General Discipline and Grievances

Contents

1600 Applicability: General Discipline

1600.1 Sections 1601 through 1619 apply to each employee of the District government in the Career Service who has completed a probationary period.

1601 General: General Discipline

1601.1 An employee covered by § 1600.1 may not be suspended, reduced in grade, or pay, removed, given an official reprimand, or placed on enforced leave, except as provided in this chapter or in Chapter 24 of these regulations.

1601.2 Any procedural system for the review of adverse actions negotiated between the District of Columbia and a labor organization shall take precedence over the provisions of this chapter for employees in a bargaining unit represented by a labor organization, to the extent that there is a difference. A contract, memorandum of understanding, or collective bargaining agreement cannot modify the standard for cause as defined in § 1603.

1601.3 If an employee is authorized to choose between the negotiated grievance process set forth in a collective bargaining agreement and the grievance or appellate process provided in these rules, the employee may elect, at his or her discretion, to do one (1) of the following:

(a) Grieve through the negotiated grievance procedure; or

(b) Appeal to the Office of Employee Appeals or file a disciplinary grievance, each as provided in these rules.

1601.4 An employee shall be deemed to have elected his or her remedy pursuant to § 1601.3 when he or she files a disciplinary grievance or an appeal under the provisions of this chapter or files a grievance in writing in accordance with the provisions of the negotiated grievance procedure applicable to the parties, whichever event occurs first. This section shall not be construed to toll any deadlines for filing.

1601.5 Any procedures for handling corrective or adverse actions involving uniformed members of the Metropolitan Police Department or the Fire and Emergency Medical Services Department provided for by law, or by regulations of the respective departments in effect on the effective date of these regulations, including but not limited to procedures involving trial boards, shall take precedence over the provisions of this chapter to the extent that there is a difference.

1601.6 Except as provided in § 1601.7, the final decision notice on a corrective or adverse action shall remain in the employee’s Official Personnel Folder (OPF) for not more than three (3) years from the effective date of the action. The official personnel action document effecting the corrective or adverse action is a permanent record and shall remain in the employee’s OPF.

1601.7 Documentation placed in an OPF pursuant to § 1601.6 may be withdrawn earlier than stipulated therein if so ordered by the official issuing the corrective or adverse action, that official’s superiors or successor, the Office of Employee Appeals, a court of competent jurisdiction, an arbitrator of competent jurisdiction, the appropriate personnel authority, or the Office of Human Rights.

1601.8 A deciding official may not dismiss a proposed disciplinary action solely on the basis of error in the application of the agency’s procedures which did not cause substantial harm or prejudice to the employee’s rights.

1602 Admonition: General Discipline

1602.1 An admonition shall not be a corrective or adverse action under this chapter, and shall not be made a part of the official personnel folder, but shall be retained by the agency for not more than three (3) years unless sooner ordered withdrawn by the official issuing the admonition, that official’s superiors or successor, a court of competent jurisdiction, an arbitrator of competent jurisdiction, the appropriate personnel authority, or the Office of Human Rights.

1602.2 An admonition may be considered in determining the penalty for a corrective or adverse action when the admonition was issued not more than three (3) years prior to the date of the proposed corrective or adverse action, and has not been ordered withdrawn as provided in § 1602.1.

1602.3 The admonition shall inform the employee that he or she may respond in writing, within two (2) workdays of receipt of the admonition, to the person issuing the admonition to clarify, expand on, or take exception to the statements or conclusions it contains, and any response shall be filed and removed with the admonition.

1602.4 The employee against whom an admonition is issued shall be asked to acknowledge its receipt. If the employee refuses to acknowledge receipt, a brief descriptive written statement, signed by a witness, may be used as evidence of service.

1602.5 An admonition issued in accordance with this section may be grieved as provided in § 1631.

1603 Definition of Cause: General Discipline

1603.1 There must be full accountability for managers and supervisors for all actions taken under this chapter. Therefore, no corrective or adverse action may be initiated under this chapter unless first authorized by a manager or supervisor who the Mayor or an agency head may remove from his or her position at will.

1603.2 Except where a less restrictive standard is provided by statute or other provision of law, a corrective or adverse action, including without limitation, a reprimand, suspension, reduction in grade, or removal, may only be taken for cause. This provision shall not be construed to extend job tenure or protection not provided for in the District of Columbia Government Comprehensive Merit Personnel Act of 1978, as amended, nor shall it be construed to extend any job tenure or protection to any employee who by law or contract is subject to a less restrictive standard for application of a corrective or adverse action. This section shall, however, be construed in a manner consistent with the Fifth Amendment Due Process Clause of the United States Constitution.

1603.3 For the purpose of this chapter, “cause” means a conviction (including a plea of nolo contendere) of a felony at any time following submission of an employee’s job application; a conviction (including a plea of nolo contendere) of another crime (regardless of punishment) at any time following submission of an employee’s job application when the crime is relevant to the employee’s position, job duties, or job activities; any knowing or negligent material misrepresentation on an employment application or other document given to a government agency; any on-duty or employment-related act or omission that the employee knew or should reasonably have known is a violation of law; any on-duty or employment-related act or omission that interferes with the efficiency or integrity of government operations; and any other on-duty or employment-related reason for corrective or adverse action that is not arbitrary and capricious. This definition includes, without limitation, unauthorized absence, negligence, incompetence, insubordination, misfeasance, malfeasance, the unreasonable failure to assist a fellow government employee in performing his or her official duties, or the unreasonable failure to give assistance to a member of the public seeking services or information from the government.

