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HomeMy WebLinkAboutORD-2008-105 - Third Part Representation in the Employee Disciplinary Process©R,0- ~ oo ~ /o s- ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 11, 2008 Ap~vo a ~ d /~-ii-o Y 6~ Action Agenda Item No. (p - q SUBJECT: Second Reading: Third Party Presence in the Employee Discialinarv Process DEPARTMENT: County Manager PUBLIC HEARING: (Y/N) NO Human Resources Department . ATTACHMENT(S): INFORMATION CONTACT: Laura Blackmon, County Manager 245-2300 Michael McGinnis, Human Resource Director 245-2550 Annette Moore, Staff Attorney 245-2317 PURPOSE: A second reading of an amendment to the Orange County Personnel Ordinance Article IX, section 4d(1) providing for a third party presence at pre-disciplinary conferences prior to demotion, suspension or termination of an employee and a staff .request that the Board not amend Article IX, Section 4d(1) ~or at best consider one of the proposed alternatives to the language approved in the first reading. BACKGROUND: The Board, at its August 19, 2008, meeting requested stiff bring forward information on third party presence at pre-disciplinary conferences in cases of suspension without pay, demotion or dismissal. On September 16th, staff provided information from the County Attorney's Office indicating the Personnel Ordinance prohibition on third party presence at pre- disciplinary conferences, unless agreed upon by both parties, was constitutional. On October 28th, staff provided additional information to the Board indicating the amendment would not apply to 47% of the County employees because employees in the Sheriff and the Register of Deeds Offices as well as the Departments of Social Services and Health would be exempt from the provision unless the Sheriff, Register of Deeds and Directors of Health and Social Services agreed to allow a third party presence. In addition, staff provided information from a survey conducted by the North Carolina Employment Security Commission (with a 59.4% response from employees) indicating 72% of employees believe the County makes an "honest attempt to resolve problems that exist." The survey also found: My supervisor treats me fairly 88.3% All things considered, I am satisfied with my supervisor 82.5% My supervisor makes good decisions ~ 80.7% I feel free to disagree with my supervisor 79.0% Management above my immediate supervisor is good 75.6% z Staff also provided information on the disciplinary process and coaching and counseling, the primary tool used by management to improve or correct employee pertormance and conduct. Staff recommended the Board not change the Ordinance to include third party representation or presence at pre-disciplinary conferences involving suspension without pay, demotion or dismissal for the following reasons: • Third party representatives would create an inequity among employees within the personnel system applying to only 53% of Orange County employees. • The personnel system currently allows for third party representation if both parties agree. • Human Resource professionals are present in the process to ensure the system is followed and alt parties are treated fairly. • Employees view the system as fair. • The presence of third parties and attorneys at the pre-disciplinary conference could make the process more adversarial and decrease the likelihood of the issue being resolved. The Board asked staff to bring the issue forward at its November 18, 2008 meeting and provide the Board with options for third party representation. At the November 18~' meeting, three proposals were brought forward to amend the Orange County Personnel Ordinance Article IX, Section 4d(1) which currently provides: d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) No third parties, including attorneys or other representatives may be present at this conference. The Personnel Director or the Personnel Director's designee may be present at management's or the employee's request. Note: This prohibition may be waived with the consent of the department head and the employee. The three models presented were: allowing a third party of the employees choice, not an attorney, to be present but not participate in the pre-disciplinary conference; allowing a person selected from a diverse group of specially trained HR Professionals and other staff to act as an ombudsman to assist the employee in preparing for the conference as well as accompanying the employee to the conference; and allowing a third party of the employee choice, including and attorney, who could advocate on the employees behalf at the conference. Staff again recommended not allowing a third party presence at pre-disciplinary conferences and if the Board wanted a third party presence at the conference, staff recommended the use of a specially trained ombudsman to assist employees. Several Board members had questions about the amendment such as: what would be the unintended consequences of the amendment; whether family members should be present at the pre-disciplinary conference; whether or not the mediator indicated in the amendment should be "trained or not trained" and whether or not employees in the Offices of the Sheriff and Register of Deeds and Departments of Social Services and Health would have access to the third party presence. After the discussion, the Board voted 3-2 on an amendment different than what staff had proposed as indicated below: (1) An eligible employee may have a third party present at this conference as provided in the Rules and Regulations adopted for this Section. The third party may be a friend, family member,. trained mediator, or another employee but not an attorney. 3 The person is considered a support person and is allowed to participate in the conference. The support person may have training or specific ability to provide the assistance needed by the employee. The Human Resources Director or the Human Resource Director's designee may be present at management's or the employee's request. Staff has some concerns about-the support persons allowed into the pre-disciplinary conference in the amendment voted on by the Board. Specifically, staff is concerned about what changes may occur in pre-disciplinary, conference with family members not only present but also participating verbally in the pre-disciplinary conference and the intense emotions that may be brought into the conference with family member presence, especially spouses and domestic partners. Additionally, having a mediator, trained or otherwise, at the pre-disciplinary conference creates confusion about the mediator's role at the pre-disciplinary conference. A mediator is a neutral facilitator and is not present to support or advocate for either the employee or management. While in the grievance process a mediator may be helpful, in the disciplinary action process, a mediator may create confusion among some employees who believe the mediator is there to help and support them. Staff proposes two alternatives for the Board's consideration. These alternatives delete the presence of a spouse or a domestic partner and the trained mediator at the pre-disciplinary conference as well as not allowing and allowing some verbal participation in the pre-disciplinary conference by third persons: Alternative 1: (1) An eligible employee may have a third party present at this conference as provided in the Rules and Regulations adopted for this Section. The third party may be a friend, family member (but not a spouse or domestic partner) or another employee but not an attomey. The person is considered a support person and is not allowed to participate in the conference. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. Alternative 2: (1) An eligible employee may have a third party present at this conference as provided in the Rules and Regulations adopted for this Section. The third party may be a friend, family member (but not a spouse or a domestic partner), or another employee but not an attorney. The person is considered a support person and is not allowed to participate in the conference unless .the support person has had specific training as determined in the Rules and Regulations; the person may then be designated as an ombudsman and allowed to accompany and provide assistance to the employee at the pre-disciplinary conference. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. The G.S. §153A-45 provides that in order for an ordinance to be adopted on its first reading it "must receive the- approval of all the members of the board of commissioners. If the ordinance is approved by a majority of those voting but not by all the members of the board... it shall be considered at the next regular meeting of the board." The Board then has 100 days after 4 introduction of the ordinance to adopt the change to the ordinance. At the December 1, 2008 regular meeting, the Board tabled action on this matter. While the amendment voted on November 18~' does not require unanimous vote, any changes to the amendment to the Orange County Personnel Ordinance Article IX, Section 4d(1) voted on at the Board's November 18~' meeting will require unanimous consent or will have to come back for consideration at .the Board's next meeting. Staff is mindful that Board members, either those sitting on November 18~' or new Board members, may need additional information before either the amendment or a revised amendment can be considered. If the Board needs additional time or information, staff would recommend the Board delay consideration of the amendment or a revised amendment until the Board's first meeting in January 2009 and allow staff to gather any additional information required. FINANCIAL IMPACT: None RECOMMENDATION(S): The Manager recommends the Board nod amend the Orange County Personnel Ordinance Article IX, Section 4d(1). If the Board does amend Section 4d(1), the Manager recommends the Board revise. its November 18~' decision and adopt Alternative 2 as presented by staff. ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 18, 2008 O a2 .c9 - .2 o v ~~ Jo,.