Chapter 08. Disciplinary Action
Regulation .01 General.LinkCopy Citation
A.
In the case of Career Service employees, disciplinary action may include, as appropriate:
(1)
Official written reprimand;
(2)
Suspension without pay;
(3)
Loss of leave;
(4)
Involuntary demotion;
(5)
Suspension, with or without pay, pending charges for termination;
(6)
Termination under charges from a Career Service position; or
(7)
Rejection on promotional probation.
B.
Before imposing any disciplinary action, the appointing authority or designated representative shall:
(1)
Investigate the alleged misconduct;
(2)
Meet with the employee;
(3)
Consider any mitigating circumstances;
(4)
Determine the appropriate disciplinary action, if any, to be imposed; and
(5)
Give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights.
C.
Before a Career Service employee may be disciplined for performance-related reasons, the appointing authority or designee shall:
(1)
Investigate the employee’s performance, including the employee’s most recent performance appraisal; and
(2)
Provide notice to the employee, in writing, of the deficiency and provide an explanation of the employer’s position, which shall include:
(a)
Specific instances of unacceptable performance by the employee on which the proposed action is based;
(b)
The performance criteria and factors of the employee’s position involved in each specification of unacceptable performance; and
(c)
A description of the effort made by the employer to assist the employee in improving performance.
D.
An appointing authority or designated representative may impose any disciplinary action for a Career Service employee no later than 30 days after the appointing authority or designated representative acquires knowledge of the misconduct for which the disciplinary action is imposed. The 30-day period includes the time necessary for the appointing authority or designated representative to conduct its investigation and meet the other requirements in §B of this regulation.
E.
The appointing authority or a designated representative and an employee may agree to hold a disciplinary action in abeyance for a period not to exceed 18 months in order to permit an employee to improve conduct or performance.
F.
Disciplinary action is not allowed because of the religious or political opinions or affiliations of any employee, or because of the failure to contribute to any fund.
G.
Police Officers.
(1)
Police officers of the Department have specific rights in administrative actions which may result in discipline under the Law Enforcement Officers' Bill of Rights, and therefore are subject to the provisions of Public Safety Article, Title 3, Subtitle 1, Annotated Code of Maryland.
(2)
Nondisciplinary administrative terminations of police officers are not covered by the Law Enforcement Officers' Bill of Rights and shall be conducted in accordance with Regulation .07-1 of this chapter.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Conviction” means:
(a)
A judgment of conviction, whether entered upon a finding of guilt or acceptance of a plea of nolo contendere, and the imposition of sentence; or
(b)
The staying of the entry of judgment and the placing of the defendant on probation after a finding of guilty or the acceptance of a plea of nolo contendere.
(2)
“Day” or “Days” means a calendar day or calendar days.
(3)
“Designated representative” means an attorney, an employee organization representative, or any other individual authorized in writing by a party to represent the party.
(4)
“Nondisciplinary administrative termination” means termination of a police officer of the Department for reasons not covered by the Law Enforcement Officers' Bill of Rights, including termination because of a physical or mental impairment which prevents the performance of essential functions of the job, with or without reasonable accommodations.
(5)
“Party” means an employee or a group of employees having a grievance or other right of appeal or the Maryland Department of Transportation.
(6)
“Work days” means all days except Saturdays, Sundays, and observed holidays.
(7)
“Working days” means all days except Saturdays, Sundays, observed holidays, and all days an employee is on leave.
Regulation .02-1 Official Written Reprimand.LinkCopy Citation
A.
The appointing authority or the appointing authority's designee may give an employee an official written reprimand because of unacceptable job performance or work-related conduct.
B.
Time Limit for Imposition of an Official Written Reprimand. An official written reprimand shall be imposed within the time frame set forth in Regulation .01D of this chapter.
C.
Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing of the reasons for the official written reprimand, and the appropriate appeal procedure, including the time frames for appeal.