1603.4 With regard to any uniformed member, officer, or civilian employee of the Metropolitan Department or the D.C. Department of Corrections; any commissioned special police officer employed by the District of Columbia; any employee of the Youth Services Administration covered by the law enforcement retirement provisions of the Civil Service Retirement System or the detention officer provisions of the District retirement benefits program established pursuant to D.C. Official Code § 1-626.05 et seq.; or any other District of Columbia employee authorized to carry a firearm while on duty, “cause” also means the following, whether occurring on or off duty:

(a) Any act or omission which constitutes a criminal offense, whether or not such act or omission results in a conviction; and

(b) Any credible evidence of use of an illegal drug or unauthorized use or abuse of prescription drugs, including without limitation, the results of any drug test.

1603.5 No employee may be subject to a corrective or adverse action under this chapter for a de minimis violation of the cause standard contained in this section.

1603.6 This section shall not be construed as intended to incorporate or rely upon previous regulatory, statutory, administrative, or judicial interpretations of the terms “cause,” “just cause,” “inefficiency,” and “efficiency,” the phrase “cause to promote the efficiency of the service,” or any other predecessor statute, regulation, or rule.

1603.7 Unless otherwise mandated by law, no other provision of the District of Columbia personnel regulations shall be construed as authorizing creation or use of a cause standard other than the one contained in this section.

1603.8 Removal is not mandated under any provision in this section. Unless otherwise mandated by law, previous standards or doctrines for selection of a corrective or adverse action for cause are hereby repealed. Notwithstanding any other regulation, the authority to adopt corrective or adverse action penalty guidelines or requirements is held exclusively by the Mayor, the City Administrator, the Director of Personnel, and (upon approval of the guidelines or requirements by the Director of Personnel) agency heads. With regard to the Metropolitan Police Department, the authority to adopt corrective or adverse action penalty guidelines or requirements is held exclusively by the Mayor and the Chief of Police.

1603.9 Unless otherwise required by law, in selecting the appropriate penalty to be imposed in a corrective or adverse action, consideration shall be given to any mitigating or aggravating circumstances that have been determined to exist, to such extent and with such weight as is deemed appropriate.

1603.10 In any disciplinary action, the government shall bear the burden of proving by a preponderance of the evidence that the corrective or adverse action may be taken or, in the case of summary action, was taken, for cause as that term is defined in this section. A criminal conviction shall estop the convicted party from denying the facts underlying the conviction.

1603.11 All notices issued in connection with an adverse or corrective action under this chapter shall conform to all requirements of the Fifth Amendment Due Process Clause of the United States Constitution.

1603.12 When used in this section, the term “employment-related act or omission” means an act or omission, occurring during a time that the employee was other than on duty, and which adversely and materially has affected, or is likely to affect, the efficiency of government operations or the employee’s performance of his or her duties.

1603.13 Except where a less restrictive standard is provided by statute or other provision of law, no employee may be subjected to a corrective or adverse action under this section for an act or omission committed prior to the effective date of this section unless the employee also could have been subjected to the same adverse or corrective action under the applicable regulations that existed prior to October 21, 1998.

1604 Corrective Action: General Discipline

1604.1 A corrective action shall be an official reprimand, or a suspension of less than ten (10) days.

1604.2 A corrective action may be contested as a disciplinary grievance pursuant to § 1618 of this chapter.

1605 Adverse Action: General Discipline

1605.1 An adverse action shall be a suspension of ten (10) days or more, a reduction in grade, or a removal.

1605.2 An adverse action may be appealed to the Office of Employee Appeals pursuant to § 1619 of this chapter. In lieu of appealing to the Office of Employee Appeals, an employee may elect to contest an adverse action as a disciplinary grievance pursuant to § 1618 of this chapter.

1605.3 An employee electing to contest an adverse action as a disciplinary grievance as provided in § 1605.2 shall sign a statement acknowledging that this election constitutes a waiver of his or her right to appeal to the Office of Employee Appeals.

1606 Agency Responsibility: General Discipline

1606.1 Each agency head shall ensure the following:

(a) That actions covered by this chapter are taken in accordance with the provisions herein;

(b) That an employee covered by this chapter is afforded the rights and protections provided herein; and

(c) That an employee, the employee’s representative, and witnesses, have freedom from restraint, coercion, interference, or reprisal by any official of the agency.

1606.2 In taking corrective or adverse action against an employee as provided in this chapter, each agency head shall afford fair and equitable treatment.

1606.3 In determining the penalty for a corrective or adverse action, documentation appropriately placed in the OPF regarding prior corrective or adverse actions, other than a record of the personnel action, may be considered for not longer than three (3) years from the effective date of the action, unless sooner ordered withdrawn in accordance with § 1601.7.

1606.4 Except as provided by §§ 1601.2 and 1601.5, no provision in this chapter shall be interpreted to permit a modification of the corrective action procedures and standards in this chapter by contract, memorandum of understanding, informal agreement, past practices, or agency order. Any modification of these corrective action procedures and standards shall be done explicitly by issuance of additional regulations.

1606.5 Failure to enforce any provision of this chapter on a particular action taken shall not constitute a waiver of the authority of the District of Columbia government to enforce that provision at any time, nor shall it subject the District of Columbia government to a claim of estoppel or other avoidance defense.

1606.6 In appropriate cases, agency heads may utilize the counseling program for troubled employees as provided under D.C. Official Code § 1-620.07.

1607 Duties and Responsibilities of Proposing Official: General Discipline

1607.1 The proposing official shall issue the advance written notice proposing corrective or adverse action against an employee, as provided for in §§ 1608.1 and 1608.2.

1607.2 At any time prior to the deciding official rendering the final decision, the proposing official may withdraw a proposed corrective or adverse action with or without prejudice and, if withdrawn, shall so notify the employee and the deciding official.

