15. Disciplinary Action

15.1. The purpose of this Disciplinary Action policy is to establish uniform guidelines for the Department for formal disciplinary action. This portion of the policy shall apply to all employees of the Department; however, the Executive staff and the Division Directors are subject to discipline by the Commissioner, who is not confined to the provisions of this policy. This policy does not constitute a promise or contract of employment of any kind, expressed or implied.

15.2. This policy may not limit the authority of the Commissioner given under the Constitution and statutes of the State of West Virginia.

15.3. The Department supports the concept of progressive discipline. The nature of the offense is the main factor in determining disciplinary action. Offenses are described as "major" or "minor," with the appropriate level of response detailed for each in this policy.

15.4. Certain violations may warrant disciplinary action outside the progressive disciplinary process. Although the disciplinary action is "progressive" it should not be implied that each of these actions must occur in this order when a more immediate response is needed.

15.5. Disciplinary action for major offenses may be taken by Division Directors of the West Virginia Department of Agriculture who should follow this policy when taking or recommending disciplinary action. Disciplinary action for minor offenses may be taken or recommended by supervisors and other appropriate supervisory employees.

15.6. The Personnel Director is available to provide assistance, consultation and assistance in preparing disciplinary action or to assist in formulating the recommendations for disciplinary action, or to answer any questions an employee has about the disciplinary process.

15.7. Any proposed disciplinary action must be based on facts and evidence, therefore, the supervisor or Division Director must take great care in the analysis of the situation, which may include discussing the problem with the employee to find facts. In no case during this fact finding process should a supervisor or Division Director tell an employee that a suspension, demotion, disciplinary transfer, or discharge is being contemplated.

15.8. The Personnel Director will make all notifications about disciplinary proceedings above the level of written reminder.

15.9. Progressive Discipline Procedures for Major Offenses

..........15.9.a. Major Offenses are those that raise serious questions of security, trust or an employee's ability to perform the duties of his/her job and include, but are not limited to:

....................15.9.a.A. dishonesty;

....................15.9.a.B. conviction of felony;

....................15.9.a.C. substance abuse;

....................15.9.a.D. falsification of records;

....................15.9.a.E. violation of standards as established by State Ethics Commission;

....................15.9.a.F. violation of rules, regulations, and policies as established by the Department, State of West Virginia, federal government, or any organization or governing body associated with the Department;

....................15.9.a.G. sleeping on the job;

....................15.9.a.H. work-related criminal violations;

....................15.9.a.I. violation of Workplace Security Policy; (Refer to Section 5.)

....................15.9.a.J. abuse of state property;

....................15.9.a.K. insubordination;

....................15.9.a.L. assault and/or battery of co-workers or others;

....................15.9.a.M. abusive language and/or gestures;

....................15.9.a.N. destroying property of others;

....................15.9.a.O. sexual, verbal, or physical harassment of others;

....................15.9.a.P. discrimination;

....................15.9.a.Q. use of state property for private gain or profit;

....................15.9.a.R. failure to meet deadlines in a manner that substantively affects the work of the Department;

....................15.9.a.S. negligence or poor work performance;

....................15.9.a.T. any act which proves embarrassing or damaging to the reputation of the Department; and

....................15.9.a.U. any other actions of similar severity.

..........15.9.b. The failure to meet the deadlines set forth in this timetable for disciplinary procedures for major offenses will result in the termination of the process, except in the case of emergencies or other extenuating circumstances.

..........15.9.c. Step One: Major offenses are to be reported in writing by the supervisor to the Division Director within five (5) working days of the event or the time when a violation was known by the supervisor. If the Division Director is the immediate supervisor, the deadline for action in steps one and two is ten (10) days.

....................15.9.c.A. The initial written report should: clearly document the violation; include the date and time of the violation, or of the time the supervisor became aware of the violation; describe the nature of the violation; and state the recommendation for disciplinary action.

..........15.9.d. Step Two: The Division Director has five (5) working days to review the supervisor's recommendation, and to comment in writing to the Personnel Director. Any recommendation for disciplinary action stronger than a written reminder must be reviewed by the Personnel Director for legal and procedural issues.

..........15.9.e. Step Three: The Personnel Director has five (5) working days to review the recommendation from the Division Director.

....................15.9.e.A. The review of the recommendations from the Division Director will include only the procedural, policy, and legal issues of the proposed action.

....................15.9.e.B. During this stage of the review, the Personnel Director will not be concerned with determining the guilt or innocence of the employee, but instead will review the strength of the evidence presented relative to the discipline recommended to provide an objective evaluation of the appropriateness (legal, procedural) of the level of disciplinary action that has been recommended.

....................15.9.e.C. The Personnel Director will inform the employee in writing of the pending recommendation and will explain to the employee what options are available to him or her.

..........15.9.f. Progressive Discipline Options for Major Offenses

....................15.9.f.A. Written Reminder

..................................15.9.f.A.(a). A written reminder is the minimum action that can be taken when a major offense occurs.