D.
Appeal of an Official Written Reprimand. An employee may appeal an official written reprimand in accordance with the procedures set forth in Regulation .10 of this chapter.
Regulation .03 Disciplinary Suspension.LinkCopy Citation
A.
An appointing authority or the appointing authority's designee may suspend an employee without pay because of unacceptable job performance or work-related conduct.
B.
Disciplinary Suspension of Fair Labor Standards Act (FLSA) Exempt Employees.
(1)
The appointing authority, or the appointing authority's designee, may suspend an FLSA exempt employee as provided for under §A of this regulation.
(2)
FLSA exempt employees shall be suspended in increments of 5 workdays, as defined in COMAR 11.02.03.01B(10).
C.
Suspension days shall be consecutive and shall include any day that:
(1)
Is an observed holiday;
(2)
An employee is on leave; or
(3)
An employee is scheduled to work.
D.
Time Limit for Imposition of Suspension. A disciplinary suspension shall be imposed within the time frame set forth in Regulation .01D of this chapter.
E.
Exceptions to §D of this regulation are actions taken by Accident Review Boards of the Department. Each board has 20 calendar days for review of accidents, and then suspensions shall be imposed as set forth in Regulation .01D of this chapter.
F.
Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing, on a Transportation Service Suspension form, of the reasons for the suspension and the appropriate appeal route, including the time frames for appeal.
G.
Appeal of a Disciplinary Suspension. An employee may appeal a disciplinary suspension in accordance with the procedures set forth in Regulation .10 of this chapter.
Regulation .04 Disciplinary Loss of Leave.LinkCopy Citation
A.
Disciplinary Loss of Leave. The appointing authority or the appointing authority's designee may, for disciplinary purposes, remove up to 5 days of personal or annual leave, or personal and annual leave, from an employee's accumulated leave balance. Personal leave shall be removed before annual leave. Disciplinary loss of leave may be imposed because of unacceptable job performance or work-related conduct.
B.
Time Limit for Imposition of Loss of Leave. Loss of leave shall be imposed within the time frame set forth in Regulations .01D and .03E of this chapter.
C.
Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing on a Transportation Service Loss of Leave form of the reasons for the loss of leave and the appropriate appeal route, including the time frame for appeal.
D.
Appeal of Disciplinary Loss of Leave. An employee may appeal a disciplinary loss of leave in accordance with the procedures set forth in Regulation .10 of this chapter.
Regulation .05 Involuntary Demotion.LinkCopy Citation
A.
An appointing authority or the appointing authority's designee may demote an employee for disciplinary or performance reasons, and may reduce the employee's salary or wages.
B.
Time Limit for Imposition of an Involuntary Demotion. An involuntary demotion shall be imposed within the time frame set forth in Regulation .01D of this chapter.
C.
Written Notice. The appointing authority or the appointing authority's designee shall provide an employee in writing with the reason or the reasons for the demotion, the proposed new classification and grade level, the future effective date of the demotion, and the appropriate appeal route, including the time frame for appeal.
D.
The appointing authority or the appointing authority's designee shall give an employee notice at least 30 days before the effective date of a demotion.
E.
Appeal of an Involuntary Demotion. An employee may appeal an involuntary demotion in accordance with the procedures set forth in Regulation .10 of this chapter.
Regulation .05-1 Suspension Pending Charges for Termination of a Career Service Employee.LinkCopy Citation
A.
An appointing authority or the appointing authority's designee may suspend a Career Service employee with or without pay pending final disposition of the charges for termination, if the suspension is necessary to protect the interests of the Department.
B.
Written Notice. The appointing authority or the appointing authority's designee shall notify the employee in writing of the reason or reasons for the suspension pending charges for termination, the effective date of the suspension, and the appropriate appeal route, including the time frame for appeal.
C.
Thirty Day Limitation for Suspension Without Pay Pending Charges for Termination.