1607.3 The proposing official shall not be the deciding official, except the proposing official may be the deciding official when the proposing official is the head of an agency.

1608 Advance Written Notice: General Discipline

1608.1 Except in the case of a summary suspension action pursuant to § 1616 or a summary removal action pursuant to § 1617, an employee against whom corrective or adverse action is proposed shall have the right to an advance written notice, as follows:

(a) In the case of a proposed adverse action, an advance written notice of fifteen (15) days; or

(b) In the case of a proposed corrective action, an advance written notice of ten (10) days.

1608.2 The advance written notice shall inform the employee of the following:

(a) The action that is proposed and the cause for the action;

(b) The specific reasons for the proposed action;

(c) The right to prepare a written response, including affidavits and other documentation, within six (6) days of receipt of the advance written notice;

(d) The person to whom the written response or any request is to be presented;

(e) The right to review any material upon which the proposed action is based;

(f) In the case of a proposed adverse action only, the right to be represented by an attorney or other representative;

(g) The right to an administrative review by a hearing officer appointed by the agency head, as provided in
§ 1612.1, when the proposed action is a removal; and

(h) The right to a written decision.

1608.3 The material upon which the notice is based, and which is relied upon to support the reasons given in the notice, shall be assembled and made available to the employee for his or her review, upon request. A copy of the material will be provided to the employee upon request.

1608.4 Material that cannot be disclosed to the employee, or to his or her representative, shall not be used to support the reasons given in the notice. This rule does not prohibit the redaction of documents so long as the redacted information is not used to support the reasons given in the notice.

1608.5 The first day of the notice period shall be the day following the date on which service is made to the employee, either in person, by courier, or by certified or registered mail, or the date on which service was attempted and refused.

1608.6 For notices delivered in person, the employee to whom the advance notice is issued shall be asked to acknowledge its receipt. If the employee refuses to acknowledge receipt, a brief descriptive written statement, signed by a witness, may be used as evidence of service.

1608.7 If the employee is not in a duty status, i.e., at work, the notice of proposed action shall be sent to the employee’s last known address by courier, or by certified or registered mail, return receipt requested.

1608.8 An employee against whom a corrective or adverse action is proposed may be placed on administrative leave at the discretion of the agency head.

1608.9 An employee against whom a corrective or adverse action is proposed shall be entitled to be retained in an active duty status during the notice period, except when the employee has been placed on administrative leave as provided in § 1608.8 or 1615.1.

1609 Official Time: General Discipline

1609.1 If otherwise in a duty status, each employee against whom an adverse action has been proposed shall be entitled to a reasonable amount of official time to prepare his or her response, not to exceed ten (10) hours of administrative leave. Such preparation shall not take place at the employee’s duty station or any non-public area of a government office, unless authorized by the agency head.

1609.2 All absence from duty in excess of the time approved in accordance with § 1609.1 shall be charged in accordance with Chapter 12 of these regulations.

1610 Employee's Representative: General Discipline

1610.1 An employee against whom an adverse action is proposed shall have the right to be accompanied, represented, or advised by an attorney or other representative of his or her choice, except as provided in § 1610.2.

1610.2 The agency head or his or her designee shall have the right to disallow a person chosen by the employee to represent him or her if:

(a) The person is another District government employee and representation by that person conflicts with a governmental priority; or

(b) Representation by that person creates a clear conflict of interest or conflict of official position, or the person is a material witness to the facts underlying the proposed adverse action.

1610.3 The decision to disallow an employee’s choice of representative shall not be subject to any further administrative review.

1611 Employee's Response: General Discipline

1611.1 The employee’s response shall be in writing and presented to the deciding official, except for a response to a proposed removal, which shall be presented in writing to the hearing officer.

1611.2 Extensions of time in which to respond may be granted for good cause by the deciding official or, in the case of a removal, the hearing officer.

1611.3 The right to respond shall include the right to present evidence that the employee believes might affect the final decision on the proposed action. Such evidence may include written statements of witnesses, affidavits, or documents or any other form or depiction of information.

1611.4 At the time of the response, an employee shall raise every defense, fact or matter in extenuation, exculpation, or mitigation of which the employee has knowledge or reasonably should have knowledge or which is relevant to the reasons for the proposed action, specifications, or proposed penalty.

1612 Administrative Review of Removal Actions: General Discipline

1612.1 The personnel authority shall provide for an administrative review of a proposed removal action against an employee.

1612.2 The administrative review shall be conducted by a hearing officer, who shall meet the following criteria:

(a) Be appointed by the agency head;

(b) Be at grade levels DS-13 and above or equivalent;

(c) Not be in the supervisory chain of command between the proposing official and the deciding official, nor subordinate to the proposing official;

(d) Have no direct and personal knowledge (other than hearsay that does not affect impartiality) of the matters contained in the proposed removal action; and

(e) Be an attorney, if practicable, or if required pursuant to § 1612.7.

1612.3 The hearing officer shall be responsible for keeping the proposed removal action moving to a conclusion at the earliest practicable date.

1612.4 In conducting the administrative review, the hearing officer shall:

(a) Review the notice of proposed removal action;

(b) Review the employee’s response, if there is one; and

(c) Conduct an adversary hearing when required in accordance with § 1612.5.

1612.5 An adversary hearing, including the confrontation of witnesses, shall be conducted only when both of the following conditions are met:

(a) When the hearing officer determines that a decision based on a preponderance of the evidence cannot be made because the written record is inadequate for this purpose; and

(b) The personnel authority grants approval to the hearing officer to conduct a hearing.

1612.6 Failure by an employee to respond to a charge or specification raised in the advance written notice shall not constitute a reason to conduct an adversary hearing.