~ ~~ Action Agenda Item No. (o - G SUBJECT: Third Party Presence in the Employee Disciplinary Process DEPARTMENT: County Manager Human Resources Department PUBLIC HEARING: (Y!N) No ATTACHMENT(S): 1- Survey of Counties 2- Amended Article IX, Section4d(1) Personnel Ordinance INFORMATION CONTACT: Laura Blackmon, County Manager, 245-2300 Michael McGinnis, Human Resource Director, 245-2550 Annette Moore, Stafl' Attorney, 245-2317 PURPOSE: To provide information and a possible recommendation of an amendment to the Orange County Personnel Ordinance Article IX, Section 4d(1); third party presence or representation for eligible employees at a pre-disciplinary conference involving demotion, suspension or termination. BACKGROUND: At the October 28, 2008 Work Session, the Board discussed having third party presence at pre-disciplinary conference during the disciplinary process involving demotion, suspension, or termination of an employee. The Board requested additional information on whether other counties and the OfFce of State Personnel provided employees with the option of having a third party present and, if so, what models were being used. Additionally, staff was asked to propose a recommended amendment to the Personnel Ordinance to provide a third party presence during: pre-disciplinary conferences involving demotion, suspension or termination of eligible County employees. The Orange County Personnel Ordinance Article IX, Section 4d(1) currently states third parties, including attorney or other third parties representatives, may not be at the pre-disciplinary conferences. Article IX, Section 4d(1) d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) No third parties, including attorneys or other representatives may. be present at this conference. The Personnel Director or the Personnel Director's designee may be present at management's or the employee's request. Note: This prohibition may be waived with the consent of the department head and the employee. 2 This provision can be waived with the consent of both management and the employee. Staff surveyed Human Resource Directors in other counties and in the Office of State Personnel on allowing a third party presence or representation in pre-disciplinary conferences. (See Attachment 1.) None of the counties or the Office of State Personnel either through ordinance or policy provide for third party presence at pre-disciplinary conferences. Alamance County's policy does not provide for third party presence; however, in practice a third party presence is allowed. Several reasons stated by the Office of State Personnel and others for not allowing a third party presence or representation in pre-disciplinary conferences were: a third party presence would make the conference more of a hearing and less of meeting; the pre-disciplinary conference is a time of information sharing and having a third party present or representation may make it more adversarial and reduce the opportunity to resolve both performance and conduct concerns.at a lower level. The lack of 'a third party presence was also countered by the thorough review made by the Human Resources Department of the circumstances surrounding the incident prior to the consideration of discipline. Many indicated Human Resources staff served as a neutral part of the disciplinary process assisting both the employee and management and not advocating for either side. Models While none of the counties surveyed or the Office of State Personnel provide third party presence or representation at pre-disciplinary conference, staff, as requested, has provided several models of third party presence or representation and the pros and cons of each for the Board's consideration: 1. The employee is permitted to select a person of their choice to accompany them to the Pre-disciplinary Conference. This person may be a friend, family member or another employee, but not an attorney. This person is considered a support person only and is not allowed to participate in any way in the conference. • This may help the employee feel more at ease in the proceeding and provide a second set of ears to hear information enhancing the employee's ability to comprehend the information being provided. • There would be no cost to the employee or management unless the person selected was an employee (employee time off would not be charged to leave.) • The support person would not be allowed to actively participate in helping the employee and must remain mute during the conference. • The support person may not have any training or specific ability to provide the assistance needed by the employee. 2. An employee would. be allowed to select a person from a diverse group of human resources professionals. and other staff specifically trained to provide assistance to employees in the Pre-disciplinary Conference. This specifically trained person would act as an ombudsman in helping the employee prepare for the conference and accompanying the employee to the conference. This position is allowed to assist the employee in understanding information being provided by the .department or in providing additional information for consideration. The human resources professional would not be the person who helped the supervisor or department in preparing for the disciplinary proceedings. • This would provide the employee with a trained human resources professional to assist them throughout the process including during the conference. • This would not have an additional cost outside of human resources or other County employee staff time. • This would limit the employee's choice to the specifically trained County personnel. 3. The Employee is permitted to select a person of his/her choice that will be allowed to advocate for the employee during the Pre-disciplinary conference. The person representing the employee may be an attorney. • The recommendation would provide the greatest .level of advocacy for the support of-the employee. • This may provide unequal treatment and unfair results for persons who could not afford attomeys. • An attorney's presence at pre-disciplinary conferences in cases of serious work performance deficiencies endangering the safety of persons or property may slow the process when resolving the issue may be in the best interest of all parties. • This would increase the County's costs because if the employee had an attorney, the County would also seek to be represented to provide legal support to the supervisor and the department head. Staff Recommendation The County must ensure aA employees are treated fairly and have the opportunity to resolve issues at the lowest level possible. Staff recommends the Board continue the current system of not allowing a third presence or representation at pre-disciplinary conferences involving demotion, suspension or termination for the following reasons: • Third party representatives would create an inequity among employees within the personnel system applying to only 53% of Orange County employees; • The personnel system currently allows for third party representation if both parties agree. • Human Resource professionals are present in the process to ensure the system is followed and all parties are treated fairly; • Employees view the disciplinary system as fair (as evidenced by a recent employee survey); and • The presence of third parties and attorneys. at the pre-disciplinary conference could make the process more adversarial and decrease the likelihood of the issue being resolved. However, if the Board is not inclined to leave the current system in place, staff would recommend the Board select Model 2 above. Attached are proposed amendments to the Personnel Ordinance to accommodate each model. (See Attachment 2) 4 FINANCIAL IMPACT: There will be no additional cost if the policy is not changed. However, if the Ordinance is changed to allow legal representation, there may be a cost to adequately represent the Department and County. RECOMMENDATION(S): The Manager recommends: 1. The Board approve no changes to the current Article IX, Section 4d(1) of the Orange County Personnel Ordinance; or 2. Select Model 2 above and amend Article IX, Section 4d(1) of the Orange County Personnel Ordinance as provided in Attachment 2, to be effective on the date printed in the Administrative Rules and Regulation promulgated by the County Manager. 0 3rd Party Representation _ attachment 1 3rd Party Rearesentation in Pre- Coun Discialinarv Conference HR Involvement Alamance Representation is not referred to in HR is involved in the process and may olic in ractice it is allowed artici ate in the conference Bertie Representation is not allowed HR with Department director conducts the conference Cabarrus Representation is not allowed HR is informed prior proposed conference and participates and monitors conference to ensure employment laws, rules, regulations are followed and fair treatment. Chatham Representation is not allowed HR is contact person and helps supervisor determine appropriateness of discipline, meets with employee to help prepare for conference. Durham Representation is not allowed HR works with supervisor and employee and may participate in conference Forsyth Representation is not allowed HR must be consulted prior to action and upon request by supervisor or employee will artici ate in conference Guilford Representation is not allowed HR may be involved in the process to support process for emplyee or department Representation is not allowed The employee, their supervisor and the department director or their designee. Prior to the conference a fact finding conference is held between the employee and the supervisor. At the fact finding conference information is gathered to evaluate a situation information that may lead to discipline. Mecklenbe Wake Representation is not allowed HR does not attend the the conference. Works behind the scene with supervisors and employees to prepare for the conference. Department directors are also not encouraged . to attend so that it remains between employee and supervisor. ~_ J Office of Representation is not allowed HR is involved in reviewing the actions and State assisting the supervisor in determining the Personnel appropriate action. HR provides training on problem resolution for supervisors and employees. 0 PROPOSED AMENDMENTS TO ORANGE COUNTY PERSONNEL ORDINANCE ARTICLE IX, SECTION 4d(1) MODEL 1 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) An eligible employee may have a third party, present at this conference as provided in the Rules and Regulations adopted for this Section. The third party may be a friend, family member, or another employee but not an attorney.. The third party is an observer. and may not participate in the conference. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. MODEL 2 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. . (1) An eligible employee may have a third party present at this conference as provided in the Administrative Rules and Regulations adopted for this Section. