Rule 16: Discipline and Dismissal

To research how Career Service Rules have been interpreted concerning discipline and dismissal, please select from the index below:

16-10: Service of Written Notice
16-20: Purpose of discipline
16-30: Investigatory Leave
16-40: Predisciplinary Notification
16-50: Progressive discipline
16-60: Discipline and Dismissal

16-61: Contemplating Discipline on Employee Convicted of or Charged with a Crime

16-72: Form for Written Reprimand and Notices of Discipline
16-73: Disciplinary Action Following Pre-Disciplinary Meeting

Purpose statement

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 City Charter § 1.2.1; D.R.M.C. § 18-1, rev’d on other grounds, CSB 10/16/08.

Disciplinary rules for career service employees are governed by the principles of due process, personal accountability, reasonableness, and sound business practice. Therefore, discipline is proper if it would promote those principles. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

When conduct at issue consists of speech, careful analysis is required. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

A remark may be considered inappropriate in the workplace based on a number of factors; its content, context, usage, setting, audience, and style of delivery. In re Burghardt, CSA 81-07, 4 (3/28/08), citing Ash v Tyson Foods, Inc., 126 S. Ct. 1195 (2006).

16-10: Service of Written Notice

Disciplinary notices under Rule 16 must be served "in person with a certificate of hand delivery, or by first class U.S. mail, with a certificate of mailing to the employee's last known address." In re Kemp, CSA 61-08, 2 (9/17/08).

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16-20: Purpose of Discipline (See also 16-50, Discipline and Penalty)

The main purpose of discipline under the Career Service Rules is to correct inappropriate behavior, if possible. Appointing authorities are directed by CSR 16-20 to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Abbey, CSA 99-09, 11 (8/9/10), citing CSR 16-20.

Appellant’s violations were severe, where his actions contravened two core functions of agency. In re Abbey, CSA 99-09, 11 (8/9/10).

Agency’s dismissal of appellant was not excessive, where agency determined that he was unlikely to change his behavior, based on appellants’ disciplinary history in which he was previously disciplined for the same behaviors on several occasions. In re Abbey, CSA 99-09, 6 (8/9/10).

Appointing authorities are directed by CSR 16-20 to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Norris, CSA 68-09, 8 (7/12/10).

Appellant’s violations of rules were egregious where he compromised sensitive password security at Denver’s airport, and impaired the fundamental purpose of his crew to maintain airfield lights by his frequent tardiness and extended absences. In re Norris, CSA 68-09, 8 (7/12/10).

Termination was justified by appellant’s violation of password security and frequent absences, lack of effort, and indifference to his work. In re Norris, CSA 68-09, 8-9 (7/12/10).

Dismissal of lead youth worker at family crisis center was appropriate for failing to intervene in resident assault or to enforce discipline in violation of center policies, despite past counseling for failure to handle an assault properly and two previous reprimands for other types of violations. In re O’Meallie, CSA 92-09, 7 (6/18/10).

By itself, false reporting of work hours justifies a substantial penalty. In re Martin, CSA 08-10 (5/24/10), citing In re Vigil, CSA 110-05, 4 (3/3/06).

Appellant's failure to acknowledge wrongdoing in claiming 8 hours of pay after 3 hours of jury duty, and blaming his supervisor for failing to correct his error, supports agency's decision to impose a 5-day suspension as the most likely to achieve compliance. In re Martin, CSA 08-10 (5/24/10).

Forty-hour suspension was appropriate discipline to correct employee’s behavior, where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and was recently issued a verbal warning for negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Interpreting the career service rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-20 which permits an agency to assess discipline for inappropriate behavior or performance. In re Cady, CSA 03-10, 4 (4/22/10).

A lesser degree of discipline than dismissal would have been unlikely to correct the offending behaviors where appellant persistently denied he made an offensive public announcement about a co-worker, then attempted to subvert the investigation into his actions. In re Carter, CSA 87-09, 9 (2/17/10).

Where appointing authority’s disciplinary decision was based on a preponderance of the evidence and was not clearly excessive, her determination as to the degree of discipline must be sustained. In re Carter, CSA 87-09, 10 (2/17/10), citing In re Weeks, CSB 26-09 (12/23/09).

The reasonableness of discipline within the career service personnel system is determined by the factual circumstances presented in each case, not upon comparisons with other city employees. In re Paz, CSA 07-09A, 2 (CSB 1/21/10).

The penalty imposed for rule violations depends on the gravity of the offense and takes the employee's past record into consideration. In re Morgan, CSA 63-08, 17-18 (4/6/09).

In termination cases, deciding officials must conclude no lesser discipline would achieve the desired behavior or performance. In re Morgan, CSA 63-08, 17-18 (4/6/09).

Termination was proper, despite the absence of any previous discipline, where appellant's intentional absences on every scheduled Saturday for seven months, coupled with his intransigence in refusing to work future Saturdays, particularly at a time when the agency was temporarily short staffed, negatively impacted the use of overtime, employee morale, and scheduling. In re Morgan, CSA 63-08, 18 (4/6/09).

In determining the degree of discipline, appointing authorities must consider the severity of the offense, an employee's past record, and the penalty most likely to achieve compliance with the rules. In re Norman-Curry, CSA 28-07 and 50-08, 23 (2/27/09).

Deputy sheriff's unjustified use of force against an inmate, that resulted in a significant financial cost to the city, was sufficient to justify her dismissal. In re Norman-Curry, CSA 28-07and 50-08, 23 (2/27/09).

Deputy sheriff's dishonesty about her unjustified use of force against an inmate justifies dismissal. In re Norman-Curry, CSA 28-07and 50-08, 23 (2/27/09).

Deputy sheriff's unexcused berating of an inmate, coupled with her open defiance of, and challenge to a superior officer, justifies a significant penalty or dismissal. In re Norman-Curry, CSA 28-07and 50-08, 23 (2/27/09).

Though defiance of lawful orders, considered alone, would not justify dismissal, deputy sheriff's pattern of defiance to authority escalated the significance of her actions. In re Norman-Curry, CSA 28-07and 50-08, 24 (2/27/09).

Deputy sheriff's history of abuse of her authority as a deputy sheriff, denials that she was ever unprofessional, consistent failure to take responsibility for her misdeeds, and pattern of uncontrolled hostility when faced with a perceived challenge to her authority, justified dismissal. In re Norman-Curry, CSA 28-07and 50-08, 24 (2/27/09).

Where past discipline has not corrected deputy sheriff's ongoing defiance to authority and abuse of inmates, and appellant consistently denied all responsibility for her actions, facts indicate it is unlikely that appellant's conduct will improve under lesser discipline. In re Norman-Curry, CSA 28-07and 50-08, 25 (2/27/09).

Although underlying incidents involving violation of uniform policy and crocheting while on duty at jail may not merit dismissal, in a paramilitary organization like the DSD, deputy sheriff's defiance of lawful orders in these incidents magnifies their significance as it weakens command structure and impacts the safekeeping of inmates, core mission of the agency. In re Norman-Curry, CSA 28-07and 50-08, 25 (2/27/09).

In determining the degree of discipline, appointing authorities must consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Owens, CSA 69-08, 7 (2/6/09).

A hearing officer must not disturb the agency’s determination unless it is clearly excessive, or based substantially upon considerations unsupported by a preponderance of the evidence. In re Owens, CSA 69-08, 8 (2/6/09), citing In re Mounjim, CSA 87-07, 18 (7/10/08), and In re Delmonico, CSA 53-06, 8 (10/26/06).

The purpose of discipline is to correct inappropriate behavior if possible. In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09).

In assessing discipline, appointing authorities are directed to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09).

Appellants’ disobedience of clear and reasonable order, statements that they were in full compliance with the orders, and breach of ethical duty to avoid conflicts of interest were egregious violations of rules and law. In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09).

Appellants’ denials of wrongdoing, while continuing to disregard their superior’s reasonable orders make it clear that a penalty less severe than dismissal would not achieve their compliance with the career service rules. In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09).

When an employee’s violations of a career service rule are egregious, even an exemplary work history may not protect the employee from dismissal. In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09).

Three-day suspension for two unauthorized absences affirmed where agency attendance policies were violated, policy provided for discipline for two absences per year, appellant was disciplined for same reason previously, and appellant's absences created hardship on co-workers and agency. In re Turner, CSA 76-08, 8 (1/16/09).

Hearing officer’s decision to reverse appellant’s dismissal was modified to 5-day suspension where appellant overcharged public for field trip and neglected duty to maintain professional demeanor by initiating and escalating confrontation with significant risk of harm to her superiors. In re Mounjim, CSB 87-07, 8 (1/8/09). [reversing In re Mounjim, CSA 87-07 (7/10/08)].

Termination was proper where agency performed a thorough investigation into its allegations against appellant; agency reviewed appellant’s performance and disciplinary records which established a long-standing pattern of behavior of ignoring agency rule; and appellant continued to deny wrongdoing, making it unlikely a fifth suspension would correct the same inappropriate behavior. In re Galindo CSA 39-08, 13 (9/5/08).

The corrective purpose of discipline is fulfilled when an agency tailors the penalty to the nature and circumstances of the misconduct and the employee’s past disciplinary history. In re Catalina, CSA 35-08, 11 (8/22/08), citing In re Rogers, CSA 57-07, 7 (3/18/08).

The purpose of discipline is to correct inappropriate behavior if possible. In re Blan, CSA 40-08, 6 (7/31/08).

Appointing authorities are directed by §16-20 to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Blan, CSA 40-08, 6 (7/31/08).

When an agency has notice that appellant’s sleeping on duty probably related to oxygen deprivation, it may neither discipline nor disqualify the employee for sleeping without first engaging in an interactive process pursuant to § 5-84 E. In re Muniz, CSA 77-07, 5 (7/21/08).

Hearing officer must not disturb the agency’s determination unless it is clearly excessive or based substantially upon considerations unsupported by a preponderance of the evidence. In re Mounjim, CSA 87-07, 18 (7/10/08), citing In re Delmonico, CSA 53-06, 8 (10/26/06).

Termination was not substantially conceived to correct performance failures where failures were substantially mitigated by lack of training, complexity of tasks, changes in staff and agency structure, unresolved communication issues, and more lenient treatment of other employees based on the same wrongdoing. In re Mestas et al., CSA 64-07, 44 (5/30/08).

Termination was not warranted where only claims proven were failure to follow up on a customer’s request for promotional difference pay of $123.20 and failing to notify a supervisor about leave slip issues, only past discipline was reprimand 4 years ago, and there was no evidence that progressive discipline would not achieve appellant’s compliance with the rules. In re Mestas et al .,CSA 64-07, 41 (5/30/08).

Agency’s dismissal was excessive when it was based substantially upon considerations unsupported by a preponderance of the evidence.In re Mestas et al., CSA 64-07, 42 (5/30/08), citing In re Armbruster, CSA 377-01 (3/22/02), and Adkins v. Div of Youth Services, 720 P.2d 626 (Colo. App. 1986).

It is improper to choose degree of discipline based upon whether it would show favoritism, rather than in the context required by the rules: whether a lesser degree of discipline might have achieved compliance. In re Mestas et al., CSA 64-07, 43 (5/30/08).

Duties deemed essential by an agency must be communicated in a sufficiently meaningful manner to apprise employees affected by them of the nature and importance of the duty and means to accomplish it, so that the employee has fair notice and a reasonable opportunity to comply. In re Mestas et al., CSA 64-07, 46 (5/30/08), citing In re Encinias, CSA 02-07 (CSB 10/18/07).

Not every duty must be specified in written detail, but agency bears the burden of showing it made the employee aware of his job responsibilities. In re Mestas et al., CSA 64-07, 46 (5/30/08), citing In re Encinias, CSB 02-07, 2 (10/18/07).

In an appeal of a disciplinary action, the agency has the burden to prove the action was taken in conformity with Rule 16 and that the degree of discipline was reasonably related to the seriousness of the offense, taking into consideration the employee’s past record. In re Burghardt, CSA 81-07, 4 (3/28/08).

Where possible and practicable, the purpose of discipline under the rules is intended to be corrective rather than punitive. In re Strasser CSB 44-07, 3 ( 2/29/08); § 16-50 A.1.

Termination of employment may be appropriate for a single egregious event that results in substantial harm or violates a fundamental tenet of an agency’s mission. In re Strasser, CSB 44-07, 3 (2/29/08).

Where appellant’s actions violated the very mission of her agency, and she continued through hearing to deny wrongdoing, thus suggesting a lesser penalty would not correct the inappropriate behavior, dismissal was appropriate penalty. In re Abdi, CSA 63-07, 32 (2/19/08).

Three-day suspension was appropriate where appellant was careless and failed to meet performance standards in failing to communicate with his supervisor despite three reprimands within six months for similar violations, and appellant’s testimony showed that he did not believe he violated his communications plan. In re Hill, CSA 69-07, 7 (1/23/08).

Five-day suspension was proper for acts of negligence and carelessness continuing recent pattern of performance problems where appellant was a long-term and valuable employee, and performance since the suspension has shown steady improvement. In re Butler, CSA 78-06, 6 (1/5/07).

The test to determine the propriety of discipline is whether the degree of discipline is reasonably related to the seriousness of the offense, taking into consideration appellant’s past disciplinary record. In re Delmonico, CSA 53-06, 8 (10/26/06).

In deciding whether discipline imposed is within the range of reasonable alternatives, hearing officer will not disturb agency’s determination unless it is clearly excessive or based substantially on considerations unsupported by a preponderance of the evidence. In re Delmonico, CSA 53-06, 8 (10/26/06), citing In re Armbruster, CSA 377-01 (3/22/02), Adkins v. Div of Youth Services, 720 P.2d 626 (Colo. App. 1986).

Where appellant escalated what had been mere teasing into a physical confrontation resulting in injuries to co-worker, 30-day suspension was proper, despite appellant’s clear disciplinary record and positive reports from supervisors. In re Delmonico, CSA 53-06, 8 (10/26/06).

Discipline is not a matter of mathematical precision, but is rather the carefully-considered result of examining the facts and circumstances of the particular case, as well as the disciplinary record of the individual, including the nature and extent of similar discipline. In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed CSB 8/2/07.

Termination of deputy sheriff for dishonesty and playing cards while on duty guarding felony inmates was reasonably related to offense when deputy had been disciplined every year since his hire, had just returned from a substantial suspension for dishonesty, and continued to deny any wrongdoing. In re Simpleman, CSA 31-06, 11 (10/20/06), affirmed CSB 8/2/07.

Deputy sheriff’s 45-day suspension for dishonesty and playing cards while on duty guarding felony inmates was reasonably related to offense when deputy had been disciplined for dishonesty on two other occasions, but later acknowledged his wrongdoing. In re Martinez, CSA 30-06, 9 (10/3/06).

Given appellant’s extensive previous discipline for almost identical violations, four-week suspension was within range of discipline that could be imposed by a reasonable administrator. In re Diaz, CSA 13-06, 8 (5/31/06).

In a de novo hearing on the appropriateness of discipline, the agency bears the burden of proof to show by a preponderance of the evidence both that appellant violated the disciplinary rules as alleged, and that the discipline was within the range of discipline that can be imposed under the circumstances. In re Diaz, CSA 13-06, 4 (5/31/06), citing Turner v. Rossmiller, 532 P.2d 751 (Colo. App. 1975); In re Gustern, CSA 128-02, 20 (12/23/02).

Magnitude of potential harm caused by misconduct may be considered in assessing level of discipline to be imposed. In re Simpleman, CSA 05-06, 9 (5/16/06).

30-day suspension was within range of reasonable alternatives for deputy sheriff sleeping while on duty. In re Simpleman, CSA 05-06, 9 (5/16/06).

The correct test to determine the propriety of discipline is whether the degree of discipline is reasonably related to the seriousness of the offense, taking into consideration the appellant’s past disciplinary record. In re Simpleman, CSA 05-06, 9 (5/16/06).

Discipline is reasonably related to the seriousness of the offense if it falls within the range of reasonable alternatives available to a reasonable, prudent agency administrator. In re Simpleman,CSA 05-06, 8 (5/16/06), citing In re Armbruster, CSA 377-01 (3/22/02); Adkins v Div. of Youth Services, 720 P.2d 626 (Colo. App. 1986).

Given his lack of previous discipline and length of service, 30-day suspension was reasonable penalty for deputy sheriff who intercepted two inmate grievances and delivered insulting responses to the inmates. In re Gonzales, CSA 07-06, 6 (5/4/06).

Termination for sexual harassment was reversed when conduct was found at hearing to constitute only infrequent disobedience of order to cease using terms of endearment with co-workers. In re Hernandez, CSA 03-06, 12 (5/3/06).

30-day suspension was substituted for termination when conduct was found at hearing to constitute only infrequent disobedience of order to cease using terms of endearment with co-workers. In re Hernandez, CSA 03-06, 12 (5/3/06), citing Dubiel v. USPS, 54 MSPR 428, 433-434 (1992), Brim v. USPS, 49 MSPR 494 (1991).

Ten-hour suspension was appropriate for falsely claiming one day’s sick leave, given appellant’s good work history and lack of previous discipline for dishonesty. In re Clayton, CSA 128-05, 6 (3/21/06).

30-day suspension was appropriate for employee who asked police for special treatment based on his position as deputy sheriff when arrested while off duty for incident arising from failing to pay for beer at a bowling alley. In re Mergl, CSA 131-05, 9 (3/13/06).

Supervisor’s order to attend training was not disciplinary in nature, and therefore denial of grievance based thereon was not appealable as discipline. In re Johnson, CSA 135-05, 3 (3/10/06).

The test for discipline is not whether the discipline is the next step under progressive discipline, but rather whether the degree of discipline is reasonably related to the seriousness of the offense. In re Vigil, CSA 110-05, 8 (3/3/06), citing In re Champion, CSA 71-02, 18 (7/31/02).

In determining whether discipline is reasonably related to the offense, the hearing officer will not disturb agency’s determination unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of the evidence. In re Vigil, CSA 110-05, 8 (3/3/06), citing In re Douglas, CSA 154-02, 166-02, 5 (1/27/03); In re Armbruster, CSA 377-01 (3/22/02); In re Gallegos, CSA 27-01 (3/21/01).

Written reprimand was not excessive for 2.5 hours of unauthorized leave, given appellant’s pattern of tardiness. In re Vigil, CSA 110-05, 9 (3/3/06).

Appellant was not punished twice for the same absences because of regulation’s imposition of increasing punishment for each additional unscheduled absence after eight occurrences in a year. In re Garcia, CSA 123-05, 6 (2/27/06).

Five-day suspension calculated based upon appellant’s absences over the agency average was within the range of penalties that may be applied by a reasonable manager. In re Garcia, CSA 123-05, 6 (2/27/06).

Five-day suspension was appropriate for unauthorized absences after employee received ample notice of the seriousness of her absenteeism in the form of stricter attendance expectations, and previous discipline for same misconduct. In re Edwards, CSA 21-05, 8 (2/22/06).

Career Service Rules require progressive discipline to correct inappropriate behavior or performance. In re Diaz, CSA 92-05, 10 (1/31/06).

Discipline must be reasonably related to the seriousness of the offence, and appropriate to correct the situation and achieve the desired change in behavior or performance. In re Diaz, CSA 92-05, 10 (1/31/06).

Two-week suspension was appropriate when previous discipline including shorter suspension did not correct similar past behavior and performance deficiencies. In re Diaz, CSA 92-05, 11 (1/31/06).

In this de novo hearing on the appropriateness of appellant’s termination, the agency bears the burden to prove by a preponderance of the evidence both that appellant violated the disciplinary rules as alleged, and that termination was within the range of discipline that can be imposed under the circumstances. In re Hobley, CSA 61-05, 4 (12/19/05), citing Turner v. Rossmiller, 532 P.2d 751 (Colo. App. 1975); In re Gustern, CSA 128-02, 20 (12/23/02).

Hearing officer may conduct a de novo review of the reasonableness of discipline in light of the facts as they exist at the time of hearing. This approach balances the need for prompt resolution of disciplinary appeals and the requirement of certainty in outcome. In re Williams, CSA 65-05, 7 (11/17/05), citing USPS v. Gregory, 534 U.S. 1 (2001); Bolling v. Dept. of Air Force, 9 MSPR 335 (1981).

Hearing officer may exercise discretion in reviewing past disciplinary actions to determine the reasonableness of discipline. In re Williams, CSA 65-05, 7 (11/17/05).

Supervisor’s consideration of two past written reprimands that were later reduced to verbal warnings did not render the penalty of a written reprimand improper, since the same supervisor imposed all discipline and agreed to the reduction of the past reprimands, and only the degree of discipline changed between the time it was imposed and the appeal hearing. In re Williams, CSA 65-05, 7 (11/17/05).

Appellant was not disciplined twice for the same conduct when the earlier discipline was withdrawn, despite appellant’s failure to receive notice of that withdrawal. In re Williams, CSA 65-05, 7 (11/17/05).

Rescinded discipline cannot be used for any disciplinary purpose against an employee. In re Williams, CSA 65-05, 7 (11/17/05).

15-day suspension was appropriate penalty for recreation supervisor’s angry confrontation with referee at girls’ basketball game, resulting in his escalating an already emotional competition and being ejected from the building. In re Trujillo, CSA 44-05, 7 (11/14/05).

Discipline must be reasonably related to the seriousness of the offense, and be within the range of reasonable alternatives available to a reasonable, prudent agency administrator. In re Diaz, CSA 45-05, 9 (9/7/05), citing In re Champion, CSA 71-02, 18 (7/31/02); In re Armbruster, CSA 377-01 (3/22/02); and Adkins v. Div. of Youth Services, 720 P.2d 626 (Colo. App. 1986).

Discipline may be found excessive where it is substantially based on considerations that are not supported by a preponderance of the evidence. In re Diaz, CSA 45-05, 9 (9/7/05), citing In re Gustern, CSA 128-02, 20 (12/23/02).

One-day suspension was well within range of reasonable alternatives for performance mistakes and attendance violations that continued despite previous discipline for the same misconduct. In re Diaz, CSA 45-05, 10 (9/7/05).

The propriety of discipline is determined by whether the degree of discipline chosen by the agency was reasonably related to the seriousness of the offense, taking into consideration the employee's past discipline. In re Mestas, CSA 37-05, 8 (8/4/05), citing In re Champion, CSA 71-02, 18 (7/31/02).

The agency is required to assess the degree of discipline that is reasonably related to the seriousness of the offense and that takes into consideration appellant's past record. In re Garcia, CSA 175-04, 8 (7/12/05).

To determine whether discipline is reasonably related to the seriousness of the offense, it must be within the range of reasonable alternatives available to a reasonable, prudent agency administrator. In re Garcia, CSA 175-04, 8 (7/12/05), citing In re Armbruster, CSA 377-01 (3/22/02); Adkins v. Division of Youth Services, 720 P.2d 626 (Colo. App. 1986).

In determining whether the discipline is within the range of reasonable alternatives, the hearing officer will not disturb the agency's determination of the severity of the discipline unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of the evidence. In re Garcia, CSA 175-04, 8 (7/12/05), citing In re Douglas, CSA 154-02, 166-02, 5 (1/27/03).

Where appellant had two suspensions and a written reprimand during the past year, termination for dissemination of a vulgar e-mail was within the range of reasonable alternatives available to the agency. In re Garcia, CSA 175-04, 8 (7/12/05).

Employee may reasonably rely on agency's past interpretation of disciplinary rules in the absence of notice of a change in that interpretation. In re Mitchell, CSA 05-05, 5 (6/27/05).

Since written reprimand succeeded in its intended goal to give appellant formal notice of the need to improve after continuing disregard of departmental policies, discipline was appropriate. In re Schultz, CSA 156-04, 10 (6/20/05).

To condone misconduct only because no actual harm results would be to violate the Career Service Rules' purpose to correct inappropriate behavior. In re Owoeye, CSA 11-05, 6 (6/10/05).

The fact that the polar bear threatened by appellant's failure to secure the animals did not suffer injury does not disprove the carelessness charge, since the purpose of the Career Service Rules is to correct inappropriate behavior. In re Owoeye, CSA 11-05, 5 (6/10/05).

Discipline is reasonably related to the seriousness of an offense if it is within the range of reasonable alternatives available to a reasonable, prudent agency administrator. In re Moreno, CSA 138-04, 9 (5/25/05), citing In re Gustern, CSA 128-02, 20 (12/28/02) and Adkins v. Div. of Youth Services, 720 P.2d 626 (Colo. App. 1986). See also In re Lucero, 162-04 (4/15/05); In re Owens, CSA 139-04, 8 (3/31/05).

Discipline is not excessive if it is substantially based on considerations that are supported by a preponderance of the evidence. In re Moreno, CSA 138-04, 9 (5/25/05), citing In re Gustern, CSA 128-02 (12/28/02).

In an appeal to the hearing office, the agency bears the burden of proof to demonstrate by a preponderance of the evidence that there is cause to discipline, and that the discipline imposed is reasonably related to the seriousness of the offenses. In re Katros, CSA 129-04, 6 (3/16/05) , citing In re Castaneda, CSA 155-02 (7/1/03); see also In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 13 (1/27/05), citing In re Gustern, CSA 128-02, 20 (12-28-02).

Where appellant playfully slapped her co-worker harder than she intended during a friendly conversation, causing temporary pain, termination was not narrowly tailored to correct the behavior, nor reasonably related to the seriousness of the offense, and did not take into account appellant's past record, requiring modification of penalty to a one-day suspension. In re Freeman, CSA 40-05, 75-04, 10 (3/3/05).

Discipline affirmed

Twenty-day suspension was proper where appellant behaved disrespectfully towards a co-worker, persistently and willfully violated lawful orders, and had past record replete with evidence he refuses direct orders. In re Owens, CSA 69-08, 8 (2/6/09), citing In re Mounjim, CSA 87-07, 18 (7/10/08).

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16-30: Investigatory Leave with Pay

Rule obviously contemplates the placement of the target of the investigation on leave, not the whistleblower. In re Muller, CSB 48-08, 2 (10/24/08).

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16-40: Predisciplinary Notification

Predisciplinary meeting held by phone from employee's jail cell did not violate career service rules based on HIPPA, a federal law protecting the privacy of medical records, since HIPPA does not provide a remedy to individuals. In re Carrillo, CSA 95-09, 6 (3/16/10).

An agency must justify denial of an employee's request to continue a predisciplinary meeting by some showing that it would not be practical. In re Carrillo, CSA 95-09, 7 (3/16/10).

Agency had no notice of employee's request to continue the predisciplinary meeting where the request was made to a jailor and not a member of the agency. In re Carrillo, CSA 95-09, 7 (3/16/10).

Where agency claims were not unduly complex, overly voluminous, or otherwise unclear, and notices of pre-disciplinary meetings regarding the claims were sent well in advance of the meetings, appellants were not denied adequate notice of the claims against them in violation of their notice rights under this rule. In re Sawyer and Sproul, CSA 33-08, 16 (1/27/09).

The career service rules mirror the provisions of the Denver city charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers. In re Mounjim, CSB 87-07, 7 (1/8/09).

Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited: due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard. In re Mounjim, CSB 87-07, 7-8 (1/8/09).citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).

A voluminous recitation of facts which support each particular rule violation is not required in an agency’s pre-disciplinary letter. In re Mounjim, CSB 87-07, 7 (1/8/09).

Agency must identify at the pre-disciplinary stage what facts it is relying upon to establish a violation of a rule so that the employee has an opportunity to prepare for and respond meaningfully to the allegations. In re Mounjim, CSA 87-07, 5 (7/10/08).

An agency may not present evidence of wrongdoing for the first time at hearing. In re Mounjim, CSA 87-07, 5 (7/10/08).

The requirements of a fair hearing include notice of the claims of the opposing party and an opportunity to meet them. A broad unspecified statement - generic notice - is no notice at all. In re Mounjim, CSA 87-07, 15 (7/10/08), citing Shaw v. Valdez, 819 F2d 965 (10th Cir 1987).

If agency’s decision was based substantially on incident and rule not included in letter of dismissal, the decision was unjustified under the rules cited in the dismissal letter. In re Mounjim, CSA 87-07, 18-19 (7/10/08).

An agency may not shift its burden of locating and synthesizing the relevant facts and arguments that establish a specific violation to the hearing officer. In re Mounjim, CSA 87-07, 5 (7/10/08), citing Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App. 2006).

Management's decision to change the locks during investigatory leave did not affect Appellant's ability to participate in the pre-disciplinary process. In re Smith, CSA 17-05, 9 (7/07/05).

Agency's failure to deliver disciplinary letters to appellant's last known address did not deprive Appellant of an opportunity to be heard since the postal forwarding order had expired, rendering any such delivery ineffective. In re Kinfe, 161-04, 4 (3/16/05) (decided under former § 16-30), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985).

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16-50: Progressive Discipline (See also §16-20 and Discipline)

Although employee was highly-rated and dedicated and her only previous discipline was a verbal reprimand, dismissal was appropriate where employee disobeyed two direct orders and failed to meet performance standards, adversely affecting her chief assigned project and relationships with team members, and prior counseling, mentoring sessions, warnings, an improvement plan, and extensive remedial training to reinforce standards over a five-month period did not correct her behavior or belief that she had done nothing wrong, indicating that lesser discipline would not alter her behavior. In re Harrison, CSA 55-07, 58 (6/17/10).

By itself, false reporting of work hours justifies a substantial penalty. In re Martin, CSA 08-10 (5/24/10), citing In re Vigil, CSA 110-05, 4 (3/3/06).

Forty-hour suspension was appropriate progressive discipline to correct employee’s behavior where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and was recently issued a verbal warning for negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Five-day suspension was not clearly excessive or based on unsupported considerations despite lack of prior discipline where employee supervisor was dishonest, frequently conducted personal business during work hours in city vehicle, and failed to acknowledge wrongdoing. In re Valdez, CSA 90-09, 8 (3/1/2010), citing In re Mounjim, CSA 87-07, 18 (7/10/08); In re Delmonico, CSA 53-06, 8 (10/26/06).

Dishonesty concerning hours worked is an inherently egregious violation and may subject an employee to severe sanctions. In re Clayton, CSA 111-09, 8 (4/16/10).

Mitigating circumstance was established where current suspension was appellant’s first discipline in the past five years. In re Clayton, CSA 111-09, 7 (4/16/10).

In determining level of penalty, employee's past violation of the same rule may be considered as a factor aggravating the seriousness of the current violation. In re Clayton, CSA 111-09, 8 (4/16/10).

Where appellant’s prior discipline for dishonesty failed to deter her from a later dishonest claim of overtime, the agency’s choice to impose a significant suspension comports with the principles of progressive discipline. In re Clayton, CSA 111-09, 8 (4/16/10).

Sheriff’s department has established that dishonesty by a deputy will be met with severe sanctions. In re Carter, CSA 87-09, 9 (2/17/10), citing In re Weeks CSA 26-09, 7 (7/20/09); In re Rogers, CSA 57-07 (3/18/08).

Agency’s conclusion that deputy’s dishonesty during an internal affairs investigation was an egregious violation of departmental and career service rules justifying termination was appropriate. In re Carter, CSA 87-09, 9 (2/17/10).

Agency’s conclusion that discipline less than dismissal would have been unlikely to correct the offending behaviors was supported by deputy’s continued denial of misconduct and his attempts to subvert the investigation by dishonesty and talking to witnesses. In re Carter, CSA 87-09, 10 (2/17/10).

Where appointing authority’s disciplinary decision was not clearly excessive or based substantially on considerations not supported by the evidence, her determination as to the degree of discipline must be sustained. In re Carter, CSA 87-09, 10 (2/17/10), citing In re Weeks, CSB 26-09 (12/23/09).

A hearing officer must not disturb an agency’s penalty determination unless it is clearly excessive or based substantially upon considerations unsupported by a preponderance of the evidence. In re Sawyer and Sproul, CSA 33-08, 18 (1/27/09), citing In re Delmonico, CSA 53-06, 8 (10/26/06).

Dismissal was not excessive where decision-maker gave employees ample warning, notice of their violations, and opportunity to come into compliance, and they willfully refused to do so. In re Sawyer and Sproul, CSA 33-08, 18 (1/27/09).

Five-day suspension is appropriate discipline for violation of regulation setting field trip fees and neglect of duty to maintain professional demeanor. In re Mounjim, CSB 87-07, 8 (1/8/09).

Two-day suspension for four attendance violations and angry confrontations with payroll clerk where appellant had prior discipline for attendance issues and negative interactions with coworkers and a number of remedial measures were taken to assist appellant in improving in these areas. In re Williams, CSA 53-08, 6 (12/19/08).

20-day suspension for three relatively minor violations of city breaks and lunch policy after 14 and 16 years of employment without discipline is excessive in light of written reprimand of another employee from the same team with same disciplinary history for being in restaurant for over 30 minutes and reporting it as work time. In re Compos, et al, CSA 56-08, 20 (12/15/08).

20-day suspension is modified to 5-day suspension for violations of lunch policy on three days in keeping with agency intent to reverse the development of bad work habits, given employees' long and excellent work record, absence of previous discipline, and immediate correction of laxity after notice of discipline. In re Compos et al, CSA 56-08, 20, 21 (12/15/08).