1612.7 The hearing officer conducting an adversary hearing pursuant to § 1612.5 shall be an attorney who meets the requirements of §§ 1612.2(a) through (d).

1612.8 The procedures for conducting an adversary hearing pursuant to this section shall be as follows:

(a) For agencies subordinate to the Mayor’s personnel authority, except for the Metropolitan Police Department, the Director of Personnel shall develop and publish appropriate procedures in the District Personnel Manual, and these procedures shall constitute the internal rules and regulations for those agencies as required by D.C. Official Code § 1-606.04(a); and

(b) Other personnel authorities and the Metropolitan Police Department shall either develop and publish appropriate procedures or adopt the procedures published in the District Personnel Manual.

1612.9 The rules of evidence shall not apply to an adversary hearing conducted pursuant to this section, except that the hearing officer may, at his or her discretion, be guided by and apply the District of Columbia rules of evidence to the extent that he or she believes their application would promote the presentation of reliable evidence.

1612.10 After conducting the administrative review, the hearing officer shall make a written report and recommendation to the deciding official, and shall provide a copy to the employee.

1612.11 For the purposes of §§ 1612.2 and 1612.7 of this section only, an “attorney” is an individual authorized to practice law in any jurisdiction of the United States.

1613 Duties and Responsibilities of Deciding Official: General Discipline

1613.1 The deciding official, after considering the employee’s response and the report and recommendation of the hearing officer pursuant to § 1612, when applicable, shall issue a final decision.

1613.2 The deciding official shall either sustain the penalty proposed, reduce it, remand the action with instruction for further consideration, or dismiss the action with or without prejudice, but in no event shall he or she increase the penalty.

1614 Final Decision Notice: General Discipline

1614.1 The employee shall be given a notice of final decision in writing, dated and signed by the deciding official, informing him or her of all of the following:

(a) Which of the reasons in the notice of proposed corrective or adverse action have been sustained and which have not been sustained, or which of the reasons have been dismissed with or without prejudice;

(b) Whether the penalty proposed in the notice is sustained, reduced, or dismissed with or without prejudice;

(c) When the final decision results in a corrective action, the employee’s right to grieve the decision as provided in § 1618;

(d) When the final decision results in an adverse action, the right to appeal to the Office of Employee Appeals as provided in § 1619; and the notice shall have attached to it a copy of the OEA appeal form; and

(e) The effective date of the action.

1614.2 Except as provided in § 1614.3, the final decision shall be rendered at the earliest practicable date.

1614.3 The final decision in the case of a summary suspension or summary removal action taken pursuant to §§ 1616 or 1617 of this chapter, respectively, shall be rendered not later than forty-five (45) days from the date of delivery of the summary suspension or summary removal notice, as appropriate, except that the period may be extended as follows:

(a) When the employee requests and is granted an extension of time in which to respond under § 1611.2; or

(b) When the employee agrees to an extension of time requested by the agency.

1614.4 The notice of final decision shall be delivered to the employee, if in a duty status, i.e., at work, on or before the time the action is effective.

1614.5 The employee to whom the notice of final decision is delivered shall be asked to acknowledge its receipt. If the employee refuses to acknowledge receipt, a brief descriptive written statement, signed by a witness, may be used as evidence of service.

1614.6 If the employee is not in a duty status, i.e., at work, the notice of final decision shall be sent to the employee’s last known address by courier, or by certified or registered mail, return receipt requested, before the time the action becomes effective.

1614.7 If the final decision is to impose an official reprimand, the official reprimand shall be included in the notice of final decision itself, since the notice will constitute the official reprimand that goes into the employee’s Official Personnel Folder, and shall contain a statement to that effect.

1614.8 If the final decision is to dismiss the proposed action, the notice of final decision must state whether the proposed action is dismissed with or without prejudice.

1614.9 The decision made by the deciding official, in the case of a corrective action, shall be the final decision for the purpose of a disciplinary grievance pursuant to § 1618.

1614.10 The decision made by the deciding official in the case of an adverse action shall be the final agency decision for the purpose of an appeal to the Office of Employee Appeals pursuant to § 1619.

1615 Enforced Leave: General Discipline

1615.1 Notwithstanding any other provision of this chapter, a personnel authority may authorize placing an employee on enforced leave if:

(a) A determination has been made that the employee utilized fraud in securing his or her appointment or that he or she falsified official records;

(b) The employee has been indicted on, arrested for, or convicted of a felony charge (including conviction following a plea of nolo contendere); or

(c) The employee has been indicted on, arrested for, or convicted of any crime (including conviction following a plea of nolo contendere) that bears a relationship to his or her position; except that no such relationship need be established between the crime and the employee’s position in the case of uniformed members of the Metropolitan Police Department or correctional officers in the D.C. Department of Corrections.

1615.2 Personnel authorities may delegate authority to take action against an employee under this section to an agency supervisor or manager who the Mayor or the agency head may remove from his or her position at will.

1615.3 A personnel authority may propose the placing of an employee on enforced leave in accordance with this section as follows:

(a) For actions based on any of the conditions described in § 1615.1(a) or (c), only if the personnel authority has a good faith belief that any of the conditions described in §1615.1(a) or (c) are met after reviewing and considering the information contained in affidavits, legal indictments, charges or complaints, arrest records, or other documents or other credible information; and

(b) For actions based on any of the conditions described in § 1615.1(b), only after the personnel authority has obtained official documentation such as affidavits, legal indictments, charges or complaints, arrest records, or other documentation, to support the determination that any of the conditions described in § 1615.1(b) are met.

1615.4 If the personnel authority determines that the conditions described in § 1615.1 are met, an employee shall initially be placed on administrative leave for a period of five (5) workdays.