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. MODEL 3 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) An eligible employee may have third parties, including attorneys or other representatives present at this conference as provided in the Administrative Rules and Regulations adopted for this Section.. The Human Resource Director, the Human Resource Director's designee or the County Attorney or the County Attorney's designee may be present at management's request. /'/-~ J~'' -'v ~ Ci ~,.. removal, etc. Anti-tether bills, such as this one are couched in emotional appeals, and personal anecdotes, rather than being based on factual evidence. Pictures of starving puppies on logging chains are used to sell a horror story, one not representative of the norm, to sympathetic dog lovers, the majority of which keep their dogs strictly inside as house dogs. It is entirely possible to tether a dog responsibly in a manner consistent with, and even above and beyond, all existing levels of mandatory care. Whether an outdoor dog lives in a kennel or on a tether, the obligation exists to keep the dog responsibly, which is contingent upon a combination of love, and common sense -neither of which can be created through legislation. Regards, The 250+ members of the Durham Kennel Club 7318 Guess Road http://durhamkennelclub.com/ Brian Fee referred to at story in the Chapel Hill News where five people from Orange County were asked if they supported an anti-tethering ordinance. Four of the five said that the County should not have a role in this. There was no mention of abuse from the citizens. He said that Orange County citizens expect that the County Commissioners see information from all sides. He thinks that the original goal of the committee was to reduce dog abuse and neglect. However, he believes that the County Commissioners have been influenced by the Coalition to Unchain Dogs. He said that not one person on the Tethering Committee was pro- tethering. He said that the whole process is stacked against citizens that chain their dogs. He does not think that the County Commissioners have listened to the Orange County citizens. He said that he wrote a Letter to the Editor about this issue. Ellen Whitaker is a member of the Coalition to Unchain Dogs. She said that there are certain things about tethering that are not covered in the anti-cruelty laws. She said that this ordinance will be enforced by complaints only, so people who responsibly tether their dogs do not need to worry. Chair Jacobs said that he hoped that the information about tethering restrictions would accompany license renewals for animals. Bob Marotto clarified that the ordinance would apply to the unincorporated areas of Orange County and the Town of Hillsborough and would not apply in Chapel Hill, Carrboro, or Mebane. Commissioner Foushee said that she will oppose this ordinance as amended because she feels that it will impose a hardship on a large number of law-abiding citizens who very responsibly and lovingly care for their dogs. A motion was made by Commissioner Nelson, seconded by Commissioner Carey to approve adopting on second reading the proposed amendment to the Orange County Animal Ordinance restricting the tethering of dogs. VOTE: Ayes, 4; No, 1 (Commissioner Foushee) c. Third Party Presence in the Employee Disciplinary Process The Board considered a possible amendment to the Orange County Personnel Ordinance Article IX, Section 4d(1); third party presence or representation for eligible employees at apre-disciplinary conference involving demotion, suspension or termination. ,~ Laura Blackmon said that the personnel ordinance states that third parties may not be at pre-disciplinary meetings and the Board of County Commissioners asked for information about this issue. There is a chart in the packet that addresses this issue in other counties, and none of the counties allow third party representation. The staff also provided some models and options for third party representation. Staff is not recommending that the ordinance be changed. The biggest concern is that having third parties would make a more adversarial situation. Commissioner Carey said that he is happy that staff has moved beyond the constitutional right issue. He appreciated the three options and he would like to change the ordinance. He would support the first option, which is, "The employee is permitted to select a person of their choice to accompany them to the Pre-disciplinary Conference. This person is considered a support person only and is not allowed to participate in any way in the conference." He also thinks that the employees should be surveyed on this. Commissioner Gordon said she is concerned about creating an inequity between the State and County employees. Staff Attorney Annette Moore said that currently the rules do not allow attorneys to represent a State employee disciplinary proceeding. There is no mention of other people, just attorneys. She will go back to the Office of State Personnel and get more clarification. Commissioner Foushee said that she does support the first option instead of the second option. She has a problem with a trained Human Resources professional. If an employee is allowed to have a presence, then the employee should choose the form of that presence. Chair Jacobs said that this survey of counties in an anti-Union state is useless to him. He said that this environment is anti-worker from the State level. He thinks that the best option would be some part of 1 or some part of 2, where a trained mediator that is not part of County government would go in with the employee. A motion was made by Chair Jacobs to approve a hybrid of one and two, but make the representative a person who can speak, who is not an attorney, and who is a trained mediator from outside of County government. Human Resources Director Michael McGinnis said that the person would need to know Orange County's Human Resources disciplinary process. Commissioner Foushee said that if an employee is allowed to bring a presence with them, they should be able to choose who they want to bring in. Chair Jacobs said that he was suggesting that staff should have a list available of trained mediators just in case. Geof Gledhill suggested model one and the first sentence could read as it is. For the second sentence, the representative could be a family member, trained mediator, or another employee, but not an attorney. The last sentence is being changed to read that the person is considered a support person and is allowed to participate. Chair Jacobs agreed with this language, seconded by Commissioner Carey. Commissioner Nelson said that the mediator should be trained in human resources. Commissioner Nelson wanted to make a friendly amendment to the motion to change the language that the representative would be a trained HR mediator only. Commissioner Gordon said she that she would prefer to have this vetted more. She is not sure that all of the consequences are understood. The friendly amendment was not accepted. VOTE: Ayes, 3; Nays, 2 (Commissioner Gordon and Commissioner Nelson) Geof Gledhill said that this needs to come back for a second reading. He suggested that there be another motion to encourage the Sheriff, the Register of Deeds, the Health Director, and the Social Services Director, to the extent permitted by law to follow this model in the conduct of pre-disciplinary conferences conducted for employees for which they are responsible. A motion as made by Commissioner Foushee, seconded by Commissioner Carey to accept this language as added by Geof Gledhill. VOTE: UNANIMOUS d. Budget Process FY09-10: Outside Agency Grant Funding The Board was to consider reviewing the Outside Agency Grant allocation process used in preparing the current fiscal year operating budget and approving changes proposed for the upcoming fiscal year DEFERRED e. Senate Bill 1925 and Letter to Dr. Holden Thorp The Board considered approving a letter in response to the October 5, 2008 letter from Dr. Holden Thorp, Chancellor of UNC at Chapel Hill in which the board would seek clarification on policy and operational issues as they pertain to the siting of an Orange County Airport and additional information on appointments to the Authority; and authorizing the Chair to sign. Public Comment: Nancy Holt presented a document for the record. She said that Preserve Rural Orange County is here tonight and she is representing them. She said that rural Orange County is being endangered by the proposed airport. She said that site 8 sits on 102 acres of her two grandchildren's land. Approximately 25 homeowners are in danger of being forced off their land, losing their homes, or losing farm land. The new airport authority has ten people -eight from the University and two from the legislature. The County only gets three representatives. She said that the landowners and neighbors have banded together because they feel like they are under assault. Bonnie Hauser said that the letter is a progressive statement of leadership from Orange County. She would also add that the County should make zoning with respect to airports a priority because it would offer real protection. The letter is as follows: November 19, 2008 Dr. Holden Thorp, Chancellor University of North Carolina 103 South Building Chapel Hill, NC 27599 Dear Holden: As you are aware, the Orange County Board of County Commissioners (BOCC) had serious reservations about the manner in which the University procured from the General Assembly ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 28, 2008 Q6~~ ~o~"--l dS Action Agen a Item No. SUBJECT: Third Party Representation in the Employee Disciplinary Process DEPARTMENT: County Manager PUBLIC HEARING: (YIN) NO Human Resources Department ATTACHMENT(S): 1-County Attomey's Office Letter, dated 7/8/08 2- Staff Attorney Letter, dated 10/24/08 3- Orange County Personnel Ordinance Article IX INFORMATION CONTACT: Laura Blackmon 245-2300 Michael McGinnis 245-2550 Annette Moore 245-2317 PURPOSE: To follow up on the Board's request for information on the section of the County's Personnel Ordinance dealing with third party representative at pre-disciplinary conferences prior to demotion, suspension, or termination of an employee. BACKGROUND: On August 19, 2008, at a regular board meeting, Eugene Farrar, a representative of the Chapel Hill/Carrboro Branch of the National Association for the Advancement of Colored People, came before the Board to express his concern about a section of the Orange County Personnel Ordinance ("the Ordinance"), which prohibited employees from having legal representation at pre-disciplinary conferences. The Board has asked staff to provide information on legal representation during the employee disciplinary process. On September 16, 2008, staff presented the Board with a letter. sent to the County Manager by the County Attorney's Office, dated July 8, 2008, that addressed this issue..