(1)
If an employee is suspended without pay, the appointing authority or designated representative shall provide to the Secretary of Transportation the charges for termination within 30 days after the first day of the suspension period.
(2)
If the appointing authority or designated representative has not filed the charges for termination after 30 days, the employee shall be placed on leave with pay until the Secretary of Transportation receives charges for termination.
D.
Time Limit for Imposition of Suspension Pending Charges for Termination. A suspension pending charges for termination shall be imposed within the time frame set forth in Regulation .01D of this chapter.
E.
Appeal of Suspension Pending Charges.
(1)
The Office of Administrative Hearings shall afford the employee a hearing, at which time the employee may:
(a)
Rebut the reasons given for the suspension;
(b)
Allege mitigating circumstances; and
(c)
Offer alternatives to the suspension.
(2)
An employee may appeal a suspension pending charges for termination in accordance with the procedures set forth in Regulation .10 of this chapter.
Regulation .06 Termination of a Career Service Employee.LinkCopy Citation
A.
An appointing authority may, for cause, terminate a Career Service employee.
B.
Cause for Termination. One or more than one of the following causes is sufficient reason for termination, though termination may be for a cause or causes other than those enumerated:
(1)
The employee is incompetent or inefficient in the performance of job duties and is unable to perform at acceptable levels after proper guidance, training, and recommendations for improvement have been provided to the employee;
(2)
The employee's action or inaction amounts to insubordination;
(3)
The employee has performed the job duties in a careless, negligent, or willful manner, including causing damage to, or waste of, State property, State resources, or property of a member of the public;
(4)
The employee has engaged in or attempted to engage in bribery or extortion in the performance of duties;
(5)
The employee has a physical or mental impairment which prevents the employee from performing the essential functions of the job, with or without reasonable accommodations as determined by the Department Medical Advisor in accordance with applicable laws;
(6)
The employee has violated any statute, regulation, executive order, written policy, written directive, or written rule;
(7)
The employee has failed to obey a lawful and reasonable direction given by a supervisor or superior;
(8)
The employee has committed an act of misconduct or a serious breach of discipline;
(9)
Unauthorized absence;
(10)
The employee has used unwarranted or excessive force in the treatment of other employees, supervisors, or members of the public;
(11)
The employee has been wantonly offensive toward other employees, supervisors, or members of the public;
(12)
The employee's action or inaction has caused or reasonably could be expected to result in loss or injury to the State or members of the public;
(13)
The employee has stolen, or attempted to steal, State property, State resources, or property of a member of the public;
(14)
The employee has misappropriated or mishandled State funds, revenues, resources, or property;
(15)
The employee has willfully made a false official statement or report;
(16)
The employee has been convicted of a felony or a job-related misdemeanor;
(17)
The employee has violated Executive Order 01.01.1991.16 on substance abuse;
(18)
The employee has taken for personal use a fee, gift, or other valuable thing in the course of work or in connection with it when the fee, gift, or other valuable thing is given to the employee by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons;
(19)
The appointing authority or the appointing authority's designee has investigated an employee's qualifications and background and has discovered that fraudulent or irregular information resulted in the employee's appointment;
(20)
The employee has engaged in conduct that has brought the Department into public disrepute.
C.
An appointing authority or designated representative may suspend an employee with or without pay pending final disposition of the charges for termination if the suspension is necessary to protect the interests of the Department as provided in Regulation .01 of this chapter. The appointing authority or designated representative shall notify the employee in writing of the reason or reasons for the suspension pending charges for termination, and the effective date in accordance with Regulation .05-1 of this chapter.
D.
Charges Shall be Filed with the Secretary of Transportation. The Secretary shall provide the employee, in writing, with a statement of the charges and specifications for termination, and the appropriate appeal route, including the time frame for appeal.
E.
Time Limit for Imposition of Charges for Termination. Charges for termination shall be imposed within the time frame set forth in Regulation .01D of this chapter.