1615.5 The first day of the administrative leave period shall be the first workday that immediately follows the day on which the employee was placed on administrative leave pursuant to § 1615.4.

1615.6 The proposing official shall issue a written notice to propose placement of an employee on enforced leave. The notice shall inform the employee of the following:

(a) The reasons for the proposed enforced leave;

(b) The specific basis, including affidavits or other documentation, upon which the decision to propose placement of the employee on enforced leave was based and which establishes that the conditions described in § 1615.1 have been met, and shall provide a copy to the employee;

(c) The beginning and ending dates of the five (5) workdays of administrative leave;

(d) The beginning date of the proposed enforced leave;

(e) The right to make a written or oral response, or both, to the notice, and to furnish written statements of witnesses or other documentation in support of the response, all within one (1) workday of receipt of the notice of proposal;

(f) The person to whom the response is to be presented;

(g) The right to be represented by an attorney or other representative; and

(h) The right to a written decision within the five (5) workdays of administrative leave.

1615.7 Prior to actual delivery of the notice under § 1615.8, initial delivery of the notice proposing placement of an employee on enforced leave may be accomplished by reading the notice to the employee over the telephone.

1615.8 During the five-day (5-day) period of administrative leave under § 1615.4, the agency shall deliver the notice proposing placement of an employee on enforced leave to the employee personally, or by leaving a copy at the employee’s home with some person of suitable age and discretion residing therein.

1615.9 The response period provided for in § 1615.6(e) shall begin the first workday that immediately follows the day on which initial delivery of the notice is made, regardless of the method by which delivery was accomplished.

1615.10 If a determination is made to place the employee on enforced leave, the written decision shall inform the employee of the following:

(a) The placement on enforced leave as provided in § 1615.12;

(b) The date the enforced leave is to commence; and

(c) The right to grieve the action under the procedure set forth in § 1636.

1615.11 The enforced leave period shall commence on the first workday that immediately follows the five (5) workdays of administrative leave, as provided in § 1615.4.

1615.12 During the period in which the employee is in the enforced leave status, each day of absence is to be charged against the employee in the following sequence:

(a) Accrued annual leave, if available, until exhausted;

(b) Compensatory time which is authorized and recorded on time and attendance reports, if available, until exhausted; or

(c) Leave without pay when annual leave and compensatory time are exhausted or not available.

1615.13 If a determination is made not to place the employee on enforced leave, the written decision shall so inform the employee.

1615.14 An employee shall remain on enforced leave until such time as disciplinary action, in accordance with this chapter and taken as a result of the event that caused the administrative action, is effected, or a determination is made that no disciplinary action will be taken.

1615.15 If the basis for placing an employee on enforced leave pursuant to this section does not result in disciplinary action pursuant to the provisions of this chapter, any annual leave, compensatory time, or pay lost as a result of the administrative action shall be restored retroactively.

1616 Summary Suspension: General Discipline

1616.1 An agency head may summarily suspend an employee when the employee’s conduct:

(a) Threatens the integrity of government operations;

(b) Constitutes an immediate hazard to the agency, to other District employees, or to the employee; or

(c) Is detrimental to public health, safety, or welfare.

1616.2 An agency head may summarily suspend an employee under this section only if at the time the summary suspension action is taken, a good faith effort has been made to determine that at least one (1) of the conditions described in § 1616.1 is met; and only if the action is taken for cause pursuant to § 1603 of this chapter. Otherwise, an employee shall be entitled to an advance written notice as specified in § 1608 of this chapter.

1616.3 An employee who is notified by written or oral directive of a summary suspension from his or her position pursuant to this section shall immediately leave his or her duty station and/or District government facility.

1616.4 Within three (3) days of the summary suspension, the agency head or his or her designee shall provide a written summary suspension notice to the employee that includes all of the following:

(a) The reason for the summary suspension action;

(b) The effective date of the summary suspension action and its duration;

(c) The right to review any material upon which the summary suspension action was based and to receive a copy, if requested;

(d) The right to prepare a written response, including affidavits and other documentation within six (6) days of receipt of the notice;

(e) The person to whom the written response is to be presented;

(f) In the case of a summary suspension of ten (10) days or more, the right to be represented by an attorney or other representative; and

(g) The right to a final decision as provided in § 1614.3.

1616.5 The deciding official shall issue a final decision sustaining, reducing, or dismissing the summary suspension action with or without prejudice.

1616.6 When the final decision is to sustain or reduce the summary suspension action, the final decision shall inform the employee of his or her right to file a disciplinary grievance or to appeal to the Office of Employee Appeals, as appropriate.

1616.7 When the final decision is to dismiss the summary suspension action or to reduce it to a lesser penalty, any pay lost as a result of the summary suspension action, to the extent that this pay loss exceeds the pay lost as a result of the final decision, shall be restored to the employee.

1617 Summary Removal: General Discipline

1617.1 An agency head may remove an employee summarily when the employee’s conduct:

(a) Threatens the integrity of government operations;

(b) Constitutes an immediate hazard to the agency, to other District employees, or to the employee; or

(c) Is detrimental to public health, safety, or welfare.

1617.2 An agency head may summarily remove an employee under this section only if at the time the summary removal action is taken, a good faith effort has been made to determine that at least one (1) of the conditions described in § 1617.1 is met; and only if the action is taken for cause pursuant to § 1603 of this chapter. Otherwise, the employee shall be entitled to an advance written notice as specified in § 1608 of this chapter.

1617.3 An employee who is notified by written or oral directive of a summary removal from his or her position pursuant to this section shall immediately leave his or her duty station and/or District government facility.