(See Attachment 1) The County Attorney's letter specifically addressed Mr. Farrar's claim of whether or not prohibiting legal, representation at apre-disciplinary conference violated the United States Constitution. The letter concludes the Ordinance's prevention of third party representation at pre-disciplinary conferences was not unconstitutional because the Constitution requires us to provide the employee with notice, an opportunity . to be heard and a post deprivation hearing, which is provided in the Ordinance. _ Listed below is additional information the Board should consider with regards to the presence of third party representation in the county's disciplinary process. 1. Purpose of the Disciplinary Process. The basic purpose of the disciplinary process is found in the Orange County Personnel Ordinance Article IX, Section 4.1 which provides: 2 "It is the intent of Orange County in establishing this policy to provide a fair, clear and useful tool for correcting performance or conduct problems. Disciplinary action, when imposed, will be for the purpose of improving employee and County performance and conduct. When an employee fails to meet his or her work performance or conduct responsibilities, the supervisor is responsible for correcting such failure by initiating appropriate disciplinary action. An employee may be warned, demoted, suspended or dismissed for just cause. The degree and type of action taken shall be based on the sound and considered judgment of the appropriate authority...." 2. Coachin4 and Counseling. The County Management, guided by the principles set out in the Ordinance, understands it is management's duty to address unacceptable work performance and personal conduct, but sees the.. primary responsibility of management as reviewing and encouraging satisfactory job performance and conduct in County employees. The County's disciplinary process is only one of the tools used for improving and/or correcting an employee's performance or conduct. The primary tool used to improve and/or correct employee's performance and conduct is coaching and counseling. This is an interactive process between the employee and the supervisor requiring open and honest dialogue and feedback. This process is encouraged as soon as problems in performance or conduct are identified and at the lowest possible level, generally between the employee and the supervisor. In the process of coaching and counseling, the Supervisor and the employee may also seek the assistance of a Human Resource Professional and work collaboratively to define expectations and establish a plan of action to improve the employee's performance or conduct. As .a result of coaching and counseling most employees do not get to the disciplinary stage. 3. Covered Employees. This disciplinary process covers permanent employees who have completed their probationary period. Exempt from the process are employees in the Departments of Social Service and Health as well as employees in the Register of Deeds and Sheriffs Office. Both the Sheriff and the Register of Deeds Office have the discretion to follow the process set forth in the Personnel Ordinance. The Social Service and Health Departments employees are County employees covered by the State Personnel Act, who must follow the procedures for local government employees set forth in the North Carolina Administrative Code. This means of the 844 permanent Orange County employees, 392 or 47% of the employees are not subject to the Disciplinary Action Process covered in Article IX of the Ordinance.. Additionally, in disciplinary proceedings involving Sociat Service or Health Department employees, the Administrative Code specifically prohibits legal representation by either side. Any changes to the Personnel .Ordinance regarding legal representation at pre-disciplinary conferences would only affect those employees covered by the Personnel Ordinance. (See Attachment 2) 4. Employee Perceptions. In May 2008, with the assistance of the North Carolina Employment Security Commission the County developed an Employee Opinion Survey. All employees where ask to respond to the survey, 484 (59.4%) of employees responded. One question asked. by the survey was does "[This] organization makes an honest attempt to resolve problems that may exist." Seventy-two (72) percent of employees agreed with this statement. Other questions that reflect how employees evaluate how the County resolves problems are listed below. My supervisor treats me fairly 88.3% All things considered, I am satisfied with my supervisor 82.5% My supervisor makes good decisions 80.7% I feel free to disagree with my supervisor 79.0% Management above my immediate supervisor is good 75.6% Additionally, a review of records of employee grievances indicates since April 2007 only 12 grievances were filed; of the 12 only six (6) reached the Step 3 grievance stage. Less than 1.47% of employees during the time period had to avail themselves of the grievance process. 5. Progressive Discipline Process. The disciplinary process requires an oral warning with written confirmation, a first written warning and a final written waming before an employee can receive disciplinary suspension without pay, demotion or dismissal. An exception to this process is provided where there are "instances of serous work performance deficiency which endanger the safety of persons or property." When the exception circumstance occurs the Department Director may, with the prior approval of the Manager, begin the process at a higher level of discipline such as a final written waming, disciplinary suspension without pay, demotion or dismissal. However, prior to a permanent employee receiving disciplinary suspension without pay, demotion or dismissal the Department Director must make a recommendation and have it reviewed by the County Manager. Apre-disciplinary conference must be approved by the County Manager before the Department Director can proceed. In the case of the Department of Health or Social Services, approval must be received from the Directors of Health and Social Service. Prior to the pre-disciplinary conference, the employee must be given written notice of the date, time, location, and purpose of the conference, including specific reasons for the proposed dismissal and a summary of the information that supports the dismissal. During the pre-disciplinary conference the department head and/or a management representative informs the employee again. of the facts giving rise to the proposed discipline and the specific reasons for the proposed discipline. The employee then has an opportunity to respond with information against the recommended disciplinary action and provide information on his/her behalf. The Department Director must then consider the information provided and if they believe discipline is warranted, must .make a recommendation to the Manager. If the Manager concurs with the recommendation, the Director will discipline the employee. In the Department of Social Services and Health, the Social Services and Health Director will discipline their employee. An employee may appeal the decision to dismiss, receive disciplinary suspension without pay, or demotion to the. Personnel Hearing Board. An employee who appeals a decision to the Personnel Hearing Board is allowed to have legal representation at the hearing. The decision reached by the Personnel Hearing Board is a recommendation to the County Manager. The County Manager reviews the recommendation and makes a final decision on whether or not the discipline should be upheld. Orange County has had only one hearing before the Personnel Hearing Board in the last twenty years. (See Attachment 3) Since April 2007, there have been only 58 documented disciplinary actions; of the 58 total, 26 were oral warnings with written confirmation, 15 were first written warnings, 7 were final written 4 warnings, 1 was a suspension and 9 were terminations (4 in probationary status and 5 permanent employees). 6. Third Party Representation. Currently third parties, including attorney or other third parties representatives, may not be at the pre-disciplinary conference: -This could be waived with the consent of both management and the employee. This applies to department directors and employees alike and does not prevent the employee from seeking legal advice. While the Ordinance provides the Human Resource Director or his designee may be present at the conference at either management's or the employee's request, someone from Human Resources is always present at pre-disciplinary conferences. The Human Resource professionals are trained mediators and remain neutral at the conference. They do not take the side of either management or the employee but act as witnesses ensuring the process is followed and is fair to all parties. The pre-disciplinary conference provides additional opportunities for problem-solving. The human resource professional is in the best position to facilitate a successful resolution of the issue knowing the history as well as the internal policies and processes. Instead of management and the employee putting forth their points of view, the conference could devolve into amini-trial between the lawyers. Also having attorneys present at pre-disciplinary conferences in cases of serious work performance deficiencies endangering the safety of persons or property may stow the process when resolving the issue may be in the best interest of all parties. 7. Conclusion County Management is sensitive to some employees' desire to have third parties at pre- disciplinary conferences. However, the County must ensure all employees are treated fairly and have the opportunity to resolve issues at the lowest level possible. • Third party representatives would create an inequity among employees within the personnel system applying to only 53% of Orange County employees. • The personnel system currently allows for third party representation if both parties agree. • Human Resource professionals are present in the process to ensure the system is followed and all parties are treated fairly. • Employees view the system as fair. • The presence of third parties and attorneys at the pre-disciplinary conference could make the process more adversarial and decrease the likelihood of the issue being resolved. FINANCIAL IMPACT: There will be no additional cost if the policy is not changed. However, if the Ordinance is changed to allow legal representation there may be a cost to adequately defend the action. RECOMMENDATION(S): The Manager recommends the Board leave the Personnel Ordinance as it currently reads. ia-w ors C.4LEMAN, GLEDIgII.I; HARGRAVE & PEEK . A P1ONAI. COAPpRATIdN 129 E 1AYON STRF~P P. O.1]ItAWEIi 1529 ~F, NORTFI CAROLINA 2727! 919.732-2196 EA7C 919-73L7997 FBO~t7i~ DESY ~' M ww.eg~p-low.cam BRIAN M. FIItREI.t. , i<rrtan: t,~d~~ts,..