Cal. Code Regs. tit. 15 § 3392.5

Current through Register 2024 Notice Reg. No. 45, November 8, 2024

Section 3392.5 - Employee Disciplinary Matrix

(a) Employee Disciplinary Matrix Penalty Levels:

1. Letter of Reprimand	4. Salary Reduction 10% for 7-12 Qualifying Pay Periods; or	7. Salary Reduction 10% for 31-45 Qualifying Pay Periods; or

	Suspension Without Pay for 14-24 Qualifying Work Days.	Suspension Without Pay for 62-90 Qualifying Work Days.
2. Salary Reduction 5% for 1-2 Qualifying Pay Periods; or	5. Salary Reduction 5% for 25-36 Qualifying Pay Periods; or	8. Temporary Demotion to a lower class for 12-24 Qualifying Pay Periods; or

Suspension Without Pay for 1-2 Qualifying Work Days.	Suspension Without Pay for 25-36 Qualifying Work Days.	Permanent Demotion.

3. Salary Reduction 5% for 3-12 Qualifying Pay Periods; or	6. Salary Reduction 10% for 19-30 Qualifying Pay Periods; or	9. Dismissal.

Suspension Without Pay for 3-12 Qualifying Work Days.	Suspension Without Pay for 38-60 Qualifying Work Days.

(b) Employee Disciplinary Matrix Misconduct Categories and Penalty Ranges:

