PHS.1.4.010 Disciplinary Proceedings

(a) Purpose.

(1) Disciplinary actions may be commenced against an employee of a public safety agency of the Tribe, by the Chief of the public safety agency, for violations of departmental Standard Operating Procedures, or laws of the Tribe, or other government. Discipline may range from a verbal warning to termination.

(A) In serious matters, an internal investigation is conducted by the Public Safety Commission and the law enforcement officer under investigation may be placed on administrative leave pursuant to Section PHS.1.4.020 of this ordinance.

(2) In order to ensure due process to agency personnel, a public safety agency employee has the right to appeal a disciplinary action to the Public Safety Commission.

(3) Disciplinary actions may be ordered by the Chief of the public safety agency. The public safety agency employee may appeal a disciplinary action to the Public Safety Commission. Upon filing of an appeal, the Chief of the public safety agency shall submit formal charges against the officer to the Public Safety Commission.

(4) Any citizen may file charges or a complaint against a public safety agency employee with the Chief of the public safety agency. The Public Safety Commission can proceed with a hearing after an investigation by the agency Chief.

(5) If a citizen wishes to file a complaint with the Public Safety Commission, the Public Safety Commission will refer the complaint to the Chief of the public safety agency to begin an investigation. Upon completion of the investigation the Chief of the public safety agency shall submit his written report to the Commission.

(b) Commencement of Disciplinary Hearings. A request for an appeal of a decision of the Chief of a public safety agency must be submitted in writing to the Human Resource Director, or designee within three (3) calendar days.

(1) If the request is by a public safety agency employee or a citizen against a public safety agency employee, the Human Resource Director, or designee must without delay, notify the Executive Director of the Public Safety Commission and the Chief of the public safety agency that a hearing has been requested.

(2) The Board of Public Safety Commissioners must meet within ten calendar days and set a hearing date.

(3) The Board of Public Safety Commissioners has the right to extend hearing dates for cause.

(1) The Board of Public Safety Commissioners shall have legal counsel and court reporter present at all formal proceedings.

(2) The Board of Public Safety Commissioners has the authority to subpoena witnesses.

(3) Hearing procedures that may be unique to a particular hearing shall be established prior to the hearing.

(4) Disciplinary hearings shall be open, except where:

(A) the person subject to discipline requests in writing that the hearing be closed; or

(B) the Chief of the public safety agency requests in writing that the hearing be closed and indicates that confidential public safety matters are involved.

(5) Commissioners shall not discuss the disciplinary matter with anyone outside the Commission until the hearing is completed and a decision is filed.

(d) Rights of the Accused Public Safety Employee at Hearings.

(1) Notice of charges that have been made, or will be made, as well as actions that will or may be taken against the individual.

(2) The right to a hearing to respond to the charges.

(3) The right to representation at the individual's expense.

(4) The right to confront and cross-examine his/her accusers.

(5) The right to present evidence and argue his/her view of the facts.

(e) Pre-Hearing Conference.

(1) A pre-hearing conference shall be scheduled at least five (5) working days before the hearing. The law enforcement officer and the complainant shall be notified in writing of the pre-hearing conference and both may be represented.

(2) The following matters shall be accomplished at the conference:

(A) Witness lists and any prior written or recorded statements or reports of witnesses will be exchanged between the parties or their representatives.

(B) Exhibit lists will also be exchanged between the parties or their representatives, and each party and/or their representative shall be permitted to physically inspect all exhibits of the other party.

(C) Witnesses or exhibits not on the pre-hearing conference lists may not be introduced at the hearing unless the Public Safety Commission determines that the party or their representative can demonstrate a satisfactory reason for the inclusion of such witness or exhibit on the list(s) submitted at the pre-hearing conference.

(D) In the absence of the parry or representative at the pre-hearing conference, the Board of Public Safety Commissioners shall dismiss the charges unless the party unless the representative can demonstrate a satisfactory reason for non-appearance.

(f) Hearing Procedure.

(1) The nature of a public safety agency requires the highest level of public trust. As a result, hearings will be open to the public to allow the public to be reassured that hearings are conducted under the highest standards of objectiveness and reason.

(2) The Chairperson of the Board of Public Safety Commissioners has the duties of:

(A) Presiding over the hearing.

(B) Maintaining order.

(3) The Chairperson may elect to use an attorney or experienced hearing examiner to assist in conducting the hearing.

(4) Order of Business.

(A) The Chairperson calls the meeting to order and:

(B) Explains that the Public Safety Commission is not an investigative body.

(D) The Chairperson reads the charges, as filed with the Public Safety Commission, and cites the rule(s) and/or policy(s) that were alleged to be violated.

(E) Testimony begins with the person(s) who filed the charges.

(i) Witnesses, evidence, documents, and other related reports will be submitted by the Chief of the public safety agency or complainant.

(ii) Witnesses testify under oath which can be administered by the President or any other Commissioner.

(iii) Any Commissioner may ask questions but they must be relevant to the issues at hand. It is the President's responsibility to ensure that the questions are germane.