20-day suspension is modified to 5-day suspension for three violations of break and lunch policy occurring within two days, indicating the existence of a pattern, and the trust relationship needed for employees who schedule their work days with a great deal of independence, given employee's long and excellent work record, and minor previous discipline. In re Compos et al, CSA 56-08, 21 (12/15/08).

Termination was appropriate where agency concluded theft and absenteeism was a continuation of long-standing pattern of behavior ignoring agency rules based on review of performance and disciplinary records. In re Galindo, CSA 39-08, 13 (9/5/08).

Appellant’s continued denial of wrongdoing renders it unlikely that a fifth suspension would correct the same inappropriate behavior for which he had received previous reprimands and suspensions over the course of 23 years of employment. In re Galindo, CSA 39-08, 13 (9/5/08).

Appellant failed to present any credible evidence that termination was rooted in bias against city employees rather than the underlying facts supporting discipline. In re Galindo, CSA 39-08, 13 (9/5/08).

Where appellant took substantial steps toward providing name of informant in child sex abuse case to attorney who offered to waive fees in exchange for that information, termination was not unreasonable despite lack of previous discipline and pressure placed on appellant by attorney. In re Catalina, CSA 35-08, 11 (8/22/08).

Termination of deputy sheriff was appropriate for soliciting a prostitute where charge raises enormous potential for deputy’s compromise in handling those arrested for or convicted of similar charges. In re Griffith, CSA 41-08, 4 (8/14/08).

Sheriff’s department may choose to treat deputies’ violations of law outside the work place more severely than another agency might because of the heightened public trust and confidence placed in law enforcement. In re Griffith, CSA 41-08, 4 (8/14/08).

Deputy’s admission of a basis for criminal charge of soliciting a prostitute, and resulting compromise of his duties, constitute a violation severe enough to preclude progressive discipline and justify dismissal, despite lack of prior discipline and satisfactory performance reviews. In re Griffith, CSA 41-08, 5 (8/14/08).

Deputy’s testimony that he was joking with undercover police officer and not soliciting for prostitution was not credible where he was driving in an area well known in law enforcement circles for prostitution, circled the block at least once, stopped and negotiated a price, and arranged a meeting place. In re Griffith, CSA 41-08, 5 (8/14/08).

Dismissal of deputy for soliciting a prostitute was not clearly excessive, and was based on considerations supported by preponderance of the evidence. In re Griffith, CSA 41-08, 5 (8/14/08).

Even small infractions of honesty rule by paralegals may carry substantial penalties, since attorneys in city attorney’s office must be able to count on the word of their paralegals. In re Blan, CSA 40-08, 6 (7/31/08).

Four-day suspension was affirmed for second violation for misuse of work time by paralegal when verbal reprimand for similar offense two months before did not achieve the desired compliance. In re Blan, CSA 40-08, 7 (7/31/08).

Since the type and amount of discipline must be calibrated to what is considered necessary to correct the situation and achieve the desired behavior or performance, the level of discipline issued must be reduced to consider only the offenses proven by the agency. In re Sienkiewicz, CSA 10 -08, 17-18 (7/14/08), citing CSR § 16-20.

Termination was inappropriate where agency failed to prove the majority of its charges, and the agency concluded appellant was incapable of changing his behavior, despite his apology and previous improvements after criticism. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

Where agency proved appellant neglected his duty and failed to meet performance standard by not communicating important information to co-worker, a one-week suspension is substituted for termination given appellant’s past disciplinary and work record, and demonstrated willingness to improve his performance. In re Sienkiewicz, CSA 10-08, 18 (7/14/08).

Termination was inappropriate based on one minor unintentional violation of policy where appellant performed satisfactorily in position for 18 years with only one written reprimand. In re Mounjim, CSA 87-07, 19 (7/10/08).

Termination based substantially on considerations unsupported by preponderance of the evidence is excessive discipline. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 42 (5/30/08).

Appellant’s failure to follow up on customer request for promotional pay, causing delay in payment of $123, and her failure to locate missing leave slips, do not merit termination. In re Mestas et al., CSA 64-07, 41 (5/30/08).

Where 18-year employee was rated successfully in last review, and her manager was satisfied with her methods and performance, there was no substantial reason why discipline less than termination would not achieve employee’s compliance with career service rules. In re Mestas et al., CSA 64-07, 42 (5/30/08).

Termination was improper where it was based on manager’s conclusion that lesser discipline would show favoritism, rather than basing conclusion upon career service standard whether lesser discipline may achieve compliance. In re Mestas et al., CSA 64-07, 43 (5/30/08).

Termination was too severe where appellant’s performance failures were partly mitigated by lack of training, complexity of tasks, changes in staff and agency structure, unresolved personality conflicts, and most allegations were not proven. In re Mestas et al., CSA 64-07, 43 (5/30/08).

Progressive discipline is not required in aggravated cases, particularly where a lesser penalty is unlikely to achieve compliance. In re Abdi, CSA 63-07, 32 (2/19/08).

Employee’s failure to correct behavior after previous discipline may be considered in determining the appropriate penalty for later offenses. In re Feltes, CSA 50-06, 7 (11/24/06).

Termination was appropriate for premeditated pattern of false statements in attempt to cover up payroll clerk’s dishonesty after past discipline, resulting in minor financial impact on city. In re Feltes, CSA 50-06, 7 (11/24/06).

Where one participant in a fight escalated teasing incident into physical confrontation, agency may impose different level of discipline on each participant. In re Delmonico, CSA 53-06, 8 (10/26/06).

Hearing officer will not disturb an agency’s disciplinary determination unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of evidence. In re Delmonico, CSA 53-06, 8 (10/26/06).

30-day suspension was not excessive for engaging in fight with co-worker, despite lesser discipline for co-worker, when appellant escalated an incident involving teasing into a physical confrontation resulting in injuries to co-worker. In re Delmonico, CSA 53-06, 8 (10/26/06).

Termination of deputy sheriff with long history of discipline who continued to deny wrongdoing was reasonable under rule. In re Simpleman, CSA 31-06, 10-11 (10/20/06), affirmed CSB 8/2/07.

An order requiring remedial training is not a disciplinary action as defined in the Career Service Rules. In re Johnson, CSA 135-05, 3 (3/10/06).

One-day suspension was not inappropriately harsh under CSR §16-20 for a single remark to a female co-worker who reasonably interpreted it as an insult to her moral standards. In re Smith, CSA 17-05 (7/07/05).

A three-day suspension based upon appellant's repeated requests of a co-worker to log her into her time records was justified by the severity and frequency of the misconduct, and its adverse effect on a co-worker. In re Roberts, CSA 179-04, 6 (6/29/05).

An agency does not impose double punishment by enforcing both its performance standards and the rules governing discipline for the same conduct. In re Roberts, CSA 179-04, 7 (6/29/05).

The penalty of a three-day suspension was appropriate given the seriousness of the pattern of conduct in which appellant engaged, and its adverse effect upon her co-worker. In re Roberts, CSA 179-04, 7 (6/29/05).

The Career Service Rules require an agency to consider the gravity of the infraction and determine the type of discipline needed to correct the situation and achieve the desired behavior or performance. In re Schultz, CSA 156-04, 10 (6/20/05).

Written reprimand was appropriate given the pattern of noncompliance with the no-smoking rule, as balanced by appellant's admirable past discipline record, where discipline succeeded in its intended goal to give appellant formal notice of the need to improve. In re Schultz, CSA 156-04, 10-11 (6/20/05).

The three-day suspension was well within the range of reasonable penalties for a zookeeper's failure to secure a bear, among the most serious possible violations at the zoo, especially in light of his past disciplinary history and denial of responsibility for his conduct. In re Owoeye, CSA 11-05, 7 (6/10/05).

Termination was justified based on employee's responsibility for assault on supervisor after two lengthy suspensions for similar acts. In re Moreno, CSA 138-04 (5/25/05).

Since CSR § 16-40 D and Executive Order 94 can be read to be consistent, the former does not invalidate Executive Order 94’s language mandating dismissal for second violation of city drug policy in the employee’s career, and agency did not violate career service rule by relying on a first offense that occurred more than five years before second offense. In re Williams, CSA 56-04, 4 (5/06/05). (decided under former §16-40 D).

Discipline is not excessive if it is substantially based on considerations that are supported by a preponderance of the evidence. In re Lucero, 162-04 (4/15/05), citing In re Gustern, CSA 128-02, 20 (12-28-02).

Appellant's pattern of behavior over three months in disregarding the rules she disagreed with and criticizing her supervisor in front of his staff and manager justifies a conclusion that the offenses were serious and merited the imposition of a five-day suspension, despite appellant's lack of previous discipline. In re Lucero, CSA 162-04 (4/15/05).

Ten-day suspension was justified for appellant's sleeping on the job based upon similar offense one month before the incident, and five disciplinary actions within the previous ten months. In re Owens, CSA 139-04, 8 (3/31/05).

Agency reasonably concluded that progressive discipline required the imposition of more severe penalties, given the fact that less severe discipline had not corrected the behavior. In re Owens, CSA 139-04, 8 (3/31/05).

Termination was reasonable for violation of Executive Order 112 two months after similar incident. In re Katros, CSA 129-04, 11 (3/16/05).

Termination was justified despite lack of prior discipline and excellent past performance when appellant was absent two months beyond the expiration of his authorized leave and more that six weeks beyond his requested extension of that leave. In re Kinfe, 161-04, 7 (3/16/05).

Despite the reasons to enforce anti-violence rules strictly, there is a limit beyond which a rigid application of the workplace rules overreaches into the everyday interactions between co-workers, which sometimes include hurtful but easily-corrected mistakes of which we are all culpable. In re Freeman, CSA 40-04, 75-04, 9 (3/3/05).

In an appeal of a disciplinary action, the agency bears the burden to establish by a preponderance of the evidence that it had just cause for the action taken. In re Leal-McIntyre, CSA 77-03, 13 (1/27/05), citing In re Gustern, CSA 128-02 (12/23/02).

Recent similar violation, expression of intense hatred toward co-worker, and appellant's public role within the agency aggravated the seriousness of incident to justify a three-day suspension. In re Routa, CSA 123-04, 6 (1/27/05).

Outburst at meeting merited written reprimand where verbal reprimand imposed for a similar incident four months before did not improve behavior. In re Green, CSA 130-04, 5 (1/7/05).

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16-60: Discipline and Dismissal

Where an agency’s proffered evidence fails to support its disciplinary action, the hearing officer may not substitute another rule violation that better fits the evidence. In re Mestas et al., CSA 64- 07,37, 39 (5/30/08).

16-60 A: Neglect of Duty

In general

This rule is violated when an employee neglects to perform a job duty which the employee knows he or she is supposed to perform. In re Abbey, CSA 99-09, 6 (8/9/10) citing In re Compos, CSA 56-08, 2 (CSB 5/21/09).

This rule is breached when an employee neglects a duty he knows he is supposed to perform. In re Norris, CSA 68-09, 5 (7/12/10), citing In re Compos et al, CSB 56-08, 2 (5/21/09) modifying In re Compos, CSA 56-08, 14 (12/15/08).

This rule is breached when an employee neglects to perform a job duty he knows he is supposed to perform. In re O’Meallie, CSA 92-09, 3 (6/18/10), citing In re Compos et al, CSB 56-08, 2 (5/21/09).

A violation of this rule occurs when an employee neglects to perform a job duty which the employee knows he is supposed to perform. In re Cady, CSA 03-10 (4/22/10), citing In re Compos et al, CSB 56-08, 2 (5/21/09).

Since carelessness in the performance of duty is proven by poor performance, and neglect of duty is proven by failure to perform, proof of one will generally not prove the other. In re Valdez, CSA 90-09, 5 (3/1/2010).

This rule is violated when an employee neglects to perform a job duty the employee knows she is supposed to perform. In re Carrillo, CSA 95-09 (3/16/10), citing In re Compos et al, CSB 56-08, 2 (5/21/09).

This rule is violated when an employee neglects to perform a job duty which the employee knows he or she is supposed to perform. In re Compos et al, CSB 56-08, 2 (5/21/09).

The relative importance of a neglected work duty and the degree to which the neglect may result in potential or actual harm are factors that may be relevant in assessing an appropriate level of discipline, if any, for a violation of this rule. In re Compos et al, CSB 56-08, 2 (5/21/09).

If both §16-60 A and §16-60 B are measured under a negligence standard, then one of the rules would become superfluous. In re Compos et al, CSB 56-08, 2 (5/21/09).

To sustain a violation under CSR 16-60 A, the agency needs to establish each of the following by a preponderance of the evidence: 1) the appellant had an important work duty; 2) the appellant was heedless or unmindful of that duty; 3) no external cause prevented the appellant's performance of that duty; 4) the appellant's failure to execute his duty resulted in significant potential or actual harm. In re Lottie, CSA 132-08, 2 (3/9/09).

The duty to show up for, and complete, daily work is fundamental to any position. In re Lottie, CSA 132-08, 3 (3/9/09).

Negligence is established by proof that an employee has an important work duty and failed to perform that duty, resulting in significant potential or actual harm. In re Compos, CSA 56-08, 14 (12/15/08), modified, CSB 5/21/09.

An agency must communicate the importance of the work duty to the employee in such a manner that a reasonably astute employee would be aware of it. In re Compos, CSA 56-08, 14 (12/15/08).

Negligence is established by proof that an employee has an important work duty and failed to perform that duty, resulting in significant potential or actual harm. In re Sienkiewicz, CSA 10-08, 15 (7/14/08), citing In re Dessureau, CSA 59-07, 4 (1/16/08). See also In re Catalina, CSA 35-08, 7 (8/22/08).

Neglect of duty is proven by evidence that: 1) appellant had an important work duty; 2) appellant was heedless or unmindful of that duty; 3) no external cause prevented the appellant’s performance of that duty; and 4) appellant’s failure to execute his duty resulted in significant potential or actual harm. In re Dessureau, CSA 59-07, 4 (1/16/08), citing In re Martinez, CSA 30-06, 4-5 (10/3/06). See also In re Mounjim, CSA 87-07, 5 (7/10/08).

To sustain a violation under §16-60 A, the agency must establish each of the following by a preponderance of the evidence: 1) appellant had an important work duty; 2) appellant was heedless or unmindful of that duty; 3) no external cause prevented the appellant’s performance of that duty; 4) the appellant’s failure to execute her duty resulted in significant potential or actual harm. In addition, the agency must have communicated the important duty in such manner that a reasonably astute employee would be aware of it and, if also required by the agency, the manner in which the agency expects the duty to be performed. In re Mestas et al., CSA 64-07, 21 (5/30/08), citing In re Martinez, CSA 30-06, 4-5 (Order 10/3/06), In re Simpleman, CSA 31-06 (10/20/06), and In re Encinias, CSB 02-07, 2 (10/19/07). See also In re Blan, CSA 40-08, 3 (7/31/08).

To prove neglect of duty to oversee subordinates, agency must establish that it communicated the duty of oversight in such manner that a reasonably astute supervisor would be aware of it. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 24 (5/30/08).

Neglect of duty is proven by evidence that: 1) appellant had an important work duty; 2) appellant was heedless or unmindful of that duty; 3) no external cause prevented the appellant’s performance of that duty; and 4) appellant’s failure to execute his duty resulted in significant potential or actual harm. In re Dessureau, CSA 59-07, 4 (1/16/08) citing In re Martinez, CSA 30-06, 4-5 (10/3/06).

The term “neglect of duty” in the public employment context has been defined as the neglect or failure to perform a duty required by virtue of office or law. In re Feltes,CSA 50-06, 5 (11/24/06),citing State ex rel. Hardie v. Coleman, 155 So.129, 132 (Fla.1934); Overton v.Goldsboro City Board of Education, 283 S.E.2d 495, 499 (N.C. 1981).

The definition of neglect of duty remains an abstraction until viewed in the light of the facts surrounding a particular case. In re Feltes, CSA 50-06, 5 (11/24/06),citing Gubser v Dept. of Employment,271 Cal.App.2d 240,242 (Cal. App. 1969).

A supervisor manifestly neglects his duty when he allows his subordinates to perform their duties in an obviously inaccurate manner over an extended period of time. In re Feltes, CSA 50-06, 5 (11/24/06), citing Gubser v. Dept. of Employment, 271 Cal.App.2d 240, 242 (Cal. App. 1969).

Dismissal for neglect of duty alone cannot be sustained unless it is proven that a reasonable man under those same circumstances would have recognized the duty and would have considered himself obligated to conform. In re Feltes, CSA 50-06, 5 (11/24/06), citing Overton v. Goldsboro City Board of Education, 283 S.E.2d 495, 500 (N.C. 1981).

Neglect of duty of a public employee requires proof of knowledge or intent. In re Feltes, CSA 50-06, 5 (11/24/06), citing Overton v. Goldsboro City Board of Education, 283 S.E.2d 495, 500 (N.C. 1981).

Neglect of duty means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty. In re Feltes, CSA 50-06, 6 (11/24/06), citing Gubser v. Dept. of Employment, 271 Cal .App.2d 240, 242 (Cal. App.1969).

To sustain a violation under § 16-60 A, agency needs to establish the following by a preponderance of the evidence: 1) appellant had an important work duty; 2) appellant was heedless or unmindful of that duty; 3) no external cause prevented the appellant’s performance of that duty; and 4) appellant’s failure to execute his duty resulted in significant potential or actual harm. In re Martinez, CSA 30-06, 4-5 (10/3/06). See also In re Simpleman, CSA 31-06, 5 (10/20/06), affirmed CSB 8/2/07.

Section 16-60 A) does not require the element of deliberation or consciousness. In re Martinez, CSA 30-06, 4 (10/3/06). See also In re Simpleman, CSA 31-06, 5 (10/20/06).

Neglect of duty implies a failure to perform a duty, while carelessness in the performance of duties implies a slipshod practice of duty. In re Martinez, CSA 30-06, 4 (10/3/06); In re Simpleman, CSA 31-06, 4-5 (10/20/06).

Neglect means a failure to carry out an expected or required action through carelessness or inattention, while carelessness means negligence. In re Martinez, CSA 30-06, 4 (10/3/06), citing Webster’s Unabridged Deluxe Edition (1979); In re Simpleman, CSA 31-06, 4-5 (10/20/06).

Gross negligence means the failure to use reasonable care that is flagrant or beyond all allowance, or showing an utter lack of responsibility, and justifies a presumption of willfulness and wantonness. In re Simpleman, CSA 05-06, 3 (5/16/06) (decided under former §16-50 A. 1), citing In re Keegan, CSA 69-03, 8 (3/21/04).

An employee is grossly negligent when his failure to perform a specified duty is obviously unreasonable or inappropriate. In re Gonzales, CSA 07-06, 6 (5/4/06) (decided under former §16-50 A. 1), citing In re Roberts, CSA 179-04, 3 (6/29/05).

Gross negligence does not require the agency to prove appellant intentionally acted in a wrongful manner, only that the failure to perform her work was obviously unreasonable or inappropriate. In re Clayton, CSA 128-05, 3 (3/21/06) (decided under former §16-50 A. 1), citing In re Kinfe, 161-04, 3 (3/16/05); In re Tennyson, CSA #140-02 (12/26/02).

Willful neglect implies wrongful conduct that was intentional or conscious, not merely negligent. In re Clayton, CSA 128-05, 3 (3/21/06) (decided under former §16-50 A. 1), citing In re Castaneda, CSA 79-03, 11 (1/12/04).

Gross negligence means failure to use reasonable care that is flagrant or beyond all allowance, or showing an utter lack of responsibility, and justifies a presumption of willfulness and wantonness. In re Martinez, CSA 69-05, 3 (1/4/06) (decided under former §16-50 A. 1), citing In re Keegan, CSA 69-03, 8 (3/21/04).

Establishing multiple acts of ordinary negligence, without more, fails to prove “gross negligence” which requires knowledge of the risk of harm or deliberate indifference to the creation of such risk. In re Hobley, CSA 61-05, 5 (12/19/05); citing In re Tennyson, CSA 140-02, 13 (12/26/02) (decided under former § 16-50 A.1).

Gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. In re Williams, CSA 65-05, 5 (11/17/05), citing In re Owens, CSA 139-04 (3/31/05) (decided under former § 16-50 A.1).

Gross negligence under the rule means the failure to use reasonable care that is flagrant or beyond all allowance, or showing an utter lack of responsibility, and justifies a presumption of willfulness and wantonness. In re Diaz, CSA 45-05, 4 (9/7/05), citing In re Keegan, CSA 69-03, 8 (3/21/04) and In re Daneshpour, CSA 88-03, 10 (12/3/03). See also In re Lucero, CSA 162-04 (Order 4/15/05) (decided under former § 16-50 A.1).

In most cases, frequent tardiness or absence must be accompanied by a showing of willfulness or wantonness to prove gross negligence. In re Diaz, CSA 45-05, 4 (9/7/05) (decided under former § 16-50 A.1)

Where an absence or tardiness impairs a critical agency function, gross negligence may be found without a showing of willfulness or wantonness. In re Diaz, CSA 45-05, 4 (9/7/05), citing In re Trujillo, CSA 28-04 (5/27/04); In re Aguirre, CSA 03-04 (8/16/04), (decided under former §16-50 A.1).

Gross negligence in the performance of duties is shown by a failure to perform that is obviously unreasonable or inappropriate. In re Roberts, CSA 179-04, 3 (6/29/05) (decided under former 16-50 A. 1), citing In re Tennyson, CSA 140-02 (12/26/02.)

An employee's refusal to obey the order of an authorized supervisor may also be gross negligence or willful neglect of a duty if the order advances a legitimate agency objective and is reasonably attainable In re Martinez, CSA 19-05, 7 (6/27/05) (decided under former 16-50 A. 1) citing In re Leal-McIntyre, CSA 167-03 (1/27/05); In re Crenshaw, CSA 156-02 (2/11/03); In re Cedillo, CSA 130-02, 85-02, 13-14 (12/18/02).

In order to uphold the discipline of an employee under CSR 16-50 A. 1), the agency must first establish the employee was grossly negligent of, or willfully neglected, some specified duty. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former 16-50 A. 1).

Gross negligence has been defined under the Career Service Rules as a failure to use reasonable care that is flagrant or beyond all allowance, showing an utter lack of responsibility, and justifying a presumption of willfulness and wantonness. In re Lucero, 162-04, 7 (4/15/05) (decided under former 16-50 A. 1), citing In re Keegan, CSA 69-03, 8 (3/21/04).

Negligence is the failure to use reasonable care or failure to act in a reasonably prudent manner under the circumstances. In re Owens, CSA 139-04, 6 (3/31/05) (decided under former 16-50 A. 1), citing Lavine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir. 1977); In re Casteneda, CSA 79-03 (1/14/04).

Gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. In re Owens, CSA 139-04, 6 (3/31/05) (decided under former 16-50 A. 1), citing Black's Law Dictionary 717 (Abridged 6th ed. 1991).

Gross negligence involves a higher form of culpability than mere negligence. “Gross” in this context means flagrant or beyond all allowance, or showing an utter lack of responsibility. In re Kinfe, 161-04, 3 (3/16/05) (decided under former 16-50 A. 1), citing In re Tennyson, CSA 140-02 (12/26/02); In re Gustern, CSA 128-02, (12/23/02).

Gross negligence does not require the agency to show that appellant intentionally acted in a wrongful manner, just that appellant's failure to perform his work was obviously unreasonable or inappropriate. In re Kinfe, 161-04, 3 (3/16/05) (decided under former 16-50 A. 1), citing In re Tennyson, CSA 140-02 (12/26/02).

Willful neglect transcends any form of negligence and involves conscious or deliberate acts. It implies the wrongful conduct was intentional or conscious, not merely negligent. In re Kinfe, 161-04, 3 (3/16/05), (decided under former 16-50 A. 1), citing In re Tennyson, CSA 140-02 (12/26/02); In re Gustern, CSA 128-02, (12/23/02).

Violation found

Youth counselor violated this rule by failing to ensure safety of youth residents by keeping them in his line of sight, when he left the building to get food for 25 minutes, and allowed youths on a field trip to run out of sight unsupervised. In re Abbey, CSA 99-09, 6 (8/9/10).

Youth counselor neglected his duty to issue discipline for youth residents after he became aware of a fight, despite the fact that he did not see the fight. In re Abbey, CSA 99-09, 7 (8/9/10).

Youth counselor neglected his duty to report to work at the start of his shift where he was placed on a PIP for attendance issues and the terms of punctuality were explained to him, rebutting his claim that he was confused. In re Abbey, CSA 99-09, 7 (8/9/10).

Appellant neglected his duty to comply with established call-in procedure where his PIP for attendance issues gave a specific call-in procedure to follow, and his call to a staff member was outside of the procedure. In re Abbey, CSA 99-09, 7 (8/9/10).

Appellant violated this rule where he failed to provide a doctor’s note for his absence, as required by his supervisor. In re Abbey, CSA 99-09, 7 (8/9/10).

Appellant neglected his duty to account accurately for his time where a time-stamped video and badge records showed he failed to punch out when he was absent for 25 minutes, and agency policy requires employees to punch out if absent for more than 15 minutes. In re Abbey, CSA 99-09, 7 (8/9/10).

Neglect of duty was established where appellant was directed to remain in one of the designated work areas, but was found in a sleeping area with his shirt and equipment off, and jumped up when his supervisor entered. In re Norris, CSA 68-09, 5 (7/12/10).

Neglect of duty was established by appellant’s frequent, unexplained absences during work hours, despite repeated attempts to counsel him and a direct order to remain in his work area. In re Norris, CSA 68-09, 5 (7/12/10).

Appellant failed to refute co-workers' testimony of myriad absences and tardiness where he claimed his crew didn’t like him, but he never complained about them before and admitted they got along well, his co-workers initially covered for his absences, his supervisor gave him an undeserved “successful” work rating to encourage him to adopt a more positive work ethic, and he ignored repeated warnings about his absences. In re Norris, CSA 68-09, 5-6 (7/12/10).

Appellant failed to rebut agency’s evidence that his frequent absences were a neglect of duty, where he claimed he could have been on a special assignment, but did not provide more specific information regarding an alleged special assignment, and his supervisor testified that he would have heard a special assignment over the radio. In re Norris, CSA 68-09, 6 (7/12/10).

Youth worker at family crisis center neglected his duties when he knew of but ignored the policies requiring him to intervene in assaults and enforce discipline for misconduct by residents. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Neglect of duty was proven by employee’s admission that he drove a city vehicle on personal business during work hours four times, GPS tracking data confirming another six occasions, and his unconvincing denials of two more incidents. In re Valdez, CSA 90-09, 4 (3/1/2010).

Supervisor neglected his duty by engaging in personal business during work hours instead of supervising his crew. In re Valdez, CSA 90-09, 4 (3/1/2010).

Neglect of duty is established where worker at youth crisis center failed to conduct half of the required bed checks. In re Carrillo, CSA 95-09, 3 (3/16/10).

Neglect of duty was proven where youth crisis center worker responsible for constant surveillance failed to see a male resident enter and close the door of a female resident’s room. In re Carrillo, CSA 95-09, 3 (3/16/10).

Where appellants were aware of their duty to complete daily logs accurately and logs contained inaccurate or missing entries, appellants violated this rule. In re Compos et al, CSB 56-08, 2 (5/21/09).

Appellant was neglectful of his duty to be present at work when his unexcused failure to report to work after a training session placed an undue burden on his co-workers. In re Lottie, CSA 132-08, 3 (3/9/09).

Where the agency established the appellant took an unexcused absence, and some harm resulted, the appellant was neglectful of his duty to be present at work. In re Lottie, CSA 132-08, 4 (3/9/09).

Where appellant’s PEPR required her to maintain professional demeanor, and she had received a “needs improvement” rating, her actions in initiating and escalating a confrontation with her supervisors, creating a significant risk of physical harm, is neglect of that PEPR duty. In re Mounjim, CSA 87-07, 7 (CSB 1/8/09).

Appellant’s two unapproved absences from work, for 45 minutes and 2 hours, which reduced productivity and increased other employees’ workload during busy time, were neglect of duty. In re Galindo, CSA 39-08, 9 (9/5/08).

Appellant neglected his important work duty of returning found property, a wedding ring, to either its rightful owner, who was known to him, or to the agency custodian. In re Galindo, CSA 39-08, 9 (9/5/08).

Where preserving confidentiality of client information protected by state law was important work duty, appellant’s access and sharing of identity of child abuse informant with another employee constituted neglect of duty to protect the privacy of clients. In re Catalina, 35-08, 7 (8/22/08).

Paralegal was negligent in making a four-hour trip to the courthouse where another paralegal was already at the courthouse. In re Blan, CSA 40-08, 4 (7/31/08).

Paralegal neglected her duties by spending 1 ½ hours to have her badge enabled by security were evidence showed no security delays, and appellant testified at hearing that she tried to but did not get her badge enabled that day. In re Blan, CSA 40-08, 4 (7/31/08).

Delays caused by traffic or long lines did not prevent paralegal’s performance of duties where trip to courthouse was not justified to begin with. In re Blan, CSA 40-08, 4 (7/31/08).

Agency proved that appellant neglected an important safety duty by failing to share information about a claimant’s permanent work restrictions with the analyst for two weeks, and that this failure could have affected the claimant’s safety, the employer’s ability to obtain needed work from the claimant, and the city’s liability for exacerbation of claimant’s injuries. In re Sienkiewicz, CSA 10-08, 15 (7/14/08).

Where appellant was aware, from prior discipline, that she had an important work duty to obtain missing leave slips, agency proved neglect of duty where appellant failed to obtain 95 missing leave slips, failed to establish that it was beyond her control to seek assistance, and her neglect created a substantial risk of incorrect pay. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 13 (5/30/08).

Where agency proved that payroll technician was under a duty to process an employee’s pay request, and her failure to do so caused a substantial delay in employee’s receipt of all the pay due him, agency proved neglect of duty. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 11-12 (5/30/08).

Payroll supervisor violated this rule where she acknowledged a duty to meet 30-day deadline for processing separation documents, and her failure to do so significantly delayed final pay to 21 separated employees. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 23 (5/30/08).

Appellant neglected her duty to manage a contract by requesting a reassignment based on a claimed conflict of interest instead of admitting she needed information to complete the task. In re Butler, CSA 78-06, 5 (1/5/07).

Appellant neglected her duty when she told her supervisors she had send an email to check on an assignment when she had not done so, and failed to correct this statement when she discovered she had not done the assignment. In re Butler, CSA 78-06, 4 (1/5/07).

Supervisor neglected her duty to supervise payroll clerk who failed to deduct leave from her own pay and who used donated leave before the donation occurred, despite supervisor’s actual notice of these improper leave and pay practices. In re Feltes, CSA 50-06, 6 (11/24/06).

Where deputy sheriffs shared the duty to ensure jail door was locked, and one unlocked the door, their failure to lock the door for 15 to 20 minutes while they played cards was neglect of duty. In re Simpleman, CSA 31-06, 6-7 (10/20/06), affirmed CSB 8/2/07. See also In re Martinez, CSA 30-06, 5-7 (10/3/06).

Deputy sheriff neglected his duty to monitor inmate activity when he was so absorbed in playing cards with fellow officer that he failed to observe approach of supervisor until supervisor was three feet away. In re Simpleman, CSA 31-06, 5-6 (10/20/06), affirmed CSB 8/2/07; In re Martinez, CSA 30-06, 5 (10/3/06).

Deputy sheriff who slept on duty while charged with supervising high-risk inmates with access to razors and sensitive information was grossly negligent. In re Simpleman, CSA 05-06, 3 (5/16/06) (decided under former §16-50 A. 1).

Deputy sheriff who intercepted and discarded two inmate grievances was grossly negligent in performing his duty to process grievances. In re Gonzales, CSA 07-06, 6 (5/4/06) (decided under former §16-50 A. 1).

Deputy sheriff who intercepted two inmate grievances and delivered insulting responses to the inmates was grossly negligent in his duty to provide respectful and fair treatment to inmates. In re Gonzales, CSA 07-06, 6 (5/4/06) (decided under former §16-50 A. 1).

Pattern of non-performance of clearly defined duties despite repeated warnings constituted gross negligence. In re Diaz, CSA 92-05, 5 (1/31/06) (decided under former §16-50 A. 1).

Appellant's repeated requests to a co-worker to log her onto the time clock as present when she wasn't constitutes gross negligence in light of agency's strict policy against tardiness. In re Roberts, CSA 179-04, 4 (6/29/05) (decided under former 16-50 A. 1).

Experienced zookeeper's failure to secure polar bea, which then attempted to attack another bear, was gross negligence where it resulted in imminent risk of harm to animals and zookeepers. In re Owoeye, CSA 11-05, 4 (6/10/05) (decided under former 16-50 A. 1).

Zookeeper's argument that an added job responsibility distracted him from failing to secure a polar bear does not overcome agency's proof of negligence where evidence showed that other zookeepers performed the same duty under the same circumstances. In re Owoeye, CSA 11-05, 4 (6/10/05) (decided under former 16-50 A. 1).

Evidence that appellant set an alarm clock to alert him to the end of his shift proved that appellant knowingly failed to perform his duties in reckless disregard of the consequences, and therefore established gross negligence in the performance of his duties. In re Owens, CSA 139-04, 6 (3/31/05) (decided under former 16-50 A. 1).