*A. ATTENDANCE*	*BASE PENALTY*	*PENALTY RANGE*
1) Excessive tardiness.	1	1 2 3
2) Unauthorized absence.	1	1 2 3
3) Excessive absenteeism.	1	1 2 3 4 5 6 7
*B. CODE OF SILENCE or RETALIATION*	*BASE PENALTY*	*PENALTY RANGE*
1) Intentional failure to report misconduct by another employee.	3	2 3 4 5
2) Intentional failure to report serious misconduct by another employee.	7	4 5 6 7 8 9
3) Intimidation, threats, or coercion that could interfere with an employee's duty to report misconduct, or an act of retaliation for reporting misconduct.	9	7 8 9
4) Any independent act(s) that prevents or interferes with the reporting of misconduct.	9	4 5 6 7 8 9
5) Any involvement in a concerted or coordinated effort with other employees to prohibit or impede the reporting of misconduct.	9	7 8 9
*C. ALCOHOL, TOBACCO, AND DRUGS*	*BASE PENALTY*	*PENALTY RANGE*
1) Use or possession of controlled substances on or off-duty, unless medically prescribed.	7	4 5 6 7 8 9
2) Use or possession of marijuana on or off-duty in violation of State or Federal law.	7	4 5 6 7 8 9
3) Sale or distribution of prescribed medications or controlled substances.	9	9
4) Theft of medication.	9	7 8 9
5) Use of over-the-counter or prescription medications while on duty which impairs an employee's ability to discharge their duties.	4	3 4 5 6 7
6) Use of medication prescribed to another.	6	4 5 6 7 8 9
7) Possession of alcohol on institutional grounds, while on duty, or in the presence of wards, incarcerated or supervised persons.	6	4 5 6 7
8) Use of alcohol or drunkenness on duty.	7	4 5 6 7 8 9
9) Operating a private vehicle for state business, a state vehicle, or a vehicle rented for state business, under the influence of alcohol, controlled substances, or prescribed medication.	7	4 5 6 7 8 9
10) Use or possession of tobacco products in unauthorized areas of department owned or controlled property.	1	1 2 3 4
*D. CONDUCT OR JOB PERFORMANCE*	*BASE PENALTY*	*PENALTY RANGE*
1) Discourtesy toward wards, incarcerated or supervised persons, other employees, or the public.	1	1 2 3 4 5 6
2) Negligently endangering self, fellow employees, wards, incarcerated or supervised persons, or the public by violation of statutes, regulations, ordinances, or departmental policy, procedures, or training.	2	1 2 3
3) Intentionally endangering self, fellow employees, wards, incarcerated or supervised persons, or the public by violation of statutes, regulations, ordinances, or departmental policy, procedures, or training.	6	4 5 6 7 8 9
4) Leaving assigned post without supervisor approval.	2	1 2 3
5) Less than alert, inattentive, or distracted while on duty.	2	1 2 3
6) Asleep while on duty.	3	1 2 3 4
7) Gambling on duty.	2	1 2 3
8) Unauthorized use of department position, uniform, or equipment.	2	1 2 3
9) Use of identification or department position to solicit a gratuity or privilege.	4	3 4 5 6 7 8
10) Engaging in a relationship in violation of the department's nepotism or fraternization policy.	4	3 4 5 6 7 8 9
11) Failure to report a relationship in violation of the department's nepotism or fraternization policy.	3	2 3 4 5 6
12) Improperly accessing or unauthorized possession or disclosure of confidential information.	4	2 3 4 5 6 7 8 9
13) Improperly accessing or unauthorized possession or disclosure of confidential information with malicious intent or for personal gain.	5	3 4 5 6 7 8 9
14) Disruptive, offensive, or vulgar conduct which discredits the department.	3	2 3 4 5 6
15) Intimidation, threat, or assault without the intent to inflict serious injury toward a department employee, ward, incarcerated or supervised person, or member of the public.	5	3 4 5 6 7 8
16) Intimidation, threat, or assault with the intent to inflict serious injury toward a department employee, ward, incarcerated or supervised person, or member of the public.	7	5 6 7 8 9
17) Battery against a departmental employee or member of the public without the intent to inflict serious injury.	5	3 4 5 6 7 8
18) Battery against a department employee or member of the public with the intent to inflict serious injury.	7	5 6 7 8 9
19) Sexual misconduct involving staff or a member of the public.	6	5 6 7 8 9
20) Over-familiarity with ward(s), incarcerated or supervised person(s) or ward, incarcerated or supervised person family member(s).	5	4 5 6 7 8 9
21) Sexual misconduct with an ward, incarcerated or supervised person.	9	9
22) Prostitution or solicitation of prostitution.	6	5 6 7 8 9
23) Bringing contraband into a secure area for personal use.	1	1 2 3 4 5 6
24) Bringing for or providing contraband to a ward, incarcerated or supervised person.	9	5 6 7 8 9
25) Failure to observe and perform within the professional standards, including community standards of care, applicable to a profession, or engaging in behavior that constitutes professional misconduct under professional standards.	3	3 4 5 6 7 8 9
26) Failure to observe and perform within the scope of training, post orders, duty statements, department policy, or operational procedures.	1	1 2 3 4 5
27) Failure to observe and perform within the scope of practice for medical, nursing, psychiatric, psychological, dental, or other health care employees.	3	3 4 5 6 7 8 9