~ . July 8, 2008 . lVis. Laura Blaclonon. Colmty Manager Orange Cotmty Manager's Office P.O. Box 81$1 Hillsborough, NC 27278 Re: Employee Representation at a Pre-disc~plmary Conference Dear Laura: You have provided us with a Dopy of a letter by Eugene Farrar, President of the Chapel Hill-Catrboro Branch of the North Carolina National Association for the Advancement of Colored People, dated Jlme Z, 2008 (the "Feuer Letter'. Among other things, the Fauar Letter asks for clarification concerning the County's policy fast denies its employees the right to counsel in the pre~disciplmary conference held prior to the suspension, demotion or termination of a County employee. l1llr. Farrar alleges that, "[tibia policy is mean spirited and, we believe, unconstitutional, when applied tti ~ employee, Black or White, ..: ' (emphasis in the original). Below we provide an opinion on the issue of whether or not the County's policy regarding an employee having .the assistance of counsel at apre-disciplinary conference violates the United States Constitution.l The County does have a policy that prevents third parties, including attorneys or other representatives from being present ax the pre-disciplinary confexence.2 The State of North Carolina similarly prohibits its employees from havi~ an atbomey gresent at the pre-disciplinary conference held pursuant to the State Personnel Act. In Orange County, a `ire-[disciplinary] conference" is requited under the Persoffiel Ordinance before a Petmaneut employee may be dismissed, demoted for disciplinary reasons or suspended without pay. This letter will refer generically to the "pre-disciplinary conference" without regard to whether the conference precedes a dismissal, demotion, m suspension. Sgecii3cally, Section 4.d.(1) of Appendix 1 "Required Dssciglinary Action Process" of the Orange County Personnel Ordinance states that, [n]a third parties, including afxoa~eys or other representatives may be present at this [pre- diseiplinary] conference." Unl3~se s pre-disciplinary conference held pursuant to the State Personnel Act, the County's Personnel Ordinance does contain a provision that allows the l Aldloagh not odlerwise discussed is this lettex, the same smadatds apply is a North Carolina Constitutional I~allenge based oa the North Carolma `2.aw of the Land" clause [N.C. Constitution Artide I, § 19] which includes die applicable due process of law requirements of the United States Constitution Z See Section 4.d.(1) of Appendix 1 `2tequired Disciplinary Action Process" to Section 4.0 `~aP~Y Action° of the Orange Conaty Pelsomlel Ordinance. 9 See Part VF. of the `~pliaetAppeats/Grievances Section of the Nord Carolina State Personnel Manual. . pmhrbition ~ the presence of auarneys or other representatives to be waived with the consent of both the dent head and the employee.4 For the fallowing reasons, it is our opinion that the policy referenced above that prevents an employee with a property interest in his job from having a third party, including an attatney or other representative, present at a pre-disciplinary aonfeaeace does not violate the United States Constitution as Iong as the employee: (a) is given notice arf the pre-disciplinary conference; (b) has an opportunity m refute the charges against him at thepre-disciplinary conference; and (c) is entitled to a past-deprivati~ appeal. Each of th.e tlu+ee processes above are curreaatly required and/or allowed under the County's Personnel Ordinance. - The Faurth Circuit Court of AppealsS has developed a two part test for deterniinia~ whexher or not a public employee's due process rights are violated by a disciglinary action. The relevant test is: (a) whetbe~r the discipline imposed deprived the employee of a property interest protected by the fotuteenth auoeadmeat Due Process Clause of the United States Constitution; and (b) if so, whether the manner in which the discipline was imposed satisfies constitutionally mandated protections ~ The Orange County Board of Commissioners has conferred a property interest -ut the jobs of many of its employees. We will assume, without conducting fartbec analysis, that the employee that is the subject of the Farrar I.ett~ does in fact have a property interest in his continued employment with the County. "It is well settled that due process requires that a gublic employee who hss a property inte~st in his emgloyment be given notice of the char~es against hurl and a meaniagfinl opportunity to respond tv those charges prior to his discharge: ' It is also welt settled that the suspension of an employee without pay.is not a de mini-nus deprivation of property. Therefore, the Due Process Clause does apply in such cases where an employee who has a property interest in his job is suspended without pay.g Because Orange County employees who are suspended from their jobs are entitled to due process protections, the next relevant inquiry is what process the employee is entitled to. In the case of ~oudermall. the United States Supreme Court ruled that Due Process requires, at a minim ,rr: that a public employee with a protectedl property interest in employment be provided adequate notice of the charges a~ainst him and ati oppornmity to respond to those charges before being deprived of that interest: t .There is no allegation is the Farrar l:.etter that the euigloyee at issue did not receive proper ns~tice of the pre-disciplinary conference, rather the allegation is that conducting the conference without the employee having an attDmey present is unconstitutional. The Fourth Circuit Court of Appeals has held that, is regards to a pre-deprivation hearing in the public employment context, "jtjhe formality and procedural requisites for the healing can vary, depeadin~ upon the importance of the interests involvexl and the nature of the subsequent proceedsngs.s1 The United States Supreme Court in Loudermill developed a balancing test that a Sx Section 4.d.(1) of Appendac 1 "Required D~seiplinary Action Process" bo Section 4,0 "Diseipliasry Action" of .~ oraa~e Coumy Persomuet ~ s The Fotuth t3rcuit Court of Appeals is tine Federal appellate court for tech Federal District Court of Nordt Carolina, and ~ decisions eoastitute binding precedent for Federal District Coasts is Norm Carolioa. e SeeC~ra~ty v Sordau. 830 F2d 1295,1299 (198?}. ',gee ~ (infernal ci~ions omitted). s GflitAahri v Jordan 830 F.2d 1295, 1299 (1987)(ua~val citatioais omitted)- So ~ Id. at IZ99. ~ Cleveland Board of Educ~tia v Ill et, alt 470 U.S. 532, 541(1985). ~ ~ ,ratraty at 130Q tQuo~ ~ 569-5T0). - '/ is used to determine whether or not the Pre-disciplinary ~ ~ ~P~y~ ~ ~~N~ under the Dne Process Clause of the fptubeenth amendment '17iis test involves the balancing of "the motion between (a) the employee's interest in his employment, (b} the government's interest in an expeditious and eve .tool to discipline unsatisfactory employees, (c) the government's interest in the avoidance of undue admm~trative or fiscal burdens, and (d} the risk of an erroneous deprivation of the employee's interest." The Fourth (~rcauit Com# of Appeals is Gaaaght4 v. Jordan, applied the Loudermll balancing test in a case where plaintiff; a prison warden is Vn-ginia, was suspended without pay from his job for five days and subsequently challe;aged the suspension on due. process and other grounds. The facts of that case were that Garraghty was ordered by his superior to travel from his post to his superior's ofl"ioe as order to discuss allegations of insubordination. Garraghty was not told directly that the meeting crnild result in his suspension, nor was he informed directly abau~t the nature of the accusations against him until he arrived at the meeting with his superior. Gaaaghty was given am opportunity to explain his act of insubordination at the meeting. However, "Virginia regalaEions in place at the tame of Garraghty's suspension only allowed for an appeal of suspensions of less than ten days so Garraghty had no post suspension administrative hearing."13 Ganaghty was suspended for five days without pay by his superior after finding his explanation of the insubordination lacking. After analyzing the balancing factors listed above, the. Garra~ Court noted that, "[fJuurther formalizing the suspension process and escalating its formality and adversary nature may nut only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the disciplinary pa+ocess."14 Ultimately, the Gaeta t Court held that, "[w]e agree with the district court that Gatraghty received `all the hearing he was entitled to."'~ • Orange County employees receive greater due process protedians prior to receiving a suspension witho~ pay than did_Gauaghty. First, tmifiCe in Ci where the employee was merely directed to his superior's office and had to assume he was being called to answer for his insubordination, County employees are given notice that includes the specific reasons for the proposed discipline and a brief sumuaary of the information which management believes supports the proposed action prior tv the pre-disciplinary conferemce.;6 Thereafter, the pre- disciplinary confeaenc~ is held with the employee's department head and/or management representatives wherein theemployee receives a review of the facts giving rise to the pmposed~ dismissal and the employee has an opportunity to respond fie the charges against him. The applicable Holes in Orange County requiure the department head to consider the information the employee has preseited at the predisciplinary cmnfeaence prior to determining if the disciplinary action is wazramted. Finally, also unlike Ganaghty. County employees are given notice of their appeal tights and can challenge the disciplinary action via the formal appeals process that includes being represented by counsel at a hearing before the County Personnel Board. Because the Uue Process Clause of the United States Constitution regmre; a Pre- deprivation hearing or conference' in the public employment context that is no more formal or extensive than those requuEd by ~, and because the County's pre-deprivation ~ ~ >1301(«~ r~aermtm. ~ ltd. at 1297. I4I~ ~ 130? QnO~ ~~ V. Lopez. 419 U.S. 565, 583 (1975). Is ~ at 1299. 16 $eC170n 4.C.. Alspeodtx 7, Art1C1C IX, OI'811$C County PersonIIel OIdIOSIICe. 8- pmccedings are moue forma( and extensive that those is ~ it is onr opiaioa that the FY's 1?re-~PI~Y Proms Pess constitutional muster Lease let me kaow if yon ]gave any furthea gaestions regarding this mutter. Best R~gazds, CQLEMAN; GLIDI~L, HARGRA , & PEEK, P.C. cc: Board of County Commissioa~rs Barry Iacobs, Chair . Moses Carey, Jr. ' Valerie P. Faush,ee Alice Gordon ' Irll ke Nelson ' 1VIichael McGinnis, Human Resources Director ~- . Orange CountyPersoanelOrdmance ZssueDate: August1,1997 • ( •_ ~~~ I Article IX . • Required Disciplinary Action Processl . 1.. 