Disciplinary action may be taken because of an employee's: Unsatisfactory performance of duties and responsibilities, as governed by State Personnel and Pensions Article, §§11-101, 11-102, 11-103(a), (c), and (d), 11-104, 11-105, 11-107—11-113, and 11-304, Annotated Code of Maryland; or Misconduct, as governed by State Personnel and Pensions Article, §§11-101—11-110, 11-112, 11-113, and 11- 303—11-306, Annotated Code of Maryland. The disciplinary actions that may be taken are listed in State Personnel and Pensions Article, §11-104, Annotated Code of Maryland. Unless a peer review panel is available and selected by an employee, the disciplinary appeal procedures for an employee in the skilled and professional services are specified in State Personnel and Pensions Article, §§11-109 and 11-110, Annotated Code of Maryland. The disciplinary appeal procedures for an employee under special appointment are specified in State Personnel and Pensions Article, §11-113, Annotated Code of Maryland. The standard of proof in all disciplinary actions is a preponderance of the evidence. The employee bears the burden of proof in the following actions: Discipline of an employee in the executive or management service, and under special appointment; and Discipline of an employee on probation in the skilled and professional services, following initial appointment. The sole issue for consideration in a conference or hearing related to a disciplinary action specified in §E of this regulation is whether the employer's action was illegal or unconstitutional. Except for the actions specified in §E of this regulation, the appointing authority bears the burden of proof in all disciplinary actions affecting an employee in the skilled and professional services, including discipline of an employee on probation following promotion or reinstatement. A disciplinary action against an employee under special appointment or in the management and executive services is governed by Regulations .05 and .06 of this chapter. When appealing a disciplinary action, the employee or the employee's representative shall state to the extent possible and on a form provided by the Secretary the issues of fact, law, and mitigating circumstances the employee believes would warrant rescinding or modifying the disciplinary action. Failure to state the issues of fact and law when possible may be grounds for dismissing the appeal. Scope. This regulation applies to an employee in the skilled and professional services. It does not apply to an employee under special appointment or an employee on initial probation. Consideration of Mitigating Evidence. Except for automatic terminations under State Personnel and Pensions Article, §11-105, Annotated Code of Maryland, the appointing authority, head of the principal unit, the Secretary, and the Office of Administrative Hearings shall consider mitigating circumstances when determining the appropriate discipline. The Office of Administrative Hearings may not change the discipline imposed by the appointing authority, as modified by the head of the principal unit or Secretary, unless the discipline imposed was clearly an abuse of discretion and clearly unreasonable under the circumstances. Scope. This regulation applies to an employee in the skilled and professional services. It does not apply to an employee under special appointment. The appointing authority may discipline an employee for reasons related to the employee's performance. These reasons include but are not limited to: That the employee is incompetent or inefficient in the performance of the employee's duty; That the employee is an individual with a disability who with a reasonable accommodation cannot perform the essential functions of the position; or That the employee currently is not qualified for the position. Before an employee in the skilled or professional service may be disciplined for performance-related reasons, the appointing authority or designee shall: Investigate the employee's performance, including the employee's most recent performance appraisals; Notify the employee of the deficiency and provide an explanation of the employer's position; Meet with the employee to hear the employee's explanation, unless the employee is unavailable or unwilling to meet; and After determining the appropriate discipline, give the employee written notice of the disciplinary action to be taken, and the employee's appeal rights, and inform the employee of the effective date of the disciplinary action. Between the time an appointing authority notifies the employee of the disciplinary action and the time of the imposition of the discipline, the appointing authority may rescind the discipline. Except in the case of an annual performance appraisal, within 30 days after the appointing authority acquires knowledge of performance-related reasons for which disciplinary action may be imposed, the appointing authority shall take each of the actions required in §C of this regulation. The time period may be extended for any time that the employee is unavailable. In the case of an annual performance appraisal, the appointing authority shall impose discipline within 30 days after the time period specified in §G of this regulation. Performance Appraisals. When an employee has been given an overall rating of “unsatisfactory" on an annual performance appraisal, the employee's supervisor shall inform the employee that the employee has 180 days from issuance of the rating to improve to the level of “satisfactory”. Approximately midway through the 180-day period, the employee and the