Appendix H: Article 21 Pilot Program

21.1 (a) Members of the Instructional Staff may be disciplined by removal, suspension with or without pay, or any lesser form of discipline for one or more of the following reasons, except that staff in HEO series titles shall be subject to discharge as provided in Article 21.8, and Adjuncts shall be subject to discharge as provided in Article 21.10:

(i) Incompetent or inefficient service;

(ii) Neglect of duty;

(iii) Physical or mental incapacity;

(iv) Conduct unbecoming a member of the staff. This provision shall not be interpreted so as to constitute interference with academic freedom.

(b) No disciplinary proceeding shall be initiated against a member of the instructional staff more than 24 months after discovery by the college or unit of CUNY of the occurrence of the latest incident forming the basis of the discipline. In the event that such member of the instructional staff has been non-reappointed and a grievance has been filed challenging that non-reappointment, CUNY shall have 120 days from the date that the grievance is finally resolved to initiate a disciplinary proceeding against such employee. If a member of the instructional staff is placed on medical leave under the Medical Separation Procedure, and the medical leave is terminated and the bringing of Article 21 disciplinary charges is permitted under that procedure, CUNY shall have 120 days from the date that the medical leave is terminated to initiate a disciplinary proceeding against such employee.

21.2 Disciplinary proceedings shall be initiated by the President of the college by the service of written charges upon the employee, with a copy to the PSC, which shall set forth:

(a) the charges against the employee, including a description of each violation charged; and

(b) the proposed penalty.

21.3 Within fourteen (14) calendar days of service of the charges, a meeting shall be conducted by the President or his or her designee with the employee, who may be accompanied by an attorney or representative of the Professional Staff Congress, to discuss the charges, the proposed penalty, and the basis of the charges.

21.4 Within fourteen (14) calendar days of the meeting described in Section 21.3, the President shall either:

(a) Withdraw the charges, or

(b) State his/her intention to proceed with the charges, including a recommended penalty.

21.5 If the President states an intention to proceed with the charges within seven (7) days of service of that notice the employee shall be provided with copies of the primary non-privileged documents relied upon in preparing the charges and a list describing the documents withheld due to claims of privilege. Nothing herein affects the PSC’s or the employee’s right to seek additional information under this Agreement and the applicable law.

21.6 Within fourteen (14) calendar days of service of the President's written statement to proceed with the charges and recommended penalty, the employee may:

(a) Acquiesce to the charges and accept the recommended penalty by written notification to the President; or

(b) Appeal by proceeding to disciplinary arbitration in accordance with Section 21.7.

21.7 Disciplinary Arbitration

(a) The procedures for selecting an arbitrator and scheduling the arbitration hearing shall be governed by Article 20.5(a), except that (1) the first arbitrator in order who is available to conduct a hearing within sixty (60) calendar days shall serve as the arbitrator; and (2) the notice of appeal to disciplinary arbitration shall be filed by service upon the Vice Chancellor for Legal Affairs and the American Arbitration Association. A copy of the appeal shall be sent simultaneously to the College President.

(b) The disciplinary arbitrator shall hold a disciplinary arbitration hearing within sixty (60) calendar days of designation, or on such other date as may be mutually agreed upon by the parties. The disciplinary arbitrator shall render a decision within thirty (30) calendar days of the close of the hearing. The arbitrator shall follow AAA procedures.

(c) The disciplinary arbitrator shall be limited to determinations of guilt or innocence and the sufficiency of grounds for the penalty. The arbitrator shall not consider alleged violations of any other provision or article of this Agreement, or of the University Bylaws or written policies, which shall be subject, as applicable, only to the provisions of Article 20 of this Agreement. The disciplinary arbitrator shall not add to, subtract from, or modify the provisions of this Agreement. The disciplinary arbitrator's decision regarding guilt or innocence and the sufficiency of grounds for the penalty shall be final and binding upon the parties. The disciplinary arbitrator may approve or disapprove the penalty or impose other penalties warranted under the circumstances.

21.8 Employees in titles in the Higher Education Officer Series shall be subject to immediate discharge for just cause.

(a) Disciplinary proceedings shall be initiated by the President of the college by service, personally or by certified mail, of a written Notice of Intent for Immediate Discharge upon the employee, with a copy to the PSC, which set forth:

1. the charges against the employee, and

2. the proposed penalty of immediate discharge.