F.
Appeal of Charges for Termination. An employee may appeal charges for termination in accordance with the procedures set forth in Regulation .10 of this chapter.
G.
The Secretary shall issue an order upholding the employee’s termination from Transportation Service in the following instances:
(1)
If no appeal is received by the Secretary or the Secretary’s designee within 15 days of receipt of the charges; and
(2)
If no agreement is reached during the settlement conference and no appeal is received by the Office of Administrative Hearings within 15 days following the settlement conference.
Regulation .07 Discipline or Termination of an Executive Service or Commission Plan Employee.LinkCopy Citation
A.
An appointing authority may recommend to the Secretary of Transportation the discipline or termination of an Executive Service or Commission Plan employee. The Secretary shall review the request and, at the Secretary's discretion, approve or disapprove the recommended discipline or termination. After approval by the Secretary, the appointing authority shall send the employee written notice of the discipline or termination, and the appropriate appeal route, including the time frame for appeal to the Office of Administrative Hearings.
B.
Appeal of Discipline or Termination.
(1)
An Executive Service or Commission Plan employee may appeal the discipline or termination in writing to the Office of Administrative Hearings within 15 days of receipt of the discipline or termination notice. However, the employee has the burden of proof at the Office of Administrative Hearings, and the hearing is limited to the legal and constitutional basis for the discipline or termination.
(2)
If the employee does not appeal the action within 15 days or if the employee does not appear for a scheduled hearing, the action is final.
Regulation .07-1 Nondisciplinary Administrative Terminations of Police Officers of the Department.LinkCopy Citation
A.
Termination.
(1)
An appointing authority may recommend to the Secretary of Transportation the nondisciplinary administrative termination of a police officer of the Department.
(2)
The Secretary or the Secretary's designee shall review the request and, at the discretion of the Secretary or the Secretary's designee, approve or disapprove the recommended termination.
(3)
On approval of the termination by the Secretary or the Secretary's designee, the appointing authority shall send the police officer written notice of the termination and the appropriate appeal route, including the time frame for appeal.
B.
Appeal of Termination.
(1)
The procedures for appeal of termination are the same as provided for in Regulation .10 of this chapter.
(2)
The hearing at the Office of Administrative Hearings is limited to the legal and constitutional basis for the termination.
Regulation .08 Rejection on Promotional ProbationLinkCopy Citation
A.
An employee may be rejected on promotional probation in accordance with COMAR 11.02.02.05.
B.
Time Limit for Imposition of Rejection on Promotional Probation. A rejection on promotional probation shall be imposed within the time frame set forth in Regulation .01D of this chapter.
C.
Written Notice. The employee shall be provided written notice of the rejection on promotional probation in accordance with COMAR 11.02.02.05.
D.
Appeal of Rejection on Promotional Probation. An employee may appeal a rejection on promotional probation in accordance with procedures set forth in Regulation .10 of this chapter.
Regulation .09 Authority to Conduct Hearings and Appeals.LinkCopy Citation
The Office of Administrative Hearings shall conduct hearings and issue a final decision for Department of Transportation personnel cases.
Regulation .10 Appeal Procedure.LinkCopy Citation
A.
A Career Service employee may appeal an Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Suspension pending charges for Termination, Charges for Termination, and Rejection on Promotional Probation, in writing, to the Secretary or the Secretary’s designee within 15 days of receipt of the written notice.
B.
If an employee does not appeal the action within the specified time frames, the action is final.
C.
Filing an Appeal.
(1)
An appeal is considered filed on the date the appeal is received by the Secretary or the Secretary’s designee.
(2)
The employee shall include with the appeal, the reason for the appeal, the requested remedy, and a copy of the notice of disciplinary action, with any documentation that was attached.
(3)
A copy of the appeal shall be forwarded to the Appointing Authority.
D.
Settlement Conference.
