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HomeMy WebLinkAboutAgenda - 09-21-2010 - 4hORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 21, 2010 Agenda Item No. ~{" SUBJECT: Amendment to Orange County Personnel Ordinance Article t, Section 9.0 Personnel Records DEPARTMENT: Human Resources PUBLIC HEARING: (Y/N) No ATTACHMENT(S): 1. Current: Orange County Personnel INFORMATION CONTACT: Ordinance Article I, Section 9.0 and Michael McGinnis, Human Resources Proposed: Amendment to Article I, Director, 245-2552 Section 9.0, Personnel Records Annette Moore, Staff Attorney, 245-2317 2. Personnel Records Administrative Rules and Regulations PURPOSE: To consider amending Article I, Section 9.0 Personnel Records of the Orange County Personnel Ordinance ("the Ordinance"), creating Article X, Personnel Records in the Orange County Personnel Ordinance, and moving Article I, Section 9.0 to Article X. BACKGROUND: The Orange County Personnel Ordinance was adopted in 1985. Since its adoption, laws affecting the. rights and responsibilities of both employees and employers, have changed significantly. The Government Ethics and Campaign Reform Act, of 2010 (House Bill 961/Session Law 2010- 169) was signed by the Governor on August 2, 2010. A section of legislation to "Strengthen Transparency of Government through Increasing and Clarifying Accessibility to Legislative Records and Other Public Records" affected, among other things, North Carolina General Statute 153A-98(b) which governs information in employees' personnel record considered public. Specific changes include, but are not limited to, making the following information a public record: 1. The date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification; 2. The date and type of each increase and decrease in salary with the county; 3. Date and general description of the reasons for each promotion with that County; 4. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the County. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal. The changes in the law go into effect on October 1, 2000. Questions have been raised about the constitutional due process issues involved in releasing dismissal information for n an employee, without allowing the employee to clear their name. The County Attorney's Office is researching the issue and .will provide an opinion and a recommendation to the County Manager on this matter prior to the Rules and Regulations going into effect. In addition, consistent with best practices, staff is recommending moving Article I, Section 9.0 Personnel Records out of Article I because it bears little relationship to the other information contained within the Article. In its own Article, it will be highlighted for employees. FINANCIAL IMPACT: There is no financial impact associated with this item. RECOMMENDATION(S): The Manager recommends that the Board: 1. Approve the proposed Personnel Ordinance amendment to Article I, Section 9.0 Personnel Records effective October 1, 2010; 2. Create Article X in the Orange County Personnel Ordinance; and 3. Approve moving Article I, Section 9.0 to Article X and entitling the Article "Personnel Records." / I~F~~ Orange County Personnel Ordinance Issue Date: October 25, 2004 3 Current Article I, The Personnel Organization 9.0 Personnel Records 9.1 Purpose To implement and give effect to G.S. Section 153a-98. 9.2 Policy It shall be the policy of Orange County to ensure that personnel files are maintained in such a way as to comply with the law. Personnel files maintained by the County are subject to inspection and may be disclosed only as provided by Law and in accordance with this procedure. 9.3 Procedure Except as provided in the N.C.G.S. Section 153A-98, materials Amended submitted by applicants and materials gathered by the Personnel 03/05/90 Department during the application process as part of applications for employment, are not a matter of public record subject to the public disclosure provisions of this procedure. Materials will be added or removed from the employee personnel files, only with the approval of the Personnel Director, except as permitted in section 9.10 of this article. The Personnel Director will prepare and distribute necessary forms and reports '~ including, but not limited to, Personnel Action and Payroll Forms; Separation Reports; Employment Applications; Employment Agreement Letters; Employment for Job Postings; New Employee Information Sheets, and Work Planning and Performance Review Evaluations. The term employee, as used in this section, includes current and former employees. 9.4 All materials in personnel files now maintained throughout the Amended 9.4.1 When departmental personnel files have been consolidated, such duplicate information as is necessary for the continuance of normal operation may be maintained in the Department in accordance with the Law and this departments of the County are to be consolidated into one file to be 03/05/90 maintained by the Orange County Personnel Director. The Orange County Personnel Director is responsible for complying with this procedure and will be the custodian of such personnel records. The Personnel Director is responsible for, and will maintain, all personnel records. Article I -Page 1 procedure. The Department Head is responsible for maintenance of such 4 files. 9.4.2 When consolidated, these files become the official personnel records and will contain any information regarding an employee that is used as the basis for employee personnel actions. 9.5 The information contained in personnel files that is subject to public Amended disclosure is available for the purpose of inspection, examination and o3iosi9o copying only in the Personnel Department during regular business hours pursuant to Orange County policy related to the inspection and copying of County records. All personnel files which have been inactive for over five years are maintained at the State Archives in Raleigh. Files can be retrieved by making a request to the Personnel Department. The information subject to public inspection is the following for each employee: name; age; date of original employment or appointment; current position title; current salary; date and amount of most recent salary change; date of the most recent change in position classification; and employee's currently assigned office. 