(b) Within three (3) days, exclusive of Saturdays, Sundays, and legal holidays, of service of the written notice of Intent for Immediate Discharge, a meeting shall be conducted by the President or his or her designee with the employee, who may be accompanied by an attorney or a representative of the Professional Staff Congress, to discuss the notice, the basis of the charge, and the proposed penalty.

(c) If the employee fails to appear at the meeting, the President may issue a Notice of Immediate Discharge which shall be effective immediately.

(d) Within twenty four (24) hours of the meeting described in Section 21.8(b), the President shall either:

1. Withdraw the Notice of Intent for Immediate Discharge;

2. Issue a Notice of Immediate Discharge which shall be effective immediately; or

3. Issue a Notice of Charges under Section 21.2 seeking a lesser penalty than dismissal.

4. If the President issues a notice of immediate discharge or notice of charges within seven (7) days of service of that notice the employee shall be provided with copies of the primary non-privileged documents relied upon in preparing the charges, and a list describing the documents withheld due to claims of privilege. Nothing herein affects the PSC’s or the employee’s right to seek additional information under this Agreement and the applicable law.

(e) Within fourteen (14) calendar days of service of the Notice of Immediate Discharge, the employee may appeal by proceeding to disciplinary arbitration in accordance with Section 21.7.

21.9 Any person against whom charges have been made may, at any time during the pendency of the charges, be suspended by the president of the college. Such suspension shall be without loss of pay.

A person suspended with pay shall be available for all procedures mandated by Article 21. Upon suspension with pay, notwithstanding any other provision of this Agreement, any request to be absent from any aspect of these procedures must be approved in advance by the Vice Chancellor for Labor Relations upon the recommendation of the President. Failure to be available for any Article 21 proceeding without said approval of a request to be absent for the period specified in the approval of the request shall result in loss of pay status for a period of three weeks. Such period of non pay status shall be discontinued as of the date of the proceeding if a proceeding under this article is scheduled and held within that three week period. If, however, the person continues to be unavailable, the person shall be subject to further removal from pay status for successive three week periods until such time as the proceeding is scheduled and held. Said loss of pay status cannot be charged to annual leave, temporary disability leave, or other paid leave.

21.10 Adjuncts shall be subject to discharge for just cause, subject to the Grievance and Arbitration article and not to Article 21 of this Agreement.

21.11 The procedures provided by this Article 21 are modified and expedited as follows for disciplinary charges brought against instructional staff members who have been convicted of a felony:

(a) Disciplinary proceedings shall be initiated by the President of the College by preferment of charges upon the employee, with a copy to the PSC. The Charges will be preferred via overnight mail. The recommended penalty will be discharge.

(b) Within three (3) calendar days of receipt of the President’s statement of charges, unless the penalty has been accepted by the employee, notice of appeal to disciplinary arbitration shall be filed by service upon the Vice Chancellor for Legal Affairs and the American Arbitration Association. A copy shall be sent simultaneously to the College President.

(c) The case shall be assigned to an arbitrator to be selected in accordance with Section 21.7.a. These cases will be given priority for assignment.

(d) The disciplinary arbitrator shall hold a disciplinary arbitration hearing within ten (10) calendar days of designation. The disciplinary arbitrator shall render a decision within five (5) calendar days of the close of the hearing.

(e) Any person convicted of a felony against whom disciplinary charges have been made may, at any time during the pendency of the charges, be suspended without pay by the president of the college.

(f) Conviction of a felony shall create a presumption of conduct unbecoming a member of the staff. The employee may argue to the arbitrator that there were extenuating circumstances that would permit the arbitrator to conclude that a less severe penalty is warranted.

(g) Should a court of final jurisdiction overturn the conviction, there shall be a right to a hearing before an arbitrator upon application for restoration to service. The issue in the hearing will be whether grounds for discharge pursuant to Article 21.1(a) existed, notwithstanding the reversal of the conviction.

(h) The parties recognize that an employee may be convicted of a felony after charges have been preferred and that the disciplinary procedures in Article 21 may have commenced prior to the conviction. In such a case, the procedures outlined above will replace Article 21 procedures at the appropriate stage to which the charges had progressed immediately prior to the conviction.

21.12 A disciplinary proceeding brought pursuant to this article may be resolved by settlement only if agreed to in writing by the Office of Labor Relations and by the PSC Central Office.