28) Employee's failure to report discipline by a licensing agency.	3	3 4 5 6 7 8 9
29) Failure to intervene in or attempt to stop misconduct by another employee.	5	4 5 6 7 8 9
30) Failure to intervene in or attempt to stop misconduct by another employee directed at an incarcerated person.	7	5 6 7 8 9
31) Felony criminal conviction.	9	9
32) Misdemeanor conviction involving moral turpitude.	9	7 8 9
*E. INTEGRITY AND DISHONESTY*	*BASE PENALTY*	*PENALTY RANGE*
1) Petty theft.	4	3 4 5 6 7
		Penalty shall be relative to value and circumstances
2) Grand theft.	9	7 8 9
		Penalty shall be relative to value and circumstances
3) Making evasive statements, failing to report, or omitting material facts or information to a supervisor by non-sworn staff.	3	2 3 4 5 6 7
4) Making evasive statements, failing to report, or omitting material facts or information to a supervisor by sworn staff.	4	2 3 4 5 6 7
5) Making intentionally false or intentionally misleading statements regarding a material fact or intentionally omitting material facts to a supervisor.	7	4 5 6 7 8 9
6) Making intentionally false or intentionally misleading statements regarding a material fact, or intentionally omitting material facts, during an inquiry or investigation conducted by the department's Office of Internal Affairs.	9	7 8 9
7) Making intentionally false or intentionally misleading statements regarding a material fact or intentionally omitting material facts to a public safety officer on or off-duty.	7	5 6 7 8 9
8) Making intentionally false or intentionally misleading statements regarding a material fact or intentionally omitting material facts during an investigation conducted by any local, state, or federal entity; state or federal licensing agency; or professional peer review board.	9	7 8 9
9) False testimony under oath.	9	9
10) Falsification of material facts in reports or official records.	9	7 8 9
11) Falsification of a time record or financial record for fraudulent purposes.	9	4 5 6 7 8 9
12) False claim for Leave Entitlement.	5	4 5 6 7 8 9
13) Falsification by an employee of a medical note or record obtained from a dental, medical, mental health, or health care provider.	9	4 5 6 7 8 9
14) Entering false or intentionally misleading statements in a dental, medical, mental health, or other health care record.	9	4 5 6 7 8 9
15) Altering or destroying dental, medical, or mental health care records in violation of department policy or state or federal law.	9	5 6 7 8 9
16) Falsification, alteration, planting, or destruction of evidence.	9	7 8 9
17) Falsification, alteration, or destruction of department records, documents, or communications in violation of department policy.	9	7 8 9
18) Repeated unintentionally failing to start, shutting off, or disabling Audio-Visual Surveillance System or Body-Worn Cameras.	2	1 2 3
19) Intentionally failing to start, shutting off, or disabling Audio-Visual Surveillance System or Body-Worn Cameras.	9	7 8 9
20) Tampering with, altering, or destroying Audio-Visual Surveillance System or Body-Worn Camera equipment or recordings.	9	7 8 9
21) Cheating on a civil service examination; unauthorized possession, use, or distribution of examination materials; or participating in an examination for another person.	9	4 5 6 7 8 9
22) Falsification or intentional omission of information on applications or other documents submitted for employment or promotion.	9	4 5 6 7 8 9
23) Participating in hiring practices that violate the law or department policy.	7	4 5 6 7 8 9
*F. FAILURE TO COMPLY*	*BASE PENALTY*	*PENALTY RANGE*
1) Failure to obtain approval from or provide updated information to a hiring authority regarding secondary employment outside the department.	1	1 2 3
2) Accepting employment outside the department or engaging in activities inconsistent or incompatible with departmental employment as set forth in section 3413.	4	3 4 5 6
3) Failure to attend required training.	1	1 2 3
4) Failure to comply with an admonishment or other lawful instruction by the Office of Internal Affairs during an investigation.	6	5 6 7 8 9
5) Failure to follow lawful instructions as directed by a supervisor or higher-ranking official.	3	2 3 4 5 6 7
6) Failure to report a change in qualifications, licensure, or certification required for continued employment in a job classification.	4	3 4 5 6 7 8 9
7) Refusal to submit to or take any oath or affirmation required by law.	9	9
8) Refusal to take a medical or psychological examination or submit to drug or alcohol testing, as required by law, civil service rules, department policy, Memoranda of Understanding, or lawful order.	9	9
*G. EQUAL EMPLOYMENT OPPORTUNITY*	*BASE PENALTY*	*PENALTY RANGE*
1) Unsolicited, unwelcome, or offensive verbal or written comments that are derogatory, sexual in nature, or discriminatory based on protected status.	3	1 2 3 4 5 6 7 8 9
2) Unsolicited, unwelcome, or offensive physical conduct that is derogatory, sexual in nature, or discriminatory based on protected status.	4	1 2 3 4 5 6 7 8 9