..................................15.9.f.A.(b). A written reminder must document the specific violation(s) to include the date of the offense(s) and any negative impact of the infraction(s). A written reminder should also include a performance improvement plan designed to correct the inappropriate behavior(s).

..................................15.9.f.A.(c). Division Directors may issue a written reminder to any employee under their supervision; or a supervisor may provide a written reminder to an employee under their supervision with the written concurrence of the Division Director.

..................................15.9.f.A.(d). A written reminder must be issued within five (5) working days of event, or of the time when violation is made known to the supervisor or Division Director.

..................................15.9.f.A.(e). The written reminder must be presented to the employee by the supervisor or Division Director in a private setting. In no case should such a letter be placed in a public area for the employee to pickup. Every effort should be made to deliver the written reminder to field employees in person. Exceptions to this procedure require the approval of the Personnel Director.

..................................15.9.f.A.(f). The written reminder must be signed and dated by the supervisor, and should be signed and dated by the employee whenever possible to prove receipt.

..................................15.9.f.A.(g). A copy of the written reminder must be forwarded to the Personnel Director.

..................................15.9.f.A.(h). All written reminders will be placed in the permanent personnel file of the individual involved.

..................................15.9.f.A.(i). There is no appeal of written reminders. However, an employee may express disagreement by providing a written statement to the Personnel Director which will be attached to the written reminder in the employee's personnel file. This statement must be submitted within five (5) days of receipt of the written reminder.

....................15.9.f.B. Suspension Without Pay

..................................15.9.f.B.(a). A supervisor may recommend in writing to the Division Director a suspension without pay for an employee for a period varying from one (1) to thirty (30) days, depending on the gravity of the offense and the employee's previous disciplinary record.

..................................15.9.f.B.(b). The recommendation must then be communicated in writing to the Personnel Director with the comments and recommendation of the Division Director included.

..................................15.9.f.B.(c). The Personnel Director will then review these recommendations for policy, procedure and legal issues.

..................................15.9.f.B.(d). The Personnel Director will inform the employee (in writing) of the pending recommended action and will explain options that are available to the employee at that point in the process, including the appeal process set forth in Section 16 of this policy (Administrative Review).

..................................15.9.f.B.(e). The letter of suspension without pay may only be issued by the Commissioner.

....................15.9.f.C. Disciplinary Demotion

..................................15.9.f.C.(a). Any supervisor may recommend a demotion of duties and/or salary in response to a major offense.
..................................15.9.f.C.(b). The recommendation must then be communicated in writing to the Personnel Director with the comments and recommendation of the Division Director included.

..................................15.9.f.C.(c). The Personnel Director will then review these recommendations for policy, procedure and legal issues.

..................................15.9.f.C.(d). The Personnel Director will inform the employee of the recommended action (in writing) and will explain options that are available to the employee at that point in the process, including the appeal process set forth in Section 16 of this policy (Administrative Review).

..................................15.9.f.C.(e). The letter of demotion or salary reduction may only be issued by the Commissioner.

....................15.9.f.D. Disciplinary Transfer

..................................15.9.f.D.(a). Any supervisor may recommend a disciplinary transfer in response to a major offense.

..................................15.9.f.D.(b). The recommendation must then be communicated in writing to the Personnel Director with the comments and recommendation of the Division Director included.

..................................15.9.f.D.(c). The Personnel Director will then review these recommendations for policy, procedure and legal issues.

..................................15.9.f.D.(d). The Personnel Director will inform the employee of the recommended action (in writing) and will explain options that are available to the employee at that point in the process, including the appeal process set forth in Section 16 of this policy (Administrative Review).

..................................15.9.f.D.(e). The letter of transfer may only be issued by the Commissioner.

....................15.9.f.E. Discharge

..................................15.9.f.E.(a). Only in the most severe situations will a discharge be considered without there first being a record of written warning, a reprimand, or a suspension.

..................................15.9.f.E.(b). Any supervisor may recommend a discharge in response to a major offense.

..................................15.9.f.E.(c). The recommendation must then be communicated in writing to the Personnel Director with the comments and recommendation of Division Director included.

..................................15.9.f.E.(d). The Personnel Director will then review these recommendations for policy, procedure and legal issues.

..................................15.9.f.E.(e). The Personnel Director will inform the employee of the recommended action (in writing) and will explain any options that are available to the employee at that point in the process, including the appeal process set forth in Section 16 of this policy (Administrative Review).

..................................15.9.f.E.(f). The letter of discharge may only be issued by the Commissioner.

15.10. Progressive Disciplinary Procedures for Minor Offenses

..........15.10.a. Minor offenses are those that indicate a failure to comply with Department policies. Minor offenses include, but are not limited to:

....................15.10.a.A. habitual tardiness;

....................15.10.a.B. excessive or improper personal use of the telephone, facsimile machine, computer, or other Department equipment;

....................15.10.a.C. failure to meet deadlines;

....................15.10.a.D. messiness/sloppiness/disorganization;

....................15.10.a.E. unjustified complaining;

....................15.10.a.F. improper use of state property;

....................15.10.a.G. failure to check in/out of workplace;

....................15.10.a.H. unprofessional courtesy and appearance;

....................15.10.a.I. excessive fraternization;

....................15.10.a.J. avoidance of work;

....................15.10.a.K. improper or habitual practical jokes;

....................15.10.a.L. failure to comply with the Department's tobacco use policy;

....................15.10.a.M. abuse of leave; and

....................15.10.a.N. any other actions of similar severity.