Appellant's unexplained and unexcused absence for more than two months after his FMLA leave expired, and more than 1 ½ months after his requested extension of leave expired, constituted gross negligence. In re Kinfe, 161-04, 3 (3/16/05) (decided under former 16-50 A. 1).

Although appellant's FMLA leave was approved, his failure to return to work or to contact his supervisor for two months after the expiration of all leave constitutes gross negligence. In re Kinfe, CSA 161-04 (3/16/05) (decided under former 16-50 A. 1).

No violation found

Neglect was not proven by evidence that youth worker allowed residents behind staff desk, since residents at times had permission to go there. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Youth worker did not neglect his duty by allowing residents at family crisis center to do pushups on staff desk where there was no evidence such activity violated any agency rule. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Neglect of duty was not proven where agency did not allege an omission to perform a duty. In re Cady, CSA 03-10, 4 (4/22/10).

Agency failed to prove youth crisis center worker was sleeping where worker testified she closed her eyes only momentarily, and no objective evidence rebutted that testimony. In re Carrillo, CSA 95-09, 3 (3/16/10).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove neglect of duty where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSA 87-07, 5 (CSB 1/8/09).

Four minor errors in recording time spent in travel and at work locations on newly implemented activity log did not constitute negligence where log's function was limited to giving supervisor the general idea of where employees were and what they were doing. In re Compos, CSA 56-08, 14, 19 (12/15/08).

Agency failed to establish that paralegal’s time spent in line at the courthouse to obtain a file copy proved she was heedless of an important work duty. In re Blan, CSA 40-08, 3 (7/31/08).

Agency failed to prove appellant had a specific communicated duty not to discard his copies of compensation documents, or that the loss of documents discarded by appellant rendered the remaining documents inaccurate in any respect. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Appellant did not neglect his duty to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz, CSA 10-08, 14 (7/14/08).

Appellant did not neglect his duties by volunteering incorrect information to a co-worker, and then correcting it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Agency failed to prove violation where it presented no evidence as to what duty was violated, or how the duty was communicated to appellant. In re Mounjim, CSA 87-07, 4 (7/10/08).

Agency failed to prove payroll technician was negligent in failing to create personnel action forms for suspended employees because agency’s training did not clearly cover that topic, technician did not receive copy of training guide in time to use it to process the personnel action, and payroll was employee’s first priority. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 9-10 (5/30/08).

Agency failed to violation of this rule where it failed to prove payroll technician was trained in and capable of creating timely personnel actions for suspended employee, or that it communicated this duty in such a manner that a reasonably astute employee would be aware of it. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 10 (5/30/08).

Claim that payroll technician submitted separation audit source documents late, rather than not at all, fails to establish neglect of duty. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 11 (5/30/08).

Claim that payroll technician performed duty of calculating final pay poorly, rather than failing entirely to calculate it, fails to establish neglect of duty. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 11, 31 (5/30/08).

Audit errors committed by supervisor’s subordinates did not establish supervisor neglected her duty of oversight where agency failed to tie any of subordinates’ errors to supervisor’s duty. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 24 (5/30/08).

Agency failed to prove supervisor negligently supervised technicians for their failure to check certification list before issuing report to duty forms where agency failed to prove technicians had duty to do so. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 25 (5/30/08).

Agency failed to prove payroll technician neglected to check certification list before issuing hiring form where evidence did not show that checking that list was an established duty of the technicians. In re Mestas et al., CSA, 61-07, 62-07, 67-07, 30, 35-36 (5/30/08).

Agency failed to prove payroll technician neglected her duty to submit documents to auditor within 30 days because evidence did not show technician had notice of the deadline. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 30 (5/30/08).

Agency failed to establish that city truck driver’s restroom stop at store was heedless of his work duties, or that his action resulted in any harm to the agency. In re Dessureau, CSA 59-07, 6 (1/16/08.)

Agency’s belief that the FMLA restricted it from further medical inquiry where appellant raised diarrhea as reason for restroom stop does not support its finding of neglect of duty when the evidence supports a different finding. In re Dessureau, CSA 59-07, 5 (1/16/08).

Appellant’s attempt to assist an unauthorized co-employee with her work by allowing the co-employee access to the unit’s secure database was not a neglect of duties in violation of this rule. In re Chavez, CSA 29-06 (8/17/06).

Agency did not prove that administrative assistant who continued to make the same type of performance errors for three years demonstrated the degree of irresponsibility needed to demonstrate gross negligence. In re Diaz, CSA 13-06, 4 (5/31/06) (decided under former §16-50 A. 1).

Appellant who intentionally missed one work day was not grossly negligent since she gave one day’s notice of her intent to be absent, and the absence did not unduly burden the agency. In re Clayton, CSA 128-05, 3 (3/21/06) (decided under former §16-50 A. 1).

Agency failed to establish gross negligence or willful neglect of duty because agency did not prove appellant, who was disciplined solely for absences, failed to perform any assigned duty when she was at work. In re Edwards, CSA 21-05, 6 (2/22/06) (decided under former §16-50 A. 1), citing In re Martinez, CSA 19-05, 6 (6/27/05).

In support of gross negligence charge based on Appellant’s distribution of interview questions to candidates, agency failed to prove appellant recalled interview questions from her own promotional interview, or that appellant knew the same questions would be asked two years later. In re Martinez, CSA 69-05, 4 (1/4/06) (decided under former §16-50 A. 1).

Appellant was not grossly negligent in providing a packet of readily available material to her three subordinates to assist them in preparing for their promotional interviews. In re Martinez, CSA 69-05, 3-4 (1/4/06) (decided under former §16-50 A. 1).

Commission of several acts of ordinary negligence does not prove gross negligence without facts tending to prove the actor knew of the risk of harm or acted with deliberate indifference to the creation of such risk. In re Hobley, CSA 61-05, 5 (12/19/05)(decided under former §16-50 A. 1), citing In re Tennyson, CSA 140-02, 13 (12/26/02).

Single incident of tardiness did not establish gross negligence. In re Williams, CSA 65-05, 4 (11/17/05) (decided under former §16-50 A. 1).

Frequent absences, even after prior warnings, discipline, and counseling, did not establish anything more than simple carelessness or poor time management where the only consequence was that appellant’s supervisor had to cover her duties. In re Diaz, CSA 45-05, 4 (9/7/05) (decided under former §16-50 A. 1).

Where supervisor's order could not be performed, there can be no violation of rule. In re Martinez, CSA 19-05, 7 (6/27/05) (decided under former 16-50 A. 1).

Where agency's evidence was inconsistent about what duty appellant refused to perform, agency failed to prove violation of rule. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former 16-50 A. 1).

Where agency's order to process recertification case within 30 days could not be obeyed because 30 days had already passed, agency failed to prove that appellant was grossly negligent in failing to obey the deadline. In re Martinez, CSA 19-05, 7 (6/27/05) (decided under former 16-50 A. 1).

Evidence of a single failure to obtain supplies for a before-school recreation program class for which appellant was responsible does not establish gross negligence. In re Lucero, CSA 162-04, 7 (4/15/05) (decided under former 16-50 A. 1).

Gross negligence was not established where appellant simply placed the list of needed supplies on her supervisor’s desk when her car was unavailable. In re Lucero, CSA 162-04 (Order 4/15/05) (decided under former 16-50 A. 1).

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16-60 B: Carelessness

In general

This rule is violated by poor performance rather than failing to perform an important duty. In re Abbey, CSA 99-09, 7-8 (8/9/10),citing In re Simpleman, CSA 31-06, 4-5 (10/20/06).

Carelessness and neglect of duty rules share elements of proof, but carelessness reviews an employee's acts (performance), while neglect of duty reviews his omissions. In re O’Meallie, CSA 92-09, 4 (6/18/10), citing In re Simpleman, CSA 31-06, 4-5 (10/20/06).

A violation of this rule occurs for performing poorly rather than neglecting to perform an important duty. In re O’Meallie, CSA 92-09, 4 (6/18/10)

Carelessness is proven by absence of ordinary care in performing an assigned duty. In re Koehler, CSA 113-09, 17 (4/29/10), citing In re Mitchell, CSA 05-05, 7 (6/27/05).

Substandard work performance resulting in a performance review downgrade under CSR 13 may also subject an employee to the panoply of penalties under CSR 16-60. In re Cady, CSA 03-10, 4 (4/22/10).

Appellant's acts (performance), rather than omissions (neglect), are reviewed under this rule. In re Lottie, CSA 132-08, 4 (3/9/09).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove carelessness where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09).

This rule requires proof that an employee performed an important duty poorly, rather than neglecting to perform it at all. In re Galindo, CSA 39-08, 9 (9/5/08), citing In re Hill, CSA 14-07, 6 (6/8/07).

Neglect and carelessness are distinguished in that carelessness reviews appellant’s acts, rather than her omissions (neglect). In re Blan, CSA 40-08, 5 (7/31/08).

To establish a violation of this rule, the agency must prove appellant was heedless of an important work duty, resulting in potential or actual significant harm. In re Mounjim,CSA 87-07, 5 (7/10/08),citing In re Butler,CSA 78-06, 5 (1/5/07); In re Gagliano,CSA 76-06, 4 (1/2/07).

Intentional wrongdoing falls outside the scope of this rule. In re Mounjim, CSA 87-07, 6 (7/10/08).

Carelessness is distinguished from neglect in that, to prove carelessness, it is the appellant’s acts (performance), rather than omissions (neglect), which are reviewed. Thus, a violation of this rule occurs for performing poorly, rather than neglecting to perform, an important duty. In re Mestas et al,CSA 64-07, 31 (5/30/08),citing In re Simpleman, CSA 31-06, 4-5 (10/20/06).

“Well-known” or “self-evident” standards represent dangerously subjective measures of performance, and, when challenged, are difficult to prove. In re Mestas et al.,CSA 64-07, 16(5/30/08),citing In re Encinias, CSA 02-07, 2 (10/19/07).

Agency bears the burden to prove that it made the employee aware of a performance standard it claims is well-known or self-evident. In re Mestas et al.,CSA 64-07, 16 (5/30/08),citing In re Routa, CSA 123-04 (1/27/05).

An employee violates this rule when he fails to exercise ordinary care in the performance of a job duty. In re Sandrowski,CSA 58-07, 10(2/6/08),citing In re Richmond,CSA18-07, 5 (8/7/07).

An employee acts carelessly when she is heedless of an important work duty, resulting in potential or actual significant harm. A person exercises reasonable care when she acts with that degree of care which reasonable persons use under similar circumstances. In re Butler, CSA 78-06, 5 (1/5/07), citing In re Gagliano, CSA 76-06, 4 (1/2/07).

An employee is careless when she is heedless of an important work duty, resulting in potential or actual significant harm. In re Feltes,CSA 50-06, 6 (11/24/06),citing In re Owoeye, CSA 11-05, 5 (6/10/05).

A person exercises reasonable care when she acts with that degree of care which reasonable persons use under similar circumstances. In re Feltes,CSA 50-06, 6 (11/24/06),citing Black’s Law Dictionary 146 (Abridged 6thed. 1991.)

Carelessness in performance of duties and responsibilities implies a slipshod practice of duty. In re Martinez,CSA 30-06(10/3/06).See also In re Simpleman,CSA 31-06, 4-5 (10/20/06).

Section16-60 B. is distinguished from former §16-60 A. in that appellant’s acts, not his omissions, are reviewed in light of his duty.In re Martinez,CSA30-06, 7 (10/3/06).See also In re Simpleman,CSA 31-06(10/20/06).

To prove a violation of this rule, agency must establish that employee had an important work duty or responsibility and was heedless and unmindful of that duty, resulting in potential or actual significant harm. In re Simpleman, CSA 05-06, 8(5/16/06),citing In re Owoeye,CSA11-05 (6/10/05).See also In re Martinez,CSA 30-06, 7 (10/3/06).

Agency must establish that employee had an important work duty or responsibility, was heedless and unmindful of that duty, and potential or actual significant harm resulted. In re Vigil,CSA110-05, 4 (3/3/06),citing In re Owoeye,CSA 11-05 (6/10/05).

Proof of carelessness has been held to require an absence of ordinary care in performing an assigned duty. In re Brown,CSA 102-05, 9 (2/15/06),citing In re Mitchell,CSA 05-05, 7(6/27/05).

An employee acts with carelessness when she fails to take that degree of care an ordinarily careful person would exercise under the circumstances. In re Diaz,CSA 92-05, 9 (1/31/06).

Carelessness is acting in the absence of that degree of care an ordinarily careful person would exercise under the circumstances. In re Hobley,CSA 61-05, 7 (12/19/05),citing Black’sLaw Dictionary 146 (Abridged 6thed.1991).See also In re Lucero,CSA 162-04 (4/15/05).

Carelessness is the failure to exercise reasonable care, which is that degree of care which may be expected, having regard to the nature of the action or subject matter and the circumstances surrounding the transaction. In re Williams,CSA 65-05, 5, 6 (11/17/05),citing Black’s Law Dictionary 146 (Abridged 6thed. 1991). See also In re Lucero, CSA162-04 (Order 4/15/05).

To prove carelessness, an agency must establish that appellant had an important work duty, and was heedless and unmindful of that duty, with the result that potential or actual significant harm resulted. In re Diaz,CSA45-05, 7 (9/7/05),citing In re Owoeye,CSA 11-05 (6/10/05).

Carelessness is the absence of that degree of care an ordinarily prudent person would exercise under similar circumstances. In re Mitchell,CSA 05-05, 7 (6/27/05),citing Black’s Law Dictionary 193(6th ed. 1979)

The charge of carelessness in the performance of duties is established by evidence that an employee failed to exercise ordinary care in performing a job duty. In re Mitchell, CSA 05-05, 7 (6/27/05).

Rule prohibiting carelessness in performance of duties is distinguishable from gross negligence rule in that it does not require either reckless disregard of the consequences or the intentional performance failures that are necessary to establish either gross negligence or willful neglect. In re Owoeye,CSA 11-05, 5 (6/10/05),citing In re Casteneda, CSA 79-03 (1/14/04); In re Ortiz, CSA 196-02(11/15/02).

All that is required to establish carelessness is proof that appellant had an important work duty, and was heedless and unmindful of that duty, with the result that potential or actual significant harm resulted. In re Owoeye,CSA11-05, 5 (6/10/05),citing In re Ortiz,CSA196-02(11/15/02).

Carelessness is the failure to exercise that degree of care which an ordinarily prudent person uses in similar matters under similar conditions. In re Lucero,162-04, 7 (4/15/05),citing Black's Law Dictionary 146 (Abridged 6th ed.1991.)

Violation found

Youth counselor was careless in performing his duty to safeguard the well-being of youth in his care where he acknowledged he took them to see an unapproved violent movie instead of an approved movie. In re Abbey, CSA 99-09, 8 (8/9/10).

Deputy was careless in performing the important work duty of transporting inmates by failing to issue verbal commands or use control holds, failing to follow jail protocol to transport aggressive inmate separately, and failing to file a complete incident report, causing injury to a person in his care and custody. In re Koehler, CSA 113-09, 17 (4/29/10).

Where appellant was aware of the procedures to process bonds correctly and avoid mistakes, each mistake in processing bonds established a separate violation of this rule. In re Cady, CSA 03-10, 4-5 (4/22/10).

Since one of deputy sheriff's primary duties was the safe-keeping of inmates, her failure to secure potentially lethal objects was a careless performance of that duty. In re Norman-Curry, CSA 28-07 and 50-08, 3 (2/27/09).

Deputy sheriff's repeated slamming of inmate's face into a Plexiglass® window was careless performance of her duty to keep inmates safe. In re Norman-Curry, CSA 28-07and 50-08, 22 (2/27/09).

Facilities superintendent was careless in administering a service contract by failing to evaluate the work to be performed or make an attempt to reduce its cost, and where his claim that he was required to get work done regardless of cost was not supported by the evidence. In re Hill, CSA 69-07, 5-6 (1/23/08).

Facilities superintendent, whose job it is to oversee service contracts, was careless when he agreed to pay a per-unit price for installation of plumbing parts without first ascertaining the scope of the work to be done, the hours needed to do it, the contractor’s normal hourly rate, or whether a per-unit price would save costs, when the reasonable cost of the work was $24,000 less than the price agreed to by appellant. In re Hill, CSA 69-07, 5 (1/23/08).

Appellant was careless in performance of her duties by (1) telling supervisor she sent an important email when she had not, and (2) asking for reassignment of a task based on a past acquaintanceship that had not prevented her from acting in the past, resulting in missed deadlines, delay, and potential adverse effect on agency funding cycle. In re Butler, CSA 78-06, 5 (1/5/07).

Supervisor was careless in failing to supervise payroll clerk who did not deduct leave from her own pay and who used donated leave before the donation occurred. In re Feltes, CSA 50-06, 6 (11/24/06).

Appellant was careless in her duty to maintain the security of the database when, a month after being informed of the withdrawal of a co-employee’s access to a database, she allowed the unauthorized co-employee to use her security code. An ordinarily careful employee would have noted the withdrawal of access and refrained from sharing access unless sure it was authorized. In re Chavez, CSA 29-06, 6 (8/17/06).

Administrative assistant who continued to make the same type of performance errors for three years was careless in the performance of her duties. In re Diaz, CSA 13-06, 4 (5/31/06).

Deputy sheriff who slept on duty allowed critical lapses in security over dangerous inmates, resulting in potential harm to vulnerable inmates. In re Simpleman, CSA 05-06, 8 (5/16/06).

Appellant was heedless and unmindful of her duty to account faithfully for her time, in violation of rule prohibiting carelessness in the performance of duties. In re Vigil, CSA 110-05, 5 (3/3/06).

Appellant performed her clerical duties in a careless manner when her supervisor was frequently required to perform her duties, and she admitted she did not always respond to her supervisor’s requests. In re Diaz, CSA 92-05, 9 (1/31/06).

Appellant acted carelessly when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite serious previous discipline for the same type of offense. In re Hobley, CSA 61-05, 7 – 8 (12/19/05).

An ordinarily careful person would not have waited to request help or correct his behavior until called into the office after four serious performance lapses, especially in light of serious previous discipline for the same type of offense. In re Hobley, CSA 61-05, 8 (12/19/05).

Appellant did not establish that the agency waived enforcement of the rule by treating similarly situated employees more favorably. In re Hobley, CSA 61-05, 8 (12/19/05).

Tardy employee was careless where new supervisor emphasized promptness by distributing assignment calendars and imposed discipline for tardiness. In re Williams, CSA 65-05, 6 (11/17/05).

Agency proved employee was careless in misfiling another employee’s confidential medical disclosure when filing confidential documents was an important part of her job, appellant was aware of that requirement, and the misfiling created an imminent danger of a breach of confidentiality. In re Diaz, CSA 45-05, 8 (9/7/05).

Where zookeeper's primary responsibility was animal safety and he was amply trained and experienced in that duty, his failure to secure a polar bear, resulting in imminent danger of harm to other polar bears or zoo keepers, was a violation of this rule. In re Owoeye, CSA 11-05, 6 (6/10/05).

Where only prompt intervention prevented injury or death to a polar bear, zookeeper's failure to prevent contact between two polar bears constituted carelessness in the performance of his duties. In re Owoeye, CSA 11-05, 5 (6/10/05).

The fact that the polar bear endangered by appellant's failure to secure the animals did not suffer injury does not disprove the carelessness charge, since the purpose of the Career Service Rules is to correct inappropriate behavior. In re Owoeye, CSA 11-05, 5 (6/10/05).

Appellant acted carelessly in violation of CSR § 16-51 A. 6) when, instead of delegating her duty to obtain supplies to another when she was unable to do so, she simply placed list of needed supplies on her supervisor’s desk. In re Lucero, CSA 162-04, 8 (4/15/05).

Evidence of a single failure to obtain supplies for a before-school recreation program class for which appellant was responsible establishes carelessness in the performance of job duties. In re Lucero,162-04, 7-8(4/15/05).

No violation found

Where agency’s evidence proved appellant youth worker failed to intervene at all in assault, rather than intervening ineffectively, carelessness was not established. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Where evidence showed supervisor drove city vehicle on personal business, agency failed to establish carelessness where the agency did not identify the duty it claimed appellant performed in a substandard manner. In re Valdez, CSA 90-09, 5 (3/1/2010).

Agency did not establish carelessness where it proved only that appellant failed to perform her duties. In re Carrillo, CSA 95-09, 3-4 (3/16/10).

Since a violation under this rule occurs for underperforming a duty, rather than neglecting to perform it, appellant's unexcused failure to return to work does not violate this rule. In re Lottie, CSA 132-08, 4 (3/9/09).

Appellant's two unapproved absences from work and his failure to turn in a ring found at work do not constitute carelessness, since they do not establish that appellant performed his duties without the requisite care. In re Galindo, CSA 39-08, 9 (9/5/08).

Agency's challenge of hearing officer's interpretation of carelessness rule was not presented on petition for review where appeal turned on factual findings, which agency did not challenge by an argument that evidence was insufficient. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Factual finding that bicyclist was at fault in accident with appellant's truck supported reversal of discipline based on accident where agency did not challenge sufficiency of the evidence. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Agency's disagreement with hearing officer's factual findings was waived by its failure to challenge sufficiency of the evidence. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Agency did not establish that appellant failed to exercise ordinary care or acted heedless or unmindful of an important work duty in accident between bicyclist and appellant's city truck, where hearing officer found that the precautions suggested by agency would not have prevented the accident. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Carelessness rule was inapplicable where appellant omitted performance of her duties, rather than performed them poorly. In re Blan,CSA 40-08, 5 (7/31/08).

Agency did not prove appellant was careless by not re-filing HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz CSA 10-08, 14 (7/14/08).

Appellant was not careless in the performance of his duties when he volunteered incorrect information to a co-worker, but then corrected it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Where agency claimed appellant failed to meet PIP tasks, no violation found where agency failed to establish a substantial negative consequence to such failures. In re Mounjim, CSA 87-07, 6(7/10/08).

Agency failed to prove violation when it failed to establish a nexus between appellant’s failure to meet PIP requirements and any potential or actual significant harm. In re Mounjim, CSA 87-07, 5-6(7/10/08).

Agency failed to prove violation when it failed to direct the hearing officer to the particular facts that tend to establish carelessness. In re Mounjim, CSA 87-07, 6 (7/10/08).

The ability of a senior human resources professional to understand requirements of PIP where appellant did not, fails to establish appellant was careless in performance of PIP requirements. In re Mounjim,CSA 87-07, 6 (7/10/08).

Agency’s conclusion that evidence appellant violated this rule was similar to that of neglect of duty under §16-60A. fails to direct hearing officer to particular facts that tend to establish a violation of this rule. In re Mounjim,CSA 87-07, 6(7/10/08).

Failure to submit personnel actions or take other actions are omissions to perform duty, and thus do not establish carelessness in the performance of duty. In re Mestas et al.,CSA 64-07,13,18(5/30/08).

Agency failed to prove personnel technician was careless in not processing separation documents to auditor within 30 days where technician was unaware of the deadline and overwhelmed with other higher-priority work. In re Mestas et al., CSA 64-07, 16, 31(5/30/08).

Where agency failed to meet its burden to establish that appellant knew or should have known about performance deadline, it failed to prove appellant was careless in failing to meet that deadline. In re Mestas et al., CSA 64-07,37 (5/30/08).

Agency failed to prove personnel technician was careless in making errors in processing separation audits where such errors were common in city agencies, and technician was not aware of or trained in guidelines cited by agency. In re Mestas et al.,CSA 64-07,17(5/30/08).

Agency failed to prove personnel technician was careless based on errors in processing separation audits where the errors were caused by incorrect information from the field, as well as inadequate training, guidelines, and oversight. In re Mestas et al.,CSA 64-07,17(5/30/08).

Agency failed to prove, by a preponderance of the evidence, that personnel technician was careless in calculating separation pay where the agency failed to show that it provided information from which technician knew or reasonably should have known how to avoid those errors. In re Mestas et al., CSA 64-07,32(5/30/08).

Agency failed to prove that personnel technician was careless in calculating separation pay where the agency failed to show it trained her how to conduct separation audits. In re Mestas et al., CSA 64-07, 37(5/30/08).

City truck driver involved in an accident with a bicycle was not careless where he could not have reasonably anticipated or prevented bicyclist’s subsequent illegal and dangerous actions that caused the accident . In re Sandrowski, CSA 58-07, 12(2/6/08).

City driver acted reasonably inassuming a bicyclist riding in a bus lane which ended in a turn marking wouldturn rather than merge into his lane. In re Sandrowski, CSA 58-07,12(2/6/08).

Agency did not establish that citytruck driver failed to exercise ordinary care by passing a bicyclist where therewas no evidence that appellant had been instructed never to pass or drive pastbicycles in a parallel lane. In re Sandrowski, CSA 58-07,12 (2/6/08).

Where appellant deputy sheriff playedcards while on duty and failed to lock a jail door for 15-20 minutes, hisconduct was neglect of duty under § 16-60A., rather than a heedless or slipshodperformance of duty under § 16-60 B. In re Martinez,CSA 30-06, 7(10/3/06).See also In re Simpleman, CSA 31-06, 7(10/20/06).

Because agency did not prove thatappellant, who was disciplined solely for absences, failed to perform anyassigned duty when she was at work, agency failed to establish carelessness. In re Edwards, CSA 21-05, 6(2/22/06),citing In re Martinez, CSA19-05, 6 (6/27/05).

Agency’s statement that appellantviolated this rule because she “was careless in her thought process and carelessin what she did as a supervisor”, and did not care about “the consequences untilafter she realized what a problem she caused” failed to show how appellant mayhave been careless and so failed to establish a violation of this rule. In re Martinez, CSA 69-05, 9(1/4/06).

Agency failed to prove employee wascareless in distributing periodicals when the work done was accurate, theimportance of the task was not clear, another employee also exceeded thesupervisor’s estimate for completing the task, and evidence of both heedlessnessand resulting harm was absent. In re Diaz, CSA 45-05, 7(9/7/05).

Appellant’s miscalculation of pettycash was unmindful but not careless within the meaning of this rule. In re Diaz, CSA 45-05, 8(9/7/05).

Appellant was not careless in failingto request clarification of a question on a form when he believed he understoodthe question based on agency's past actions. In re Mitchell, CSA 05-05, 7(6/27/05).

Where appellant was charged withperforming a duty carelessly and the duty was impossible to perform, the agencyfailed to prove a violation of the rule. In re Martinez,19-05, 8(6/27/05).

Where agency failed to identify whatspecific duty was performed carelessly, and the only specified duty could notreasonably be achieved, agency failed to prove violation . In re Martinez, CSA 19-05, 8(6/27/05).

Appellant's angry disparagement ofher co-worker to a consultant did not establish carelessness in the performanceof duties . In re Routa,CSA123-04, 5(1/27/05)

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16-60 C: Theft, Destruction, or Neglect in use of City Property or Theft from Other Persons

In general

This rule requires an intent to permanently deprive another of his property. In re Schultz, CSA 156-04, 6 (6/20/05) (decided under former §16-50 A. 2).

Violation found

Agency established appellant stole a co-worker's ring in violation of this rule where appellant made inconsistent statements during the investigation, the security camera showed appellant reaching into place where ring was left, and no other employee was in the area during the pertinent time. In re Galindo, CSA 39-08, 10 (9/5/08).

Appellant neglected city property when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite his training, experience, and serious previous discipline for the same type of offense. In re Hobley, CSA 61-05, 8 (12/19/05).

No violation found

Unrebutted evidence that employee damaged city equipment because he forgot to retrieve it from the roof of his city vehicle does not establish that the acts were committed willfully or with utter lack of responsibility. In re Hobley, CSA 61-05, 5 (12/19/05) (decided under former §16-50 A. 2).

Since a pen in supervisor's office was for the use of city employees in the performance of their jobs, and appellant's possession of the pen was consistent with that use, the agency did not establish that appellant was guilty of intent to permanently deprive within the meaning of 16-50 A.2). In re Schultz, CSA 156-04, 6 (6/20/05) (decided under former §16-50 A. 2).

Employee's request to a city vendor for pens used as a marketing tool does not prove theft. In re Schultz, CSA 156-04, 6 (6/20/05) (decided under former §16-50 A. 2).

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16-60 D: Unauthorized Operation or use of any City Vehicles, Machines, or Equipment

In general

In order to establish a violation of this rule, the agency must prove that appellant used a city vehicle for a purpose not intended by his assignment to that vehicle. In re Dessureau, CSA 59-07, 6 (1/16/08) citing In re Oliver, CSA 28-02, 21 (10/17/02).

Violation found

Agency proved airport employee who entered a restricted-access command vehicle without authorization on three occasions violated this rule by her unauthorized use of a city vehicle. In re Jones, CSA 88-09, 4 (5/11/10).

Airport technician's use of her city vehicle to meet a firefighter for a liaison in the firehouse was an unauthorized use of a city vehicle in violation of this rule. In re Jones, CSA 88-09, 4 (5/11/10).

Supervisor’s use of his assigned agency vehicle for personal business constitutes unauthorized use of city equipment. In re Valdez, CSA 90-09, 5 (3/1/2010).

Appellant violated rule when she changed confidential information in agency database about a former client after her authority to access computer had lapsed. In re Abdi, CSA 63-07, 6(2/19/08).

Appellant violated CSA policy by using an agency computer for personal purposes during working hours, and thus violated rule prohibiting unauthorized operation of city equipment. In re Garcia, CSA 175-04, 5 (7/12/05) (decided under former § 16-51 A.7).

No violation found

Agency failed to prove appellant misused shredder by placing documents in it where retention policy required confidential documents to be shredded. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Appellant did not misuse agency’s internet service by listening to music through radio station’s website during work hours, and using Google to research ergonomic issues. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

Agency failed to present any evidence that appellant’s use of assigned vehicle to stop for a restroom break during the work day was violation of rule. In re Dessureau, CSA 59-07, 6 (1/16/08).

Appellant did not violate rule by providing agency investigator with confidential information from agency database where supervisor found no impropriety in the disclosure. In re Abdi, CSA 63-07, 6, 7 (2/19/08).

Allegation that appellant caused a co-worker to provide her with client file did not establish violation of this rule where agency did not assert misuse of any city vehicle, machine or equipment. In re Abdi, CSA 63-07, 7 (2/19/08).

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16-60 E: Dishonesty

In general

Dishonesty claims are often determined by credibility. In re Martin, CSA 08-10 (5/24/10).

An employee violates this rule by making a knowing misrepresentation within the employment context. In re Clayton, CSA 111-09, 4 (4/16/10), citing In re Mounjim, CSA 87-07, 6 (7/10/08), modified, CSB (1/8/09).

Credibility is critical in determining whether dishonesty has been proven, since the agency must establish the employee knowingly misrepresented the truth. In re Clayton, CSA 111-09, 4 (4/16/10).

In determining whether an employee knowingly misrepresented the truth, the concept of acting knowingly derives from the criminal code, which defines the term as being aware or acting willfully. In re Clayton, CSA 111-09, 4 (4/16/10), citing CRS 18-1-501(6) (2009).

Silence, when the situation calls for a response, is just as dishonest as an overt expression of dishonesty, since both are intended to deceive. In re Clayton, CSA 111-09, 5 (4/16/10).

This rule almost always requires an analysis of credibility. In re Carter, CSA 87-09, 3 (2/17/10).

This rule is not limited to false statements made to superiors, but includes any knowing misrepresentation made within the employment context. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

Hearing officer erroneously concluded appellant could not violate this rule by lying to a non-supervisor. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09)

To establish falsification of city documents, an agency must prove that an employee supplied incorrect information to a superior, knowing that information was false. In re Compos, CSA 56-08, 14 (12/15/08), citing In re Mounjim, CSA 87-07, 6 (7/10/08).

Proof of a fraudulent statement requires knowledge of the falsity of the statement. In re Compos, CSA 56-08, 20 (12/15/08), citing In re Mounjim, CSA 87-07, 6 (7/10/08).

Lying during an official investigation into a disciplinary matter violates this rule for obvious reasons. Misleading or untrue statements undermine the efforts of an agency to determine the truth in the investigation, and weaken the trust needed between the agency and its employees. In re Galindo, CSA 39-08, 10 (9/5/08).

To establish a violation of part 3 of this rule, agency must prove 1) the employee supplied incorrect information 2) to a superior, 3) knowing it was false. In re Mounjim, CSA 87-07, 6 (7/10/08), citing In re Dessureau, CSA 59-07, 6 (1/16/08).

To establish a violation of this rule, agency must prove the employee knowingly supplied wrong information to a supervisor with intent to deceive. In re Stone, CSA 70-07, 9 (2/25/08); In re Butler, CSA 78-06, 5 (1/5/07); Tackett v. Dept. of Air Force, 80 M.S.P.R. 624, 629 (1999).

Supplying incorrect information to a supervisor alone is not enough to sustain a charge of dishonesty. In re Stone, CSA 70-07, 9 (2/25/08).

Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Dessureau, CSA 59-07, 6 (1/16/08) citing In re Davis, CSA 46-06, 7 (6/8/07); In re Roberts, CSA 179-04, 4(6/29/05).