3) Unsolicited, unwelcome, or offensive visual conduct that is derogatory, sexual in nature, or discriminatory based on protected status.	3	1 2 3 4 5 6 7 8 9
4) Displaying objects, cartoons, pictures, or posters that are derogatory, sexual in nature, or discriminatory based on protected status.	3	1 2 3 4 5 6 7 8 9
5) Making employment decisions or changing the terms, conditions, or privileges of employment based on an individual's protected characteristics.	3	1 2 3 4 5 6 7 8 9
6) Changing the terms, conditions, or privileges of employment in retaliation for engaging in activity protected by state or federal law, filing a discrimination, harassment or retaliation complaint; opposing unlawful discrimination, harassment or retaliation; or participating in the discrimination complaint process.	6	1 2 3 4 5 6 7 8 9
*H. WORKPLACE VIOLENCE*	*BASE PENALTY*	*PENALTY RANGE*
1) Conduct that is disruptive because it disturbs, intimidates, interferes with, or prevents normal work functions or workplace activities.	3	1 2 3 4 5 6 7 8 9
2) Threatened acts of violence with the intent to harass, intimidate, commit an injury to self or others, or damage or destroy property.	4	1 2 3 4 5 6 7 8 9
3) Stalking which consists of willful, malicious, and repeated following or harassing of another person, by any means direct or indirect, that causes a reasonable person to fear for their safety or the safety of their immediate family.	6	3 4 5 6 7 8 9
*I. MISUSE OF STATE RESOURCES*	*BASE PENALTY*	*PENALTY RANGE*
1) Unauthorized use of state equipment or services for personal use.	3	1 2 3 4 5 6 7
2) Failure to carry required equipment.	1	1 2 3 4 5
3) Misuse or non-use of issued equipment.	1	1 2 3 4 5
4) Misappropriation of state equipment, property, supplies or funds.	1-9	1-9
		Penalty shall be relative to value of property and circumstances.
*J. OFF-DUTY INCIDENTS*	*BASE PENALTY*	*PENALTY RANGE*
1) Failure to report off-duty arrest to the hiring authority.	2	1 2 3
2) Drunk or disorderly conduct in public.	2	1 2 3
3) Off-duty driving under the influence of alcohol or a drug without collision.	2	1 2 3 4 5
4) Off-duty driving under the influence of alcohol or a drug with collision.	5	4 5 6
5) Off-duty driving under the influence of alcohol or a drug resulting in injury.	7	7 8 9
6) Carrying a concealed firearm off-duty without a carry concealed weapon permit or department authorization.	5	3 4 5 6 7 8 9
7) Possessing a department authorized off-duty firearm while impaired by alcohol or a drug.	6	4 5 6 7 8 9
8) Misuse of firearm while off-duty.	3	1 2 3 4 5
9) Illegal display or brandishing of firearm while off-duty.	5	3 4 5 6 7
10) Negligent handling of firearm without injury while off-duty.	2	1 2 3 4 5
11) Negligent handling of firearm with injury while off-duty.	6	3 4 5 6 7 8 9
12) Gross negligence in handling of firearm without injury while off-duty.	7	4 5 6 7 8 9
13) Gross negligence in handling of firearm with injury while off- duty.	9	4 5 6 7 8 9
14) Domestic violence.	6	4 5 6 7 8 9
15) Child abuse or endangerment.	6	4 5 6 7 8 9
16) Sexual misconduct involving, or sexual abuse of, a minor.	9	7 8 9
17) Intimidation, threat, or assault of a private citizen.	5	3 4 5 6
18) Battery of a private citizen without intent to commit injury.	4	1 2 3 4 5 6 7 8
19) Battery of a private citizen with intent to commit injury.	7	6 7 8 9
20) Other off-duty criminal conduct.	1-9	1-9
		Penalty shall be relative to nature of criminal offense
*K. ON-DUTY TRAFFIC-RELATED INCIDENTS*	*BASE PENALTY*	*PENALTY RANGE*
1) Negligent driving while on duty.	2	1 2 3
2) Negligent driving while on duty with collision.	3	2 3 4
3) Dangerous, reckless, or wanton driving while on duty.	5	3 4 5 6
4) Dangerous, reckless, or wanton driving while on duty with collision.	7	4 5 6 7 8
*L. USE OF FORCE*	*BASE PENALTY*	*PENALTY RANGE*
1) Unnecessary use of force without injury.	2	1 2 3
2) Unnecessary use of force causing injury.	5	4 5 6 7 8 9
3) Unnecessary use of force causing great bodily injury.	9	6 7 8 9
4) Excessive use of force without injury.	3	1 2 3
5) Excessive use of force causing injury.	5	4 5 6 7 8 9
6) Excessive use of force causing great bodily injury.	9	6 7 8 9
7) Intentional unnecessary or excessive use of force.	9	7 8 9
8) Employee's failure to report their own use of force.	5	2 3 4 5 6
9) Employee's failure to report their own unnecessary or excessive use of force.	9	4 5 6 7 8 9
10) Employee's failure to report use of force observed.	4	2 3 4 5 6
11) Employee's failure to report unnecessary or excessive use of force observed.	9	4 5 6 7 8 9
*M. WEAPONS--LETHAL & LESS-LETHAL WHILE ON DUTY*	*BASE PENALTY*	*PENALTY RANGE*
1) Misuse or non-use of available weapons while on duty.	2	1 2 3
2) Inappropriate display of weapon(s) while on duty.	2	1 2 3 4 5
3) Negligent handling of weapon(s) without injury while on duty.	2	1 2 3 4 5
4) Negligent handling of weapon(s) with injury while on duty.	6	3 4 5 6 7 8 9
5) Unintentional discharge of weapon(s) while at the range.	1	1 2 3 4
6) Gross negligence in handling of weapon(s) without injury while on duty.	7	4 5 6 7 8 9
7) Gross negligence in handling of weapon(s) with injury while on duty.	9	4 5 6 7 8 9