'Oral Warning Wixh Written Con, firmatian . ' ` ' a.' The supervisor may issue an Oral Warning vdifhout otherappmvaLs. b. The supervisor completes the following steps:• • (1) States clearly to the employee is a private meeting that the discussion is as °DYal WaZrIIIIgn . • ~) Revi6ws With the employee the specific 8cts or OIIILSS1oII]S causing the Oral • W~g~ (3) Allows the employee to give and considers the reasons far his or her actions or omissions. • • Note: if warranted, the supervisor may decide not to proceed With the Oral . Warning based on the infinmatioa the employee provides. _ (4) infomrs the employee of the specific corrections he or she must make. . ~ (5) informs the employee of the time allowed, if any, for the corrections to be ~anade. . . (~ Advises the employee that subseclaent disciplinary action, including . dismissal, maybe titian if seeded corrections are not achieved Within the time allowed or if other.pmblems arise. ('n Advises the employee of his or her appeal rights under the Orange County Grievance Procedure. • (8) Gives the employee written confimlation of the date•of the discussion and matters covered • • (9} Provides a copy of the written confirmation to the Personnel Department • for inclusion in the employee's personnel file. 1 For employees in the departments of Heaith and Social Services, State regniremen~s as to dismissal, disceplinaryaaspeasioa grithant pay and discipliaery'demotion arc controlling and, ifaay. ~.~ • - variation exists, tha State regniremeats override these ofthis Ordinance: ~ , • ~ArNi:le I%-Page 7 . 1~ Orange County Persmind Ordinance ~ Issue ]7atea• august Y,1997 2. First i~rii<teie Warninr . a. A First Written Warning requites the Department Head's Advance approval. b. The supervisor completes the following steps: _ • (1) Upon noting employee Perfomuance'or conduct appearing to regains a Firitt Writbea Wama~ meets privately with the employee to review the specific ~ . . actions or omissions and to allow the employee to give the reasons far the • actions or omissions. • (2) . If the Fist Written Warning is justified, specifies in the letter to the . employee: • • (a) i#;s a ^Fisst writxea Waving.° • .. (b) • The specific actions or omissions leading to the Firs st Written Warning. . .. ~(c) The corrections the employee must make. . • . . (d) .The time allowed, ~if any, far coaections to be made. . .. - ~ ~(e) Anypriardigcilllin~a*yaction(s)- (t) .That further disciplinary action; including dismissal, may be taken . ... if conections are, not made within the time allowed ar if other ' . ' . ~nublems arise. ~ . . ... .. (g) The employee's right to appeal under the Change County CrrEevance Procedure. - . c. ~ The department provides a copy of the Fi trst Written Warning to the Personnel . 'Deparhnent£rn inclusi~ is the_emploYee~s ~ file. d..• In carrying out Item Z, the supervisor should be aware that; for unsatisfactory . work perfomiaace, a Fnst 'Written. Waving may be issued only after. an Oral. Warninp~ except as provided in Article IX, Section 4.5.1. . 3. Final firritten Warning a. A Final Written WaIDing requires the Department Head's advance approval b. The supervisor co~ngletes the following seeps: . Article IX -Page S '. - . •• - i~ . " Orange CouniyPerso~uelOndsnaaca 'Issue Date: ~ugustl,1997 • ~ (1) Ups notiag ~Pmyce Pace or ~ondnct appearing ~ to require a Final Written watning, meets privately with the .employee to naview the - specific actions or omissia~ns and to allow the employee to give reasons for . • the actions or omissions. . (2) if the Final writt~ warning is justified, specifies is the letter m the • - employee: . - • - (a) -That it is a'~inal-Wtiftea warning." - - • (b) The specific actions or omissions leading • to the Final written . ~ .warning. ~ . - (c) - The corrections the employee must make. (d) The time allowed, if any, far corzections to be made. (e) Any prior disciplinary action(s). - - • (f) That further disciplinary action, including dismissal, maybe taken • if oarr+e~ions are not made within the time allowed. • - - - (g) The employeeis right to appeal under the Orange County Grievance Procedure. - c. The department pmvides a copy of the •Final Written warning to the Personnel • - . - Department for fnciirsionin the employees perso~el file. . d In carrying out Item 3, the sapavisor should be aware that;. for unsatisfactory, - - - work performance, a Final written warning may be .issued only after a Fast • ~ • - writtea warning, except as provided in Article ~, Section 4.S:1. - 4. 'iris aP. • Before a Penma~nt employee maybe dismissed, the following must occur: a. The department head reviews the facts and circumstaaces, including the nature • and extent of prior disciplinary actions, if auy, and any action taken (or nat taken) as to other employees in &imilar sifiiatioQS. • ~, b. If the department head decides b recommend dismissal, be or she rei-iews the - recommendation with the County Manager apd receives the County Managers • ~ agpmval to pmceed with a pre-dismissal conference with the employee. In the - case of an employee in the Department of Health or Social Services, the Health • =Sea Article IX, Section 4.7.4. • - ' • Article Ig -Page 9 ~~ ' ~ Ormege CountyPersos'~el Ora'i~ance Zsaru Date: ~4iigust 1,19s~_ • Director or Social Services Director determines whether to proceed with apre- . . dismissal conference. • ' - c. Prior to the pre-dismissal confemnce; the department head gives the employee ' vvritbeu notice of the pre- dismissal conference. This notice inclades the specific • reasons for the proposed dismissal and a brief summary of the information which n,_~~,,,ent believes sapports the proposed aismissaL d. The head and/or management representative(s) hold the gte-dismissal conference with the employee. {1) • Na third parhies, including atbomeys or other representatives may be present at this ce~nference: The Personnel Director or the Personnel Director's designee' may be present at manageme~'~ or the employees . ~ regaesk ... .. ~ This prohibition may be waived with the consent of the department • •head and the employee. • • • (2) The department •head and/or nmanagement representative(s): • Review with the employee the facts giving rise to the proposed . ' . dismissal and'the.specific reasons for the proposed dismissal. ' ~ provide an opportuni~- for the employee to respond. e. Following the pre-dismissal conference, the -dePart<nent head considers the • information tin employee has presented. ' • ~ . f • • if the department head de~~ that dismissal is waaanted' following the pre- ' ~ dismissal conference, he or she reviews the dismissal recommendation with the -- .. f ;oun{Y Manager. The Manager dismisses the employee, if he coacars with the dismissal recommendation.. For an employee in the department of Health or Socisi Services, the Health or Social .Services Director makes the dismissal decision . & The department head gives the employee written notice of dismissal which includes: . The specific reasons fo>~ the dismissal and a .brief summary of the infoanation which management believes Rrarrants the action. . ~ -The employeeh appeal rights under the Orange County Personnel . Ordinance. s n~~r~s~e~~~ w~a~pa~ 3 Sze Articlz IIC. Section 4.7.4.. ~ Atti43e IX -Page 10 - . ~.~. Orange County Personnel Orr~iance Issue Date: August Y, I997 . t.t, ~• •t '.-t' a. An employee may receive a disciplinary suspension without Pay based on work perfoanance ~ personal. candnct. Far work performance, a disciplinary • • ~ suspension witho~ pay may be given in conjunction with a Final written • warning and only a$er an oral warning and. a Fast written. Warning except as • provided in Article IX, Section 45, i. b. Before a Penaanent employee may be gives a d'tscipliaary suspension without pay, the same process as that specified in Item 4a through 4g must occur. _~ Fi. Demotion`' ~ ~ . ' a. An employee may be demoted on the basis of work perfom~ance or pezsoaal conduct. For work performance, an employee may be demoted only after as Oral . 'Warning sad a Fast Written Wami~ag,'except as provided in Article IX, Section 45.1. For serious misconduct, an employee may be demoted without any prior . wamiag. ~ . b. Before a Pemument employee may be demoted for disciplinary reasons, the same . • process as that specified is Item 4a through 4g must occur. • •• • c. The eaiployee~s salary is handled as provided Hader the Personnel Ordinance for a i .' demotion. ~ _ . ..;.,. - .. • ..:. ..•~: .~ See Article IX,.Section 4.7.4: t _ Article IIL -Page 12 MEMORANDUM TO: Laura Blackmon, County Manager Michael McGinnis, Human Resource Director FROM: Annette M. Moore, f Attorney RE: Legal Representation at Pre-Disciplinary Conference Hearing for Local Government Employees Covered by the State Personnel Act DATE: October 24, 2008 ,~. This memorandum addresses your question as to whether or not an Orange County employee covered by the State Personnel Act would be prohibited from having legal representation at a Pre-disciplinary conference. This simple answer is "yes" local government employees subject to the State .Personnel Act are prohibited from having legal representation at Pre-Disciplinary Conference by the North Carolina Administrative Code. The State Personnel Act covers all employees of local government entities in the social service and county health departments.l The Board of County Commissioners .has the discretion to adopt and maintain a personnel system for all county employees. However, in order for the personnel system to apply to the local government employees covered by the State Personnel Act, the system and any substantial changes to the system must be approved by the State Personnel Commission as substantially equivalent.2 Currently, the County has not been deemed "substantially equivalent" by the State Personnel Commission in the area of "employee relations" which would have the effect of exempting its employees from the State Personnel ACt.3 The North Carolina Administrative Code sets forth the procedural requirements for disciplinary action issued to local government employee covered by the State Personnel Act. It provides specifically, "no attorney representing either side may attend the conference."4 Based on the language in the Administrative Code, a county employee subject to the State Personnel Act would not be able to have an attorney represent them in apre-disciplinary conference. t G.S. § 126-5(a)(2)b and c a G.S. §126-11 s G.S. § 126-11(b) and (d) a 25 NCAC 1I.2308 r~.~f 3 ~5 Orange County Personnel Ordinance Xssue Date: August 1, 1997 Article IX Separation and Disciplinary Action 1.0 Purpose The purpose of this Article is to acquaint County employees with the causes and reasons for separation with regazd to their employment. 2.0 Policy When employee needs, economic stress, physical infirmity, retirement, death or punitive action warrant, steps to separate the employee from County service will be taken by the department head and/or the Manager (as necessitated). These steps aze to be implemented fairly and objectively. 