(1)
The Secretary or the Secretary’s designee will schedule a settlement conference within 30 days from the receipt of the written appeal. The Secretary or the Secretary’s designee shall send written notice of a settlement conference to the parties by mail or facsimile.
(2)
The settlement conference notice shall contain:
(a)
The date, time, place, and the nature of the conference;
(b)
A statement that notice must be received 3 business days before the conference date if special arrangements are needed to accommodate an individual with a disability;
(c)
A statement that notice must be received 3 business days before the conference date if an interpreter is needed; and
(d)
A statement that failure to participate in good faith or to attend a conference may result in a decision adverse to a party.
(3)
A party or a designated representative shall be present for all scheduled settlement conferences.
(4)
If a designated representative participates in a settlement conference instead of a party, the designated representative shall have the authority to negotiate or settle the matter appealed.
(5)
The designation of the representative shall be in writing.
(6)
If neither the employee nor the designated representative appears at the scheduled settlement conference, the action is final.
(7)
When the employee’s designated representative is another State employee, the appointing authority of the designated representative shall assure that the designated representative is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal. An employee may not leave the employee’s post of duty to represent another employee at a grievance appeal or a disciplinary appeal conference or hearing without permission from the employee’s supervisor.
(8)
The appointing authority shall assure that the employee is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal.
(9)
At the exclusive discretion of the Secretary or the Secretary’s designee, a settlement conference may be conducted by telephone, video, or other electronic means if each party has an opportunity to participate in the entire proceeding. Except as authorized by the Secretary or the Secretary’s designee, documents for a telephone, video, or electronic conference shall be received by the Secretary or the Secretary’s designee and each party at least 3 business days before the scheduled conference.
(10)
If an agreement is not reached during the settlement conference, the employee shall have 15 days from the date of the settlement conference to appeal, in writing, to the Office of Administrative Hearings, with a copy to the Secretary or the Secretary’s designee.
E.
Postponement of a Settlement Conference.
(1)
The Secretary or the Secretary’s designee shall only consider a postponement of a settlement conference:
(a)
If the requesting party provides a written request 3 business days before the scheduled conference and establishes good cause for the postponement;
(b)
In the case of an emergency as defined in §E(3)of this regulation; or
(c)
Under unusual circumstances as determined by the Secretary or the Secretary’s designee.
(2)
The Secretary or the Secretary’s designee may require documentation of the reasons for the postponement from the party requesting the postponement.
(3)
Emergency postponements are granted only when the emergency is a sudden, unforeseen occurrence requiring the immediate attention of the requesting party.
(4)
If the postponement is requested due to a medical emergency, the party requesting the postponement shall submit written medical documentation by one of the medical providers specified in COMAR 11.02.03.07G(6). Failure to provide the required documentation may result in a decision adverse to the requesting party.
F.
Appeal Hearing.
(1)
Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Charges for Termination, and Rejection on Promotional Probation. An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 90 days and shall render a final decision within 45 days of the hearing.
(2)
Suspension Pending Charges for Termination.
(a)
An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 45 days, at which time the employee may:
(i)
Rebut the reasons given for the suspension;
(ii)
Allege mitigating circumstances; and
(iii)
Offer alternatives to the suspension.
(b)
The administrative law judge shall issue a final decision within 15 days of the hearing.
G.
Representation. An employee may be represented at a grievance hearing or appeal hearing by an attorney, an employee organization representative, or any other individual authorized, in writing, by the employee to represent him or her.
H.
Compensation for Representatives and Witnesses.
(1)
An employee may not lose salary or wages, including overtime and shift differential payments, for investigating, processing, or testifying during any step of the grievance procedure or appeal hearing.
(2)
Attendance at a hearing is considered work time, and the appointing authority or the appointing authority's designee shall ensure that an employee who is required to attend a grievance hearing or an appeal hearing receives salary or wages.
I.