(c) Applying the Employee Disciplinary Matrix.

(1) The Employee Disciplinary Matrix shall be used for all disciplinary actions to identify the applicable matrix misconduct allegation(s) and determine the appropriate penalty.

(2) Prior to assessing a disciplinary penalty, the hiring authority must find the investigation or direct action materials sufficient to make investigation findings, which must be documented on CDCR Form 402 (Rev. 01/22), Hiring Authority Review of Investigation, which is incorporated by reference. If the hiring authority finds the investigation or direct action materials insufficient to make investigation findings, the Hiring Authority shall document that finding on the CDCR Form 402 and refer the case to OIA for investigation.

(3) The Employee Disciplinary Matrix identifies a base penalty and penalty range for each misconduct allegation. The base penalty contained in the base penalty column shall represent the starting point for determining the penalty level of an adverse action.

(4) The Employee Disciplinary Matrix is based on the assumption that there is a single act of misconduct at issue and this is the employee's first adverse action. When multiple acts of misconduct occur, the hiring authority shall utilize the Employee Disciplinary Matrix to determine which allegation warrants the highest penalty. The hiring authority shall utilize the penalty range for the most severe charge, and other acts of misconduct shall be considered aggravating factors that may increase the penalty up to and including dismissal.

(5) The hiring authority shall impose the base penalty unless aggravating or mitigating factors, as set forth in 3392.5, subsections (c)(9) and (11), are identified. The aggravating and mitigating factors shall be considered in determining the appropriate penalty level within the penalty range.

(6) If the hiring authority sustains allegations against an employee in a supervisory or managerial position, which renders that employee unfit to continue as a supervisor or Manager in their position, the hiring authority may in addition to the identified matrix penalty, impose a permanent or temporary demotion.

(7) No leniency shall be afforded when assessing a penalty under the Employee Disciplinary Matrix because of an employee's high rank or position.

(8) Aggravating and mitigating factors may increase or decrease the penalty within the identified penalty range. Mitigating factors may be used to reduce the penalty level from the base penalty. Aggravating factors may increase a penalty from the base penalty up to and including dismissal.

(9) The following mitigating factors shall be considered when determining a penalty:

(A) The misconduct was unintentional and not willful.

(B) The misconduct was not premeditated.

(C) The employee had a secondary or minor role in the misconduct.

(D) Based upon: length of service; lack of training; inexperience; lack of written policy directives, post orders, or duty statements; or the inherent nature of the act, the employee did not understand the consequences of his or her actions.

(E) Commendations received by the employee.

(F) The employee was forthright and truthful during the investigation.

(G) The employee was forthright and truthful in documents written or signed by the employee.