In order to find a violation under this rule, dishonesty connected to the employee’s workplace must be established. Redacted,CSA 190-03, 5 (2/13/06) (decided under the former §16-50 A. 3), citing In re Espinoza, CSA 55-04 (11/30/04); In re Maes, CSA 180-03, 19 (6/9/04).

Dishonesty requires proof that appellant knowingly communicated a false statement within the employment relationship. In re Roberts, CSA 179-04, 4 (6/29/05)(decided under former § 16-50 A. 3),citing In re Espinoza, CSA 55-04 (11/30/04).

Employee may reasonably rely on agency's past interpretation of disciplinary rules in the absence of notice of a change in that interpretation. In re Mitchell, CSA 05-05, 5 (6/27/05) (decided under former §16-50 A. 3).

Dishonesty includes both false statements and acts of deception such as misappropriation. In re Schultz, CSA 156-04, 6 (6/20/05),citing Webster's Unabridged Dictionary 525 (Encyclopedic Ed. 1979) (decided under former § 16-50 A.3).

Rule is intended to include all types of dishonesty related to an employee's service with the city. In re Schultz, CSA 156-04, 7 (6/20/05) (decided under former § 16-50 A. 3).

Violation found

Dishonesty was proven where appellant failed to punch out for a 25-minute absence and claimed pay for that time. In re Abbey, CSA 99-09, 8 (8/9/10).

Dishonesty established where co-workers' specific and documented testimony that appellant was frequently absent during work was more credible than appellant's general denial. In re Norris, CSA 68-09, 6 (7/12/10).

Appellant was dishonest where he claimed pay for eight hours of jury duty, but was late reporting to jury duty and was released after less than three hours. In re Martin, CSA 08-10, (5/24/10).

Dishonesty was established where appellant made contradictory claims to support his conduct on many matters throughout the hearing. In re Martin, CSA 08-10 (5/24/10).

Deputy was untruthful during investigation in stating that inmate was aggressive and refused his order, where jail video shows deputy shoved inmate into an elevator a second after inmate calmly made a request. In re Koehler, CSA 113-09, 15 (4/29/10).

Deputy was dishonest when he told investigator he ordered inmate off elevator, although admitting at hearing that he did not issue that order. In re Koehler, CSA 113-09, 15 (4/29/10).

Deputy who told investigator he kicked HIV-positive inmate to avoid his blood and protect other deputies was dishonest because the kick caused risk of splattering blood onto deputies. In re Koehler, CSA 113-09, 16 (4/29/10).

Agency proved violation where employee told his supervisor he was at the office, and GPS tracking on his car showed he was at home. In re Valdez, CSA 90-09, 5 (3/1/2010).

Because employee was aware of her supervisor's directive against overtime when she claimed it, employee was dishonest in violation of the rule. In re Clayton, CSA 111-09, 5 (4/16/10).

Appellant was dishonest in claiming overtime pay for time spent attending a meeting after her supervisor issued a directive forbidding overtime for meetings. In re Clayton, CSA 111-09, 5 (4/16/10).

Dishonesty was proven where appellant was aware of a directive prohibiting overtime for committee meetings, thereafter claimed overtime for three meetings, submitted an overtime pay request to a fill-in supervisor without informing him of the directive, attempted to circumvent the rule by pretending ignorance of it, and changed her explanation for her overtime claims several times. In re Clayton, CSA 111-09, 6 (4/16/10).

Dishonesty in requesting pay for attending a meeting was established by evidence that appellant supported her request for pay by detailing the location, attendance at and contents of the meeting, when in fact the meeting had been cancelled and did not occur. In re Clayton, CSA 111-09, 6 (4/16/10).

Dishonesty was proven where several agency witnesses corroborated each other with plausible testimony, and all had a good relationship with appellant, whereas appellant’s statements were inconsistent over time and he had an interest in the outcome of the case: preservation of his job. In re Carter, CSA 87-09, 4 (2/17/10).

Appellant’s denial that he intended to intimidate a co-worker was dishonest where he admitted saying, “I’m talking to you man, why did you rat me out like that? You’d better watch your back,” which the co-worker reasonably interpreted as attempted intimidation. In re Carter, CSA 87-09, 5 (2/17/10).

Appellant was dishonest to internal affairs investigator when he denied asking another deputy to give a false statement to IA where the other deputy’s testimony was corroborated by several other witnesses. In re Carter, CSA 87-09, 5 (2/17/10).

Appellant's denial that supervisor's inquiry into her knitting on duty was an order to cease because it inaccurately described her crocheting as knitting was dishonest in light of the obvious intent of the supervisor's question. In re Norman-Curry, CSA 28-07and 50-08, 4 (2/27/09).

Where evidence showed that use of crochet needles in jail setting was potentially harmful, and the directive to cease bringing crocheting materials to work were clear to other deputies present when directive was given, appellant's assertion that order applied only to yarn was dishonest. In re Norman-Curry, CSA 28-07and 50-08, 4 (2/27/09).

Deputy sheriff's denial that sergeant's "please do not do this again" was an order to cease knitting on post was dishonest in light of the obvious intent of the words and the sergeant's authority over appellant. In re Norman-Curry, CSA 28-07and 50-08, 4 (2/27/09).

Violation of this rule proven where deputy sheriff claimed she was justified in use of force against an out-of control inmate who kicked and head-butted another deputy, but that deputy testified he had complete control over the inmate and the inmate did not kick or head butt. In re Norman-Curry, CSA 28-07 and 50-08, 28 (2/27/09).

Violation under this rule is sustained where digital recording supported sheriff's department allegation that appellant-deputy repeatedly slammed inmate's head into a window, contrary to deputy's claim that she merely held the inmate's head against the window. In re Norman-Curry, CSA 28-07 and 50-08, 28 (2/27/09).

Appellant’s denial that he took a co-worker’s ring during an investigation into the theft was not credible where appellant made inconsistent statements during the investigation and the security tape showed that appellant was the only one in the area during the relevant time. In re Galindo, CSA 39-08, 10 (9/5/08).

Agency proved appellant was dishonest when she told agency she spent 1 ½ hours having her badge enabled by security, then admitted at hearing that she did not have her badge enabled that day. In re Blan, CSA 40-08, 5 (7/31/08).

Appellant was dishonest when his two statements during investigation contradicted the consistent statements of four witnesses and victim of assault, despite witnesses’ friendship with appellant. In re Rogers, CSA 57-07, 6 (3/18/08).

Appellant violated rule where she assisted her sister’s fraudulent application for welfare benefits. In re Abdi, CSA 63-07, 26, 27 (2/19/08).

Altering official records related to donated leave and lying to supervisors about whether discipline was imposed on a subordinate are acts of dishonesty in violation of this rule. In re Feltes, CSA 50-06,7(11/24/06).

Where agency established that appellant was playing cards on duty, and appellant repeatedly denied playing cards during investigation, each denial was an additional act of dishonesty. In re Martinez, CSA 30-06, 7 (10/3/06).See also In re Simpleman, CSA 31-06, 8(10/20/06).

Deputy sheriff who was observed sleeping on duty was dishonest when he denied sleeping to supervisor, investigator, and to committee at pre-disciplinary meeting. In re Simpleman, CSA 05-06, 6 (5/16/06)

Appellant was dishonest in claiming sick leave in order to leave early for her scheduled vacation. In re Clayton, CSA 128-05, 5 (3/21/06).

Deputy sheriff acted dishonestly in lying to investigating officers about being intoxicated and stealing a beer when arrested while off duty at a bowling alley. In re Mergl, CSA 131-05, 3 (3/13/06).

Appellant was dishonest in submitting and failing to correct time sheets which misrepresented her work hours, despite notice of the procedures and prior warnings from her supervisor. In re Vigil, CSA 110-05, 4 (3/3/06).

Appellant who denied having affair with supervisor and treating her subordinate unprofessionally despite evidence to the contrary was dishonest in violation of rule. Name redacted, CSA 190-03, 6 (2/13/06).

Where supervisor was dishonest about her affair with a superior and dishonest about her mistreatment of a subordinate because she refused to cover up affair, both of which had a direct and significant impact upon the workplace, supervisor violated this rule. Name redacted, CSA 190-03, 7 (2/13/06).

Employee who asked co-worker to log her in to work as present made a false report of her work hours. In re Roberts, CSA 179-04, 4 (6/29/05).

No violation found

Agency did not establish dishonesty by evidence that airport technician accepted pay for period of time she was engaged in sex at the airport, since agency did not prove technician was on the clock at that time. In re Jones, CSA 88-09, 5 (5/11/10).

Where agency alleged appellant misrepresented her compliance with PIP requirements, but appellant’s stated confusion over requirements rebutted the “knowingly false” element, agency failed to prove dishonesty. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

Appellant’s email reflecting her own belief that she met her PIP requirements did not prove appellant made a knowingly false statement that her supervisor accepted her papers in compliance with her PIP. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

Agency failed to prove appellant submitted false attendance information regarding two Girls’ Club classes where appellant’s testimony that the classes were held at a different time than scheduled was corroborated by one of the parents of the participants. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

Minor clerical errors in daily activity log which did not mislead supervisor about the work performed did not prove intent to deceive or knowledge of falsity of errors, as necessary to prove violation of this rule. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Where agency's evidence would require finder of fact to credit appellant for an elaborate scheme to conceal his whereabouts at a time not in question, agency failed to present evidence that appellant was dishonest, and supervisor noted appellant's trustworthiness in his evaluation two months after the incident, agency failed to prove appellant's log was inaccurate in violation of agency policy. In re Compos et al, 56-08, 18 (12/15/08).

Agency failed to prove employee fraudulently attested on his PEPR that he had a valid driver's license where he was suspended in error by the county court after paying a traffic ticket, and employee was unaware of that suspension until after the PEPR was signed. In re Compos, CSA 56-08, 20 (12/15/08).

Agency failed to prove appellant was dishonest about reason for her four hour trip to courthouse, where agency proved only that the trip was unnecessary. In re Blan, CSA 40-08, 5 (7/31/08).

Agency failed to prove violation of part 3 of the rule when the statement appellant made was to an HR professional, not appellant’s supervisor. In re Mounjim, CSA 87-07, 6 (7/10/08).

Agency failed to prove appellant recreation coordinator falsified records where evidence did not establish by a preponderance of the evidence that appellant submitted false attendance information about the date of classes she conducted. In re Mounjim, CSA 87-07, 7 (7/10/08).

Assistant city attorney who responded inaccurately to his supervisor’s question about a specific case in the midst of a hectic docket, then failed to correct the inaccurate statement, was not dishonest where agency provided no evidence appellant sought to deceive his supervisor. In re Stone, CSA 70-07, 9 (2/25/08)

Agency failed to prove city driver admitted dishonesty by telling his supervisor, “I messed up”, where reply was consistent with his credible testimony that he failed to ask permission before he made a restroom stop, and no other evidence supported allegation of dishonesty. In re Dessureau, CSA 59-07, 7 (1/16/08).

Agency’s determination that appellant had not been dishonest was supported by evidence that appellant told her supervisor she had sent an email because she thought she had done so. In re Butler, CSA 78-06, 5 (1/5/07)

Agency did not establish appellant was intentionally deceptive in requesting a day off to appear in court when the court documents showed that it was a deadline to appear or answer the complaint, as appellant demonstrated she was simply unfamiliar with the nature of the proceedings. In re Edwards, CSA 21-05, 6 (2/22/06).

Appellant was not dishonest in erroneously reporting that she had finished two projects, or in failing to advise her supervisor of her intent to work on Saturday. In re Diaz, CSA 92-05, 5-6 (1/31/06).

Appellant was not dishonest in failing to provide three potential interview questions to all candidates for promotion who had applied previously, since the same eight interview questions were used for the past three to five years, and thus past interviewees had the same advantage as those receiving copies of interview questions. In re Martinez, CSA 69-05, 5-6 (1/4/06).

Appellant was not dishonest in her answers to investigators regarding when she provided interview questions to candidates, since the question would only be important if it related to answers from a written examination, which would have violated her CSA examination security agreement prohibiting disclosure of written exam questions. In re Martinez, CSA 69-05, 6-7 (1/4/06).

Where appellant supervisor assisted several candidates testing for an open supervisory position by openly providing information to any of them who sought it, she did not act dishonestly in violation of this rule. In re Martinez, CSA 69-05, 6 (1/4/06).

Employee may reasonably rely on agency's past interpretation of disciplinary rules in the absence of notice of a change in that interpretation. Thus, employee was not dishonest in failing to report offenses that the agency did not require reported in past years. In re Mitchell, CSA 05-05, 5 (6/27/05).

Agency failed to prove intent to deceive under when it failed to give employees notice of a change in its policy on annual background checks. In re Mitchell, CSA 05-05, 5 (6/27/05).

The act of requesting comp zoo tickets from a person unauthorized to grant them is not itself dishonest without proof of intent to deceive. In re Schultz, CSA 156-04, 7 (6/20/05).

Violation of the smoking policy does not prove a pattern of using city employment for private gain. In re Schultz, CSA 156-04, 8(6/20/05).

Employee's request to city vendor for advertising pens does not prove dishonesty. In re Schultz, CSA 156-04, 7 (6/20/05).

Appellant's offer to ask his zookeeper friend to arrange a behind-the-scenes zoo tour did not establish dishonesty in absence of proof that using a zookeeper as an intermediary to request a tour is a violation of the tour approval policy. In re Schultz, CSA 156-04, 7-8 (6/20/05).

Proof that an employee instructed another to assault a supervisor does not establish a false statement or other act of dishonesty. In re Moreno, CSA 138-04 (5/25/05).

Evidence of carelessness, attendance violations and noncompliance with instructions does not prove dishonesty. In re Lucero, 162-04, 8 (4/15/05).

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16-60 F: Using Position for Personal Advantage

In general

Violation of this rule requires proof of a more significant link between one’s official position or authority and seeking an advantage to which one is not otherwise entitled. In re Sawyer and Sproul, CSA 33-08, 9 (1/27/09), citing In re Mergl, CSA 131-05, 4 (3/13/06); In re Redacted, CSA 190-03, 7 (2/13/06).

Rule requires proof of actual use of official position for personal gain. In re Catalina, CSA 35-08, 8 (8/22/08).

Violation found

Supervisor used his official position for personal advantage where he drove his assigned city vehicle to conduct private business without prior authorization. In re Valdez, CSA 90-09, 5 (3/1/2010).

Deputy sheriff acted dishonestly by identifying himself as a deputy sheriff and asking for professional courtesy when arrested while off duty at a bowling alley, thereby seeking an advantage to which he was not otherwise entitled. In re Mergl, CSA 131-05, 4 (3/13/06).

Long-term employee who accepted benefit of changed selection criteria to attend conference by supervisor with whom she was having an affair used her position for personal advantage in violation of rule against dishonesty. Name redacted, CSA 190-03, 7 (2/13/06).

Violation not found

An employee’s reference to the fact that he is employed by the city while soliciting outside work is insufficient to violate this rule. In re Sawyer and Sproul, CSA 33-08, 9 (1/27/09).

Appellants who cited their employment experience with the agency as qualifications when they solicited contracts for their outside business did not violate rule. In re Sawyer and Sproul, CSA 33-08, (1/27/09).

An employee’s reference to the fact that he is employed by the city while soliciting outside work is insufficient to violate this rule. In re Sawyer and Sproul, CSA 33-08, 9 (1/27/09).

Agency failed to prove appellant actually conveyed confidential information to her attorney in return for waiver of his consultation fee. In re Catalina, CSA 35-08, 8 (8/22/08).

16-60 G.1: Being under the influence...alcohol...drugs

Where positive results of follow-up alcohol test were not printed out as required by the U.S. DOT regulations governing the testing procedures, the test was nullified and could not serve as proof of violation of this rule. In re Delgado, CSA 75-08, 8 (1/30/09), reversed CSB 7/2/09.

16-60 G.2: Consumption of alcohol...while on duty

Where appellant had not exhibited indicia of having consumed alcohol on the day he took a follow-up alcohol test, agency failed to prove rule violation because sole remaining proof was positive alcohol test result that was nullified by its non-compliance with DOT regulations governing testing procedures. In re Delgado, CSA 75-08, 8 (1/30/09), reversed CSB 7/2/09.

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16-60 H: Illegal Drugs

Last chance agreements before loss of public employment are not rendered involuntary by the threat of that loss inherent in the agreement. In re Williams, CSA 56-04, 5 (5/06/05).

Consent to random drug testing was not rendered involuntary by its inclusion in a last chance agreement under which a public employee kept his job on condition of no further drug use and submission to random testing. In re Williams, CSA 56-04, 5 (5/06/05), citing Jinzo v. City of Albuquerque, 1999 US App. LEXIS 14912 (10th Cir. 1999), Mararri v. WCI Steel, 130 F.3d 1180 (6th Cir. 1997), and Schneckloth v. Bustamonte, 412 U.S. 218 (1973); McCall v. USPS, 839 F.2d 664 (Fed. Cir. 1988); and Stewart v. USPS, 926 F.2d 1146 (Fed. Cir. 1991).

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16-60 J: Failing to Comply with Orders

In general

This rule contains two discrete violations, failure to comply with an order and failure to perform assigned work, whether or not under direct order. In re Abbey, CSA 99-09, 8 (8/9/10).

A PIP constitutes the direct order of an authorized supervisor under this rule. In re Abbey, CSA 99-09, 8 (8/9/10).

This rule contains two discrete violations: failure to comply with an order and failure to perform assigned work, whether or not under direct order. In re Norris, CSA 68-09, 6 (7/12/10).

Violation of this rule is established where employee failed to do assigned work at all, in contrast with an allegation that the employee performed the work inadequately. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

The words of the rule target the failure to perform work, rather than work done in an inadequate or improper manner. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

Since each provision of a statute must have a purpose and use, the board's 2006 reenactment of this rule and the rule prohibiting careless performance of work is presumed to have been intended to address separate performance issues. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

Where there is already a rule prohibiting careless performance of work, a separate rule against failure to do assigned work will not be read to bar the same conduct. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

This rule contains two discrete violations: failure to comply with an order and failure to perform assigned work, whether or not under direct order. In re Clayton, CSA 111-09, 7 (4/16/10).

Supervisor's directive need not be prefaced with words like "I order you" to be the lawful order of a superior. In re Norman-Curry, CSA 28-07 and 50-08, 9 (2/27/09).

Failure to comply with a lawful order is established by proof that 1) a supervisor communicated a reasonable order to a subordinate, 2) proof the subordinate violated the order, 3) under circumstances demonstrating willfulness. In re Owens, CSA 69-08, 4 (2/6/09), citing In re Mounjim, CSA 87-07, 7(7/10/08), affirmed, CSB 1/8/09.

A violation of the first part of this rule is established by proof that 1) a supervisor communicated a reasonable order to a subordinate, 2) proof the subordinate violated the order, 3) under circumstances demonstrating willfulness. In re Sawyer and Sproul, CSA 33-08, 9 (1/27/09), citing In re Dessureau, CSA 59-07, 7 (1/16/08); In re Diaz, CSA 13-06, 4 (5/31/06); In re Conway, CSA 40-05, 3 (8/17/05).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove failure to comply with supervisor’s orders where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09).

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim, CSA 87-07 (7/10/08), affirmed In re Mounjim, CSB 87-07, 3 (1/8/09).

Where agency deemed appellant failed to comply with supervisor’s order to complete PIP requirements, but supervisor failed to communicate PIP requirements clearly, agency failed to prove appellant violated this rule. In re Mounjim, CSA 87-07 (7/10/08), affirmed In re Mounjim, CSB 87-07, 3 (1/8/09).

A violation of the first part of this rule is established by proof that (1) a supervisor communicated a reasonable order to a subordinate, (2) proof the subordinate violated the order (3) under circumstances demonstrating willfulness. In re Mounjim, CSA 87-07, 7 (7/10/08), citing In re Dessureau, CSA 59-07, 7 (1/16/08), In re Diaz, CSA 13-06, 4 (5/31/06); In re Conway, CSA 40-05, 3 (8/17/05).

A violation of the second part of this rule is established by (1) proof of an assigned duty (2) which the employee is capable of performing, but (3) which the employee fails to perform. In re Mounjim, CSA 87-07, 7 (7/10/08).

To establish failure to comply with orders, agency must prove proper instructions were provided, and appellant knew of those instructions, but failed to follow them. In re Mestas et al., CSA 64-07, 27 (5/30/08), citing In re Vigil, CSA 110-05, 5 (3/3/06); In re Trujillo, CSA 28-04, 10 (5/27/04).

A violation of this rule is established by proof that the agency communicated a reasonable rule to appellant, and that he continued to violate it under circumstances demonstrating willfulness. In re Dessureau, CSA 59-07, 7 (1/16/08), citing In re Diaz, CSA 13-06, 4 (5/31/06); In re Conway, CSA 40-05, 3 (8/17/05).

Refusal to obey order of supervisor requires proof that the agency communicated a reasonable rule to appellant and that she continued to violate the rule under circumstances demonstrating willfulness. In re Diaz, CSA 13-06, 4 (5/31/06) (decided under former §16-50 A. 7), citing In re Conway, CSA 40-05, 3 (8/17/05).

Proof of intent to disobey order may be established by circumstantial evidence. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former §16-50 A. 7), citing In re Owens, CSA 139-04, 7(3/31/05).

Agency must prove that it gave appellant reasonable notice of its instruction, and that appellant failed to comply with that instruction. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former §16-51 A. 10), citing In re Martinez, CSA 19-05, 6 (6/27/05).

Agency must demonstrate that 1) someone with proper authority within the agency gave an order to appellant; 2) the order was reasonable; 3) appellant had reasonable notice of the order; 4) appellant was capable of complying; and 5) appellant refused to comply. In re Hernandez, CSA 03-06, 4 (5/3/06) (decided under former §16-50 A. 7), citing In re Trujillo, CSA 28-04, 9-10 (5/27/04); In re Martinez, CSA 19-05, 6 (6/27/05); In re Conway, CSA 40-05, 3 (8/16/05).

To prove a failure to comply, agency must prove proper instructions were provided and appellant knew of those instructions, but failed to follow them. In re Vigil, CSA 110-05, 5 (3/3/06) (decided under former §16-51 A. 10), citing In re Trujillo, CSA 28-04, 10 (5/27/04).

Refusal to obey an order requires a showing that agency communicated a reasonable rule to appellant, and she continued to violate the rule under circumstances demonstrating willfulness. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former §16-50 A. 7), citing In re Conway, CSA 40-05, 3 (8/17/05).

Agency must prove the refusal was intentional and willful disobedience to establish a violation of rule. In re Espinoza, CSA 30-05, 3 (1/11/06) (decided under former §16-50 A. 7), citing In re Trujillo, CSA 28-04, 9-10 (5/27/04).

This rule requires proof of an actual and willful refusal to do assigned work. In re Hobley, CSA 61-05, 5 (12/19/05) (decided under former § 16-50 A. 7), citing In re Trujillo, CSA 28-04, 9 - 10 (5/27/04).

In order to establish a violation of this rule, the agency must prove that it gave appellant reasonable notice of the instruction, and that appellant failed to comply with that instruction. In re Hobley, CSA 61-05, 8 (12/19/05) (decided under former §16-51 A. 10), citing In re Martinez, CSA 19-05, 6 (6/27/05). See also In re Williams, CSA 65-05, 6 (11/17/05).

To prove a refusal to comply, the Agency must prove the refusal was intentional and willful disobedience. In re Diaz, CSA 45-05, 5 (9/7/05) (decided under former § 16-50 A. 7), citing In re Trujillo, CSA 28-04, 9-10 (5/27/04).

Whether a failure to comply with instructions is willful depends upon the circumstances; here, the type and degree of counseling or warnings, time period of noncompliance, and the consequences of failure to comply. In re Conway, CSA 40-05, 3 (8/16/05) (decided under former § 16-50 A. 7).

In order to establish refusal to comply with supervisor's orders, the agency must establish that it gave the employee reasonable notice of the order. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former § 16-50 A. 7).

In order to establish failure to comply with supervisor's instructions, agency must establish that it gave the employee reasonable notice of the order. In re Martinez, CSA 19-05, 8 (6/27/05) (decided under former § 16-51 A.10).

Rule prohibiting refusal to obey a supervisor's order indicates only one condition: the employee must be capable of performing the work. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 13 (1/27/05) (decided under former § 16-50 A. 7).

Violation found

Appellant’s generic claim that he was singled out unfairly was not a defense to his failure to comply with an order in his PIP to be at his work station no later than the beginning of his shift, a policy that applied to all staff, where he had a history of tardiness and he was given several reminders by his supervisors. In re Abbey, CSA 99-09, 8 (8/9/10).

Violation of first part of this rule is established where appellant’s supervisor gave direct order to remain in his work area, appellant acknowledged order and then immediately breached it. In re Norris, CSA 68-09, 6 (7/12/10).

By arriving late and disappearing for substantial periods during his shift, appellant failed to perform his assigned tasks. In re Norris, CSA 68-09, 6 (7/12/10).

Project manager willfully failed to comply with order to cease threatening and hostile communications with contractors when she demanded detailed financial information or she would engage the resources of the city attorney, accounting department and auditor, while acknowledging that her supervisor was not in agreement with the demand and may try to circumvent it. In re Harrison, CSA 55-07, 50 (6/17/10).

Contractor reasonably interpreted project manager's statement as a threat when she demanded detailed financial information or she would engage the resources of the city attorney, accounting department and auditor, despite project manager's lack of authority to invoke the city's contract rights. In re Harrison, CSA 55-07, 50 (6/17/10).

Employee willfully failed to comply with order to send director a contract issues log when she instead sent copies of the contracts themselves, and did not send an issues log until three weeks later through another manager, requiring her supervisor to discuss the issues with the contractor without the log in order to avoid further delay. In re Harrison, CSA 55-07, 51 (6/17/10).

Supervisor failed to do assigned work where he engaged in personal business and went home during working hours instead of supervising and meeting with his crew. In re Valdez, CSA 90-09, 6 (3/1/2010).

A supervisor’s explicit directive forbidding overtime for attending after-work meeting was a lawful order under this rule. In re Clayton, CSA 111-09, 7 (4/16/10).

Appellant’s claim for overtime pay to attend after-work meetings was a failure to comply with an order prohibiting overtime for meetings where she evaded the order by submitting it to a fill-in supervisor, claimed the order was ambiguous, and changed her explanation several times. In re Clayton, CSA 111-09, 6 (4/16/10).

Agency proved youth crisis center worker failed to supervise the youth in her care, in violation of second part of this rule. In re Carrillo, CSA 95-09, 4 (3/16/10).

Appellant's unexcused failure to return to work after a training session violated this rule. In re Lottie, CSA 132-08, 4 (3/9/09).

Where agency showed how crochet needles could be easily converted by inmates into multiple weapons, appellant's argument, that sheriff department's failure to enforce prohibition against crochet needles in the past justified her continuing to bring them on post after being ordered not to, failed to justify refusal any more than the past failure to ticket a driver for running red lights makes the activity legal. In re Norman-Curry, CSA 28-07 and 50-08, 6 (2/27/09).

Appellant deputy sheriff's continued arguing with supervisor after his direct, lawful order, was a violation of department order against disrespecting supervisor under this rule. In re Norman-Curry, CSA 28-07 and 50-08, 6 (2/27/09).

Appellant violated rule when he parked in restricted space using non-compliant disabled veteran license plates after being advised repeatedly of reasonable parking restrictions by his supervisors, by a friend, and after being given a warning for a first violation. In re Owens, CSA 69-08, 4 (2/6/09).

The first element of this violation, communication of a reasonable order by a supervisor, is proven by appellant’s acknowledgment he received pertinent handbook containing parking instructions, in conjunction with supervisor’s directives on parking restrictions at appellant’s orientation. In re Owens, CSA 69-08, 4 (2/6/09).

The second element needing proof, violation of a supervisor’s order, was established: where appellant claimed his disabled veteran plates should allow him to park in restricted space, but he did not dispute agency evidence that such plates do not meet its requirements; appellant claimed he had a valid handicap placard, but his claim was rebutted by his own friend as well as other employees; appellant claimed agency supervisor told him he could park in restricted space, but supervisor rebutted that testimony and appellant raised claim only after pre-disciplinary meeting. In re Owens, CSA 69-08, 4 (2/6/09).

The third element proven, circumstances demonstrating willfulness, was established where appellant claimed he was unaware of parking restrictions but: he acknowledged having received supervisor’s letter explaining parking restrictions; parking restrictions were explained to him on his first day of work; he never asked for parking accommodations before being cited; he disregarded his friend’s warning about parking in disabled space; and even after supervisor showed appellant where he could park, appellant parked in handicap space the next day. In re Owens, CSA 69-08, 5 (2/6/09).

Supervisor’s orders to sever ties with outside employer within 90 days, request written permission to compete with employer, and require an employee to not renew contract with outside employer were reasonable regulation of outside employment. In re Sawyer and Sproul, CSA 33-08, 10 (1/27/09), citing Dalton v City of Russellville, 720 S.W. 2d 918 (1986); Johnson v Trader, 52 So. 2d 33 (Fla. 1951); Phillips v Hall, 447 N.E. 2d 418 (D.Ill. 1983); 72 A.L.R. 5th 671 (1998).

Conflict of interest that arose as a direct result of appellants’ failure to obey order demonstrated the reasonableness of the order that was designed to prevent the conflict. In re Sawyer and Sproul, CSA 33-08, 10 (1/27/09).

Appellants’ willful failure to withdraw from a contract after being ordered to do so violated this rule where the agency’s later contract with the same party required the agency to cooperate with Appellants, resulting in a conflict of interest the order was designed to avoid. In re Sawyer and Sproul, CSA 33-08, 10 (1/27/09.

Where supervisor approved training leave on the condition that appellant submit a leave slip, appellant violated her supervisor's order by attending training without submitting the leave slip. In re Williams, CSA 53-08, 5-6 (12/19/08).

Appellant with ongoing attendance issues who was specifically ordered to comply with timely punch-in policies violated supervisor's order when she arrived at work timely but forgot to punch in. In re Williams, CSA 53-08, 6 (12/19/08).

Appellants violated orders by exceeding agency's limit of 2-mile radius for traveling to lunch in an agency vehicle. In re Compos et al, 56-08, 16 (12/15/08).

Appellant failed to comply with his supervisor’s orders by leaving campus during work hours and taking long breaks and lunch hours. In re Galindo, CSA 39-08, 11 (9/5/08).

Testimony of two eyewitnesses and other evidence rebutted appellant’s testimony that he was at bus stop to smoke and confirm previous day’s deliveries. In re Galindo, CSA 39-08, 11 (9/5/08).

Agency proved that appellant failed to perform assigned work when she spent 4 hours on an unnecessary trip away from her work site. In re Blan, CSA 40-08, 5 (7/31/08).

Agency proved supervisor failed duty to oversee subordinates’ submission of audit documents within 30 days, in violation of second part of this rule, where the evidence showed that supervisor had notice of this duty, was capable of performing it, and failed to train and oversee her subordinates to ensure documents were submitted within the deadline. In re Mestas et al., CSA 64-07, 27 (5/30/08).

Where HR technician’s 5-month delay in processing separation documents caused customer dissatisfaction and violated PEP directive to fulfill customer service standards, agency proved violation of this rule. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 38 (5/30/08).

Where appellant was signatory to a user agreement prohibiting unauthorized access to a database but allowed an unauthorized coworker to access the database, appellant violated this rule. The user agreement was a term and condition of appellant’s work and she had been ordered to restrict the co-employee’s access. In re Chavez, CSA 29-06, 6 (8/17/06).

Appellant refused to obey order to discuss performance issues with her supervisor after having been disciplined for similar behavior. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former §16-50 A. 7).

Appellant failed to comply with instructions to perform several routine tasks after being given reasonable notice of those instructions. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former §16-51 A. 10).

Appellant intentionally ignored agency order to cease addressing female co-workers by terms of endearment, despite past discipline for same conduct. In re Hernandez, CSA 03-06, 6 (5/3/06) (decided under former §16-50 A. 7).

Appellant ignored agency order to cease calling female co-workers with terms of endearment, despite past discipline for same conduct. In re Hernandez, CSA 03-06, 8 (5/3/06) (decided under former §16-51 A. 10).

Where supervisor continually disapproved appellant’s practice of working through lunch in order to leave early, appellant failed to comply with supervisor’s instructions to obtain prior approval of leave. In re Vigil, CSA 110-05, 5 (3/3/06) (decided under former §16-51 A. 10).

Appellant refused to comply with instructions on attendance by calling in sick eight times without prior notice to her supervisor, and leaving work without informing her supervisor. In re Edwards, CSA 21-05, 6 (2/22/06) (decided under former §16-50 A. 7).

Appellant failed to comply with instructions on attendance by failing to call her supervisor two hours before start of her shift seven times, and leaving work before the end of her shift without informing her supervisor. In re Edwards, CSA 21-05, 7 (2/22/06) (decided under former §16-51 A. 10).

Supervisor’s contemporaneous notes were more convincing than Appellant’s qualified denials in establishing that Appellant failed to comply with supervisor’s instructions to perform her clerical duties, avoid personal phone calls, and not use golf cart for deliveries. In re Diaz, CSA 92-05, 10 (1/31/06) (decided under former §16-51 A.10).