9.5.1 Any person denied access to the information of public record may appeal to the County Manager in writing within three days from receipt of such denial. The County Manager will make the decision within three days of receipt of the appeal. Further appeal will be to a General Court of Justice as provided by G.S. Section 153A-98. 9.6 All material contained in an employee's personnel file other than the information listed in Section 9.5 of this article is confidential. Inspection of the confidential personnel .files is possible only in the f_ ollowing instances to circumstances detailed in and as provided by G.S. Section 153A-98. 9.7 The custodian of the records may determine that the following information need not be disclosed to an employee nor to any other person: 9.7.1 Testing or examination used solely to determine individual qualifications for appointment, employment or promotion in the County's service, when disclosure would compromise the objectivity or the fairness of the testing or examination process. 9.7.2 Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is complete and no criminal action taken, or until the criminal action is concluded. 9.7.3 Information that might identify an undercover law enforcement officer or a law enforcement informer. 9.7.4 Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or duly authorized agent shall have a right to inspect such materials. Orange County Personnel Ordinance Issue Date: October 25, 2004 5 9.8 The County Manager may permit access, subject to limitations, to selected personnel files by a professional representative of a training, research, or academic institution if that person certifies that the information will not be released identifying the employees whose files are opened and that the information will be used solely for statistical, research, or teaching purposes. This certification shall be retained by the County as long as each personnel file examined is retained. 9.9 The Personnel Director may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a County employee and the reasons for that personnel action. Before releasing the information, the Personnel Director shall determine in writing that the release is essential to maintaining public confidence in the administration of County services or to maintaining the level and quality of County services. This written determination shall be retained in the Personnel Department and is a record available for public inspection and shall become part of the employee's personnel file. 9.10 An employee who objects to material in the file may place in the file a statement relating to the material considered to be inaccurate or misleading. The employee may seek the removal of such material in accordance with established grievance procedures. 9.11 Each individual requesting access to confidential information will be required to submit satisfactory proof of identity. 9.12 A record shall be made of each disclosure and placed in the employee's file, except of disclosures to the employee and the supervisor. 9.13 Personnel records containing confidential information will be routed undercover, either by inter-office envelope marked confidential or other protective means. 9.14 No County record divulging information on employees shall be available to any employee of the County except as specifically permitted in section 9.5 of this article. 9.15 No public official may destroy, sell, loan, or otherwise dispose of any public record, except with the consent of the state Department of Cultural Resources, in accordance with G.S. Section 121-5. 9.16 The Personnel Director will retain records necessary for the .proper administration of the Personnel System. Article I -Page 3 Proposed Article X. Personnel Records ~ ~ ~ - ~ ~ ~ ~ _ O I. ORDINANCE 1.0 Personnel Records. It shall be the policy of Orange County to ensure that personnel records are maintained in such a way as to comply with state and federal laws. Personnel records maintained by the County are subject to inspection and may be disclosed only as provided by state and federal law and in accordance with this .Ordinance. 2.0 Maintenance of Records. The County Manager, or his designee, shall maintain personnel records on each employee that are necessary for the proper administration of the personnel system. An employee's personnel records shall contain only information that is necessary and relevant to accomplishing the legitimate personnel administrative needs of the County. 3.0 Access to Personnel Records. All information contained within a county employee's personnel record, other than information made public by law, is confidential and shall not be open for inspection unless provided for under federal or state law. 4.0 Remedies of Employees Objecting to Material in File. An employee who objects to material in his or her file may place in the file a statement relating to the material the employee considers to be inaccurate or misleading. The employee may seek the removal of such materials in accordance with the grievance procedure. 6 5.0 Rules and Regulations. To implement and give effect to G.S. §§ 153A-98, 126. and 121, the County Manager will develop rules and regulations consistent with. these and any other state and federal laws that govern these personnel records. Orange County Personnel Rules and Regulations Manual Effective Date: 10/1/2010 ~ Article X. Personnel Records I. ORDINANCE 1.0 Personnel Records. It shall be the policy of Orange County to ensure that personnel records are maintained in such a way as to comply with state and federal laws. Personnel records maintained by the County are subject to inspection and may be disclosed only as provided by state and federal law and in accordance with this Ordinance. 2.0 Maintenance of Records. The County Manager, or his designee, shall maintain personnel records on each employee that are necessary for the proper administration of the personnel system. An employee's personnel records shall contain only information that is necessary and relevant to accomplishing the legitimate personnel administrative needs of the County. 