employee's supervisor shall meet to evaluate the employee's progress toward a satisfactory rating. Failure to meet standards at the end of the 180-day period shall result in the employee's termination. When an employee is terminated under the provisions of §G(1) of this regulation, the Secretary shall be notified and the appointing authority shall submit to the Secretary a copy of each of the documents required by State Personnel and Pensions Article, §7-503, Annotated Code of Maryland. Under the provisions of State Personnel and Pensions Article, §8-107, Annotated Code of Maryland, an employee may not be denied a pay increase unless substantial reasons of performance were cited on the employee's mid-year or final performance appraisal forms. Scope. This regulation applies to an employee in the skilled and professional services. This regulation does not apply to an employee under special appointment. An employee may be disciplined for engaging in any of the following actions: Being negligent in the performance of duties; Engaging in intentional misconduct, without justification, which injures another person, causes damage to property, or threatens the safety of the work place; Being guilty of conduct that has brought or, if publicized, would bring the State into disrepute; Being unjustifiably offensive in the employee's conduct toward fellow employees, wards of the State, or the public; Violating a provision of State Personnel and Pensions Article, Title 2, Subtitle 3; Title 15; or §9-607; Annotated Code of Maryland; Stealing State property with a value of $300 or less; After notification, continuing to engage in another business, trade, or occupation, which conflicts with the employee's position, or which prevents the employee from satisfactorily performing the duties of the employee's position; Engaging in conduct involving dishonesty, fraud, deceit, misrepresentation, or illegality; Causing damage to public property or wasting public supplies through negligence, recklessness, or willful conduct; Willfully making a false official statement or report; Knowingly assisting another in conduct that is a violation of State Personnel and Pensions Article, Annotated Code of Maryland, the regulations in this chapter, or any other lawful agency policy; Violating a lawful order or failing to obey a lawful order given by a superior, or engaging in conduct, violating a lawful order, or failing to obey a lawful order which amounts to insubordination; Engaging in discrimination prohibited by law; Using leave contrary to law or policy; or Committing another act, not previously specified, when there is a connection between the employee's activities and an identifiable detriment to the State. The actions in §B of this regulation are in addition to the automatic causes for termination enumerated in State Personnel and Pensions Article, §11-105, Annotated Code of Maryland. Before an employee may be disciplined for conduct-related reasons, the appointing authority shall: Notify the employee of the misconduct and provide an explanation of the employer's evidence; Investigate the alleged misconduct; Meet with the employee, unless the employee is unavailable or unwilling to meet; Consider any mitigating circumstances; Determine the appropriate disciplinary action, if any, to be imposed; and Give the employee written notice of the disciplinary action to be taken and the employee's appeal rights, and inform the employee of the effective date of the disciplinary action. Unless otherwise provided by law, an appointing authority shall take each of the actions required in §D of this regulation within the time limits provided in State Personnel and Pensions Article, §11-106, Annotated Code of Maryland. An appointing authority may take any of the disciplinary actions specified in State Personnel and Pensions Article, §§11-104 and 11-105, Annotated Code of Maryland, against an employee in the management service, the executive service, or under special appointment. An employee may appeal a disciplinary action imposed under this regulation pursuant to State Personnel and Pensions Article, §11-113, Annotated Code of Maryland, and a termination imposed under State Personnel and Pensions Article, §11-305, Annotated Code of Maryland. Each employee subject to this regulation serves at the pleasure of the appointing authority and may be terminated or disciplined for any reason that is not illegal or unconstitutional, solely in the discretion of the appointing authority. An appeal under this regulation may only be based on the grounds that the disciplinary action is illegal or unconstitutional. Effective October 1, 1996, if a former classified service employee's classification is placed in the management service, the employee shall retain the disciplinary appeal rights for the skilled service or professional service for as long as the employee remains in the position held on the effective date of the State Personnel Management System Reform Act of 1996, or until April 1, 1998, whichever occurs first. State Personnel and Pensions Article, §4-106 and Title 11, Annotated Code of Maryland Effective date: Regulations .01—.06 adopted as an emergency provision effective February 12, 1997 (24:5 Md. R. 391); emergency status expired August 12, 1997; adopted permanently effective September 8, 1997 (24:18 Md. R. 1297) For a history of State Personnel Regulations before February 12, 1997, see the prior version of COMAR Title 06 or contact the Maryland State Archives for assistance. Regulation .03G amended effective January 24, 2011 (38:2 Md. R. 85)