1617.4 Within three (3) days of the summary removal, the agency head or his or her designee shall provide a written summary removal notice to the employee that includes all of the following:

(a) The reason for the summary removal action;

(b) The effective date of the summary removal action;

(c) The right to review any material upon which the summary removal action was based;

(d) The right to prepare a written response, including affidavits and other documentation
within six (6) days of receipt of the notice;

(e) The person to whom the written response is to be presented;

(f) The right to be represented by an attorney or other representative;

(g) The right to an administrative review, as provided in § 1612; and

(h) The right to a final decision as provided in § 1614.3.

1617.5 An administrative review, as provided for in § 1612, shall be conducted prior to the issuance of a notice of final decision.

1617.6 The deciding official, after considering the report and recommendation of the hearing officer pursuant to § 1612, shall do one (1) of the following, as appropriate:

(a) Remand the summary removal action to the hearing officer;

(b) Designate a new hearing officer to conduct a review de novo; or

(c) Issue a final decision sustaining, reducing, or dismissing the summary removal action.

1617.7 When the final decision is to sustain the summary removal action, or to reduce it to a suspension of ten (10) days or more or to a reduction in grade, the final decision shall inform the employee of his or her right to appeal to the Office of Employee Appeals, in which case the decision shall have attached to it a copy of the OEA appeal form.

1617.8 When the final decision is to reduce the summary removal action to an official reprimand or a suspension of less than ten (10) days, the final decision shall inform the employee of his or her right to file a disciplinary grievance.

1617.9 When the final decision is to dismiss the summary removal action, the employee shall be restored to active duty status, and receive back pay and other entitlements, for the period during which the summary removal was in effect.

1617.10 Except as provided in § 1617.11, when the final decision is to reduce the summary removal action to a lesser penalty, the employee shall be restored to active duty status, and receive back pay and other entitlements, for the period during which the summary removal was in effect.

1617.11 When the final decision is to reduce the summary removal action to a suspension, the number of days during which the employee was separated from government service shall reduce the length of the suspension imposed by the deciding official, as applicable.

1617.12 For time and attendance purposes, a summary removal action taken pursuant to this section shall become effective at the end of the employee’s scheduled tour of duty on the effective date of the action.

1618 Disciplinary Grievances: General Discipline

1618.1 An employee against whom a corrective action has been taken shall be entitled to contest the final decision as a disciplinary grievance under the procedure set forth in § 1636.

1618.2 The filing of a disciplinary grievance shall not serve to stay or delay the effective date of the final decision.

1619 Appeals: General Discipline

1619.1 Unless otherwise authorized or required as provided in §§ 1601.2 through 1601.5, an employee shall be entitled to appeal to the Office of Employee Appeals from any final agency decision regarding an adverse action, in accordance with regulations issued by the Office of Employee Appeals.

1619.2 Any appeal of an adverse action shall be filed within thirty (30) days of the effective date of the appealed agency action.

1619.3 The filing of an appeal to the Office of Employee Appeals shall not serve to stay or delay the effective date of the final decision.

1619.4 When, upon appeal, an adverse action taken by an agency is found by the Office of Employee Appeals to have been unwarranted, the remedial action directed by the Office of Employee Appeals shall be taken within thirty (30) days of the final decision of the Office, unless the decision is reopened or reviewed in accordance with the regulations of the Office of Employee Appeals.

1620 - 1629 (Reserved)

1630 Applicability: Grievances

1630.1 Except for an employee excluded by § 1630.2, §§ 1630 through 1637 shall apply to any of the following:

(a) An employee of the District government in the Career or Excepted Service;

(b) An applicant for employment; or

(c) A former employee.

1630.2 The following employees are excluded from coverage under §§ 1631 through 1637:

(a) An employee of the D.C. Board of Education;

(b) An employee of the Board of Trustees of the University of the District of Columbia;

(c) An employee in the Legal Service appointed under the authority of D.C. Official Code
§ 1-608.51 et seq.;

(d) An employee in the Excepted Service appointed under the authority of D.C. Official Code § 1-609.03 or 1-609.08;

(e) An employee in the Management Supervisory Service appointed under the authority of D.C. Official Code § 1-609.51 et seq.; or

(f) Any 905 series attorney not in the Legal Service.

1631 Matters Grievable: Grievances

1631.1 Persons covered under § 1630 may grieve any matter except the following:

(a) Any action implemented to comply with a decision by the Office of Employee Appeals, the Merit Systems Protection Board, an arbitrator of competent jurisdiction, the Office of the Inspector General, the Executive Office of the Mayor, the Office of Human Rights, the Commission on Human Rights, a court of competent jurisdiction, or any other agency authorized by law to mandate a particular action;

(b) Any action terminating an employee’s temporary promotion that returns the employee to the position from which the employee was temporarily promoted or to a different position that is not at a lower grade or level than the position from which the employee was temporarily promoted;

(c) Expiration of an appointment with a specified time limit;

(d) Forfeiture of position due to failure to maintain bona fide District residency, or due to failure to meet the residency requirement, respectively, as provided in §§ 301.7 and 304.2 of Chapter 3 of these regulations;

(e) Termination or discipline of an employee serving a probationary period as provided in § 814.1 of Chapter 8 of these regulations;

(f) The return or assignment to the position from which promoted or to an equivalent position of an employee who does not successfully complete a supervisory or managerial probationary period pursuant to § 815 of Chapter 8 of these regulations;

(g) Termination or discipline prior to the expiration date of a temporary appointment;

(h) Voluntary action initiated by, or at the request of, the employee;

(i) Conversion of any position to the Management Supervisory Service or the Excepted Service;

(j) Reduction of an employee’s rate of pay from an erroneous rate;

(k) Termination of pay retention, as that term is defined in Chapter 11 of these regulations, by action in accordance with reclassification procedures or reduction-in-force procedures pursuant to, respectively, Chapters 11 and 24 of these regulations;

(l) A decision declining to waive repayment of an erroneous payment under D.C. Official Code § 1-629.01.