3.0 Procedure All separations of employees from positions in the service of the County shall be designated as one of the following types and shall be accomplished in the manner indicated: 3.1 Resi. ation An employee may resign by notifying his department head (or in the case of department heads, the Manager) of the effective date as far in advance as possible. A minimum of two weeks is requested of all resigning personnel. 3.2 Reduction-in-Force In the event that a reduction in force becomes necessary, consideration will be given to the quality of each employee's past performance, the need for service, and seniority in determining those employees to be retained. Employees who aze to be laid off because of reduction-in-force will be given at least one pay period notice of anticipated layoff. The duties performed by an employee laid off may be reassigned to other employees already working who hold positions in the appropriate classes. No permanent employee will be laid off while another person is employed on a part- time or temporary basis in the same class, unless the permanent employee is not willing to transfer to the position held by the temporary employee. 3.3 Disabili Article 1X -Page 1 ('!o Orange County Personnel Ordinance Issue Date: August I, 1997 An employee may be separated for disability when the employee cannot perform the required duties because of a physical or mental impairment. Action may be initiated by the employee or the County, but in all cases it must be supported by medical evidence as certified by a competent physician. The County may require an examination at its expense and performed by a physician of its choice. Before an employee is separated for disability, a reasonable effort shall be made to locate alternative positions within County service for which the employee maybe suited. 3.4 Retirement Whenever an employee meets the conditions set forth under the provisions of any retirement plans adopted by the Commissioners for County employees, the employee may elect to retire and receive all benefits earned under the retirement plan. 3.5 Death All compensation due in accordance with this Ordinance will be paid to the estate of a deceased employee. The date of death shall be recorded as the separation date for computing compensation due. 3.6 Suspension and Dismissal As discussed in the following section. 4.0 Disciplinary Action 4.1 General Amended 02/01/92 It is the intent of Orange County in establishing this policy to provide a fair, clear and useful tool .for correcting performance or conduct problems. Disciplinary action, when imposed, will be for the purpose of improving employee and County performance. When an employee fails to meet his or her work performance or conduct responsibilities, the supervisor is responsible for correcting such failure by initiating appropriate disciplinary action. An employee may be warned, demoted, suspended or dismissed for just cause. The degree and type of action taken shall be based on the sound and considered judgment of the appropriate authority in accordance with the provisions of this Section. 4.2 Coverage Article IX -Page 2 rz Orange County Personnel Ordinance Issue Date: August 1, 1997 This Section applies to Permanent employees who have completed the probationary period. Exception: This section does not apply to employees of the Sheriffs Department, Register of Deeds Office or others specifically exempted under Article I of the Personnel Ordinance. 4.3 Types of Disciplinary Action 4.3.1 The only types of actions which may be taken for disciplinary purposes are the following: -Oral Warning With Written Confirmation -First Written Warning -Final Written Warning -Dismissal -Disciplinary Suspension Without Pay -Disciplinary Demotion 4.3.2 Appendix 1 describes the required process for each disciplinary action. 4.3.3 A disciplinary suspension without pay must be for at least one workday and may not be for more than three workdays. 4.4 Causes for Disciplinary Action 4.4.1 Disciplinary action may be taken based on unsatisfactory work performance or unacceptable personal conduct, -The work performance category is used in addressing performance-related inadequacies for which a reasonable person would expect to be notified and allowed the opportunity to improve. -The personal conduct category is used in addressing those actions - for which no reasonable person could or should expect to receive prior warnings. 4.4.2 Appendix 2 provides "Guides for Work Performance and Personal Conduct." Article IX -Page 3 f~8 Orange County Personnel Ordinance Issue Date: August 1,1997 4.4.3 Special Provision -Credentials By law some County positions may be performed only by persons who are duly licensed, registered or certified as required by the relevant law. Failure to maintain the .required credentials is procedurally a personal conduct violation and the basis for dismissal without prior warning. Any such dismissal is handled in accordance with the process specified in Appendix 1 of this Article. 4.5 Disciplinary Action Based On Work Performance 4.5.1 An employee must receive an Oral Warning, a First Written Warning and a Final Written Warning prior to any dismissal for work performance. Exception: In instances of serious work performance deficiency which endanger the safety of persons or property and in which the employee involved is not a Health or Social Services employee, the department head may initiate the disciplinary action process with a Disciplinary Suspension without pay, a Final Written Warning or a First Written Warning with the prior approval of the County Manager. 4.5.2 It is not required that the Item 4.5.1 warnings all relate to the same type of work performance deficiency. It is required only that each relate to work performance. 4.5.3 Warnings related to personal conduct may be included in the progressive warnings for performance related dismissal, provided that the employee receives at least the number of warnings required for dismissal on the basis of work performance. 4.6 Disciplinar~Action Based On Personal Conduct An employee may be dismissed, demoted or issued a disciplinary suspension without pay without prior warning for causes related to serious misconduct. 4.7 Personnel Department Role 4.7.1 The Personnel Department is available to provide guidance to supervisors and department heads in the administration of disciplinary action. This includes review and advice on any written notice to the employee confirming an Oral Warning or giving a Written Warning. 4.7.2 As appropriate, Personnel may advise the supervisor and employee as to the availability of the Employee Assistance Program as a source of Article IX -Page 4 (q Orange County Personnel Ordinance Issue Date: Augusi 1, 1997 assistance, on a voluntary basis, to the employee who has a personal situation which maybe causing a work performance or conduct problem. 4.7.3 As requested, the Personnel Director advises the County Manager, Health Director or Social Services Director as to any dismissal, disciplinary demotion or disciplinary suspension without pay. 4.7.4 Any memorandum, letter or other document used to notify the employee of any dismissal, disciplinary demotion, disciplinary suspension without pay or investigative suspension requires the advance approval of the Personnel Director or the Personnel Director's designee. 4.8 Investigative Suspension 4.8.1 When a department head receives information which he or she reasonably believes is basis for disciplinary action and when immediate action is needed to protect the safety of persons or property, to avoid undue disruption of work for other reasonable cause, the department head may place the employee in the status of investigative suspension, direct the employee to leave the County premises and to: -Report at a designated time or place, or -Remain away until further notice. 4.8.2 As soon as feasible after the Item 4.8.1 action, the department head notifies the.Personnel Director. 4.8.3 The department head in consultation with the Personnel Director conducts an investigation of the matter leading to the investigative suspension as soon as possible and reaches a decision as to any disciplinary action with reasonable dispatch. 4.8.4 The employee continues to receive pay and benefits while not at work due to an investigative suspension. 4.8.5 Investigative suspension is not used for the purpose of delaying an administrative decision on an employee's work status pending the resolution of a civil or criminal mattex involving the employee. 5.0 (Hold for later issue) 6.0 Employee Appeal of Disciplinary Action Article IX -Page 5 a~ .Orange County Personnel Ordinance Issue Date: August 1, 1997 A permanent employee wishing to appeal the demotion, suspension or dismissal may present the matter in accordance with the provision of the grievance procedure that is prescribed in Article VIII of the Ordinance. 7.0 Exit Interview Purpose -Exit interviews aze made to give management insights as to those reasons for employee turnover. The objective is to improve (through employee observations and suggestions) working conditions and to provide incentives that will evoke employee loyalty and contentment. 7.1 Policy Each terminating permanent employee participates in an Exit Interview conducted by the Personnel Department. 7.2 Final Pay Check 7.2.1 A terminating employee will receive a final pay check at the end of the last pay period worked. 7.2.2 Included in an employee's final pay check will be accrued vacation leave, paid in lump sum, along with actual hours worked. 7.2.3 An employee at termination will only receive pay for actual hours worked, and vacation leave. Holiday hours, Sick Leave hours, overtime or compensatory leave hours, or petty leave hours will not be paid to an employee at termination. 7.2.4 Once an employee has given resignation, accumulated holiday, sick, overtime or compensatory, and petty leave hours, will not be counted toward actual hours worked in supplementing or determining last day of employment. 