..........15.10.b. Actions taken in response to minor offenses must follow the procedures in this section of the policy.

..........15.10.c. Progressive Discipline Options for Minor Offenses

....................15.10.c.A. Verbal Reminder

..................................15.10.c.A.(a). A verbal reminder should be the first disciplinary action taken for all minor offenses.

..................................15.10.c.A.(b). A supervisor is permitted to issue a verbal reminder to an employee for a job-related activity.

..................................15.10.c.A.(c). A verbal reminder is to be given to the employee by the supervisor within two (2) working days of event or, of the time when the violation is known to the supervisor.

..................................15.10.c.A.(d). The verbal reminder must be issued to the employee in a private setting. A verbal reminder may be given by telephone to a field employee, if necessary.

..................................15.10.c.A.(e). The supervisor must clearly state to the employee that a verbal reminder is being issued, what activity was incorrect, and what activity would have been correct.

..................................15.10.c.A.(f). The supervisor must document a verbal reminder (whether delivered in person or by phone) after the discussion by completing a verbal reminder notice (provided by Personnel Office). This record is to be signed by the employee and the supervisor, and will list only the broad subject of the reminder, but will not list details of the incident.

..................................15.10.c.A.(g). A copy of all verbal reminders must be made and placed in the employee's personnel file.

..................................15.10.c.A.(h). In all cases, the supervisor must maintain personal notes regarding the verbal reminder indicating date, time, and a full summary of the discussion.

..................................15.10.c.A.(i). There is no appeal of verbal reminders.

....................15.10.c.B. Written Reminder

..................................15.10.c.B.(a). Repeated minor offenses should be documented by written reminders.

..................................15.10.c.B.(b). A written reminder must document the specific violation(s) to include the date of the offense(s) and any negative impact of the infraction(s). A written reminder should also include a performance improvement plan designed to correct the inappropriate behavior(s).

..................................15.10.c.B.(c). Division Directors may issue a written reminder for multiple minor offenses of a similar nature to any employee under their supervision; or a supervisor may provide a written reminder to an employee under their supervision with the written concurrence of the Division Director. When possible, a verbal reminder should precede the written reminder.

..................................15.10.c.B.(d). A written reminder must be issued within five (5) working days of event, or of the time when violation is made known to the supervisor or Division Director.

..................................15.10.c.B.(e). The written reminder must be presented to the employee by the supervisor or Division Director in a private setting. In no case should such a letter be placed in a public area for the employee to pickup. Every effort should be made to deliver the written reminder to field employees in person. Exceptions to this procedure require the approval of the Personnel Director.

..................................15.10.c.B.(f). The written reminder must be signed and dated by the supervisor, and should be signed and dated by the employee whenever possible to prove receipt.

..................................15.10.c.B.(g). A copy of the written reminder must be forwarded to the Personnel Director.

..................................15.10.c.B.(h). All written reminders will be placed in the permanent personnel file of the individual involved.

..................................15.10.c.B.(i). There is no appeal of written reminders. However, an employee may express disagreement by providing a written statement to the Personnel Director which will be attached to the written reminder in the employee's personnel file. This statement must be submitted within five (5) days of receipt of the written reminder.

....................15.10.c.C. Suspension Without Pay

..................................15.10.c.C.(a). Suspension without pay is available to supervisors as a response to repeated or multiple minor offenses that occur within a period of twelve (12) successive calendar months. The timetable for action on suspension without pay is the same as the timetable for suspension without pay in the major offenses, as described in this section of the policy.

..................................15.10.c.C.(b). A supervisor may recommend in writing to the Division Director a suspension without pay for an employee for a period varying from one (1) to thirty (30) days, depending on the gravity of the offense and the employee's previous disciplinary record.

..................................15.10.c.C.(c). The recommendation must then be communicated in writing to the Personnel Director with the comments and recommendation of the Division Director included.

..................................15.10.c.C.(d). The Personnel Director will then review these recommendations for policy, procedure and legal issues.

..................................15.10.c.C.(e). The Personnel Director will inform the employee (in writing) of the pending recommended action and will explain options that are available to the employee at that point in the process, including the appeal process set forth in Section 16 of this policy (Administrative Review).

..................................15.10.c.C.(f). The letter of suspension without pay may only be issued by the Commissioner.

15.11. An employee may respond to disciplinary action by:

..........15.11.a. accepting the disciplinary action;

..........15.11.b. writing to the Commissioner to request that Administrative Review procedures, as noted in Section 16 of this policy, be implemented prior to the implementation of the following major disciplinary actions: disciplinary transfer, disciplinary demotion, suspension without pay, discharge; or

..........15.11.c. providing a written statement of disagreement to their personnel file in response to the following disciplinary actions: a written reminder, or a suspension without pay for multiple minor offenses.