(iv) The public safety employee or representative may challenge the testimony or evidence presented.

(F) The law enforcement officer or representative is given an opportunity to present facts, introduce evidence, and call witnesses to prove:

(i) That the law enforcement officer was wrongly charged.

(ii) The penalty is not appropriate for the violation.

(G) The complainant may challenge any testimony offered by the accused.

(i) Both sides are allowed to present closing summaries of their position.

(ii) The Chairperson then adjourns the hearing.

(H) The Board of Public Safety Commissioners retires to executive session to deliberate upon the matter.

(g) Just Cause Standard Applied to Commission Deliberations. The Commissioners shall base their decisions regarding a disciplinary action upon the "just cause" standard.

(1) Whether the public safety employee could reasonably be expected to have had knowledge of the probable consequences of the alleged misconduct.

(2) Whether the procedure the public safety employee allegedly violated is reasonable.

(3) Whether the Chief of the public safety agency, before filing charges against the public safety employee, made a reasonable effort to discover whether the public safety employee did, in fact, violate a procedure.

(4) Whether the investigation was fair and objective.

(5) Whether the Chief of the public safety agency discovered substantial evidence that the public safety employee violated the procedure as described in the charges filed against the public safety employee.

(6) Whether the Chief of the public safety agency is applying the rule or order fairly and without discrimination against the public safety employee.

(7) Whether the proposed discipline is reasonable as it relates to the seriousness of the alleged violation and to the public safety employee's record of service with the Tribe.

(h) Public Safety Commission Actions.

(1) The Public Safety Commission may on appeals, review a disciplinary action taken by the Chief of a public safety agency, and:

(A) Approve the action taken by the Chief of a public safety agency without change.

(B) Dismiss or modify the charge(s) made by the Chief of a public safety agency.

(D) Void the action taken by the Chief of a public safety agency.

(2) The Public Safety Commission may impose any of the following penalties, but is not limited to the penalties listed herein.

(A) Verbal consultation

(B) Written reprimand.

(D) Demotion in rank.

(E) Termination of employment.

(3) The Public Safety Commission's findings shall be in writing and include:

(A) A statement of all charges filed.

(B) The specific rule(s), policy(s), or standard(s) of conduct violated.

(D) A summary of the disciplinary actions considered by the Public Safety Commission.

(E) The disciplinary action ordered by the Public Safety Commission and any special actions attached to the approved disciplinary action.

(4) In acting on a complaint including a request for termination of employment, filed with the Public Safety Commission, the Public Safety Commission may:

(A) Dismiss the complaint.

(B) Dismiss or modify certain charges filed.

(D) Allow the Public Safety Commission the power to hire an outside agency to conduct the investigation of allegations against the Chief of the public safety agency.

(i) Appeals of Commission Findings. Appeals of Public Safety Commission's ruling shall be made to the Lac Courte Oreilles Tribal Court.

(1) Hearing before the Lac Courte Oreilles Tribal Court. Either party may request a review of the Public Safety Commission's ruling by the Tribal Court. The Tribal Court review will be limited to the information presented to the Public Safety Commission and the limited review is to ensure that the Due Process rights of the Employee and the Public Safety Agency were protected and followed. If the Court finds any deficiencies in the Public Safety Commission's decision, it shall remand the matter back the Public Safety Commission for further review consistent with the Tribal Court findings. Each party shall have five (5) working days to submit their request for Tribal Court review of the Public Safety Commission's decision; failure to abide by the timeline stated in this section shall be deemed a waiver of the disciplinary appeal and the appeal shall be terminated; the Public Safety Commission's decision shall be deemed as final.

(A) The Tribal Court shall have the discretion to decide whether to schedule a hearing in any appeal of a disciplinary action taken by the Chief of the public safety agency.

(B) The Tribal Court may issue a decision without a hearing after reviewing the decision of the Public Safety Commission and the evidence submitted during the grievance and appeal processes.

(C) In all cases, the Tribal Court shall review the findings of fact and conclusions of law solely to determine whether the appeals committee committed clear error. "Clear error" means that the decision is not reasonably supported by the facts or law.

(D) If the Tribal Court determines that clear error occurred regarding all violations and procedural steps established in this section were not followed, it shall uphold/overturn the decision of the Public Safety Commission and order that the employee's personnel file reflect such decision; that the employee be restored to his or her previous position and that all the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the Human Resource Director will meet with the employee and Chief of the public safety agency and develop a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.

(E) If the Tribal Court determines that clear error occurred regarding only a portion, but not all of the violations, it shall uphold/overturn the decision of the Tribal Court only regarding such violations and may, but is not required to, order such adjustments as it deems proper, including that the employee's personnel file reflect such decision; that the employee shall be restored to his or her previous position and that all or a portion of the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the Human Resource Director will meet with the employee and the department head or director and development a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.

(F) If the Tribal Court determines that clear error did not occur regarding any violation and the procedural steps established in this section were followed, it shall uphold/overturn the decision of the Tribal Court; and shall uphold all disciplinary measures taken by Management without substituting its judgment for that of Management.