(m) Termination of a term promotion upon completion or termination of the assigned project, and the return of the employee to the position from which promoted or to a different position of equivalent grade and pay;

(n) An action implemented to comply with any law, rules or regulations established under the District of Columbia Administrative Procedure Act;

(o) Any other matter for which no District government agency has the power or authority to provide the remedy sought or an equivalent remedy;

(p) Designation as a “management employee” or a discretionary decision to grant or not grant any retreat from the Management Supervisory Service to another service pursuant to D.C. Official Code § 1-609.54;

(q) An allegation of unlawful discrimination, or any other matter within the jurisdiction of the Office of Human Rights;

(r) An allegation of an unfair labor practice, or any other matter required to be decided by the Public Employee Relations Board;

(s) A final agency decision which, pursuant to D.C. Official Code § 1-606.03(a), may be appealed to the Office of Employee Appeals;

(t) A grievance required to be submitted through the grievance procedures contained in a collective bargaining agreement covering the employee as provided in §§ 1632.2 and 1632.3, or through a procedure pursuant to § 1632.5;

(u) Non-selection for any non-competitive appointment or promotion from a group of candidates who were properly ranked and certified;

(v) Performance evaluations conducted under the provisions of Chapter 14 of the D.C. personnel regulations, under which employees may seek review of the performance evaluation;

(w) The application or coverage of the Fair Labor Standards Act;

(x) A prior grievance dismissed with prejudice;

(y) The disallowance of an employee’s representative pursuant to Chapter 16 of these regulations; or

(z) Non-adoption of a suggestion that may benefit the District government, or failure to receive an incentive award or a specific amount for a monetary award, pursuant to Chapter 19 of these regulations.

1632 General: Grievances

1632.1 The informal presentation by employees of concerns and grievances is encouraged and shall be reasonably accommodated by management. The provisions of this chapter do not control informal presentation by employees of concerns and grievances.

1632.2 Any grievance resolution process negotiated between the District of Columbia and a labor organization shall take precedence over the provisions of this chapter for employees in a bargaining unit represented by a labor organization, to the extent that there is a difference.

1632.3 If an employee is authorized to choose between the negotiated grievance process set forth in a collective bargaining agreement and the grievance process provided in these rules, the employee may, at his or her discretion, do either of the following:

(a) Grieve through the negotiated grievance procedure; or

(b) File a disciplinary grievance as provided in these rules.

1632.4 An employee shall be deemed to have elected his or her remedy pursuant to § 1632.3 when the employee files a grievance under the provisions of this chapter or files a grievance in writing in accordance with the provisions of the negotiated grievance procedure applicable to the parties, whichever event occurs first. This section shall not be construed to toll any deadlines for filing.

1632.5 Any system for grievance resolution involving uniformed members of the Metropolitan Police Department or the Fire and Emergency Medical Services Department provided for by law, or by regulations of the respective departments in effect on the effective date of these regulations, including but not limited to procedures involving trial boards, shall take precedence over the provisions of this chapter relating to grievances, to the extent that there is a difference.

1632.6 An employee, former employee, or applicant for employment may present a grievance to the agency with authority to provide the remedy. Employing agencies, or the Office of Personnel in the case of an applicant for employment in an agency subordinate to the Mayor, shall be responsible for referring the grievance to the appropriate agency.

1632.7 A grievance by an applicant for employment shall be limited to a request for non-monetary relief in matters involving the application of the merit staffing process.

1633 Agency Responsibility: Grievances

1633.1 Each agency head shall:

(a) Ensure prompt handling of grievances of employees, former employees, and applicants for employment pursuant to this chapter;

(b) Reasonably make the grievance system known to all employees;

(c) Provide for mediation or other non-binding alternative dispute resolution mechanism as part of the grievance system;

(d) Ensure that copies of the grievance procedures and alternative dispute resolution procedures are made available upon request to an employee, former employee or applicant for employment; and

(e) Ensure each grievant or witness freedom from restraint, coercion, interference, discrimination, or reprisal by any official of the agency for the act of filing or supporting a grievance.

1634 Official Time: Grievances

1634.1 If otherwise in a duty status, each employee submitting a grievance under the provisions of this chapter may be granted a reasonable amount of official time for preparation and/or presentation of the grievance.

1634.2 Each absence from duty in excess of the time granted in accordance with § 1634.1 shall be charged in accordance with Chapter 12 of these regulations.

1635 Time Limits for Filing: Grievances

1635.1 Except as provided in § 1635.2, an employee, former employee or applicant for employment shall present a grievance within forty-five (45) days, not including Saturdays, Sundays, and legal holidays, after the date that he or she knew or should have known of the act or occurrence that is subject of the grievance.

1635.2 An employee may file a disciplinary grievance or a grievance of enforced leave within ten (10) days of receipt of the final decision on the corrective action or the enforced leave.

1636 Procedure: Grievances

1636.1 A grievance shall be in writing, shall contain sufficient detail to identify and clarify the basis for the grievance, and shall specify the relief requested.

1636.2 Except as provided in § 1636.3, a grievance must be presented to an official (hereinafter referred to as the “grievance official”) who has the authority to grant the relief sought.

1636.3 A grievance of enforced leave or a disciplinary grievance shall be presented to the grievance official, who shall be an official who is at a higher administrative level than the deciding official on such actions; however, when the deciding official was an agency head, the agency head shall designate an official from another agency as the grievance official.