Agency established that appellant refused to obey supervisor’s order prohibiting personal phone calls by taking fifteen calls and leaving her duty station to continue a cell phone call. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former §16-50 A.7).

Appellant failed to obey orders when she refused to speak with her supervisor about work issues without a union representative, limited her contact with supervisor to checking her email every hour, and did work assigned by email without replying to supervisor’s messages. In re Diaz, CSA 92-05, 7 (1/31/06) (decided under former §16-50 A.7).

Admitted failure to promptly begin assigned duty, an orientation meeting for agency clients, despite clear instructions to do so, established violation of failure to obey order. In re Williams, CSA 65-05, 6 (11/17/05) (decided under former §16-51 A. 10).

ASA II’s failure to maintain an accurate inventory of radio equipment and failure to lock up valuables despite her supervisor’s orders established failure to comply with instructions. In re Diaz, CSA 45-05, 9 (9/7/05) (decided under former §16-51 A. 10).

Appellant violated his supervisor's order to cease use of unscheduled leave where the order given was reasonable based on concern for public safety, appellant was notified many times that future noncompliance would lead to discipline, and appellant continued to take unscheduled leave. In re Conway, CSA 40-05, 3 (8/16/05) (decided under former § 16-50 A. 7).

Appellant's violations of policy prohibiting smoking in animal areas was a refusal to comply with the orders of his supervisor. In re Schultz, CSA 156-04, 8 (6/20/05) (decided under former § 16-50 A. 7).

Smoking in animal areas despite supervisor's order prohibiting it was failure to comply with instructions. In re Schultz, CSA 156-04, 9 (6/20/05) (decided under former § 16-51 A.10).

Where appellant was clearly ordered to pay closer attention to proper safety procedures for securing animals four months before this incident, appellant failed to comply with supervisor's instruction by failing to close a polar bear exhibit door. In re Owoeye, CSA 11-05, 7 (6/10/05) (decided under former § 16-51 A.10).

Supervisor's testimony and notes that he saw appellant wearing non-uniform clothing, and counseled her after each violation, established that appellant failed to comply with uniform policy. In re Lucero, CSA 162-04, 9 (4/15/05) (decided under former § 16-51 A.10).

Employee's tardiness without calling in on two occasions proves failure to comply with supervisor's policy requiring a call for expected tardiness over ten minutes. In re Lucero, 162-04, 9 (4/15/05) (decided under former § 16-51 A.10).

Employee's failure to obtain needed supplies from a store was a failure to comply with instructions based on employee's failure to perform a part of her job which could have been accomplished by planning ahead to get gas in her car or delegating the duty to another. In re Lucero, 162-04, 10 (4/15/05) (decided under former § 16-51 A.10).

Where appellant took medicine he knew would make him sleepy, set his alarm for the end of his shift, and lay down on a sofa, agency proved failure to comply with instructions to load and unload trash at a time when appellant was asleep. In re Owens, CSA 139-04, 7 (3/31/05) (decided under former § 16-51 A.10).

Where appellant took medicine he knew would make him sleepy, set his alarm for the end of his shift, and lay down on a sofa, agency proved intentional refusal to obey order to load and unload trash at a time when appellant was asleep. In re Owens, CSA 139-04, 7 (3/31/05) (decided under former § 16-50 A. 7).

Employee's statement that she was not going to process paperwork, followed by an angry exchange with her supervisor and her departure from work without permission, established refusal to obey an order in violation of rule. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 13 (1/27/05) (decided under former § 16-50 A. 7).

Filing a complaint about performing fingerprinting duties is not a defense to a charge of refusal to complete a different duty, the completion of paperwork. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 3 (1/27/05); citing In re Dollison, CSA 64-03 (8/18/03) (decided under former § 16-50 A. 7).

A challenge to a work assignment by means of a CSA appeal does not justify a refusal to comply with an order to perform that assignment. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 13 (1/27/05) (decided under former § 16-50 A. 7).

No violation found

Where the agency presented no evidence youth worker violated a direct order in failing to intervene in resident assault, violation of this rule was not proven. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Agency failed to prove that employee was given notice in job description or other means that work done with inadequate customer service was work not performed at all under this rule. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

Allegation that appellant was careless in processing bonds does not establish that she failed to do assigned work she was capable of performing. In re Cady, CSA 03-10, 5 (4/22/10).

Agency did not prove employee failed to comply with his supervisor's order to perform an emergency repair by responding, “in this weather?”, since employee immediately left to do the work after his supervisor confirmed his order. In re Valdez, CSA 90-09, 5-6 (3/1/2010).

Merely uttering words that a supervisor’s order could be dangerous is insufficient to establish a good faith refusal to perform work. In re Valdez, CSA 90-09, 6 n. 3 (3/1/2010).

Where faulty testing procedures nullified alcohol test performed pursuant to a stipulation and agreement, results may not be considered evidence that appellant violated the stipulation and agreement. In re Delgado, CSA 75-08, 8 (1/30/09), reversed CSB 7/2/09.

Where appellant was ordered to submit doctor's note to cover sick leave, and supervisor granted sick leave, agency failed to prove violation of order. In re Williams, CSA 53-08, 6 (12/19/08).

Where agency policy permits employees to take breaks as work allows, and appellants' total breaks were less than the permitted time, agency failed to prove violation of policy. In re Compos et al, 56-08, 17 (12/15/08).

Minor clerical errors in daily activity log did not prove failure to comply with supervisor's order where supervisor instructed employees to use the logs to give him the general idea of where they were and what they were doing, and performance review stated employees' records were accurate and complete. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Inaccurate log entries did not violate supervisor's order to provide him with a general idea of appellant's daily activities where inaccuracies were clerical and of minor importance and supervisor found entries to be accurate, legible and complete. In re Compos et al, CSA 56-08, 15 (12/15/08).

Minor inaccuracies in log entries for two days does not prove circumstances demonstrating willfulness, as required by this rule, where supervisor reviewed appellants' logs daily and expressed no dissatisfaction with the contents. In re Compos et al, 56-08, 15 (12/15/08).

Evidence did not tie appellant’s alleged wrongdoing to a failure to comply with a lawful order of a supervisor. In re Mounjim, CSA 87-07, 7 (7/10/08).

Agency failed to prove appellant did not comply with her supervisor’s orders where agency presented no evidence that the order was communicated to appellant. In re Mestas et al., CSA 64-07, 27 (5/30/08).

Agency did not prove appellant failed to perform assigned work where agency presented no evidence that appellant should have been aware of the duty to check new hires’ names against the certification list, or that she should have been aware of that duty through common knowledge or training. In re Mestas et al., CSA 64-07, (5/30/08).

Agency did not establish that city driver willfully failed to comply with his supervisor’s order against unauthorized stops where driver’s restroom stop was caused by a legitimate emergency for which he had no opportunity to request permission. In re Dessureau, CSA 59-07, 7 (1/16/08).

Repeated failures to complete tasks because of distraction and memory lapses do not demonstrate an intention to refuse supervisor’s orders when the problems did not recur after discipline was imposed. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former §16-50 A. 7).

Appellant was not found to refuse to perform a duty when she did perform it at least 52% of the time, and agency did not prove appellant intended to refuse to perform any particular order to do that work. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former §16-50 A.7).

Appellant’s absence from her desk does not, without more, prove a refusal to cover phones and gate. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former §16-50 A. 7).

Agency did not establish that appellant refused to stock copier and printer with paper by evidence that she sometimes did not do so. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former §16-50 A. 7).

Agency did not establish appellant refused her supervisor’s order to return to duty station by proving appellant stayed at location of special project to receive training. In re Diaz, CSA 92-05, 7 (1/31/06) (decided under former §16-50 A. 7).

Agency failed to prove appellant violated undersheriff’s written order restricting use of sick leave because order conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06) (decided under former §16-51 A.5).

Agency failed to prove violation of this rule when the evidence did not demonstrate appellant disregarded a work instruction. In re Hobley, CSA 61-05, 8 (12/19/05) (decided under former §16-51 A. 10), citing In re Lucero, CSA 162-04, 9 - 10 (4/15/05); In re Owens, CSA 139-04, 7 (3/31/05).

Employee’s failure to keep his equipment in working order, resulting in a lack of equipment to perform his duties, does not establish a willful refusal to do work. In re Hobley, CSA 61-05, 5 (12/19/05) (decided under former § 16-50 A. 7).

Where the agency did not offer proof that appellant deliberately damaged his computer in order to avoid work, the evidence does not support a finding that appellant refused to do assigned work. In re Hobley, CSA 61-05, 5-6 (12/19/05) (decided under former § 16-50 A. 7).

Where employee did not deliberately mislead the agency by stating that equipment must have been taken out of his vehicle, agency did not prove employee refused to do assigned work. In re Hobley, CSA 61-05, 6 (12/19/05) (decided under former § 16-50 A. 7).

Where appellant was late to an orientation session because she forgot about it, after arriving timely for 2 ½ years, refusal to comply with order was not established. In re Williams, CSA 65-05, 5 (11/17/05) (decided under former §16-50 A. 7).

Agency did not prove refusal to comply with order banning use of cell phones during work hours when the policy was not communicated to appellant before the conduct that would violate it occurred. In re Williams, CSA 65-05, 5 (11/17/05) (decided under former § 16-50 A. 7).

Proof of numerous warnings and counseling on tardiness and absenteeism did not establish that appellant intended to refuse to comply with orders regarding attendance. In re Diaz, CSA 45-05, 5 (9/7/05).

Agency did not prove failure to obey order when it established only that appellant answered a question on a required form inconsistently with changes in policy not communicated to agency employees. In re Mitchell, CSA 05-05, 6 (6/27/05) (decided under former § 16-50 A. 7).

Where the agency did not give appellant notice of the kinds of convictions he needed to disclose, appellant's failure to list his misdemeanor convictions did not constitute disobedience to an instruction. In re Mitchell, CSA 05-05, 8 (6/27/05) (decided under former § 16-51 A.10).

Where the agency relied at hearing on four different orders as the basis for its claim that appellant refused to obey an order, the evidence did not establish violation of rule. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former § 16-50 A. 7).

When agency failed to provide reasonable notice to the appellant as to which of four different instructions she must obey, agency did not prove appellant failed to comply with instructions by a preponderance of the evidence. In re Martinez, CSA 19-05, 8 (6/27/05) (decided under former § 16-51 A.10).

When agency failed to provide reasonable notice to appellant as to which of four instructions she was to obey, agency failed to prove appellant violated this rule. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former § 16-50 A. 7).

Employee did not refuse to comply with uniform policy when she wore the uniform on all but four days out of three months. In re Lucero, 162-04, 9 (4/15/05) (decided under former § 16-50 A. 7).

Employee's efforts to contact her supervisor about her absence disproved allegation of willful refusal to comply with attendance policy. In re Lucero, 162-04, 9 (4/15/05) (decided under former § 16-50 A. 7).

Employee's refusal to sign an acknowledgement that she received a notice was not a refusal to obey an order, since the notice appeared to request a voluntary signature, and there was no evidence she had been ordered to sign it. In re Lucero, CSA 162-04, 9 – 10 (4/15/05) (decided under former § 16-50 A. 7).

Agency did not prove that employee refused to obey an order by failing to obtain needed supplies, since the evidence did not indicate the failure was intentional. In re Lucero, 162-04, 10 (4/15/05) (decided under former § 16-50 A. 7).

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16-60 K: Failure to Meet Established Standards

In general

An employee who receives an overall PEPR rating of meets expectations or better may violate this rule where the evidence showed he failed to meet his performance standards, but late submission of the PEPR forced a "meets expectations rating under the rule. In re Abbey, CSA 99-09, 9 (8/9/10).

This rule covers performance deficiencies that can be measured either by qualitative or quantitative standards, such as those one would find in a performance evaluation. In re Norris, CSA 68-09, 7 (7/12/10), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

This rule covers performance deficiencies that can be measured either by qualitative or quantitative standards, such as those one would find in a performance evaluation. In re Lykken, CSA 26-10 (7/7/10); citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Aspirational standard in performance evaluation does not provide enforceable measure under this rule. In re O’Meallie, CSA 92-09, 5 (6/18/10).

This rule covers measured performance deficiencies, such as those one would find in a performance evaluation. In re Cady, CSA 03-10, 5 (4/22/10), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Agency must give employees notice of what standard it is using to measure performance deficiencies. In re Cady, CSA 03-10, 5 (4/22/10), citing In re Mounjim, CSA 87-07, 4 (CSB 1/8/09).

Broad policy statements found in some PEPR standards are generally unenforceable as disciplinary rules because they fail to provide notice of the measures used to determine compliance. In re Valdez, CSA 90-09, 6 (3/1/2010).

This rule covers performance deficiencies that can be measured either by qualitative or quantitative standards. In re Clayton, CSA 111-09, 7 (4/6/10), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Broad policy statements are generally unenforceable as a qualitative standard of performance because they fail to provide notice of the measures used to enforce compliance. In re Carrillo, CSA 95-09, 4 (3/16/10).

This rule covers performance deficiencies that can be measured by qualitative or quantitative standards, such as those found in a performance evaluation. In re Lottie, CSA 132-08, 4 (3/9/09), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Principles of fairness require that changes in management’s expectations be clearly communicated. In re Mounjim, CSA 87-07, 4 (CSB 1/8/09).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove violation of rule where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSA 87-07, 5 (CSB 1/8/09).

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim, CSA 87-07 (7/10/08), affirmed In re Mounjim, CSA 87-07, 3 (CSB 1/8/09)

A PIP should identify the performance deficiencies the employee is expected to address, the specific actions the employee must take in order to improve performance, and the standards by which the employee’s performance will be measured. In re Mounjim, CSA 87-07 (7/10/08), affirmed In re Mounjim, CSA 87-07, 3 (CSB 1/8/09).

An employee’s failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the employee; and 3) the employee’s failure to meet that standard. In re Mounjim, CSA 87-07, 8 (7/10/08), citing In re Diaz, CSA 45-05, 7 (9/7/05); Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo. App. 1992); In re Routa, CSA 123-04, 3 (1/28/05).

When employees are placed on a PIP, agencies are obligated to identify the deficiency and clearly communicate the standard by which compliance will be measured at two stages: 1) when the PIP is issued, and 2) when the agency deems compliance deficient, so as to provide the employee a meaningful opportunity to respond to performance-based discipline. In re Mounjim, CSA 87-07, 8 (7/10/08).

When a PIP is issued, the agency must identify specific weaknesses the employee is expected to address, must identify specific actions the employee must take in order to meet performance standards stated in the PIP, and must provide a timeline during which the employee is expected to complete the designated actions. In short, the PIP must answer the questions “what” “how” and “when.” In re Mounjim, CSA 87-07, 8 (7/10/08).

A clear communication standard applies to the agency when the agency deems the employee’s PIP compliance was so deficient that discipline is appropriate. In re Mounjim, CSA 87-07, 8 (7/10/08).

Where a supervisor requires a subordinate to use a certain format to demonstrate compliance with performance objectives, the agency must provide such format to the employee. In re Mounjim, CSA 87-07, 12 (7/10/08).

Where agency’s evidence is rebutted by appellant, and no other objective evidence proved a violation, the agency fails to establish a violation by a preponderance of the evidence. In re Mounjim, CSA 87-07, 13 (7/10/08).

Where supervisor testified at hearing as to reasons appellant violated this rule, but it was unclear he communicated this information to appellant at the pre-disciplinary stage, or that a reasonably astute employee, similarly situated to the appellant, should have been on notice of such reasons, agency failed to meet its requirement to communicate the standard at the pre-disciplinary stage. In re Mounjim, CSA 87-07, 14 (7/10/08).

This rule differs from neglect of duty or carelessness in that it focuses on objective measures of performance rather than on the employee’s performance or failure to perform. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 18-19 (5/30/0).

In a departure from the earlier forms of CSR 16-60 K., this version requires the agency to cite a specific standard the employee failed to meet. Thus, the mere recitation of wrongdoing will no longer suffice to prove a violation. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 19 (5/30/08).

Agency must prove standard for audit errors which gives employee notice what conduct is proscribed in order to establish violation of this rule. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 19 (5/30/08).

This rule requires an agency to cite the specific qualitative or quantitative standards appellant failed to meet, such as the standards one would find in a performance evaluation. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 38 (5/30/08), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Performance standards may be found in a performance evaluation, classification description, or in an agency or division’s policy and procedures. In re Dessureau, CSA 59-07, 7 (1/16/08), citing In re Routa, CSA 123-04, 3 (1/27/05).

This rule requires proof that appellant failed to meet a performance standard connected to his job. In re Dessureau, CSA 59-07, 7 (1/16/08), citing In re Owoeye, CSA 11-05, 5 (6/10/05).

Proof of violation of this rule requires 1) a prior-established standard, such as one would find in a performance evaluation, classification description, or in agency or division policies and procedures, 2) clear communication of that standard to the employee, and 3) employee’s failure to meet that standard. In re Hill, CSA 69-07, 6 (1/23/08), citing In re Simpleman, CSA 05-06, 7 (5/16/06); Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo. App.1992).

To prove a violation of this rule, agency must prove 1) a prior-established standard, such as one would find in a performance evaluation, classification description, or in agency or division policies and procedures, 2) clear communication of that standard to the employee, and 3) employee’s failure to meet that standard. In re Simpleman, CSA 05-06, 7 (5/16/06), citing In re Routa, CSA 123-04, 3 (1/28/05); Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo. App. 1992).

This rule covers performance deficiencies that can be measured either by qualitative or quantitative standards, such as those one would find in a performance evaluation. In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

In order to establish a violation of this rule, agency must prove 1) the existence of a performance standard, 2) its communication to the employee, and 3) the employee’s failure to meet the standard. In re Diaz, CSA 92-05, 7(1/31/06) (decided under former §16-51 A.2), citing In re Owoeye, CSA 11-05, 5 (6/10/05).

Failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the appellant; and 3) appellant’s failure to meet that standard. In re Diaz, CSA 45-05, 6 (9/7/05), citing Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo. App. 1992); In re Routa, CSA 123-04, 3 (1/28/05).

There are three prerequisites to finding a violation of this rule: 1) a prior-established standard, 2) clear communication of that standard to the appellant, and 3) appellant's failure to meet such standard. In re Owoeye, CSA 11-05, 5 (6/10/05), citing Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo. App.1992); In re Routa, CSA 123-04, 3 (1/27/05).

This provision covers performance deficiencies that can be measured by either qualitative or quantitative standards, such as in a performance evaluation, in a classification description, or in an agency or division's policy and procedures In re Routa, CSA 123-04, 3 (1/27/05), citing In re Cedillo, CSA 130-02 (8/2/02).

Violation found

Youth counselor violated this rule in failing to maintain line of sight in an incident where a youth in his charge was injured in a fight he did not observe, where keeping line of sight was an important safety duty, and he was reminded of its importance during previous discipline. In re Abbey, CSA 99-09, 8 (8/9/10), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Employee who received an overall PEPR rating of meets expectations or better nonetheless violated this rule where he failed to meet his performance standards, but late submission of the PEPR forced a "meets expectations rating under the rule. In re Abbey, CSA 99-09, 9 (8/9/10).

Appellant’s failures to abide by agency policy to call in as required and report his time accurately were violations of established performance standards. In re Abbey, CSA 99-09, 9 (8/9/10).

Appellant breached performance standards on work effort and cooperation by his frequent and substantial tardiness and absences from the work site which caused performance problems for the rest of his crew. In re Norris, CSA 68-09, 7 (7/12/10).

Where appellant’s PEP required effective oral communication using ideas and words appropriate to the listener and the situation, appellant violated this standard when she spoke to a customer in a loud, inappropriate and unprofessional manner, although the content of her words was appropriate and helpful, and there was no evidence of the customer's reaction. In re Lykken, CSA 26-10, 5 (7/7/10).

Where youth worker's evaluation required that he take responsibility for workplace safety, consider the safety of others, and implement behavior management techniques, he violated this rule by failing to intervene in a resident assault. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Project manager failed to meet performance standards on effective communication where her supervisor was frequently required to intervene to resolve matters because project manager was defensive and failed to resolve issues, resulting in project delays and a request by the contractor that she be removed as project manager. In re Harrison, CSA 55-07, 52 (6/17/10).

Proof that youth crisis center worker failed to conduct and document regular bed checks of the residents in her care established violation of standard of performance to observe all reporting standards. In re Carrillo, CSA 95-09, 4 (3/16/10).

Appellant's unexcused absence violated agency standard of accountability for putting in a full work day. In re Lottie, CSA 132-08, 4 (3/9/09).

Where agency failed to advance any evidence with respect to this rule, but appellants admitted they exceeded their lunch break by three minutes, appellants violated department lunch policy in violation of CSR 16-60 K. In re Compos et al, 56-08, 17 (12/15/08).

Agency proved appellant violated agency policy regarding the length of his lunch break where appellant admitted he exceeded one lunch period by nine minutes. In re Campos et al, 56-08, 20 (12/15/08).

Single infraction of essential confidentiality policy violated service performance standard, given the agency’s mission and its need to give its employees quick access to confidential information to do their jobs. In re Catalina, CSA 35-08, 9 (8/22/08).

Where appellant involved three employees in disclosure of confidential information, failed to report the incident to privacy officer as required by agency rule, and gave an incomplete report of the extent of the breach to her supervisor, her actions undermined trust among unit employees and violated teamwork performance standards in violation of §16-60 K. In re Catalina, CSA 35-08, 9 (8/22/08).

Where appellant was required to ensure confidentiality, and she accessed name of the informant in a child sexual abuse case in violation of state law and agency policy, she violated agency standards of accountability and ethics in violation of this rule. In re Catalina, CSA 35-08, 10 (8/22/08).

One incident of accessing and sharing confidential information in child sexual abuse case with potential legal consequences violated performance standard on accountability and ethics. In re Catalina, CSA 35-08, 10 (8/22/08).

Appellant’s failure to inform her supervisor immediately of her breach of confidentiality violated agency standard of accountability in violation of this rule. In re Catalina, CSA 35-08, 10 (8/22/08).

Appellant failed to convey information within 40 hours as required in his standards of performance when he did not communicate a claimant’s permanent work restrictions to analyst for two weeks. In re Sienkiewicz, CSA 10-08, 16 (7/14/08)

Agency proved supervisor failed to meet established standard of performance when she failed to ensure her staff met an acknowledged 30-day deadline for submitting document to auditor’s office. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 27 (5/30/08).

Where appellant’s job specifications and communication plan required him to inform his supervisor of the status of ongoing projects, appellant violated this rule when he failed to tell his supervisor that he ordered additional work from a contractor, and that he agreed to unit pricing rather than the usual hourly rate. In re Hill, CSA 69-07, 6 (1/23/08).

Deputy sheriff violated standards of performance contained in safety regulations and post orders prohibiting sleeping on job, negligent performance of duties, and departing from truth during investigation. In re Simpleman, CSA 05-06, 7 (5/16/06).

Appellant violated directive in performance review to avoid addressing female co-workers with terms of endearment that would offend or cause discomfort. In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Castaneda, CSA 79-03, 12 (12/18/02).

Appellant failed to meet the standards of performance set in her PEP by requiring her supervisor to perform her duties on a back-up basis well over the expected rate of 20% for performing those duties. In re Diaz, CSA 92-05, 7 (1/31/06).

Appellant failed to meet performance standards for treating employees with courtesy and respect when she refused to meet with her supervisor when requested, commenting that she communicated with her just fine. In re Diaz, CSA 92-05, 8 (1/31/06).

Appellant’s admission of problems with the established standard of punctuality proved a violation of the rule by a preponderance of the evidence. In re Diaz, CSA 45-05, 6 (9/7/05).

Agency city zoo established violation of standards of performance by proof of 1) existing safety protocol for emergency use of two-way radios, 2) that appellant was extensively trained in that protocol, and 3) appellant failed to follow the protocol, increasing danger to animals in an emergency. In re Owoeye, CSA 11-05, 5 (6/10/05).

Zookeeper violated established and communicated emergency protocol and standards regarding securing predators when he failed to keep polar bears separated and failed to use radio protocol. In re Owoeye, CSA 11-05, 5 (6/10/05).

Appellant violated the established standard of performance set by her PEP plan in the area of personal relations by her exhibition of a negative attitude towards co-workers and supervisors. In re Leal-McIntyre, CSA 167-03, 15 (1/27/05).

No violation found

Employee did not violate a PEPR's broad aspirational accountability and ethics standards of performance if those standards failed to provide notice of the measures used to determine compliance. In re Valdez, CSA 90-09, 6 (3/1/2010).

Proof that youth crisis center worker failed to supervise the youth in her care did not also establish that worker violated the standard of performance requiring her to provide basic daily care to all resident youth. In re Carrillo, CSA 95-09, 4 (3/16/10).

Employees who had supervisor's permission to travel and work together as team did not violate standard of performance for efficient performance of job duties by joint travel to supply shops. In re Compos, CSA 56-08, 13 (12/15/08).

Minor clerical errors in two days' activity logs did not prove violation of standards of performance where supervisor reviewed the logs on a daily basis, and performance review reported that the logs were accurate and complete. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Where appellant testified he believed he was on city business when he parked city vehicle on sidewalk in front of city building to check on his pay, and it was undisputed that employees are permitted to park city vehicles on sidewalk there while on city business, agency failed to prove appellant violated an established standard of performance. In re Compos et al, 56-08, 20 (12/15/08).

Performance standard of maintaining respect for others and helping to maintain a positive work relationship does not give notice to reasonable employee that confidentiality breaches are covered by that standard, given their specific coverage in other performance standards. In re Catalina, CSA 35-08, 10 (8/22/08).

Agency failed to prove appellant’s involvement of three other employees in her improper disclosure of confidential information violated performance standard of maintaining respect of others and helping to maintain a positive work environment, since the standard does not give notice to a reasonable employee that confidential breaches are covered by that standard, given their specific coverage in other standards of performance. In re Catalina, CSA 35-08, 10 (8/22/08), citing In re Mounjim, CSA 87-07, 14 (7/10/08).

Agency did not establish that hearing officer erroneously interpreted rule by failing to address performance standard of "no preventable accidents" where factual finding that accident was not preventable was not challenged. In re Sandrowski, CSA 58-07, 2 (CSB 8/21/08).

A single instance of failing to communicate needed information to a co-worker did not violate standard of performance for teamwork where that standard was measured by having 80% of co-workers rate him positively in the area of teamwork. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Appellant did not violate his standard of performance to respond to inquiries within 48 hours by failing to contact a supervisor to inform her of her employee’s decision not to file a claim where the supervisor did not ask appellant to call him back with that information. In re Sienkiewicz, CSA 10-08, 15 (7/14/08).

Allegation that appellant violated a standard of performance to represent agency in a positive manner based on his failure to comply with records retention policy was not established where agency failed to prove appellant violated the policy. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Appellant did not violate standard of performance to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz, CSA 10-08, 14 (7/14/08).

Appellant did not violate standard on teamwork by volunteering incorrect information to a co-worker, but correcting it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08

Agency failed to provide clear notice what needed to be included in appellant’s PIP project plan and by what standard compliance would be measured. In re Mounjim, CSA 87-07, 9-11 (7/10/08).

Where PIP did not state the standard by which compliance would be measured, appellant and a co-worker both testified they did not understand the duty stated in the PIP, and the agency did not provide the project plan template by which it allegedly measured compliance with the duty, agency failed to establish violation of rule. In re Mounjim, CSA 87-07, 9 (7/10/08).

Agency failed to prove appellant violated rule where the pre-disciplinary notice and evidence did not clearly define the performance standard so that a reasonably astute recreation coordinator should have understood how to meet that standard. In re Mounjim, CSA 87-07, 11 (7/10/08).

Allegation that appellant failed to document her meetings in the correct format did not establish violation of rule where agency did not prove appellant was given notice of the correct format. In re Mounjim, CSA 87-07, 12 (7/10/08).

Allegation that appellant failed to conduct a sufficient number of meetings with community members did not establish violation of PIP standards where supervisor gave cursory review to appellant’s 50-page binder showing meetings with 50 or more teachers, parents and staff, and agency did not prove there was a quantitative standard for what number of community meetings was sufficient. In re Mounjim, CSA 87-07, 12 (7/10/08).

Agency failed to communicate how appellant was to comply with PIP standard to conduct meetings to recruit new clients where appellant produced a 50-page binder about her promotional meetings, and her supervisor stated only that the binder was unsatisfactory. In re Mounjim, CSA 87-07, 12 (7/10/08).

Agency failed to rebut appellant’s evidence that she met her PIP requirement by documenting tasks arising from meetings within 30 days. In re Mounjim, CSA 87-07, 13-14 (7/10/08).

A broad condemnation of PIP compliance is inadequate notice under §16-60 K, because it fails to notify the employee what standards apply, what performance deficiencies the agency identified under those standards, and fails to identify how those deficiencies should be corrected. In re Mounjim, CSA 87-07, 9, 15 (7/10/08).

Agency’s PIP requirement “Monthly/Seasonal goals” does not clearly give appellant notice that she was expected to create goals independent of those assigned in PIP and that her failure to meet such goals would be grounds for discipline. In re Mounjim, CSA 87-07, 14 (7/10/08).

Where supervisor rated appellant’s performance successful less than one year before finding she failed to grasp the basic functions of her position, no rule violation was found absent proof of intentional refusal to perform essential functions or a significant change of duties. In re Mounjim, CSA 87-07, 14 (7/10/08).

Where several agency witnesses struggled to present a coherent definition of a PIP requirement, no written example clarified the disparate explanations, and the agency did not present evidence how the requirement was explained, if at all, to the appellant at the time the PIP was presented to her, then agency failed to prove appellant failed to meet this PIP standard. In re Mounjim, CSA 87-07, 10 (7/10/08).

Where agency failed to communicate its 30-day deadline for submitting audit documents to appellant, it did not prove that appellant’s late submittal of those documents failed to meet an established performance standard. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 18-19, 33 (5/30/08).

Agency’s mere recitation of audit errors without proof of performance standard for audits fails to establish violation of rule. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 19, 33-34 (5/30/08).

Agency failed to prove appellant violated her PEP standard for customer service based on her failure to meet auditor’s goal to receive separation documents within 30 days. In re Mestas et. al., CSA 64-07, 37 (5/30/08).

Where agency failed to communicate its 30-day deadline for submitting audit documents to appellant, it did not prove that appellant's late submittal of those documents failed to meet an established performance standard. In re Mestas et al., CSA 64-07, 18-19, 33 (5/30/08).

Agency's mere recitation of audit errors without proof what standard was violated, fails to establish violation of rule. In re Mestas et al., CSA 64-07, 19, 33-34, 38 (5/30/08).

Agency's claim that appellant failed to meet 30-day deadline which "has been a long standing recognition by you" did not rebut appellant's denial that she was apprised of the deadline before being served with letter of contemplation. In re Mestas et al., CSA 64-07, 36 (5/30/08).

Agency failed to prove driver’s restroom stop violated agency’s performance standards regarding agency integrity, leave reporting, or work hours. In re Dessureau, CSA 59-07, 8 (1/16/08).

Statements made during a safety class that amount to mere cautions do not rise to the level of a performance standard or an agency rule or procedure. In re Sandrowski, CSA 58-07, 13 (2/6/08).

Agency failed to present evidence of existence of performance standards violated by officer’s order to secure aggressive prisoner. In re Brown, CSA 102-05, 9 (2/15/06).

Agency failed to establish a violation of this rule by a preponderance of the evidence when it did not prove how appellant failed to meet the cited PEP requirements. Name redacted, CSA 190-03, 8 (2/13/06).

Agency failed to show how appellant’s affair with supervisor affected her ability to lead her team, and therefore agency did not establish violation of standard of performance. Name redacted, CSA 190-03, 8 (2/13/06).

Agency did not prove appellant failed to meet performance standard to act as positive influence when there was no evidence that appellant’s act in furnishing information to applicants negatively affected morale among employees. In re Martinez, CSA 69-05, 8 (1/4/06).

Where evidence of performance standards is lacking, the violation is not established. In re Williams, CSA 65-05, 5 (11/17/05).

Where agency charged appellant with violation of standards that could not reasonably be met, agency failed to prove appellant violated rule. In re Martinez, CSA 19-05, 8 (6/27/05).

Where only evidence of existence of performance standard was supervisor's testimony that he expected appellant to act professionally when dealing with people who deal with him, agency failed to prove objective evidence of an established performance standard. In re Routa, CSA 123-04, 3 (1/27/05), citing In re Tafoya, CSA 72-04 (10/29/04).

Where agency presented no objective evidence of an established performance standard, even by custom or use, agency did not prove appellant violated this rule. In re Routa, CSA 123-04, 3 (1/27/05).

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16-60 L: Violation of Written Regulations, Policies, or Rules

In general

In determining violation of departmental rule prohibiting workplace violence, it is a reasonable person’s reaction that is controlling, not the intent of the actor. In re Lykken, CSA 26-10, 6 (7/7/10).

Agency must cite the specific regulation, policy or rule violated by appellant's conduct. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Unlike § 16-60 K., this rule includes performance deficiencies not covered by performance measurements from annual evaluations. In re Cady, CSA 03-10, 5 (4/22/10).

An agency’s written policies are enforceable under this rule. In re Cady, CSA 03-10, 5 (4/22/10).

