply with his stipulation and agreement.   In re Delgado, CSB 75-08, 4- 5 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

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E. O. 112:  Violence in the workplace

In general

Appellant violated Executive Order 112, prohibiting threatening or hostile behavior in the workplace when his supervisor instructed appellant to apologize to a co-worker, but appellant reacted with rage, making intimidating and hostile statements, and the supervisor’s testimony was credible based on the consistency with which he recounted the incident and based on Appellant’s prior similar conduct.  In re Weiss, CSA 68-10, 12 (2/14/11). 

DIA equipment operator did not violate Executive Order 112, prohibiting violent behavior, where his statement “you deserved it,” to his co-worker, referred to reporting the co-worker’s actions to their supervisor, and supervisor who imposed discipline failed to read 20 witness statements confirming co-worker instigated incident, and supervisor failed to consider appellant’s past record.   In re Cotton, 104-09, 12 (10/19/2010).   

This Executive Order prohibits all forms of violence in the workplace, including actual and attempted physical violence and shouting at another.  In re Lykken, CSA 26-10, 7 (7/7/10).

It is the recipient’s reasonable reaction, and not actor’s intent, that is the focus of workplace violence.  In re Lykken, CSA 26-10, 7 (7/7/10). 

Violence is an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking.  In re D’Ambrosio, CSA 98-09, 10 (5/7/10).  

Words grouped in a list should be given related meaning to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.  In re D’Ambrosio, CSA 98-09, 7 (5/7/10), citing S.D. Warren Co. v. Maine Bd. of Envir. Prot., 547 US 370, 378 (2006); Gustafson v. Alloyd Co., Inc., 513 US 561, 575 (1995).   

Examples of conduct in the definition of violence are actions that may subject an employee to discipline if performed in a violent manner.  In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

An employee violates this Executive Order where he exhibits violence, defined as an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking, where any of these actions are performed in a violent manner, since the words grouped in the list should be given related meaning.  In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

A violation may occur even if the target does not feel intimidated, threatened, or the target of hostile behavior, if the actor intended such consequence or a reasonable person would perceive the behavior as intimidating, threatening or hostile.   In re Owens, CSA 69-08, 6 (2/6/09).

Violations under this rule must be determined by an examination of the totality of the circumstances.   In re Owens, CSA 69-08, 6 (2/6/09).

An attempt to intimidate co-employees or members of the public, even if unsuccessful, can violate this executive order   In re Owens, CSA 69-08, 6 (2/6/09).

Violation found 

Violation of this Executive Order was established where appellant shouted at co-worker and co-worker was reasonably intimidated.  In re Lykken, 26-10, 7 (7/7/10).

No violation found

Agency failed to prove parking agent's threat to report contractor's procedural violation violated executive order against violence in workplace where employee had authority to oversee contractor.  In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

Evidence which proves only that the actor was loud, frustrated, and upset, without more, is insufficiently egregious to violate this executive order.   In re Owens, CSA 69-08, 6 (2/6/09).

Where evidence was conflicting as to whether appellant shoved his parking citation toward parking supervisor in a threatening manner, no violation can be found.   In re Owens, CSA 69-08, 6 (2/6/09).

Alleged victim’s claim that appellant “seemed to be using his height and anger to intimidate me which did not work” is an insufficient statement of intimidation to find a violation of this executive order.   In re Owens, CSA 69-08, 6 (2/6/09). 

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