1636.4 The grievance official shall attempt to resolve a grievance through the mediation or non-binding alternative dispute resolution mechanism, or any other similar procedure. If the grievance is resolved, the parties may agree to dismiss the action.

1636.5 In the case of a grievance of enforced leave or a disciplinary grievance, the grievance official shall either sustain, reduce, or dismiss the penalty imposed by the final decision, but in no event shall increase the penalty.

1636.6 The grievance official shall inform the grievant, in writing, of the decision on the grievance.

1636.7 If the relief requested has been denied in whole or in part, the grievant shall be advised of the basis for the denial.

1636.8 The decision of the grievance official to deny the grievance, in whole or in part, shall be the final administrative decision, and shall not be subject to further administrative appeal.

1636.9 The decision on the grievance shall be issued not more than thirty (30) workdays from the date the grievance was filed.

1637 Dismissal: Grievances

1637.1 An agency may dismiss a grievance with or without prejudice at the grievant’s request.

1637.2 An agency shall dismiss a grievance with prejudice in any of the following instances:

(a) Upon termination of the employee’s employment with the agency, unless the personal relief sought may be granted after termination of employment;

(b) Upon the death of the employee or former employee, unless the grievance involves a question of compensation; or

(c) For failure to pursue, if the grievant does not furnish required information or duly proceed with the advancement of his or her grievance.

1637.3 The procedures used to permit and process a grievance and the dismissal of a grievance of an employee or former employee under the provisions of § 1637.2(a), (b), or (c) shall be the final agency decision, and shall not be subject to further administrative review.

1699 Definitions: General Discipline and Grievances

1699.1 When used in this chapter, the following terms shall have the meaning ascribed:

Administrative leave—an excused absence with full pay and benefits that is not charged to annual leave, sick leave, or leave without pay.

Admonition—any written communication from a supervisor or manager to an employee, up to but excluding an official reprimand, that advises or counsels the employee about conduct or performance deficiencies, and the possibility that future violations will result in corrective or adverse action.

Adverse action—a suspension of ten (10) days or more, a reduction in grade, or a removal.

Agency—any unit of the District of Columbia government, excluding the courts, required by law, by the Mayor of the District of Columbia, or by the Council of the District of Columbia to administer any law, rule, or any regulation adopted under authority of law. The term “agency” shall also include any unit of the District of Columbia government created by the reorganization of one (1) or more of the units of an agency and any unit of the District of Columbia government created or organized by the Council of the District of Columbia as an agency, and shall include boards and commissions as described in D.C. Official Code § 1-603.01(13).

Corrective action—an official reprimand or a suspension of less than ten (10) days.

Days—calendar days, unless otherwise specified.

Deciding official—the individual who issues a final decision on a disciplinary action or enforced leave, in accordance with §§ 1613 and 1615.

Disciplinary action—a corrective or adverse action taken against an employee.

Disciplinary grievance—a request for personal relief concerning the final decision on a corrective action, as provided in
§ 1618.

Enforced leave—involuntary placement of an employee on annual leave, compensatory time authorized and recorded on the appropriate time and attendance reports, or leave without pay, as applicable, as provided in § 1615.

Grievance—any matter under the control of the District government which impairs or adversely affects the interest, concern, or welfare of employees, including but not limited to a request by an employee for relief concerning a final written decision that involuntarily placed him or her on enforced leave, as provided in § 1615.10(c); or a request by an applicant for employment for non-monetary relief in matters involving the application of the merit staffing process; or a request by a former employee for relief in a matter of concern or dissatisfaction that is subject to the control of the District government, and that is related to an employment condition, as provided in § 1636. This definition does not include adverse actions resulting in removals, suspension of ten (10) days or more, or reductions in grade, reductions in force, or classification matters, nor is it intended to restrict matters that may be subject to a negotiated grievance and arbitration procedure in a collective bargaining agreement between the District and a labor organization representing employees

Grievance official—the individual who issues a final decision on a grievance, in accordance with § 1636.

Hearing officer—the official, other than the proposing official, who has no direct and personal knowledge (other than hearsay that does not affect impartiality) of the matters contained in a proposed removal action or a summary removal notice, and is designated by the agency head who, pursuant to § 1612, reviews the proposed removal action or the summary removal notice, as applicable, and the employee’s response, if there is one, conducts a hearing where appropriate, and makes recommendations regarding the proper course of action.

Official reprimand—a final decision letter that is placed in the employee’s Official Personnel Folder, and that censures an employee.

Personnel authority—an individual or entity with the authority to administer all or part of a personnel management program as provided in D.C. Official Code § 1-604.01 et seq.

Proposing official—an agency head or an official authorized by the agency head to issue a written notice of proposed corrective or adverse action or enforced leave.

Reduction in grade—an involuntary action that changes an employee, while continuously employed, to a grade level with a lower representative rate.

Relief—a specific remedy requested by and directly benefitting the grievant, but may not include a request for disciplinary action against another employee.

Removal—the involuntary separation of an employee from District government service.

Summary removal—an action taken to immediately separate an employee pursuant to § 1617.1.

Summary suspension—an action to immediately suspend an employee pursuant to § 1616.

Suspension—the temporary placing of an employee in a non-duty, non-pay status.

With prejudice—the withdrawal or dismissal of a disciplinary action that prevents the alleged charge or charges from being re-filed; or in the case of a grievance, the dismissal of the grievance by the agency that prevents the employee from resubmitting the grievance.

Without prejudice—the withdrawal or dismissal of a disciplinary action that does not prevent the alleged charge or charges from being re-filed; or in the case of a grievance, the dismissal of the grievance by the agency at the request of the employee.