Agency’s failure to consider the effect of appellant’s conviction on her fitness to perform, or the city’s reputation or integrity pursuant to CSR § 16-61 C., requires reversal of the discipline based on being charged with a crime in violation of departmental rule. In re Chavez, CSA 129-08, 5 (2/2/2010).

Departmental rules, must be clear, reasonable, and uniformly enforced before enforcement will be sustained. In re Norman-Curry, CSA 28-07 and 50-08, 5 (2/27/09).

A standing order does not require an additional direct order to be enforceable. In re Norman-Curry, CSA 28-07and 50-08, 5 (2/27/09).

A course of conduct argument is a valid defense to a standing order, but only in the absence of a subsequent directive which provides reasonable notice of the intent to enforce it. In re Norman-Curry, CSA 28-07 and 50-08, 5 (2/27/09).

Agency’s failure to provide notice of the regulation, policy, or rule it intends to use as a basis for discipline under this rule is a bar to assessing discipline under this rule on that basis. In re Owens, CSA 69-08, 5 (2/6/09).

Deportment rules and policies are not intended to police every perceived affront in the workplace. In re Owens, CSA 69-08, 5 (2/6/09).

Aspirational departmental policy statements or standards, indicated by the terms “should” and “strive to”, are not on a par with compulsory standards, which may be enforced by discipline. In re Sawyer and Sproul, CSA 33-08, 11 (1/27/09).

Violation of a policy directive that depends on the subjective belief of the employee can be proven only by the employee’s admission. In re Sawyer and Sproul, CSA 33-08, 14 (1/27/09).

Hearing officer’s interpretation that this rule requires proof of intent before discipline may be imposed was incorrect. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

To prove a violation of this rule, the agency need only to prove that there was a written policy, the employee was aware of the policy, and the employee failed to follow the policy. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

An agency establishes an employee's failure to observe regulation by proving 1) an oral or written departmental regulation, 2) notice to the employee of that regulation, and 3) the employee's failure to comply with the regulation. In re Mounjim, CSA 87-07, 17 (7/10/08), citing In re Mitchell, CSA 05-05, 6 (6/27/05); In re Casteneda, CSA 79-03 (1/14/04).

Agency must produce evidence that what is being enforced is in fact a policy, and that appellant had actual notice of that policy. In re Mounjim. CSA 87-07, 15-16 (7/10/08), citing In re Stone, CSA 70-07, 10 (2/25/08); In re Gagliano, CSA 76-06, 7-8 (1/2/07).

In order to establish a violation of this rule, an agency must establish that what is being enforced is in fact a policy, and that employees have notice of that policy. In re Stone, CSA 70-07, 10 (2/25/08), citing In re Gagliano, CSA 76-06, 7-8 (1/2/07).

Guidelines that provide parameters for the exercise of discretion by city prosecutors in making plea offers must be interpreted consistently with that intent. In re Stone, CSA 70-07, 10 (2/25/08) citing In re Gagliano, CSA 76-06, 6 (1/2/07); United States v American Trucking Assns., Inc., 310 U.S. 534, 543 (1940), 73 Am. Jur. 2d Statutes § 134.

Memo that gave parameters for the exercise of discretion did not define an action that must be taken under specific circumstances, and therefore was not enforceable as a policy. In re Stone, CSA 70-07, 10 (2/25/08).

An agency policy need not be in writing to be enforceable. In re Rivas, CSA 49-07, 10 (1/9/08).

Immoral conduct prohibited by departmental rule is conduct which violates notions of good or right, when judged by the standards of the average person of society at large. In re Delmonico, CSA 53-06, 6 (10/26/06), citing Encarta Online Dictionary, http://uk.encarta.msn.com (Jan. 26, 2006).

Agencies may not adopt policies, regulations, orders, or directives that conflict with the Career Service Board Rules. In re Espinoza, CSA 30-05, 2 (CSB 8/23/06).

Hearing office has enforced agency attendance regulations unless they are inflexibly applied in a manner that deprives an employee of the use of accumulated sick leave under any conditions. In re Garcia, CSA 123-05, 5 (2/27/06).

Departmental attendance regulation is a reasonable measure to control staffing, budget, and overtime, implemented in a manner that does not burden employee’s right to use sick leave. In re Garcia, CSA 123-05, 6 (2/27/06).

An agency establishes an employee's failure to observe regulation by proving 1) an oral or written departmental regulation, 2) notice to the employee of that regulation, and 3) the employee's failure to comply with the regulation. In re Mitchell, CSA 05-05, 6 (6/27/05) (decided under former § 16-51 A.5), citing In re Casteneda, CSA 79-03 (1/14/04).

Violation found

Appellant violated agency policy requiring staff to punch out for all absences of more than 15 minutes when video surveillance and badge records showed he was absent for 25 minutes without punching out. In re Abbey, CSA 99-09, 9 (8/9/10).

Appellant’s explanation for his unauthorized absence in excess of allotted 15 minutes - that he first did errands within the building so that his absence outside the building was less than 15 minutes - was not credible in light of video surveillance and his badge records which confirmed his absence from the building for 25 minutes. In re Abbey, CSA 99-09, 9-10 (8/9/10).

Appellant violated agency's computer user agreement signed by him at hire when he admitted that he provided his password to a co-worker so co-worker could email him pictures of sleeping colleagues from his email account. In re Norris, CSA 68-09, 7 (7/12/10).

Appellant violated DIA’s rule against violence in the workplace where without provocation she stood above co-worker, waved her arms, thrust a paper toward her repeatedly, and used an increasingly shrill, aggressive, and angry voice even after co-worker tried to defuse the situation, and co-worker's reaction of feeling intimidated was reasonable. In re Lykken, CSA 26-10, 5-6 (7/7/10).

Appellant's assessment of her actions do not weigh as heavily as a co-worker's reasonable reactions to those actions and the observations of those who witnessed the incident. In re Lykken, CSA 26-10, 6 (7/7/10).

Appellant’s claim that she was not intimidating was not credible where she claimed: her shrill voice was merely exuberance, but a reasonable person would be intimidated; she often talks with her hands, but her wild arm-waving would be intimidating to a reasonable person; she was not unduly threatening since security was not called, but co-worker merely showed restraint in not doing so. In re Lykken, CSA 26-10, 6 (7/7/10).

Youth worker violated agency policy requiring intervention and punishment for resident misconduct where he failed to intervene in a resident assault. In re O’Meallie, CSA 92-09, 5-6 (6/18/10).

Where agency rule requires employees to notify their supervisors when they expect to be absent from work, appellant violated rule by taking the rest of the day off after serving less than three hours on jury duty without notifying his supervisor. In re Martin, CSA 08-10 (5/24/10).

Pushing inmate into elevator for requesting a sack lunch was excessive use of force in violation of sheriff’s dept. regulation. In re Koehler, CSA 113-09, 12 (4/29/10).

Inmate’s statement “I’ll kick your white ass” from behind a locked gate was not active aggression justifying deputy’s actions in pushing him into wall and grabbing his neck. In re Koehler, CSA 113-09, 13 (4/29/10).

Deputy’s kick to head of inmate who tried to move out of cell is excessive use of force where inmate was cuffed and under the control of another deputy. In re Koehler, CSA 113-09, 14 (4/29/10).

Deputy’s kick to inmate’s head was not justified as an attempt to gain compliance with an order where deputy admitted he gave no order. In re Koehler, CSA 113-09, 14 (4/29/10).

Presence of infectious disease was not a threat of assault by inmate under use of force policy, but was a circumstance to be considered in assessing amount of reasonable force to be used. In re Koehler, CSA 113-09, 14 (4/29/10).

Deputy humiliated an inmate in violation of policy by slamming him against wall for delaying his entry into the elevator. In re Koehler, CSA 113-09, 15 (4/29/10).

Deputy punished an inmate in violation of use of force policy by kicking him in the head when he demonstrated defensive resistance by trying to get out of a cell. In re Koehler, CSA 113-09, 15 (4/29/10).

Where procedures manual and training made appellant aware of proper procedures that would have avoided errors, appellant's mistakes were violations of this rule. In re Cady, CSA 03-10, 5-6 (4/22/10).

Youth crisis center worker’s failure to conduct bed checks every 15 minutes violated this rule where policy and procedure manual required that bed checks be done and documented every 15 minutes. In re Carrillo, CSA 95-09, 5 (3/16/10).

Facts which establish a violation of career service rule against dishonesty also prove a violation of sheriff’s department rule against prohibiting departure from the truth. In re Carter, CSA 87-09, 6 (2/17/10), citing 16-60 E, S.D. Rule 200.4.

Appellant’s accusation of snitching to another deputy was inherently disrespectful and abusive, in violation of sheriff’s department rule prohibiting disrespectful language toward other employees. In re Carter, CSA 87-09, 6 (2/17/10); S.D. rule 200.15.

Deputy violated rule prohibiting discussion of investigation with others when he told co-worker to give a false statement to internal affairs. In re Carter, CSA 87-09, 6 (2/17/10).

Where several superiors issued orders to appellant to desist from crocheting on post, and unrebutted testimony from co-workers established the orders were clear, the clear expression prong of CSR 16-60 L is established. In re Norman-Curry, CSA 28-07 and 50-08, 5 (2/27/09).

Sheriff department testimony, that prohibition against knitting needles was based upon need for deputies to devote their full attention to their posts and that such needles could easily be converted by inmates into weapons, met reasonableness prong of CSR 16-60 L. In re Norman-Curry, CSA 28-07 and 50-08, 6 (2/27/09).

Where other deputies knitting at the same time as appellant were disciplined for their failure to devote their full attention to their duties, the uniform enforcement prong of CSR 16-60 L was met. In re Norman-Curry, CSA 28-07 and 50-08, 6 (2/27/09).

Appellant's knitting on duty prevented her from giving her full attention to her primary duties, in violation of departmental order. In re Norman-Curry, CSA 28-07 and 50-08, 5 (2/27/09).

Where sheriff's department dress code prohibited hair adornments that are not minimal size, plain design, and matching or dark color, appellant's persistent refusal to remove seven-inch long, brightly colored, flapping butterfly hair sticks that did not match her hair was a violation of dress code under this rule. In re Norman-Curry, CSA 28-07 and 50-08, 9 (2/27/09).

Deputy sheriff's unjustified violence against an inmate was disorderly performance of her duty to keep inmates safe. In re Norman-Curry, CSA 28-07and 50-08, 22 (2/27/09).

Agency established that appellant was dishonest in violation of departmental rule when appellant's description of her use of force against inmate and assertion that force was justified because other deputy involved had difficulty controlling inmate were contradicted by other deputy's testimony and by Diginet recording of the incident. In re Norman-Curry, CSA 28-07and 50-08, 21-22 (2/27/09).

Deputy sheriff's crocheting while on post violated department order to devote undivided attention to duties. In re Norman-Curry, CSA 28-07and 50-08, 5 (2/27/09).

Orders to deputy sheriff to desist from crocheting while on post and cease bringing crochet needles to work were clear, reasonable, and uniformly enforced where other deputies present when orders were issued understood them; the needles were potentially harmful and their use prevented deputy from giving full attention to her post; and other deputies who engaged in needlework while on post were disciplined. In re Norman-Curry, CSA 28-07and 50-08, 5 (2/27/09).

When deputy sheriff engaged in extended dispute of superior's directive to leave crochet needles out of the jail, she violated departmental order not to display disrespectful language toward her supervisor. In re Norman-Curry, CSA 28-07and 50-08, 6 (2/27/09).

Once appellant was ordered not to crochet on post, she had reasonable notice that a standing order to devote undivided attention to her duties would be enforced, even if it had not been enforced previously. In re Norman-Curry, CSA 28-07and 50-08, 6 (2/27/09).

Deputy sheriff's persistent non-compliance with sheriff department's uniform policy, particularly after being ordered to comply, was a violation. In re Norman-Curry, CSA 28-07and 50-08, 10 (2/27/09).

Deputy sheriff who yelled obscenities at a secured inmate during book-in, distracted deputies engaged with other inmates, and disrupted the book-in area, with potentially dangerous results, violated written departmental rule against disorderly performance of duties. In re Norman-Curry, CSA 28-07and 50-08, 15 (2/27/09).

Deputy sheriff's loss of control when she yelled obscenities at inmate through closed door, causing other inmates to yell back and diverting other officers' attention from control of other inmates, breached her primary duties of care, custody and control of inmates, in violation of departmental rule. In re Norman-Curry, CSA 28-07and 50-08, 16 (2/27/09).

Deputy sheriff who yelled obscenities at inmate, threatened and harassed inmate in violation of departmental rule. In re Norman-Curry, CSA 28-07and 50-08, 16 (2/27/09).

Deputy sheriff's claim, that yelling obscenities at inmates is sometimes appropriate, pursuant to sheriff dept. training, to obtain respect and attention of inmates by reacting at their level, was rebutted by trainer, thus in violation of department rule against abuse of inmates. In re Norman-Curry, CSA 28-07 and 50-08, pp.14-16 (2/27/09).

Deputy sheriff violated departmental order on proportionate use of force when she shoved the face of a non-threatening, though drunk and argumentative, inmate into a Plexiglass ® window three times, unnecessarily increasing the force of each shove. In re Norman-Curry, CSA 28-07and 50-08, 18 (2/27/09).

Deputy sheriff who used force upon an inmate violated department rule when she failed to file a use-of-force incident report required by that department rule. In re Norman-Curry, CSA 28-07and 50-08, 20 (2/27/09).

Even though sheriff department use of force rule permits grabbing inmate's hair to prevent spitting, appellant's repeated slamming of inmate's head into Plexiglas®, after inmate was under control was disproportionate response, in violation of agency rule regarding use of force. In re Norman-Curry, CSA 28-07 and 50-08, pp 19 (2/27/09).

Where deputy sheriff justified repeatedly slamming the face of a shackled inmate into Plexiglas® window because the inmate had spit in her face, potentially exposing her to AIDS virus, deputy's justification under use of force rule became suspect when deputy acknowledged she did not seek prophylactic course of treatment following the incident. In re Norman-Curry, CSA 28-07 and 50-08, 21 (2/27/09).

Appellant violated rule when he thrust his parking warning citation toward his supervisor and said, in a loud voice, that he would park wherever he wanted. In re Owens, CSA 69-08, 6 (2/6/09).

Employees’ refusal to discontinue their contractual relationship with a client of the agency was incompatible with their duty of loyalty, in violation of agency policy. In re Sawyer and Sproul, CSA 33-08, 12 (1/27/09).

Appellant’s refusal to seek approval from agency before soliciting outside business violated policy requiring employees to report any situation that may become a conflict of interest where agency expressed a desire to re-enter the field of providing paramedic services to special events. In re Sawyer and Sproul, CSA 33-08, 12 (1/27/09).

Agency’s withdrawal from the field of providing paramedic services to special events was not a defense to charge of reporting actual or potential conflicts of interest. In re Sawyer and Sproul, CSA 33-08, 12 (1/27/09).

Appellant’s admission that he was required to disclose potential conflicts of interest to his supervisor was sufficient to prove his violation of agency regulation despite his statement that others were not required to disclose outside employment, where the activities of the others could not reasonably be considered in conflict with the agency’s paramedic activities. In re Sawyer and Sproul, CSA 33-08, 13 (1/27/09).

Appellant violated agency directive to disclose or resolve conflicts of interest when he told his supervisor his outside business had been sold, resolving all conflicts, when it had not been. In re Sawyer and Sproul, CSA 33-08, 13 (1/27/09).

City paramedics failed to establish any privacy right to engage in outside paramedic service in light of agency hospital’s rule prohibiting employees from holding outside employment that may place paramedics in a conflict of interest with the hospital. In re Sawyer and Sproul, CSA 33-08, 16 (1/27/09).

Where appellant was aware field trip fees were set by city ordinance, she received training on fee schedules, and was aware the fees were kept in a note book by the front desk, discipline was warranted for overcharging public for field trip fees. In re Mounjim, CSA 87-07, 6 (CSB 1/8/09).

Punching in early, causing unauthorized overtime, violates agency policy requiring timely punch-ins. In re Williams, CSA 53-08, 5 (12/19/08).

Where agency policy required submission of a leave slip for training, appellant violated policy by leaving work to attend training without submitting a leave slip. In re Williams, CSA 53-08, 5-6 (12/19/08).

Where agency attendance policy required timely punch-in, and appellant arrived to work on time but forgot to punch in, appellant violated agency policy and this rule. In re Williams, CSA 53-08, 6 (12/19/08).

One-block detour to pick up breakfast violated departmental policy that breaks could only be taken while en route to work assignments. In re Compos, CSA 56-08, 16 (12/15/08).

Twenty-eight minute round trip to get lunch in city vehicle violated departmental policy prohibiting lunch travel exceeding a two-mile radius from job site in city vehicle. In re Compos, CSA 56-08, 17 (12/15/08).

Lunch in excess of allotted time violated departmental policy on lunch breaks. In re Compos, CSA 56-08, 17, 19 (12/15/08).

Appellants' acknowledgment that they believed their three-minute detour for to pick up food exceeded their permission constituted violation of departmental policy related to breaks in violation of rule. In re Compos et al, 56-08, 16 (12/15/08).

Appellant violated department rule on found property by failing to turn over co-worker's mislaid ring to custodian or return it to owner. In re Galindo, CSA 39-08, 11 (9/5/08).

Appellant's long breaks and lunches off campus violated department policies restricting duration and location of work breaks. In re Galindo, CSA 39-08, 11 (9/5/08).

Appellant’s intentional actions in sharing confidential information in an investigative file on child abuse violated agency’s confidentiality policy, and therefore established violation of this rule. In re Catalina, CSA 35-08, 7 (8/22/08).

When human services employee accessed and shared confidential information for personal rather than business reasons, she violated agency’s confidential policy in violation of §16-60 L. In re Catalina, CSA 35-08, 7 (8/22/08).

Supervisor’s failure to correct appellant’s email quotation of fee Appellant overcharged participants did not excuse appellant’s violation of rule where she acknowledged fees are set by ordinance and may not be changed by her or her supervisor. In re Mounjim, CSA 87-07, 18 (7/10/08).

Deputy sheriff who slapped fellow officer on the buttocks in front of four of his peers and followed this with insulting banter with another officer violated a departmental order prohibiting intimidating, threatening, or hostile behavior and assault, and a departmental rule banning abusive behavior towards any department employee, and therefore violated this rule. In re Rogers, CSA # 57-07, 6 (3/18/08).

Agency proved recreation coordinator violated center’s closing policy by credible eyewitness testimony that he stayed in the center with another employee after closing time on two occasions, and appellant’s admission that he was in the center after hours on a third date. In re Rivas, CSA 49-07, 9 (1/9/08).

Deputy sheriff who swore at, planned to assault and did assault another deputy violated departmental rule prohibiting disrespectful or abusive language or behavior toward other employees. In re Delmonico, CSA 53-06, 6 (10/26/06).

Deputy engaged in immoral conduct when he tackled fellow deputy in revenge for a perceived affront. In re Delmonico, CSA 53-06, 6 (10/26/06).

Deputy’s assault on another employee constituted disorderly conduct in violation of departmental rule because it diminished deputy’s ability to deal effectively with unruly inmates, and was therefore conduct that would impair the orderly performance of duties. In re Delmonico, CSA 53-06, 7 (10/26/06).

Deputy’s assault on another employee constituted violence in the workplace in violation of departmental policy. In re Delmonico, CSA 53-06, 7 (10/26/06).

Deputy sheriff violated departmental rules by making misleading statements, failing to devote attention to duties, and disobeying orders. In re Simpleman, CSA 31-06 (10/20/06), affirmed CSB 8/2/07; In re Martinez, CSA 30-06, 8-9 (10/3/06).

Deputy sheriff violated departmental regulations prohibiting sleeping on job, negligent performance of duties, and departing from truth during investigation. In re Simpleman, CSA 05-06, 7-8 (5/16/06).

Deputy sheriff who delivered responses to inmate grievances that were intended to humiliate the inmates violated departmental policies requiring that duties be performed with dignity, professionalism, and respect for inmates. In re Gonzales, CSA 07-06, 7 (5/4/06).

Deputy sheriff violated departmental rules prohibiting dishonesty, actions seeking undue advantage, and violations of law and Career Service rules by requesting special treatment as deputy sheriff when charged with theft of a beer while off duty. In re Mergl, CSA 131-05, 7 (3/13/06).

Deputy sheriff violated reasonable departmental regulation on use of sick leave when she took thirteen unplanned absences over a twelve-month period, despite notice of alternative methods available to avoid serious discipline for unplanned absences. In re Garcia, CSA 123-05, 6 (2/27/06).

Where supervisor failed to follow departmental security policy by entering secured area and door in courthouse, he violated this rule. In re Mestas, 37-05, 7 (8/4/05).

Appellant violated CSA policy prohibiting personal use of work computer when she sent a vulgar email to coworkers during work hours. In re Garcia, CSA 175-04, 4 (7/12/05).

Appellant violated zoo regulations by his failure to comply with no-smoking policy known to him. In re Schultz, CSA 156-04, 9 (6/20/05) (decided under former § 16-51 A.5).

Appellant violated departmental regulations regarding sick leave by his absence for more than 80 hours to care for a sick family member. In re Kinfe, 161-04, 6 (3/16/05).

When appellant disrupted a team meeting and expressed disrespect for the opinions of his co-workers by swearing, pounding his fist on the table, and storming out of the meeting, the agency established rule violation by his failure to observe agency policy requiring professional behavior. In re Green

No violation found

Youth crisis center counselor did not violate agency regulation by taking youths to a horror movie instead of an approved movie, despite testimony of its potentially traumatic effects, where there was no evidence of a written regulation, policy or rule prohibiting this conduct. In re Abbey, CSA 99-09, 10 (8/9/10).

Fact that inmate hit his head while resisting the efforts of three deputies to restrain him does not establish excessive use of force under agency regulation. In re Koehler, CSA 113-09, 13 (4/29/10).

Deputy did not commit disorderly conduct within meaning of sheriff’s policy by slamming inmate against wall, causing him to become aggressive. In re Koehler, CSA 113-09, 15 (4/29/10).

A failed attempt to disobey a lawful order is not a violation of departmental rule prohibiting disobedience to an order. In re Carter, CSA 87-09, 6 (2/17/10); S.D. rule 200.13.

Announcement on the public address system inviting inmates to guess the sexual orientation of another employee was not sufficiently outrageous to create hostile work environment harassment in violation of departmental rule. In re Carter, CSA 87-09, 7 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Department orders couched in aspirational terms such as "should adhere," "strive for excellence," and to be "accountable for everything we do" are too vague to enforce. In re Norman-Curry, CSA 28-07 and 50-08, pp 7, 17(2/27/09).

Agency failed to present sufficient proof of deputy sheriff's dishonesty about inmate's spitting where video evidence was subject to varying interpretations and one witness allowed for the possibility that appellant was correct. In re Norman-Curry, CSA 28-07and 50-08, 21(2/27/09).

Written directives couched in vague, aspirational terms like "accountable for everything we do" and "strive for excellence" and reference to the golden rule provide guidance but are not orders to be enforced. In re Norman-Curry, CSA 28-07and 50-08, 7 and 17 (2/27/09).

Rule violation was not proven where agency did not specify the employee conduct alleged to have violated a written departmental rule. In re Norman-Curry, CSA 28-07and 50-08, 16 (2/27/09).

Sheriff department rule which requires every witness to the use of force to file a "use of force" report, does not apply to the user of force. It is illogical to require the actor to witness her own actions, particularly since another rule requires the actor to file a use of force report. In re Norman-Curry, CSA 28-07and 50-08, 21 (2/27/09).

Where agency proved that appellant violated an agency rule but failed to cite it as a basis for discipline under this rule, no discipline may be assessed. In re Owens, CSA 69-08, 5 (2/6/09).

No discipline could be assessed under this rule for failure to observe agency parking restrictions, where agency did not cite its parking rules as a basis for discipline. In re Owens, CSA 69-08, 5 (2/6/09).

Evidence that employees violated a departmental policy acquired after their dismissal will not be considered on the issue of violation of the policy. In re Sawyer and Sproul, CSA 33-08, 12, 14 (1/27/09).

Appellants did not violate agency rule against profiting financially from outside sources by citing their city employment experience as credentials to solicit business for their private business. In re Sawyer and Sproul, CSA 33-08, 14 (1/27/09).

Agency failed to prove violation of rule prohibiting profiting “if you think an action may be a conflict of interest” where appellant did not admit he believed his actions created a conflict with the agency. In re Sawyer and Sproul, CSA 33-08, 14 (1/27/09).

Where agency approved sick leave, appellant did not violate policy requiring employees to submit a doctor's slip if ordered to do so. In re Williams, CSA 53-08, 6 (12/19/08).

Employees who had supervisor's permission to travel and work together as team did not violate agency directive that considered unnecessary trips unproductive unless approved by a supervisor. In re Compos, CSA 56-08, 13 (12/15/08).

Lunch and breaks that did not exceed their allotted times did not violate department rules despite error in recording those breaks on daily log. In re Compos, CSA 56-08, 17 (12/15/08).

Agency failed to prove employee violated policy by driving his city vehicle to do personal errand where evidence showed employee was en route to an authorized work location, and break did not exceed time allotted. In re Compos, CSA 56-08, 18 (12/15/08).

Evidence did not prove employee's log was inaccurate where agency's theory requires a finding that employee engaged in an elaborate scheme to conceal his whereabouts at a time when it was not in question. In re Compos, CSA 56-08, 18 (12/15/08).

Where agency claimed appellants worked only two hours at their home base while their logs claimed over four hours, but agency's evidence was inconclusive, agency failed to prove appellants violated any departmental rule or policy. In re Compos, 56-08, 16 (12/15/08).

Agency failed to prove employee violated agency policy by fraudulently attesting on his PEPR that he had a valid driver's license where the county court erroneously caused the suspension, and employee was unaware of that suspension until after the PEPR was signed. In re Compos, CSA 56-08, 20 (12/15/08).

Agency record retention policy was not violated where HR analyst placed duplicate worker’s compensation documents in shredder before date of mandatory destruction under policy. In re Sienkiewicz, CSA 10-08, 11 (7/14/08).

Appellant did not violate internal policy or practice prohibiting destruction of critical documents where agency commingled documents from several shredders, agency did not notify appellant of policy, and documents were not critical to operation of agency. In re Sienkiewicz, CSA 10-08, 12 (7/14/08).

Agency did not establish violation of agency internet policy where agency did not rebut appellant’s evidence that he listened to music through radio station’s website during work hours, and used Google to research ergonomic issues as part of his duties. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

Agency failed to prove associate city attorney violated agency regulations on plea offers when evidence showed that his plea offers followed office practice. In re Stone, CSA 70-07, 10 (2/25/08).

Where agency did not prove that city truck driver involved in accident with bicyclistfailed to review safety procedures, or that he violated and regulations, procedures, or traffic law, violation was not established. In re Sandrowski,CSA 58-07, 13 (2/6/08).

Agency failed to prove appellant’s conduct violated a specific policy regulating alcohol use by employees or in agency facilities when it did not submit a copy of the policy. In re Rivas, CSA 49-07, 10 (1/9/08).

An employee does not violate fraud prevention rule by disclosing a close relationship or potential conflict of interest, but by failing to disclose such facts. In re Butler, CSA 78-06, 6 (1/5/07).

Deputy did not engage in indecent conduct when he tackled fellow deputy in revenge for a perceived affront, as indecent conduct is conduct that is so offensive as to be unacceptable under current community mores, and seems to be reserved for sexual content. In re Delmonico, CSA 53-06, 7 (10/26/06).

Agency failed to prove conduct prejudicial to the department by deputy sheriff’s actions in playing cards on duty, since the matter was internal and therefore did not create a public perception of untrustworthiness. In re Martinez, CSA 30-06, 9 (10/3/06).

Departmental policy prohibiting sexual harassment was not violated by appellant addressing co-worker as “babe”, “baby” or “honey”, when co-worker's reaction was that comment lacked professionalism but was not sexually oriented. In re Hernandez, CSA 03-06, 8 (5/3/06), citing Dubiel v. USPS, 54 MSPR 428, 433-34 (1992).

Appellant did not violate agency regulation requiring appellant to provide doctor's note verifying illness to supervisor upon request when supervisor’s request did not occur until after appellant would have recovered from illness, and any doctor’s note would be ineffective to confirm appellant’s illness. In re Clayton, CSA 128-05, 6 (3/21/06).

Agency failed to show appellant was absent without authorization under departmental rule. In re Garcia, CSA 123-05, 4 (2/27/06) (decided under former §16-50 A. 13).

Appellant did not violate departmental rule against being absent without leave where agency’s absence report shows appellant was allowed to use accrued sick leave for each of the absences at issue. In re Garcia, CSA 123-05, 4 (2/27/06).

Agency did not prove appellant failed to comply with department policy regarding calling in sick by proof that she used excessive sick leave. In re Garcia, CSA 123-05, 5 (2/27/06).

Appellant did not violate departmental policies prohibiting excessive use of force in ordering the dragging of an aggressive, intoxicated prisoner to his cell where alternatives would have been ineffective, and dragging was proportional to the threat faced by the prisoner’s behavior. In re Brown, CSA 102-05, 3-8 (2/15/06).

Dragging as use of force to transport prisoner was not rendered unreasonable under department policy by the fact that it resulted in exposure of prisoner’s genitals, caused by his refusal to obey several orders to pull up his pants. In re Brown, CSA 102-05, 7 (2/15/06),citing Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983).

Dragging prisoner to cell which caused exposure of prisoner who refused to pull his pants up did not impose humiliation in violation of departmental rules because interest in maintaining prison security outweighed privacy rights under the circumstances. In re Brown, CSA 102-05, 8 (2/15/06), citing Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983).

An officer shows respect to every prisoner by even-handed application of prison policies for the purpose of safe detention of prisoners. In re Brown, CSA 102-05, 9 (2/15/06).

Appellant did not violate policies prohibiting mistreatment of prisoners merely because he took steps needed to secure prisoner when prisoner’s pants were down. In re Brown, CSA 102-05, 9 (2/15/06).

Agency failed to prove appellant violated departmental rule mandating discipline after specific number of uses of sick leave because rule conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza, CSA 30-05, 9 (1/11/06), petition for review denied, CSB 8/23/06.

Departmental rule requiring discipline after an employee takes a certain number of days of earned sick leave creates an irreconcilable friction with Career Service Rules by leaving no room for the legitimate application of §11-32, which authorizes the use of sick leave, and §11-36 b), which authorizes an investigation of use of sick leave. In re Espinoza, CSA 30-05, 5-7 (1/11/06), petition for review denied, CSB 8/23/06.

Undersheriff’s conlusion that appellant abused sick leave based on taking of sick leave over a certain number of days impermissibly violated her right to take accumulated sick leave. In re Espinoza, CSA 30-05, 5-6 (1/11/06), petition for review denied, CSB 8/23/06.

Agency failed to prove any special order or procedure regarding the taking of sick leave, and therefore violation of rule was not established. In re Espinoza, CSA 30-05, 7-8 (1/11/06) (decided under former §16-51 A. 5), petition for review denied, CSB 8/23/06.

Employee who moved his city vehicle after an accident did not violate rule in the absence of proof of a departmental regulation prohibiting that behavior and any resulting injury, damage or jeopardy to the safety of self of others. In re Hobley, CSA 61-05, 6 (12/19/05) (decided under former § 16-51 A. 5).

Employee who failed to have his driver’s license on his person at the time of an accident did not violate a departmental regulation to maintain a valid license and insurance. In re Hobley, CSA 61-05, 6 (12/19/05).

A single inappropriate comment was not so outrageous that it constituted a violation of departmental policy against sexual harassment under the rule. In re Smith, CSA 17-05, 6 (7/07/05) (decided under former § 16-51 A.5).

Where the agency determined whether a crime was a “ crime excluding minor traffic violations” on a case-by-case basis based on research and legal advice, an employee's reliance on agency's past interpretation of that phrase does not violate departmental regulation requiring that employees furnish accurate information on employee forms. In re Mitchell, CSA 05-05, 7 (6/27/05).

Sheriff's Department Rules, Policies, and Orders

Rule 200.2 Deputy sheriffs and employees, if witness to the use of force, shall not fail to report the use of force to a supervisor, nor fail to make a complete report to a supervisor

This rule applies to a witness to, and not the actor in, a use of force incident. It is illogical to require the actor to witness her own actions, particularly since another rule requires the actor to file a use of force report. In re Norman-Curry, CSA 28-07and 50-08, 21 (2/27/09).

Rule 200.4 Deputy sheriffs and employees shall not depart from the truth, knowingly make misleading statements, or falsify any report, record, testimony, or work related communications.

Rule 200.9 Deputy sheriffs and employees shall not fail to devote undivided attention to their duties.

Appellant's knitting on duty prevented her from giving her full attention to her primary duties, in violation of departmental order. In re Norman-Curry, CSA 28-07 and 50-08, 5 (2/27/09).

Rule 200.13 Deputies shall not refuse to obey a lawful order of a supervisor

Supervisor's directive need not be prefaced with words like "I order you" to be the lawful order of a superior. In re Norman-Curry, CSA 28-07and 50-08, 9 (2/27/09).

