Q & A

Written on 11/05/2022
Will Aitchison

From Oklahoma:
Question: Is there a reasonable amount of time the City has to administer discipline? Meaning if an incident took place approximately 11 months ago and they investigated it approximately two weeks after the incident. Normally punishment is rendered within a few weeks to a month (maybe two). This particular discipline was handed down approximately ten months after the investigative meeting.

Answer: The answer will depend a lot on your disciplinary appeal system. If that process ends with binding arbitrators, you’ll find that some arbitrators require that discipline be imposed in a very timely manner, particularly if the delay in the investigation results in any prejudice to the employee. We know of one arbitra­tion opinion, for example, that found that an eight-month delay in a disciplinary investigation was “inconsistent with the basic principles of progressive discipline.”

On the other hand, if your disciplinary system ends with an appeal to a civil service board or court, you’ll find those forums much less hospitable to “delay” claims. There are court decisions, for example, finding no viola­tion of due process even where an investigation takes more than a year.

From Connecticut:
Question: I’m trying to find any info on personal cell phones and what can and cannot be subjected to FOIA request.

Answer: This varies a lot from state to state, but the usual rule is that gov­ernmental business conducted on a personal cell phone is subject to disclosure under a FOIA. That’s why we recommend that employees never conduct employer business on their personal cell phones.

There’s a big question as to how searches of personal cell phones for gov­ernmental records can be conducted without violating the personal privacy rights of employees in their phones. The California Supreme Court has done the best job I’ve seen of answering that question, holding that the employer can assign to the employee the job of triaging his/her cell phone for records responsive to the public records request.

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