7.2.5 Final pay checks will not be released until all County property has been turned over to the department head or supervisor. Article IX -Page 6 at_ Orange County Personnel Ordinance Issue Date: August 1,.1997 Appendix 1 Article IX Required Disciplinary Action Processl 1. Oral Warning With Written Confirmation a. The supervisor may issue an Oral Warning without other approvals. b. The supervisor completes the following steps: (1) States clearly to the employee in a private meeting that the discussion is an "Oral Warning." (2) Reviews with the employee the specific acts or omissions causing the Oral Warning. (3) Allows the employee to give and considers the reasons for his or her .actions or omissions. Note: If warranted, the supervisor may decide not to proceed with the Oral Warning based on the information the employee provides. (4) Informs the employee of the specific corrections he or she must make. (5) Informs the employee, of the time allowed, if any, for the corrections to be made. (6) Advises the .employee that subsequent disciplinary action, including dismissal, may be taken if needed corrections are not achieved within the time allowed or if other problems arise. (7) Advises the employee of his or her appeal rights under the Orange County Grievance Procedure. (8) Gives the employee written confirmation of the date of the discussion and matters covered. (9) Provides a copy of the written confirmation to the Personnel Department for inclusion~in the employee's personnel file. ~ For employees in the departments of Health and Social Services, State requirements as to dismissal, disciplinary suspension without pay and disciplinary demotion are controlling and, if any variation exists, the State requirements override those of this Ordinance. Article IX -Page 7 aa. Orange County Personnel Ordinance Issue Date: August 1, 1997 2. First Written Warning a. A First Written Warning requires the Department Head's Advance approval. b. The supervisor completes the following steps: (1) Upon noting employee performance or conduct appearing to require a First Written Warning, meets privately with the employee to review the specific actions or omissions and to allow the employee to give the reasons for the actions or omissions. (2) If the First Written Warning is justified, specifies in the letter to the employee: (a) That it is a "First Written Warning." (b) The specific actions or omissions leading to the First Written Warning. (c) The corrections the employee must make. (d) The time allowed, if any, for corrections to be made. (e) Any prior disciplinary action(s). (fj That further disciplinary action, including dismissal, may be taken if corrections are not made within the time allowed or if other problems arise. (g) The employee's right to appeal under the Orange County Grievance Procedure. c. The department provides a copy of the First Written Warning to the Personnel Department for inclusion in the employee's personnel file. d. In carrying out Item 2, the supervisor should be aware that, for unsatisfactory work performance, a First Written Warning may be issued only after an Oral Warning, except as provided in Article IX, Section 4.5.1. 3. Final Written Warning a. A Final Written Warning requires the Department Head's advance approval. b. The supervisor completes the following steps: Article IX -Page 8 ~3 Orange County Personnel Ordinance Issue Date: August 1, 1997 (1) Upon noting employee performance or conduct appearing to require. a Final Written Warning, meets privately with the employee to review the specific actions or omissions and to allow the employee to give reasons for the actions or omissions. (2) If the Final Written Warning is justified, specifies in the letter to the employee: (a) That it is a "Final Written Warning." (b) The specific actions or omissions leading to the Final Written Warning. (c) The corrections the employee must make. (d) The time allowed, if any, for corrections to be made. (e) Any prior disciplinary action(s). (fl -That further disciplinary action, including dismissal, may be taken if corrections are not made within the time allowed. (g) The employee's right to appeal under the Orange County Grievance Procedure. c. The department provides a copy of the Final Written Warning to the Personnel Department for inclusion in the employee's personnel file. d. In carrying out Item 3, the supervisor should be aware that, for unsatisfactory work performance, a Final Written Warning may be issued only after a First Written Warning, except as provided in Article IX, Section 4.5.1. 4. Dismissalz Before a Permanent employee may be dismissed, the following must occur: a. The department head reviews the facts and circumstances, including the nature and extent of prior disciplinary actions, if any, and any action taken (or not taken) as to other employees in similar situations. b. If the department head decides to recommend dismissal, he or she reviews the recommendation with the County Manager and receives the County Manager's approval to proceed with apre-dismissal conference with the employee. In the case of an employee in the Department of Health or Social Services, the Health z See Article IX, Section. 4.7.4. Article IX -Page 9 a~ Orange County Personnel Ordinance Issue Date: August 1, 1997 Director or Social Services Director determines whether to proceed with a pre- dismissal conference. c. .Prior to the pre-dismissal conference, the department head gives the employee written notice of the pre- dismissal conference. This notice includes the specific reasons for the proposed dismissal and a brief summary of the information which management believes supports the proposed dismissal. d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) No third parties, including attorneys or other representatives may be present at this conference. The Personnel Director or the Personnel Director's designee may be present at management's ar the employee's request. Note: This prohibition maybe waived with the consent of the department head and the employee. (2) The department head and/or management representative(s): -Review with the employee the facts giving rise to the proposed dismissal and the specific reasons for the proposed dismissal. -Provide an opportunity for the employee to respond. e. Following the pre-dismissal conference, the department head considers the information the employee has presented. £ If the department head determines that dismissal is warranted following the pre- dismissal conference, he or she reviews the dismissal recommendation with the County Manager. The Manager dismisses the employee, if he concurs with the dismissal recommendation. For an employee in the department of Health or Social Services, the Health or Social Services Director makes the dismissal decision. g. The department head gives the employee written notice of dismissal which includes: -The specific reasons for the dismissal and a brief summary of the information which management believes warrants the action. -The employees appeal rights under the Orange County Personnel Ordinance. S. Disciylinary Suspension Without Pay3 s See Article IX, Section 4.7.4. Article IX -Page 10 ~~ Orange County Personnel Ordinance Issue Date: August 1, 1997 a. An employee may receive a disciplinary suspension without pay based on work performance or personal conduct. For work performance, a .disciplinary suspension without pay may be given in conjunction with a Final Written Warning and only after an Oral Warning and a First Written Warning, except as provided in Article IX, Section 4.5.1. b. Before a Permanent employee may be given a disciplinary suspension without pay, the same process as that specified in Item 4a through 4g must occur. 6. Demotion a_ An employee may be demoted on the basis: of work performance or personal conduct. For work performance, an employee -may be demoted only after an Oral Warning and a First Written Warning, except as provided in Article IX, Section 4.5.1. For serious misconduct, an employee may be demoted without any prior warnmg. b. . Before a Permanent employee may be demoted for disciplinary reasons, the same process as that specified in Item 4a through 4g must occur. c. The employee's salary is handled as provided under the Personnel Ordinance for a demotion. a See Article IX, Section 4.7.4. Article IX -Page 11 tp Orange County Personnel Ordinance Issue Date: August 1, 1997 Appendix 2 Article A' Guides for Work Performance and Personal Conduct 1. General Orange County expects performance and personal conduct on the job. to be governed by good judgment and consideration of others. It is important that each employee's performance and conduct support and advance the goals of the department and the County. 2. Examples Of Work Performance And Personal Conduct Which Interfere With County Goals The following acts comprise a representative, but not exclusive, list of unsatisfactory work performance and unacceptable personal conduct which may be the basis for a disciplinary action. a. Work Performance (1) An overall performance rating of "Unsatisfactory" under the Work Planning and Performance Review program (2) Failure to perform critical tasks (3) Failure to meet established deadlines (4) Excessive absences or late reporting (5) Failure to meet established standards of customer service (~ Failure to follow established departmental policies and procedures b. Personal Conduct (1) Fraud and/or dishonesty (2) Fighting or causing a fight (3) Unauthorized possession of a firearm or other weapon on County property (4) Using abusive, profane, obscene or derogatory language (5) Gambling during work time (6) Sleeping during work time Article IX -Page 12 Oran a Cou Personnel Ordinance ~~~ g ~1' Issue Date: August I, 1997 (7) Reporting to work or performing work while under the influence of any intoxicant, drug or chemical which interferes with the employee's work performance or which might adversely affect safety (8) Possessing or consuming alcoholic beverages while on County property during worktime (9) Illegally using, possessing, dispensing, distributing, manufacturing or selling controlled substances at the worksite, during work time or while on duty, on stand-by duty or official County business (10) Engaging in acts during or outside duty hours which negatively impact on the image of Orange County and which interfere with the working relationship between the employee and co-workers or between the employee and the public that employee serves (11) Falsifying an official record (12) Sexual or racial harassment (13) Misusing or directing the misuse of County work time, funds, equipment or property (14) Accepting any gift, favor or thing of value which may tend to influence the discharge of duties or granting without authority any favor, service or thing of value (15) Operating a County vehicle or County equipment in an unsafe or unlawful manner (16) Taking without permission, destruction or abuse of County property, including unauthorized use of a County vehicle for non-County business (17) Absence without authorized leave and/or notice (18) Willful refusal to carry out the reasonable and lawful instructions of a supervisor (19) Engaging in incompatible employment or serving a conflicting interest (20) Serious, willful discourtesy to citizens or employees (21) Failing to maintain legally required confidentiality of records such as medical records or personnel records (22) Engaging in prohibited political activity Article IX -Page 13