Rule 200.15 Deputy sheriffs and employees shall not willfully or intentionally display any disrespectful, insolent or abusive language or behavior toward any supervisor, department employee, employee of other official agencies of the public, while on duty.

When deputy sheriff engaged in extended dispute of superior's directive to leave crochet needles out of the jail, she violated this rule. In re Norman-Curry, CSA 28-07and 50-08, 6 (2/27/09).

Rule 300.10 Deputy sheriffs shall not indulge in immoral, indecent, or disorderly performance of duties or cause the public to lose confidence in the department.

Deputy sheriff's unjustified violence against an inmate was disorderly performance of her duty to keep inmates safe. In re Norman-Curry, CSA 28-07and 50-08, 22 (2/27/09).

Rule 300.19 Deputy sheriffs and employees shall not violate any lawful rule, duty, procedure or order.

Rule 300.21 All employees of the department shall read and obey all directives and orders issued by the mayor, the manager of safety...command officers or their designees, that relate to the DSD duties and assignments

Agency failed to prove violation by a preponderance of the evidence where it failed to specify what conduct violated the departmental order. In re Norman-Curry, CSA 28-07and 50-08, 16 (2/27/09).

Rule 400.5 Deputy sheriffs shall not taunt, embarrass, intimidate, threaten, or harass any prisoner or encourage or permit others to do so.

Deputy sheriff who yelled obscenities at inmate, threatened and harassed inmate in violation of departmental rule. In re Norman-Curry, CSA 28-07and 50-08, 16 (2/27/09).

Order 2440.1. 3 Code of Ethics

Where sheriff's department dress code prohibited hair adornments that are not minimal size, plain design, and matching or dark color, appellant's persistent refusal to remove seven-inch long, brightly colored, flapping butterfly hair sticks that did not match her hair was a violation of dress code under this rule.In re Norman-Curry, CSA 28-07 and 50-08, 9 (2/27/09).

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   16-60 M: Threatening, Fighting With, Intimidating, or Abusing Employees or Public;

   In general

A threat is a communicated intent to inflict harm or loss on another or his property. In re Harrison, CSA 55-07, 50 (6/17/10), citing Black's Law Dictionary (8th ed. 2004).

A statement is a threat if a reasonable person would interpret it as such. In re Harrison, CSA 55-07, 50 (6/17/10), citing In re Katros, CSA 129-04, 8 (3/16/05).

A threat is a communicated intent to inflict harm or loss on another or his property. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).

Words that are reasonably perceived to be threats of physical harm are prohibited under this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Intimidation is an unlawful threat intended to coerce another. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).

Abuse is physical or mental maltreatment, often resulting in mental, emotional, sexual or physical injury. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).

Gender difference between an actor and target is not determinative of a violation under this rule. In re Owens, CSA 69-08, 6 (2/6/09).

“Abuse” as an element of this rule is defined as “to violate; to defile; to treat harshly; to use insulting, coarse, or bad language about or to; to revile.” In re Owens, CSA 69-08, 6 (2/6/09), citing WEBSTER’S UNABRIDGED DICTIONARY 1979.

A violation under this rule is found for excessive physical force, or for cursing, but not where a reasonable person in the same situation as the target would not have been in fear of bodily harm. In re Owens, CSA 69-08, 6 (2/6/09), citing In re Redacted, CSA 190-03, 6, 8 (2/13/06); In re Richmond, CSA 18-07, 8 (8/7/07); and In re Rogers, CSA 57-07, 6 (3/18/08).

Proof that the victim of the threat is a city employee is a fundamental element to establish a violation of this rule. In re Trujillo, CSA 44-05, 3 (11/14/05) (decided under former § 16-50 A. 8).

A fundamental element of this violation is that the threatened individual must be an employee or officer of the City and County of Denver. In re Mestas, CSA 37-05, 4 (8/4/05), (decided under former § 16-50 A. 8).

Denver's policy regarding workplace violence prohibits threats of violence which are reasonably perceived to be a threat of imminent harm. The Airport Maintenance and Engineering Division's personnel manual establishes a stricter rule, prohibiting use of threatening or abusive language at any time. In re Katros, CSA 129-04, 7 (3/16/05).

A threat made against a supervisor is a serious matter which affects the ability of the agency to maintain a safe workplace for its employees. In re Katros, CSA 129-04, 7 - 8 (3/16/05), citing Vernon v. USPS, 87 M.S.P.R. 392, 400 (2000).

A statement constitutes a threat if a reasonable person would give that meaning to the words used. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001 (Fed. Cir. 1986.)

A trier of fact must give heavy weight to objective factors in determining if a reasonable person would consider the words threatening, including the listener's reaction and apprehension of harm, the speaker's intent, any conditional nature of the statement, and the circumstances surrounding an alleged threat. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001, 1002 - 1003 (Fed. Cir. 1986.)

Issue is not whether appellant was likely to carry out a threat, but whether he intended his statements as a threat. In re Katros, CSA 129-04, 9 (3/16/05), citing Greenough v. Dept. of Army, 73 M.S.P.R. 648 (1997).

Abuse is defined as physical maltreatment. In re Freeman, CSA 40-04, 75-04, 5 (3/3/05), citing Black's Law Dictionary (Abridged 6th Ed. 1991).

Violation found

Violation was established where co-worker was reasonably threatened and intimidated by appellant’s angry tone and wild gestures, while standing above co-worker. In re Lykken, CSA 26-10, 6 (7/7/10).

Public and angry expression toward her supervisor over who should handle a customer was a violation of the rule, and appellant's response that she was first to deal with customer was irrelevant. In re Lykken, CSA 26-10, 6 (7/7/10).

Airport parking agent's actions in banging on hood of car, screaming and swearing in a rageful manner reasonably caused driver to fear agent would attack her based on his extreme response to a simple parking issue, in violation of this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Employee communicated intent to inflict harm or loss on customer in violation of this rule by telling him he could have his car towed or have him arrested for not having his license, actions that were beyond his authority. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Violation established where appellant asked co-worker who gave a statement to internal affairs why he snitched and told him to watch his back, and co-worker reasonably felt threatened and intimidated as a result. In re Carter, CSA 87-09, 8 (2/17/10).

Deputy sheriff's unjustified use of force against inmate violated this rule. In re Norman-Curry, CSA 28-07and 50-08, 22 (2/27/09).

Deputy’s unexpected hard slap on the buttocks of a fellow officer which was accompanied by insulting banter with another officer constitutes abuse of an employee in violation of this rule. In re Rogers, CSA 57-07, 6 (3/18/08).

Neither provocation nor mutual combat is a defense to a charge of “fighting . . . for any reason.” In re Delmonico, CSA 53-06, 4 (10/26/06).

Supervisor’s admission she called subordinate “you f---ing bitch” establishes violation of rule. Name redacted, CSA 190-03, 6, 8 (2/13/06).

Appellant retaliated against his supervisor for disciplinary action by requesting or directing his nephews to assault his supervisor. In re Moreno, CSA 138-04 (5/25/05).

Testimony about appellant's threats toward supervisors arising from resentment over recent suspension was more believable than appellant's denial of behavior, because co-workers were initially reluctant to report the threats until they began negatively affecting crew morale. In re Katros, CSA 129-04, 7 (3/16/05).

Co-worker's testimony of threats by appellant did not demonstrate a motive to lie in order to harm appellant. In re Katros, CSA 129-04, 7-8 (3/16/05).

Statements communicating appellant's continued animosity toward his supervisors were reasonably perceived as threats of harm by his co-workers. In re Katros, CSA 129-04, 9 (3/16/05).

Attendant circumstances, including appellant's past display of temper and suspension, tense work atmosphere, and circumstances surrounding appellant's negative comments, indicate that comments were reasonably considered threats. In re Katros, CSA 129-04, 10 (3/16/05).

Appellant's slap of co-worker's face established physical maltreatment or abuse of the co-worker, and thus violated rule against fighting. In re Freeman, CSA 40-05, 75-04, 5 (3/3/05).

No violation found

Employee did not threaten co-worker by her email indicating that his deeds would repay him in kind, since the statement does not suggest employee would herself take any action against co-worker. In re Harrison, CSA 55-07, 52 (6/17/10).

Interaction that is merely angry does not constitute abuse under this rule. In re Harrison, CSA 55-07, 52 (6/17/10), citing In re Owens, CSA 69-08, 7 (2/6/09).

Co-worker complaints for which employee had already been disciplined may not be used to support later discipline. In re Harrison, CSA 55-07, 52 (6/17/10).

Parking agent's statement to tow truck driver that he would be watching him after witnessing him speeding and without a required badge was not beyond agent's authority or improper for any other reason. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Parking agent's threat to have a customer arrested was not abuse where customer's reaction was to raise his hand and move his car, showing frustration rather than mental or emotional injury, as needed to prove abuse under this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Agency did not prove violation of this rule where it did not prove appellant was aware an investigation was underway when he asked a witness why he snitched. In re Carter, CSA 87-09, 8-9 (2/17/10).

Appellant’s loud, frustrated interaction with a co-worker did not violate the rule where the target of the exchange was not in fear of any bodily harm and incident did not involve physical force or cursing. In re Owens, CSA 69-08, 7 (2/6/09), citing In re Rogers, CSA 57-07, 6 (3/18/08) [physical force]; In re Redacted, CSA 190-03, 6,8 (2/13/06) [cursing]; In re Richmond, CSA 18-07, 8 (8/7/07) [bodily harm].

Agency failed to establish a violation of this rule where the only evidence in support of its claim was the word of two unreliable witnesses. In re Abdi, CSA 63-07, 28 (2/19/08).

Evidence that recreation coordinator used alcohol in recreation center with a subordinate employee was insufficient to prove a violation of this rule in the absence of evidence that appellant put subordinate in fear of bodily or other harm, or coerced her to use alcohol. In re Rivas, CSA 49-07, 10 (1/9/08).

Threats to non-city employees do not violate this rule. In re Trujillo, CSA 44-05, 3 (11/14/05) (decided under former § 16-50 A. 8).

Where agency failed to establish that individual allegedly threatened by appellant was an employee or officer of the City and County of Denver, violation of this rule was not proven. In re Mestas, CSA 37-05, 4 (8/4/05) (decided under former § 16-50 A. 8).

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16-60 N: Intimidation or Retaliation Against a Witness, Party, or Representative; or Violation of Rule or Law Against Employee Who Used Dispute Resolution Process in Good Faith

This rule contemplates that the intimidation or retaliation must take place during the course of an investigation. In re Carter, CSA 87-09, 8 (2/17/10).

This rule does not contemplate attempted intimidation that is unsuccessful. In re Carter, CSA 87-09, 8 (2/17/10).

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16-60 O: Failure to Maintain Satisfactory Working Relationships

In general

Violation of this rule is proven by conduct that would cause a reasonable person standing in the employee's place to know it would be harmful to another person or would have a significant impact on his working relationship with that person. In re Harrison, CSA 55-07, 53 (6/17/10), citing In re Schultz, CSA 70-08, 4 (3/2/09).

The affected co-worker's reaction to the conduct is one factor to consider in assessing whether harm should have been anticipated. In re Harrison, CSA 55-07, 53 (6/17/10), citing In re Burghardt, CSB 81-07, 2 (8/28/08).

An employee violates this rule by conduct that is harmful to another person or has a significant impact on his working relationship with that person if a reasonable person would have known his conduct would have that effect. In re D’Ambrosio, CSA 98-09, 9 (5/7/10), citing In re Burghardt, CSB 81-07, 2 (8/28/08).

Deterioration of a working relationship must be proven independently of another rule violation. In re Norman-Curry, CSA 28-07and 50-08, 10 (2/27/09).

Where agency failed to advance evidence that appellant's conduct caused a significant degradation in any of her working relationships, violation of this rule is not shown. In re Norman-Curry, CSA 28-07and 50-08, 10 (2/27/09).

To prove a violation of this rule, the agency must establish conduct that would cause a reasonable person standing in the employee’s place to know it would be harmful to another person or have a significant impact on his working relationship with that person. In re Schultz, CSA 70-08, 4 (3/2/09) citing In re Williams, CSA 53-08, 5 (12/19/08); In re Burghardt, CSB 81-07, 2 (8/28/08).

This rule addresses the manner in which one states a position rather than the content of the statement. In re Owens, CSA 69-08, 7 (2/6/09).

It is irrelevant, under this rule, whether an appellant’s argument with a co-worker is correct. In re Owens, CSA 69-08, 7 (2/6/09).

Conduct that would cause a reasonable person standing in the employee's place to know that it would be harmful to another person or have a significant impact on his working relationship with that person violates CSR § 16-60 O. In re Williams, CSA 53-08, 5 (12/19/08), citing In re Burghardt, CSB 81-07, 2 (8/28/08); affirmed CSB 5/14/09.

An employee's conduct is measured against a reasonably objective standard: would a reasonable person standing in the place of the employee have known that his conduct would be harmful to another person or have a significant impact on his working relationship with that person? In re Burghardt, CSB 81-07, 2 (8/28/08).

While a co-worker's reaction to the conduct is one factor to consider in assessing harm or impact, that assessment also involves a reasonably objective standard: would a reasonable person standing in the place of the co-worker have found the employee's conduct harmful or significantly impacting their working relationship? In re Burghardt, CSB 81-07, 2 (8/28/08).

A violation of 16-60 O does not encompass every minor disagreement, every slight, every misunderstanding, or every offensive remark that occurs in the workplace. In re Burghardt, CSB 81-07, 2 (8/28/08).

The cases decided under this rule make it clear that some element of fault or wrongdoing is necessary to establish a violation. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

The gravamen of failing to maintain a satisfactory work relationship is conduct an employee knows, or should know in the exercise of good judgment, is harmful to the trust and goodwill needed between employees to accomplish the agency’s mission. In re Burghardt, CSA 81-07, 5 (3/28/08) citing In re Lucero, 162-04, 11 (4/15/05); rev'd CSB 8/28/08.

A failure to maintain satisfactory work relationships requires proof of three elements: 1) wrongful conduct toward a co-worker, 2) committed with intent or knowledge of its wrongfulness, 3) causing harm to a co-worker relationship. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

Harm to a co-worker relationship may be proven directly by proof of an inability to work together after the incident(s), or indirectly by evidence such as the nature of the relationship and the co-worker’s reaction to the conduct. In re Burghardt, CSA 81-07, 5 (3/28/08) citing In re Strasser, CSB 44-07, 2 (2/29/08); rev'd CSB 8/28/08.

A remark may be considered inappropriate in the workplace based on a number of factors: its content, context, usage, setting, audience, and style of delivery. In re Burghardt, CSA 81-07, 5 (3/28/08), citing Ash v Tyson Foods, Inc., 126 S. Ct. 1195 (2006), rev'd CSB 8/28/08.

Where the asserted misconduct is asking co-workers a question with racial overtones, cases decided under Title VII’s prohibition of racial harassment are instructive. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

Where the asserted misconduct creating an unsatisfactory work relationship is asking co-workers a question with racial overtones, cases decided under Title VII’s prohibition of racial harassment are instructive on the issue of whether the speech was wrongful. In re Burghardt, CSA 81-07, 5-6 (3/28/08), rev'd CSB 8/28/08.

The Supreme Court has imposed an objective standard of reasonableness in analyzing hostile work environment cases because it avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. In re Burghardt, CSA 81-07, 5 (3/28/08), citing Burlington Northern & Santa Fe Railway Company v. White, 165 L. Ed. 2d 345, 360 (2006); Harris v. Forklift Systems, 510 U.S. 17 (1993); In re Katros, CSA 129-04 (3/16/05), rev'd CSB 8/28/08.

While this rule does not require the severe or pervasive atmosphere of discriminatory ridicule or insult needed to prove a harassment case under Title VII, the same discipline should be brought to bear in analyzing whether speech is wrongful under this rule. In re Burghardt, CSA 81-07, 5-6 (3/28/08), rev'd CSB 8/28/08.

Whether a statement is wrongful should be determined by considering all circumstances surrounding it. In re Burghardt, CSA 81-07, 6 (3/28/08), rev'd CSB 8/28/08.

If a reasonable person who heard a remark would consider it wrongful in the workplace setting, the agency has established harm to the co-worker relationship. In re Burghardt, CSA 81-07, 6 (3/28/08), rev'd CSB 8/28/08.

When appellant’s question with “disturbing racial overtones” was addressed to two Hispanic co-workers and undisputedly resulted in distress to both co-workers, the third element of harm is established. In re Burghardt, CSA 81-07, 5 (3/28/08), rev'd CSB 8/28/08.

Where all four employees who heard appellant’s question considered it concerning enough to refer the matter higher up or investigate it to determine if discipline was appropriate, remark was wrongful in the workplace context. In re Burghardt, CSA 81-07, 6 (3/28/08), rev'd CSB 8/28/08.

This rule should not be used as a bludgeon against all offensive interactions in the workplace In re Strasser, CSB 44-07, 2 (2/29/08).

The agency may prove a violation of this rule by evidence that appellant’s improper, intentional acts or omissions toward a co-worker inhibited the smooth operation of the unit, or caused an inability to work together. In re Rivas, CSA 49-07, 10 (1/9/08), citing In re Delmonico, CSA 53-06, 5 (10/26/06); In re Katros, CSA 129-04, 10 (3/16/05).

This rule should be reserved for an employee’s unjustified, purposeful actions or omissions toward a co-worker that inhibit the smooth operation of the unit. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Anderson, CSA 05-02, 10 (4/30/02).

Either a single outrageous incident or an ongoing pattern of conduct can constitute a violation of this rule. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Collins, CSA 127-03 (2/27/03); In re Green, CSA 130-04, 3 (1/7/05); I n re Tafoya, CSA 72-04, 10 (9/21/04).

This rule should not be used to punish an employee for a single outburst. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Day, CSA 12-03, 8 (10/9/03).

A less than ideal working relationship with others does not, by itself, establish a violation of the rule. In re Delmonico, CSA 53-06, 5 (10/26/06); In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Keegan, CSA 69-03, 11 (3/31/04).

A strained relationship between supervisor and employee is insufficient to establish an unsatisfactory working relationship. In re Diaz, CSA 45-05, 6 (9/7/05).

When a lack of communication between supervisor and employee causes work-related problems, the failure to communicate may result in a violation of this rule. In re Diaz, CSA 45-05, 6-7 (9/7/05).

Agency has a legitimate interest in requiring employees to maintain satisfactory work relationships in order to accomplish its work and mission. The rule prohibits actions that destroy the trust and good will needed between employees. In re Lucero, 162-04, 10 (4/15/05).

Rule requires some action directed at a co-worker which causes an inability to work together. In re Katros, CSA 129-04, 10 (3/16/05), citing In re Perez, CSA 137-03 (2/23/04).

A violation of rule against fighting does not necessitate finding of failure to maintain satisfactory work relationships. In re Freeman, CSA 40-04, 75-04, 6 (3/3/05).

Violation found

Violation was established where appellant’s co-workers liked him, initially covered for his lack of effort and frequent absences and encouraged him to change, but grew increasingly frustrated and reported him after internal and external interventions failed. In re Norris, CSA 68-09, 7-8 (7/12/10).

A violation of CSR 16-60 O was established where co-worker was sufficiently shaken by appellant’s unreasonably abusive treatment of her, that she asked her supervisor never to have to deal with appellant again. In re Lykken, CSA 26-10, 7 (7/7/10).

Appellant's actions in refusing to attend a project meeting based on previously unreported fears of violence to herself, inappropriately threatening the contractor with enforcement actions, and repeating unfounded allegations against co-workers, had a significant impact on appellant's working relationships with her supervisor, contractor and co-workers, in violation of this rule. In re Harrison, CSA 55-07, 55 (6/17/10).

A reasonable person in appellant's position would know her accusation against her supervisor and threats against a contractor would have a significant negative effect on their working relationships. In re Harrison, CSA 55-07, 56 (6/17/10).

An employee is not insulated from all consequences for statements made in a complaint about workplace issues if the statements are otherwise in violation of performance standards or rules of conduct. In re Harrison, CSA 55-07, 56 (6/17/10).

Employee violated this rule when he banged his fist on a car, screamed obscenities, told her to shut up and threatened to arrest another person, and driver reacted by making a plan to defend herself and her daughter, and immediately reported the incident to the airport police. In re D’Ambrosio, CSA 98-09, 9 (5/7/10).

A reasonable person in appellant's position would have known his conduct in banging his fist on a car, screaming obscenities and telling a customer to shut up would adversely affect his relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Fact that customer put his hands in the air and backed up in response to parking agent's threat to arrest him is insufficient to prove the threat adversely affected agent's relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Evidence which proved a deputy threatened and intimidated a co-worker in violation of 16-60 M. also established a failure to maintain a satisfactory work relationship in violation of this rule. In re Carter, CSA 87-09, 9 (2/17/10).

Appellant violated this rule where his demeaning comments about four co-workers’ national origin, age, sex, work ethic and competence caused one of the four to avoid contact with appellant, and had a significant negative impact on their working relationship. In re Schultz, CSA 70-08, 5 (3/2/09).

Appellant’s persistence in loud argument about a parking citation with a security officer constituted a violation of this rule. In re Owens, CSA 69-08, 7 (2/6/09).

Appellant, a new and uninformed employee, violated the rule when he obstreperously tried to impose his will upon someone in a position to know the rules better than he did. In re Owens, CSA 69-08, 7 (2/6/09).

Appellant's conduct, including yelling at payroll clerk over seven-month period and accusations of tampering with appellant's pay records, resulting in supervisors' taking over communication on appellant's payroll issues, was harmful to clerk and had a significant negative impact on working relationship with clerk, in violation of this rule. In re Williams, CSA 53-08, 5 (12/19/08) affirmed CSB 5/14/09.

Under a reasonably objective standard, appellant failed to maintain satisfactory work relationships when he asked a Hispanic co-worker in the presence of others how much it cost her people to get across the border, accusing her of coming to the country illegally. A reasonable person who heard these comments would have found them offensive and insulting. In re Burghardt, CSB 81-07, 3 (8/28/08).

Any reasonable person who heard appellant's comment accusing co-worker of coming to the country illegally would have found it offensive and insulting. In re Burghardt, CSB 81-07, 3 (8/28/08).

Agency established that adult supervisor of seventeen-year-old high school intern violated this rule with evidence of the intern’s discomfort with appellant’s actions in accessing and showing him pornography on city computer. In re Strasser, CSB 44-07, 2 (2/29/08).

Within the adult/minor working relationship, appellant supervisor had a responsibility not only to supervise and instruct, but also to set an example for appropriate adult behavior in the workplace. In re Strasser, CSB 44-07, 2 (2/29/08).

Where appellant and intern no longer worked together after appellant’s misconduct, hearing officer interpreted rule too narrowly in requiring agency to prove a significant breakdown in their future working relationship. In re Strasser, CSB 44-07, 2 (2/29/08).

Appellant’s assault on a co-worker was unjustified and outrageous in violation of the rule when assault occurred a week after perceived insult, and appellant failed to use available agency resources to report insult. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Collins, CSA 127-03 (2/27/03), In re Green, CSA 130-04 (1/7/05).

Appellant’s refusal to speak to her supervisor about performance problems was untenable when work needed to be coordinated, and established that appellant failed to maintain a satisfactory working relationship with her supervisor. In re Diaz, CSA 13-06, 6 (5/31/06).

Appellant violated rule when she called her subordinate a “f_king b_ch” for failing to cover up appellant’s affair with her supervisor, leading to a bitter relationship between appellant and subordinate, and noticeable coldness between the supervisor and appellant’s subordinate. Name redacted, CSA 190-03, 8 (2/13/06).

Appellant failed to maintain satisfactory relationship by refusing to communicate in person with her supervisor, despite the fact that the job requires appellant and her supervisor to provide clerical support to agency, and appellant’s failure to communicate caused errors, loss of efficiency, disciplinary allegations, and a damaged working relationship. In re Diaz, CSA 92-05, 8 (1/31/06).

Appellant’s refusal to communicate with her supervisor was not justified as a method of resolving employee-supervisor conflicts when Rule 18 of the Career Service Rules provides a mechanism for presenting grievances of conditions of employment, and § 15-103 allows employees to report harassment. In re Diaz, CSA 92-05, 9 (1/31/06).

Where an employee’s failure to communicate with her supervisor in a two-person office results in a lack of coverage of work, supervisor’s inability to get her own work done, and a degradation of services within the zoo, agency established that employee failed to maintain a satisfactory work relationship with her supervisor. In re Diaz, CSA 45-05, 7 (9/7/05).

When a lack of communication between co-workers caused work -related problems, failure to communicate may result in a violation of this rule. In re Diaz, CSA 45-05, 6-7 (9/7/05)

Appellant violated rule by his hostile confrontation of a security guard which caused the guard to feel intimidated and fearful. In re Mestas, 37-05, 7 (8/4/05).

Appellant violated § 16-51 A.4) by impugning the morals of a co-worker whom he knew was especially sensitive on moral issues. In re Smith, CSA 17-05 (7/07/05).

Appellant failed to maintain a satisfactory work relationship with her co-worker by persisting in requests that the co-worker report Appellant as present at work when appellant was late, despite resentment by co-worker, requests to stop, and damage to their friendship. In re Roberts, CSA 179-04, 5 (6/29/05).

Employee's continued negative attitude over discipline he believed unjust and his expressions of anger toward supervisor and co-workers established violation of rule. In re Moreno, CSA 138-04, 8 (5/25/05).

When appellant criticized her supervisor and his policies at a staff meeting, then later organized a meeting with her supervisor's boss to continue the criticisms, resulting in the supervisor's reassignment, appellant failed to maintain satisfactory work relationship with her supervisor. In re Lucero, 162-04, 11 (4/15/05).

Where appellant intentionally caused her supervisor to lose his effectiveness as a supervisor in order to attempt a change in rules or enforcement of the rules, appellant failed to maintain a satisfactory relationship with her supervisor. In re Lucero, 162-04, 11 (4/15/05).

Unrebutted evidence of appellant's continual negative comments towards his supervisors and refusal to comply with supervisors' orders established failure to maintain the supervisor/employee relationship necessary to accomplish the work of the unit. In re Katros, CSA 129-04, 10 (3/16/05).

Appellant's continued complaints that her co-workers were "too lazy to do their jobs" and calling a co-worker "an a__hole" in front of co-workers established failure to maintain satisfactory relationship with co-workers. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05), citing In re Mosquera, CSA 118-02 (12/11/02).

Credibility of witness to appellant's disparaging comments was supported by her reluctance to repeat the comments, her previous pleasant working relationship with appellant, and the lack of any proof of a motive to lie. In re Routa, CSA 123-04, 4 (1/27/05).

Appellant failed to maintain satisfactory working relationship with outside consultant and co-worker by disparaging her co-worker to consultant. In re Routa, CSA 123-04, 5 (1/27/05).

Appellant's diatribe against co-worker to a member of the public who does business with the agency constitutes failure to maintain a satisfactory relationship with that co-worker and the member of the public, since the latter now avoids appellant and feels uncomfortable around her. In re Routa, CSA 123-04, 4-5, (1/28/05).

When appellant disrupted a team meeting by pounding his fist on the table, shouted “ this is bull----“ , and stormed out of the meeting, the agency established that appellant violated the rule by failing to maintain satisfactory work relationships. In re Green, CSA 130-04, 3 (1/7/05).

No violation found

Violation was not proven where agency did not identify a person whose relationship was affected by appellant’s actions. In re Abbey, CSA 99-09, 10 (8/9/10).

No violation was proven where the agency did not establish that anyone potentially affected by appellant’s actions was a person covered under the rule. In re Abbey, CSA 99-09, 10 (8/9/10); citing In re Weeks, CSA 26-09 (CSB 12/23/09).

Because the agency had already disciplined appellant for the incidents recited in the verbal reprimand, use of the same incidents as grounds for termination would constitute double punishment under the career service rules. In re Harrison, CSA 55-07, 53 (6/17/10), citing In re Richmond, CSA 18-07, 7 (8/7/07).

Although appellant refused to follow orders, agency did not establish how the refusal caused a significant degradation in any of her working relationships and so failed to establish a violation of this rule. In re Norman-Curry, CSA 28-07 and 50-08, 10 (2/27/09).

Appellant did not violate rule on maintaining satisfactory work relationships when he volunteered incorrect information to a co-worker, but corrected it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Agency failed to prove appellant intended his question to be derogatory or that fault should otherwise be attributable to him where appellant, who was raised in Europe, did not understand the cultural context in which his co-workers interpreted the question as racially insulting, and apologized when he learned his question had caused his co-worker to be hurt. In re Burghardt, CSA 81-07, 6-7 (3/28/08), rev’d CSB 8/28/08.

Agency failed to prove a working relationship was diminished by allegation that appellant deceived co-workers into providing her confidential information. In re Abdi, CSA 63-07, 28 (2/19/08).

Agency failed to prove appellant used her official capacity to threaten any member of the community she served. In re Abdi, CSA 63-07, 28 (2/19/08).

Agency failed to prove unsatisfactory relationship despite co-worker’s stated dread of working with appellant absent evidence that parties were unable to work effectively together following incident, and in light of co-worker’s refusal to file a complaint based on incident. In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Keegan, CSA 69-03, 11 (3/31/04).

Confrontation with non-employee referee is not a violation of rule prohibiting failure to maintain satisfactory working relationships with co-workers, other City and County employees or the public. In re Trujillo, CSA 44-05, 4 (11/14/05).

Where one employee was offended by a vulgar e-mail sent by appellant, but there was no evidence it impacted their working relationship, agency failed to prove violation of rule. In re Garcia, CSA 175-04, 3 (7/12/05).

Temporary damage to employee/supervisor relationship caused by employee's violations of no-smoking rules did not violate this rule. In re Schultz, CSA 156-04, 9 (6/20/05).

Appellant's slap of co-worker's face did not prove failure to maintain satisfactory work relationship absent proof that it prevented appellant from working satisfactorily with employees. In re Freeman, CSA 40-05, 75-04, 5 (3/3/05), citing In re Day, CSA 12-03 (10/9/03).

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16-60 P: Conviction of, or Being Charged with, a Crime

Appellant violated this rule where she was sentenced to 45 days incarceration after her conviction for DUI, and agency followed disciplinary procedures required by CSR 16- 61 after discovering the conviction. In re Carrillo, CSA 95-09, 5 (3/16/10).

If an agency regulation addresses the same subject matter as CSR § 16-61, both must comply with the procedural safeguards of § 16-61. In re Chavez, CSA 129-08, 4 (2/2/2010), citing In re Chavez, CSA 129-08A (7/29/09).

Proof that employee was convicted of driving under the influence does not establish violation of this rule where employee does not drive as a part of his job. In re Mitchell, CSA 05-05, 6 (6/27/05) (decided under former §16-50 A. 9).

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16-60 R: Discrimination or Harassment

In general

A violation of this rule is proven by statements made to co-workers that are derogatory on the basis of race, sex, age, national origin, or other basis protected by law. In re Schultz, CSA 70-08, 5 (3/2/09) citing In re Burghardt, CSB 81-07, 3 (8/28/08).

Past annoyances do not justify derogatory comments made about fellow employees’ protected status. In re Schultz, CSA 70-08, 6 (3/2/09).

An employee’s lack of control over his own anger is not a defense to a charge of making demeaning statements on the basis of another employee’s protected status. In re Schultz, CSA 70-08, 6 (3/2/09).

Disciplinary rule prohibiting harassment has no requirement that derogatory statements or conduct must be accompanied by derogatory intent, nor does it require an agency to prove a violation of state or federal anti-discrimination laws. In re Burghardt, CSB 81-07, 3 (8/28/08).

A lack of awareness of cultural differences does not excuse inappropriate conduct in the workplace.
In re Burghardt , CSB 81-07, 4 (8/28/08).

All city employees, regardless of where they were born or what experiences they may have had prior to working for the city, have an obligation to know the conduct required of them under the career service rules. In re Burghardt , CSB 81-07, 4 (8/28/08).

It is employee's obligation to use common sense and good judgment in applying the training he received to his own conduct in the workplace. In In re Burghardt , CSB 81-07, 4 (8/28/08).

In order to establish that a single comment constitutes harassment under this rule, the agency bears the burden of persuasion that the statement was intentionally derogatory based on a protected status. In re Burghardt, CSA 81-07, 7 (3/28/08), rev'd In re Burghardt (CSB 81-07 8/28/08).

Discrimination concerns the unfair or unequal treatment of a person or group based upon race, color, age, national origin, religion, sex, disability or veteran status. In re Hernandez, CSA 03-06, 6 (5/3/06), citing Katz v. City of Aurora, 85 F. Supp. 2d 1012 (D. Colo., 2000).

Harassment is the creation of a hostile work environment. Harassing conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. In re Hernandez, CSA 03-06, 6 (5/3/06), citing Harris v Forklift Systems, 510 U.S. 17 (1993).

Where conduct is not objectively discriminatory, appellant should be informed that his conduct is offensive. In re Hernandez, CSA 03-06, 7 (5/3/06).

Violation found

By insulting co-workers on the basis of their national origin, age, and sex, appellant injected an element into the workplace that is barred by the personnel rules governing both conduct and discipline. In re Schultz, CSA 70-08, 5 (3/2/09).