Leaving Duty Post. An employee may not leave the employee's duty post to engage in grievance handling or to pursue an appeal without the permission of the employee's supervisor.
J.
Payment of Travel Expenses. The appointing authority or the appointing authority's designee shall pay travel expenses, as set forth in COMAR 23.02.01, incurred by its employees in connection with attendance at grievance or appeal hearings.
K.
Burden of Proof.
(1)
Decisions shall be based upon a preponderance of the evidence.
(2)
The appointing authority or the appointing authority's designee bears the burden of proof in the following cases:
(a)
Disciplinary cases involving a Career Service employee;
(b)
Appeal of a less than Meets Standards performance appraisal rating; and
(c)
Appeal of a denial of a salary increase due to a performance appraisal rating.
(3)
The employee bears the burden of proof in the following cases:
(a)
Grievance hearings, except for appeal of a less than Meets Standards performance appraisal rating and denial of salary increase due to performance appraisal rating;
(b)
Rejection of employee on probation as set forth in COMAR 11.02.02.05A;
(c)
Rejection of employee on probation as set forth in COMAR 11.02.02.05C;
(d)
Disqualification from future employment of a Career Service employee;
(e)
Discipline or termination of a Commission Plan employee or Executive Service employee; and
(f)
Rejection on probation of a police officer serving an initial probationary period as a police officer.
L.
An aggrieved party may seek judicial review of the final decision in accordance with the provisions of the Administrative Procedure Act, State Government Article, §10-222, Annotated Code of Maryland.
Chapter annotations
Authority: Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland
History: Effective date: January 18, 1993 (20:1 Md. R. 27)
History: Regulation .01 amended effective February 27, 2006 (33:4 Md. R. 352); October 19, 2009 (36:21 Md. R. 1592)
History: Regulation .01C amended effective October 7, 1996 (23:20 Md. R. 1424)
History: Regulation .02B amended effective August 30, 1993 (20:17 Md. R. 1346); October 7, 1996 (23:20 Md. R. 1424); October 19, 2009 (36:21 Md. R. 1592)
History: Regulation .02-1 adopted effective October 19, 2009 (36:21 Md. R. 1592)
History: Regulation .03 amended effective September 12, 1994 (21:18 Md. R. 1509); March 25, 1996 (23:6 Md. R. 476)
History: Regulation .03B amended effective November 24, 2005 (32:23 Md. R. 1828)
History: Regulation .03E amended effective August 30, 1993 (20:17 Md. R. 1346)
History: Regulation .03G amended effective October 19, 2009 (36:21 Md. R. 1592)
History: Regulation .04A and C amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509); December 30, 1996 (23:26 Md. R. 1860)
History: Regulation .04 amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .05C amended effective August 30, 1993 (20:17 Md. R. 1346)
History: Regulation .05C, D amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .05-1 adopted effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .06 amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .06B amended effective August 30, 1993 (20:17 Md. R. 1346)
History: Regulation .06C amended effective February 27, 2006 (33:4 Md. R. 352)
History: Regulation .07 amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .07B amended effective August 30, 1993 (20:17 Md. R. 1346); October 19, 2009 (36:21 Md. R. 1592)
History: Regulation .07-1 adopted effective October 7, 1996 (23:20 Md. R. 1424)
History: Regulation .07-1A amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .08 amended effective April 20, 2009 (36:8 Md. R. 596)
History: Regulation .08C amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509)
History: Regulation .09 amended effective September 12, 1994 (21:18 Md. R. 1509); April 20, 2009 (36:8 Md. R. 596)
History: Regulation .10 amended effective September 12, 1994 (21:18 Md. R. 1509); April 20, 2009 (36:8 Md. R. 596)
History: Regulation .10C amended effective August 30, 1993 (20:17 Md. R. 1346)
History: Chapter revised as an emergency provision effective October 1, 2011 (38:21 Md. R. 1275); revised permanently effective December 26, 2011 (38:26 Md. R. 1697)