(H) The employee was initially untruthful, but later came forward with an explanation.

(I) The employee accepts responsibility.

(J) The employee is remorseful.

(K) The employee reported the harm caused or independently initiated steps to mitigate the harm caused in a timely manner.

(10) For any action where the hiring authority identifies mitigating factors that would allow the penalty under the Employee Disciplinary Matrix to be mitigated to a Letter of Reprimand, the hiring authority may reduce the penalty to corrective action if the hiring authority can specifically articulate why corrective action is appropriate to address the misconduct. The justification for any penalty reduction to corrective action, including identification of mitigating factors, must be specifically articulated on CDCR Form 403 (Rev. 01/22), Justification of Penalty, which is incorporated by reference, when reducing a penalty to corrective action.

(11) The following aggravating factors shall be considered when determining a penalty:

(A) The misconduct was intentional and willful.

(B) The misconduct was premeditated.

(C) The employee had a primary or leadership role in the misconduct when committed in concert or coordinated with others.

(D) Based upon:

1. Length of service.

2. Training.

3. Experience.

4. Existence of written policy directives, post orders, or duty statements.

5. The inherent nature of the act, the employee knew or should have known that their actions were inappropriate.

(E) Managerial and supervisory employees, licensed professionals, and sworn staff shall be held to a higher standard of conduct, and misconduct engaged by these employees shall be considered an aggravating factor for the purposes of assessing disciplinary penalties.

(F) Serious consequences occurred or could have resulted from the misconduct.

(G) Conduct resulted in or, if repeated, is likely to result in harm to the public service.

(H) The misconduct was committed with malicious intent.

(I) The misconduct was committed for personal gain.

(J) The misconduct resulted in injury to a person or property.

(K) More than one act of misconduct forms the basis for the disciplinary action.

(L) The employee has committed repeated acts of misconduct resulting in prior sustained adverse action.

(M) The employee was evasive, dishonest, or intentionally misleading during an inquiry or investigation.

(N) The employee does not accept responsibility.

(O) The employee did not report the harm caused or attempted to conceal the harm through action or inaction.

(12) Suspensions without pay are a more severe penalty than a salary reduction due to the loss of pay, potential negative impact to employee benefits and seniority, and impact to department operations, and shall be considered as such for Progressive Discipline purposes.

(13) If the employee engages in repeated acts of the same misconduct that have already resulted in sustained adverse action, the hiring authority may impose a penalty above the Employee Disciplinary Matrix penalty range, if the hiring authority can specifically articulate why the higher penalty is necessary and appropriate to address repeated misconduct. Justification for aggravating any penalty above the matrix penalty range, including identification of aggravating factors, must be specifically articulated on the CDCR Form 403.

Cal. Code Regs. Tit. 15, § 3392.5

Note: Authority cited: Sections 5058 and 5058.3, Penal Code. Reference: Section 5054, Penal Code; Section 19572, Government Code; Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995.); Armstrong et al. v. Newsom et al., United States District Court for the Northern District of California, Court Case number 94-cv-02307-CW, Madrid v. Woodford, Special Masters Final Report Re: Department Of Corrections Post Powers Investigations And Employee Discipline; Case No. C90-3094-T.E.H. and Madrid v. Woodford, Order; and Case No. C90-3094-T.E.H. Class Action.

1. New section filed 12-28-2021 as an emergency; operative 1/1/2022 (Register 2021, No. 53). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-9-2022 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2022 as an emergency; operative 6/13/2022 (Register 2022, No. 24). A Certificate of Compliance must be transmitted to OAL by 9-12-2022 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 6-13-2022 order, including renumbering of former section 3392.5 to section 3392.6, renumbering of former section 3392.4 to section 3392.5 and amendment of matrix item (b)D.25, subsection (c)(2) and NOTE, transmitted to OAL 9-12-2022 and filed 9-29-2022; amendments effective 9/29/2022 pursuant to Government Code section 11343.4(b)(3)(Register 2022, No. 39).
4. Change without regulatory effect amending subsection (b) filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).