Under a reasonably objective standard, asking Hispanic co-worker in front of others how much it cost her people to get across the border, accusing her of coming to this country illegally, violated rule prohibiting derogatory statements based on national origin. In re Burghardt , CSB 81-07, 3 (8/28/08).

No violation found

Based on agency’s failure to prove appellant intended his question to be derogatory on the basis of national origin, agency also failed to prove appellant violated rule prohibiting harassment based on a protected status. In re Burghardt , CSA 81-07, 7 (3/28/08), rev'd In re Burghardt 81-07, CSB 8/28/08.

Addressing intern as “babe” did not rise to the level of harassment when intern testified she felt uncomfortable but did not report it or view the behavior as abusive. In re Hernandez, CSA 03-06, 6 (5/3/06).

Agency evidence was insufficient to prove appellant's e-mail message distributed to co-workers and containing vulgar language was derogatory toward any protected class. In re Garcia, CSA 175-04, 3 (7/12/05).

A single inappropriate comment was not so outrageous or extreme that it altered the conditions of the victim's employment, and thus did not establish discrimination or harassment. In re Smith, CSA 17-05, (7/07/05).

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16-60 S: Unauthorized Absence, Abuse of Leave

In general

Agency may consider the number of non-FMLA absences in determining whether there has been a violation of this disciplinary rule, which is intended to prevent patterns of absenteeism and leave abuse. In re Salazar, CSA 66-08, 7 (12/26/08).

Rule requires proof of an actual absence from work. In re Compos, CSA 56-08, 15 (12/15/08).

This rule is violated by an absence that is unauthorized under either departmental or career service rule. In re Dessureau, CSA 59-07, 8 (1/16/08) citing In re Garcia, CSA 123-05, 4 (2/27/06).

A rules violation must be based directly on the voluntary actions of the employee and not on a management decision of the agency. In re Dessureau, CSA 59-07, 7 (1/16/08).

Decision of agency to impose leave without pay does not settle the matter of whether a restroom stop constituted an unauthorized absence in violation of the rule. In re Dessureau, CSA 59-07, 7 (1/16/08).

An alcoholic employee’s excessive absenteeism, if not protected by the ADA, may be addressed through disciplinary action. In re Cullen, CSA 165-04, 8-9 (7/7/06) citing Nielsen v. Moroni Feed Co., 162 F.3rd 604 (10th Cir. 1998), affirmed in part and reversed in part, CSB 1/18/07.

Unauthorized absence is a more serious rule violation than tardiness, as the employer is affected differently by late arrivals than by abuse of leave, unauthorized absences or failures to report to work. In re Diaz, CSA 13-06, 6 (5/31/06), citing In re Conway, CSA 40-05 (8/16/05); In re Owens, CSA 139-04 (3/31/05).

An abuse of leave requires some evidence that appellant knowingly took paid leave to which she was not entitled under Rule 11. In re Edwards, CSA 21-05, 7 (2/22/06).

Sick leave for Career Service employees is authorized under § 11-32 for necessary care and attendance during sickness, or for death, of a member of the employee’s immediate family. In re Espinoza, CSA 30-05, 4 (1/11/06).

Unlike §16-50 A. 7, violation of this rule does not require a showing of bad intent. In re Diaz, CSA 45-05, 5 (9/7/05) (decided under former §16-50 A. 13).

Violation found

Agency proved unauthorized absence by proof that youth counselor left the building to get food for 25 minutes without punching out, as required by work rules. In re Abbey, CSA 99-09, 10 (8/9/10).

Proof that appellant left work frequently without authorization established violation of rule. In re Norris, CSA 68-09, 8 (7/12/10).

Agency proved violation where employee drove to his home and rental house during work hours. In re Valdez, CSA 90-09, 6 (3/1/2010).

Appellant’s absence because of incarceration was an unauthorized absence from work in violation of this rule. In re Carrillo, CSA 95-09, 5 (3/16/10).

Appellant's admission, that he was absent without authorization for twenty-one days, established violation of this rule. In re Morgan, CSA 63-08, 10 (4/6/09).

Unexcused failure to return to work after a training session was an unauthorized absence under this rule. In re Lottie, CSA 132-08, 4 (3/9/09).

Where agency policy required employees to make an accurate request for leave and to timely correct errors in their requests, and appellant failed to do either, her absence was unauthorized. In re Turner, CSA 76-08, 8 (1/16/09).

Appellant’s failure to resume her normal work schedule, after cancelling her military leave and making no request for any other leave, was an unauthorized absence. In re Turner, CSA 76-08, 8 (1/16/09).

Appellant’s reliance on her opinion that her leave balance was wrong in city leave software did not rebut agency evidence of leave abuse where leave balances in software were accurate, and appellant admitted at hearing that her opinion was incorrect. In re Salazar, CSA 66-08, 7 (12/26/08).

Appellant’s argument that her absences were not leave abuse because they were caused by illness which improved after medication adjustment did not rebut evidence of leave abuse where appellant failed to show her leave use decreased after her medications were adjusted. In re Salazar, CSA 66-08, 7 (12/26/08).

Appellant’s argument that agency should have spoken to her doctors regarding her use of sick leave before imposing discipline did not rebut evidence of leave abuse where agency did not deny appellant was actually sick when she called in sick, and that her doctor’s notes were accurate. In re Salazar, CSA 66-08, 7 (12/26/08).

Convincing evidence of eyewitnesses and co-workers' statements about appellant's attendance practices supported allegation that appellant was absent without permission for 45 minutes and two hours during two work days. In re Galindo, CSA 39-08, 12 (9/5/08).

Appellant’s absence from her work duties was unauthorized under this rule based on her dishonest explanation for that absence. In re Blan, CSA 40-08, 6 (7/31/08).

Appellant who claimed sick leave in order to start her vacation one day earlier than scheduled abused sick leave under this rule. In re Clayton, CSA 128-05, 6 (3/21/06).

Agency established that appellant was absent from work without authorization when she failed to report for work after leave was denied and left work before her shift ended after notifying a co-worker, despite the availability of backup supervisors to whom she should have requested permission to leave. In re Edwards, CSA 21-05, 6-7 (2/22/06).

Appellant’s unexplained failure to comply with attendance rules despite ample notice proved unauthorized absence from work under this rule. In re Diaz, CSA 45-05, 5 (9/7/05).

After being ordered to speak directly with supervisor for future leave based upon prior sick leave abuse, appellant’s continued noncompliance which affected agency production violated rule. In re Conway, CSA 40-05, 4 (8/16/05).

Charge of unauthorized absence was justified when appellant completely removed himself from his duties by taking actions resulting in his falling asleep, thereby forcing other employees to complete his duties. In re Owens, CSA 139-04, 7 (3/31/05) citing Mitchell v. Dept. of Defense, 22 MSPR 271 (1984).

Appellant abandoned his job when he failed to go to work for 1½ months, failed to notify the agency of the reasons for his absence, and failed to provide the agency with his contact information. In re Kinfe, CSA 161-04, 4 (3/16/05).

Appellant's failure to call and to report for six weeks after his stated return date from an extended leave constitutes violation of 16-50 A. 12). In re Kinfe, CSA 161- 04 (03-16-05) (decided under former §16-50 A. 12).

No violation found

Agency did not establish unauthorized absence from work by evidence that airport technician engaged in sex at the airport, since agency did not rebut technician's claim that she was on break at that time. In re Jones, CSA 88-09, 5 (5/11/10).

Minor inaccuracies in two days' activity logs did not prove unauthorized absence from work where unrebutted evidence showed that employees were either at an assigned work location or on authorized breaks at all times covered by logs. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Where agency did not rebut appellants' testimony that they were either at an assigned location or on an authorized break for all times covered by their logs, agency failed to prove they were absent from work in violation of this rule. In re Campos et al, CSA 56-08, 14-15 (12/15/08).

Paralegal’s unnecessary trip to courthouse was not an unauthorized absence from work where appellant was given a high degree of independence in her duties, and agency did not prove she needed permission before departing. In re Blan, CSA 40-08, 6 (7/31/08).

Ten-minute restroom stop to respond to personal emergency was not an unauthorized absence in violation of this rule. In re Dessureau, CSA 59-07, 8 (1/16/08).

Absence was not unauthorized based on appellant’s inability to provide a doctor’s note several days after the claimed illness when appellant was asymptomatic at the later time, and doctor’s note would have been ineffective to resolve whether appellant was ill on the day in question. In re Clayton, CSA 128-05, 5 (3/21/06)

Absences that were not unauthorized under either departmental or examples in career service rule did not to violate rule prohibiting unauthorized absences. In re Garcia, CSA 123-05, 4 (2/27/06) (decided under former §16-50 A. 13).

Use of earned sick leave on a claim of personal or family illness does not establish that appellant knowingly took paid leave to which she was not entitled. In re Garcia, CSA 123-05, 4 (2/27/06).

Appellant did not abuse sick leave by merely informing her supervisor that she would be out sick, since agency did not grant paid sick leave for those absences. In re Edwards, CSA 21-05, 7 (2/22/06).

Undersheriff’s assumption that use of sick leave on Fridays or Mondays was abuse of sick leave failed to prove violation of rule where appellant credibly testified about her son’s asthmatic symptoms after weekend sports activity, and agency did not rebut that evidence. In re Espinoza, CSA 30-05, 4-5 (1/11/06).

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption that appellant abused sick leave without further inquiry impermissibly violated her right to take accumulated sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06).

Denial of a leave request renders an absence unauthorized. However, a later grant of leave request retroactively authorizes absence. In re Lucero, CSA 162-04 (4/15/05).

A later grant of sick leave to cover an unauthorized absence renders that absence authorized, despite an employee's failure to notify her supervisor two hours before the start of the shift in accordance with policy. In re Lucero , CSA 162-04 8 (4/15/05).

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16-60 T: Tardiness

Rules prohibiting tardiness and unauthorized absences are not established by the same evidence. In re Norris, CSA 68-09, 8 (7/12/10).

CSR 16-60 T is violated when an employee is tardy for the start of his shift; and 16-60 S is violated when an employee is absent during his work shift. In re Norris, CSA 68-09, 8 (7/12/10).

Appellant was tardy when she arrived late for the start of her shift on fourteen occasions. In re Diaz, CSA 13-06, 6 (5/31/06).

Agency established violation by unrebutted proof that appellant twice reported to work two hours after her scheduled start time. In re Edwards, CSA 21-05, 7 (2/22/06).

Appellant’s admission of frequent incidents of tardiness established that she violated this rule by a preponderance of the evidence. In re Diaz, CSA 45-05, 6 (9/7/05).

Supervisor's direct testimony that he saw employee arrive late was more persuasive than employee's vague recollection that she was not late. In re Lucero, 162-04, 8 (4/15/05).

Violation found

Where appellant’s PIP directed him to punch in no later than 7 minutes after his scheduled start time, but his supervisor later directed him to be at his desk at his start time, his continued late reporting by up to seven minutes violated this rule, despite his disagreement with the directive. In re Abbey, CSA 99-09, 10-11 (8/9/10).

Violation was established where appellant was tardy for his shift at least five times, and his explanations that he may have been in another area or on a special assignment were unlikely. In re Norris, CSA 68-09, 8 (7/12/10).

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16-60 V: Failure to use Safety Devices or Failure to Observe Safety Regulations

In general

This rule may be violated in three ways: 1) when there is a nexus between an employee’s omission and injury to the employee or another; 2) when the employee’s omission jeopardizes the safety of the employee or others; or 3) when the employee’s omission results in damage or destruction of city property. In re Simpleman, CSA 05-06, 6 (5/16/06), citing In re Owoeye, CSA 11-05, 4 (6/10/05).

An employee's failure to use a safety device or observe a safety regulation may result in a violation in any of three ways: 1) when there is a nexus between an employee's omission and injury to the employee or another; 2) when the employee's omission jeopardizes the safety of the employee or others; or 3) when the employee's omission results in damage or destruction of city property. In re Owoeye, CSA 11-05, 4 (6/10/05).

The word “others” within the rule applies to humans and not animals, and thus the rule is inapplicable where zookeeper allowed a dangerous animal into close proximity with another animal. In re Owoeye, CSA 11-05, 4 (6/10/05)

Violation found

Deputy sheriff's attention to her knitting or crocheting prevented her from giving full attention to her post duties. In re Norman-Curry, CSA 28-07and 50-08, 7 (2/27/09).

Deputy sheriff’s failure to use safety protocol to lock the grill securing violent felons in county jail created a significant risk of harm to himself and others, in violation of rule. In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed CSB 8/2/07.

Deputy sheriff violated safety regulations against sleeping on job, negligent performance of duties and departing from truth during investigation of sleeping incident. In re Simpleman, CSA 05-06, 7 (5/16/06).

Deputy sheriff jeopardized his own and others’ safety by sleeping while on duty and failing to observe inmates on his watch, as required by departmental rules, in violation of this rule. In re Simpleman, CSA 05-06, 6 (5/16/06).

Appellant supervisor violated safety rules when he knocked over a “wet floor” sign, entered a secured door in the courthouse, stepped behind the x-ray machine, and stood over another employee in intimidating manner. In re Mestas, CSA 37-05, 4 - 5 (8/4/05).

No violation found

Employee who moved his city vehicle after an accident did not violate rule in the absence of proof of a safety regulation prohibiting that behavior and any resulting injury, damage or jeopardy to the safety of self or others. In re Hobley, CSA 61-05, 6 (12/19/05).

Employee who failed to have his driver’s license on his person at the time of an accident did not violate a safety regulation to maintain a valid license and insurance. In re Hobley, CSA 61-05, 6 (12/19/05).

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16-60 X: Divulging Confidential Information

No violation found

Appellant did not divulge written examination materials to job applicants by furnishing them with readily available and non-confidential documents, including a PEP, CSA workshop and training materials, and a redacted letter of reprimand. In re Martinez, CSA 69-05, 7 (1/4/06) (decided under former §16-50 A.16).

Agency failed to prove that appellant divulged confidential information to job applicants by furnishing them with three potential interview questions. In re Martinez, CSA 69-05, 8 (1/4/06) (decided under former §16-50 A. 16).

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16-60 Y: Conduct Which Violates the Rules, City Charter, Denver Revised Municipal Code,
Executive Orders, or Other Applicable Legal Authority

In general

This rule serves as a catch-all for conduct not otherwise covered by the agency’s evidence under the other Career Service Rules. In re Abbey, CSA 99-09, 11 (8/9/10).

Where an agency proves a violation of a more specific rule, this rule is superfluous. In re Abbey, CSA 99-09, 11 (8/9/10).

This rule is intended to address evidence which is not appropriately covered under the other Career Service Rules. In re Norris, CSA 68-09, 8 (7/12/10).

Where the agency established violations under more specific Career Service Rules, no further consideration is due under this rule. In re Norris, CSA 68-09, 8 (7/12/10).

Where agency established appellant’s violations under more specific career service rules, it is unnecessary to repeat them in proving violations of this rule. In re Carrillo, CSA 95-09, 5 (3/16/10).

Executive Order 94, containing city-wide policies concerning drugs and alcohol, is enforced in the same manner as the career service rules. I n re Delgado, CSA 75-08, 2 (1/30/09), reversed on other grounds, CSB 7/2/09.

This rule serves two functions: it is a catchall provision for wrongdoing which an agency did not specify elsewhere in its notice of discipline, and also bootstraps notice of wrongdoing under other authority into the career service rules. In re Sawyer and Sproul, CSA 33-08, 14 (1/27/09).

Some actual or reasonably perceived harm is required to establish a violation of this rule. A theoretical effect of bad conduct is insufficient. In re Abdi, CSA 63-07, 29 (2/19/08).

Violation found

Agency proved that airport technician who used city vehicles to engage in sex at the airport violated executive order prohibiting unauthorized use of city vehicles, thereby establishing a violation of this rule. In re Jones, CSA 88-09, 6 (5/11/10).

Appellants’ admission that they did not request permission to solicit business activities violated a career service rule not stated in the disciplinary letter requiring employees to obtain written permission before commencing outside business activity. In re Sawyer and Sproul, CSA 33-08, 15 (1/27/09).

Appellant endangered the health of a minor in violation of D.R.M.C. §34-46 when he left her unsupervised after hours in a locked center, then drank alcohol with her and allowed her to become intoxicated in his presence. In re Rivas, CSA 49-07, 13 (1/9/08).

Appellant’s knowing retrieval of obscene photographs as a result of his internet search on a city computer was a violation of §15-82, and did not comport with the permissible occasional use of city computers for personal purposes pursuant to §15-83. In re Strasser,CSA 44-07, 4 (10/16/07).

Deputy sheriff violated city’s Code of Ethics by seeking special treatment when arrested while off duty at a bowling alley, thereby attempting to use his position for personal advantage. In re Mergl,CSA 131-05, 6(3/13/06).

Recreation supervisor’s aggressive confrontation of referee during heated basketball game is a violation of executive order prohibiting violence in workplace. In re Trujillo, CSA 44-05, 3 (11/14/05).

Where appellant aggressively questioned ex-girlfriend at work about her relationship with another worker, knocked a floor sign down, sought out the other worker at the security entrance to courthouse, went behind the x-ray machine and stood over the worker in an intimidating manner, the conduct violated Executive Order112 and CSR 16-50 A. 18).In re Mestas, CSA 37-05, 6(8/4/05).

E-mail using Spanish slang for s___ and f___ were vulgar, in violation of the standards of propriety expressed in Executive Order 16. In re Garcia, CSA 175-04, 3(7/12/05).

Violation not found

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to fulfill her duties or discredited the city in violation of rules governing employee conduct. In re Jones, CSA 88-09, 5 (5/11/10).

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to adhere to high levels of ethical conduct in violation of charter. In re Jones, CSA 88-09, 6 (5/11/10).

Agency did not prove violation where the evidence did not indicate the rule it claimed was violated. In re Valdez, CSA 90-09, 6-7 (3/1/2010).

Since agency failed to establish appellant violated any provision of the rules, Charter or municipal code, agency also did not prove a violation of this rule. In re Burghardt, CSA 81-07, 7(3/28/08).

Evidence that appellant used work time to assist her sister’s fraudulent application for benefits was insufficient to prove that her actions discredited the CSA, agency or city .In re Abdi,CSA 63-07, 29 (2/19/08).

Evidence that city driver parked truck at store to take restroom break did not violate rule where there was no evidence it was noted by any member of the public or harmed reputation of city or agency. In re Dessureau, CSA 59-07, 9 (1/16/08)

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16-60 Z: Conduct Prejudicial to Good Order and Effectiveness of the Department or Agency or
Conduct that Brings Disrepute on or Compromises the Integrity of the City

In general

To sustain this violation, agency must prove an employee’s conduct hindered an agency mission or negatively affected the structure or means by which the agency achieves its mission. In re Abbey, CSA 99-09, 9-10 (8/9/10), citing In re Simpleman, CSA 31-06, 10 (10/20/06).

This rule is violated by evidence showing the agency was hindered by employee’s conduct in its ability to perform its mission, or evidence of actual injury to city’s reputation or integrity. In re Koehler, CSA 113-09, 17 (4/29/10), citing In re Compos, CSA 56-08, 15 (12/15/08); In re Catalina, CSA 35-08, 8 (8/22/08).

To sustain this violation, agency must prove an employee’s conduct hindered an agency mission or negatively affected the structure or means by which the agency achieves its mission. In re Valdez, CSA 90-09, 7 (3/1/2010), citing In re Simpleman, CSA 31-06, 10 (10/20/06).

This rule establishes two independent violations: harm to the agency and harm to the city. In re Norman-Curry, CSA 28-07 and 50-08, p. 28 (2/27/09), citing In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed CSB 31-06 (8/2/07).

To sustain an allegation of harm to the agency, the agency must prove the appellant's conduct hindered the agency's effectiveness, i.e., its ability to carry out its mission, or was prejudicial to the good order of the agency, i.e., the internal structure and means by which the agency achieves its mission. In re Norman-Curry, CSA 28-07 and 50-08, p. 28 (2/27/09), citing In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed CSB 31-06 (8/2/07).

To sustain this violation, the agency must prove the appellants’ conduct hindered the agency mission, or negatively affected the structure or means by which the agency achieves its mission. In re Sawyer and Sproul, CSA 33-08, 15 (1/27/09), citing In re Simpleman, CSA 31-06, 10 (10/20/06).

An agency's work is prejudiced under the first part of this rule if it is hindered in its ability to perform its mission. In re Compos, CSA 56-08, 15 (12/15/08), citing In re Catalina, CSA 35-08, 8 (8/22/08).

The second part of this rule is violated only if there is actual injury to the city's reputation or integrity. In re Compos, CSA 56-08, 15 (12/15/08), citing In re Catalina, CSA 35-08, 8 (8/22/08).

A violation of the second part of this rule requires proof of actual injury. To find otherwise would render § 16-60 Z. simply a catch-all provision, offering employees no guidance as to the standards by which their conduct will be measured, while allowing agencies to impose discipline based solely on subjective views of potential harm. In re Strasser, CSB 44-07, 2 (2/29/08).

The kind of injury necessary to prove a violation of this rule will have to be decided on a case by case basis. In re Strasser, CSB 44-07, 2 (2/29/08).

The first part of this rule requires proof of conduct that hinders an agency’s ability to perform its mission. In re Catalina, CSA 35-08, 8 (8/22/08), citing In re Strasser, CSA 44-07, 4 (10/16/07), aff’d CSB 2/29/08.

The second part of the rule prohibits conduct that actually injures the city’s reputation or integrity. In re Catalina, CSA 35-08, 8 (8/22/08), citing In re Strasser, CSA 44-07, 4 (10/16/07), aff’d CSB 2/29/08.

To sustain a violation of this rule, the agency must prove the appellant’s conduct hindered the agency mission, or negatively affected the structure or means by which the agency achieves its mission. In re Blan, CSA 40-08, 6 (7/31/08), citing In re Simpleman, CSA 31-06, 10 (10/20/06).

To sustain a violation of this rule, the agency must prove appellant’s conduct hindered the agency mission, negatively affected the structure or means by which the agency achieves its mission, or endangered the integrity of the city. In re Stone, CSA 70-07, 11 (2/25/08), citing In re Hill, CSA 14-07, 7 (6/8/07).

To sustain a violation of this rule, the agency must prove appellant’s conduct hindered the agency’s mission, negatively affected the structure or means by which the agency achieves its mission, or endangered the integrity of the city. In re Rivas, CSA 49-07, 13 (1/9/08), citing In re Hill, CSA 14-07, 7 (6/8/07).

A violation of the first part of this rule requires proof of conduct hindering the agency’s effectiveness, i.e. its ability to carry out its mission, or proof of conduct that is prejudicial to an agency’s good order, i.e., the internal structure and means by which it achieves its mission. In re Strasser, CSA 44-07, 4 (10/16/07), aff’d CSB 2/29/08.

The rule requires proof of conduct that negatively impacts the good order and effectiveness or reputation of an agency, or that compromises the integrity of the city. In re Feltes, CSA 50-06, 7 (11/24/06).

This rule establishes two new and independent violations: harm to the agency and harm to the city. In re Simpleman, CSA 31-06, 10 (10/20/06), aff’d CSB 8/2/07.

To sustain a ‘harm to the agency’ violation, agency must prove appellant’s conduct hindered the agency’s effectiveness, i.e., its ability to carry out its mission, or was prejudicial to the good order of the agency, i.e., the internal structure and means by which the agency achieves its mission. In re Delmonico, CSA 53-06, 5 (10/26/06); In re Simpleman, CSA 31-06, 10 (10/20/06), aff’d CSB 8/2/07.

Chain of command and strict adherence to orders take on added importance in light of the safeguarding mission of the sheriff’s department. In re Delmonico, CSA 53-06, 6 (10/26/06).

Violation found

Counselor at youth crisis center violated this rule where he failed to control residents' aggressive behaviors leading to a fight and injuries, even though he was not present during the fight, where a core mission of the center is to maintain constant surveillance and control of residents. In re Abbey, CSA 99-09, 11 (8/9/10).

Family crisis center youth worker's failure to intervene in a resident assault violated the mission of center to provide residents a safe environment, and thus proved a violation of this rule. In re O’Meallie, CSA 92-09, 6 (6/18/10).

Project manager's conduct hindered the agency’s ability to carry out its mission where her noxious and ineffective actions caused problems within the team, cost the city money and delayed completion of a major project. In re Harrison, CSA 55-07, 56 (6/17/10), citing former rule § 16-60 Y.

Inmate's lawsuit against city based upon appellant's unjustified use of force resulted in negative publicity that brought disrepute on the city in violation of the second part of this rule. In re Norman-Curry, CSA 28-07and 50-08 (2/27/09), affirmed CSB (9/3/09).

Where prosecutor knowingly made a more favorable plea offer than that offered by another prosecutor, he hindered the agency mission to promote equal treatment for similarly situated defendants in traffic court. In re Stone, CSA 70-07, 11 (2/25/08)

Associate city attorney’s failure to correct an unintentional misstatement of a significant matter to his supervisor negatively impacted his supervisor’s trust in appellant’s truthfulness, thereby negatively affecting his supervisor’s ability to supervise, in violation of the good order and effectiveness of the agency. In re Stone, CSA 70-07, 11 (2/25/08).

By helping her sister fraudulently obtain public benefits, appellant violated this rule by diminishing the agency’s ability to accomplish its mission to distribute finite resources to those in need. In re Abdi, CSA 63-07, 30 (2/19/08).

Appellant hindered the agency’s mission to deliver recreational services to city residents and endangered the city’s reputation for the integrity of its employees by drinking alcohol with minor female two weeks after her suicide attempt by alcohol, causing her family to avoid the center. In re Rivas, CSA 49-07, 14 (1/9/08).

Appellant negatively impacted the good order of the sheriff’s department when he failed to take his grievance with co-worker through chain of command, and assaulted co-worker within sight of inmates, diminishing deputies’ ability to deal effectively with unruly inmates. In re Delmonico, CSA 53-06, 6 (10/26/06).

Where a primary purpose of sheriff’s department is the safe-keeping of inmates, and appellant’s card-playing while on duty and failure to secure a jail door for 15 to 20 minutes resulted in the inmates being unsupervised and allowed access to other sections of the jail, appellant imperiled an important mission of the agency, in violation of this rule. In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed CSB 8/2/07.

No violation found

Agency did not establish that airport technician who engaged in sex at the airport caused actual harm to the agency or city, as required to prove a violation of this rule. In re Jones, CSA 88-09, 6 (5/11/10).

Agency did not prove violation where there was no evidence employee’s conduct hindered the agency in any significant respect in its mission, or damaged the city’s reputation or integrity. In re Koehler, CSA 113-09, 17 (4/29/10).

Conducting personal business on work time does not establish that employee hindered an agency mission or negatively affected the structure or means to achieve the agency’s mission. In re Valdez, CSA 90-09, 7 (3/1/2010).

Agency failed to prove that youth crisis center worker’s failure to supervise the youth in her care caused actual harm, a required showing to establish a violation of this rule. In re Carrillo, CSA 95-09, 5 (3/16/10).

No violation found where agency failed to demonstrate how appellant's conduct diminished its core mission, its ability to carry out its mission, or how appellant's conduct brought disrepute on or compromised the city's integrity. In re Norman-Curry, CSA 28-07and 50-08, 10 and 17 (2/27/09).

No violation of rule was found where agency failed to show how agency’s mission, structure, or means to a mission was infringed by appellant’s continuing to park in a restricted space after being told not to. In re Owens, CSA 69-08, 7(2/6/09).

Agency’s belief that appellants’ activities put the agency at a disadvantage, without more, is too vague to establish a violation of this rule. In re Sawyer and Sproul, CSA 33-08, 15 (1/27/09).

Minor clerical errors in activity log did not hinder agency's ability to perform its mission. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Minor clerical errors in activity log did not cause actual injury to city's reputation or integrity. In re Compos, CSA 56-08, 15, 19 (12/15/08).

Agency's failure to present any evidence supporting its finding that its mission was affected by errors in appellants' logs constitutes a failure to prove a violation of the first part of this rule. In re Compos, CSA 56-08, 14-15 (12/15/08).

Agency's failure to make a showing of any injury to city's reputation or integrity constitutes a failure to prove a violation of the second part of this rule. In re Compos, CSA 56-08, 14-15 (12/15/08).

Since agency did not prove it was prevented in any significant respect from maintaining the confidentiality of its records by appellant’s conduct, no violation of this part of the rule was established. In re Catalina, CSA 35-08, 8 (8/22/08).

There was no persuasive evidence that appellant’s brief consideration of her attorney’s request for confidential information became known to others outside the agency, or otherwise injured the city’s reputation or integrity, and therefore agency failed to prove violation of this rule. In re Catalina, CSA 35-08, 8 (8/22/08).

Agency’s prompt enforcement of its confidentiality policies by appellant’s termination amply reinforced its commitment to the policies to anyone who learned of these events. In re Catalina, CSA 35-08, 8 (8/22/08).

Where appellant improperly divulged confidential information, but agency failed to prove appellant’s conduct prevented agency from maintaining the confidentiality of its records in any significant respect, a violation of the first part of this rule is not established. In re Catalina, CSA 35-08, 7 (8/22/08).

Where appellant improperly divulged confidential information, but there was no persuasive evidence the disclosure became known to others outside the agency or otherwise injured the city’s reputation or integrity, agency failed to prove a violation of this rule. In re Catalina, CSA 35-08, 8 (8/22/08).

Agency’s concern about effect on co-worker morale of appellant’s absence, and possible media scrutiny of appellant’s lying, does not establish what agency mission, or means to that mission, was negatively affected by appellant’s conduct. In re Blan, CSA 40-08, 6 (7/31/08).

Appellant’s placement of documents in shredder bin was not prejudicial to good order and effectiveness of department were there was no evidence that documents were necessary to work of department, or that their destruction would have been prejudicial to the department. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Where agency proved two of five claimed violations, and the consequences of the proven violations were minimal, agency failed to establish that the agency mission was negatively affected or that the city’s integrity was compromised. In re Mestas et al. CSA 64-07, 61-07, 62-07, 67-07, 19-20 (5/30/08).

Supervisor’s failure to ensure that her subordinates submitted document to auditor within 30-day deadline did not hinder agency’s mission where mistakes were expected after recent reorganization doubled supervisor’s work. In re Mestas et. al., CSA 64-07, 61-07, 62-07, 67-07, 28 (5/30/08).

Violation not proven where agency failed to state what agency mission was affected by supervisor’s failure to perform duty, or demonstrate how the integrity of city was compromised. In re Mestas et. al., CSA 64-07, 61-07, 62-07, 67-07, 28 (5/30/08).

Where the only evidence that appellant’s actions brought disrepute on the city was ruled inadmissible on a hearsay objection, the agency failed to prove the kind of injury necessary to prove appellant’s actions violated this rule. In re Strasser, CSB 44-07, 3 (2/29/08).

Where misconduct resulted in an overpayment of two weeks wages, overpayment was quickly repaid, and agency failed to show public disclosure reflecting on the agency’s reputation or compromise of the City’s integrity, agency did not establish a violation of this section. In re Feltes, CSA 50-06, 7 (11/24/06).

Where appellant’s untruthful statements were entirely internal, and there was no public perception of untrustworthiness, proof of dishonesty did not establish violation of this rule. In re Martinez, CSA 30-06, 9 (10/3/06).

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16-61: Contemplating Discipline on Employee Convicted or Charged with a Crime

Agency’s failure to consider the effect of appellant’s conviction on her fitness to perform, or the city’s reputation or integrity pursuant to CSR § 16-61 C. requires reversal of the discipline based on being charged with a crime in violation of departmental rule. In re Chavez, CSA 129-08, 5 (2/2/2010).

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16-72: Form for Written Reprimand and Notices of Discipline

Appellant was given notice of the reasons for written reprimand in accordance with this rule by official notification of written reprimand. In re Vigil, CSA 110-05, 6 (3/3/06) (decided under former §16-54).

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16-73: Disciplinary Action Following Pre-Disciplinary Meeting

Since an order for remedial training is not disciplinary in nature, agency was not required to provide pre-disciplinary meeting. In re Johnson, CSA 135-05, 3 (3/10/06).

Hearing officer has no authority to augment degree of discipline, a verbal reprimand to a written reprimand, in order to bring case under his jurisdiction. In re Herzog, CSA 64-05 (7/26/05) (decided under former §16-40 C).

Hearing officer has no jurisdiction over verbal reprimand. In re Ligouri, CSA 76-04, 108-04 (6/29/05).

Hearing officer has no jurisdiction to consider appeal of a verbal reprimand. In re Ortiz, CSA 46-05 (6/6/05).

Allegation that verbal reprimand was discriminatory does not render verbal reprimand appealable where proof of discrimination was same facts underlying verbal reprimand. In re Espinoza, CSA 34-05 (5/6/05).

16-75: Procedure for Dismissal

It is the employee's responsibility to update his or her address and telephone number so that current information is reflected in the city personnel records. In re Kemp, CSA 61-08, 2 (9/17/08).

Appeal was untimely when filed two days after the 15-day deadline where appellant failed to provide the city with her current address, in violation of § 16-75, and appellant was aware of the grounds for appeal before the time expired. In re Kemp, CSA 61-08, 2 (9/17/08).

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