3.0 Access to Personnel Records. All information contained within a county employee's personnel record, other than information made public by law, is confidential and shall not be open for inspection unless provided for under federal or state law. 4.0 Remedies of Employees Objecting to Material in File. An employee who objects to material in his or her file may place in the file a statement relating to the material the employee considers to be inaccurate or misleading. The employee may seek the removal of such materials in accordance with the grievance procedure. 5.0 Rules and Regulations. To implement and give effect to G.S. §§ 153A-98, 126 and 121, the County Manager will develop rules and regulations consistent with these and any other state and federal laws that govern these personnel records. II. AUTHORITY The purpose of this rule is to implement and give effect to Article X of the Orange County Personnel Ordinance, Personnel Records. These Administrative Rules and Procedures provide for consistent application of the Ordinance and to implement and give effect to G.S. §§ 153A-98, 126 and 121 as well as other federal and state laws governing employee personnel records. III. RULE The County Manager, with the assistance of the Human Resources Director, will maintain personnel records on each employee that are necessary for the proper administration of the personnel system. The personnel records shall contain only information that is necessary and relevant to accomplishing legitimate personnel administrative needs of the County. Information Issue Date: October 1, 2010 Page 1 Orange County Personnel Rules and Regulations Manual Effective Date: 10/1/2010 $ contained within the employee's personnel file, unless made public by law, will be kept confidential. IV. ADMINISTRATIVE RULES AND REGULATIONS A. Custodian of the Personnel Files. The Orange County Human Resources Director is responsible for complying with this procedure and will be the custodian of such personnel records. The Human Resources Director is responsible for, and will maintain, all personnel records. Materials will be added or removed from the employee personnel files, only with the approval of the Human Resource Director, except as permitted in section 7.0 of this article. B. Content and Consolidation of Personnel Files. All materials in personnel files now maintained throughout the departments of the County are to be consolidated into one file to be maintained by the Orange County Human Resources Director. When departmental personnel files have been consolidated, such duplicate information as is necessary for the continuance of normal operation may be maintained in the Department in accordance with the law and these Rules and Regulations. The Department Director is responsible for maintenance of such files. 2. When consolidated, these files become the official personnel records and will contain such information regarding an employee that is used as the basis for employee personnel actions, including, but not limited to, Personnel Action and Payroll Forms; Separation Reports; Employment Applications; Employment Agreement Letters; Employment for Job Postings; New Employee Information Sheets, and Work Planning and .. Performance Review Evaluations. C. Public Access to Personnel Files. Any person may have access to information for the purpose of inspection, examination, and copying, during regular business hours any information that is not considered public under G.S. §§ 153A-98 and 126-24 or other state or federal laws. Currently, the following information contained in each county employee personnel file is public information: a. Name. b. Age. c. Date of original employment or appointment to county service. d. The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession. e. Current position. Issue Date: October 1, 2010 Page 2 Orange County Personnel Rules and Regulations Manual Effective Date: 10/1/2010 9 f. Title. g. Current salary. h. Date and amount of each increase or decrease in salary with the county. i. Date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification with the County. j. Date and general description of the reasons for each promotion with the County. k. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the County. If the disciplinary action was a dismissal, a copy of the written notice of final decisions of the County setting forth the specific acts or omissions that are the basis for the dismissal. 1. The office to with the employee is currently assigned. 2. Any person shall have access to this information for the purpose of inspection, examination, and copying during regular business hours, subject only to these rules and regulations promulgated for the safekeeping of public records. 3. Any person denied access to this information may apply to the appropriate division of the General Court of Justice, for an order compelling disclosures as provided by G.S. §132-9 after having first complied with G.S. § 7A-38.3E D. Except as provided in the G.S. §§ 153A-98 and 126, materials submitted by applicants and materials gathered by the Personnel Department during the application process as part of applications for employment, are not a matter of public record subject to the public disclosure. E. The term employee, as used in this section, includes current and former employees. F. Destruction of Personnel Records. All personnel files will be maintained and destroyed in accordance with § G.S. 121 and the Records and Retention Schedule adopted by the Board of County Commissioners. Unless destroyed, files can be retrieved by making a request to the Human Resources Department. G. Any person denied access to the information of public record may appeal to the County Manager in writing within three days from receipt of such denial. The County Manager will make the decision within three days of receipt of the appeal. H. Information not subject to public disclosure. The custodian of the records may determine that in accordance with federal and state law certain information need not be disclosed to an employee or any other person. Information such as: Issue Date: October 1, 2010 Page 3 Orange County Personnel Rules and Regulations Manual Effective Date: 10/1/2010 ~ ~ 1. Investigative reports or memoranda and other information concerning the investigation of possible criminal action of an employee, until the investigation is complete and no criminal action taken, or until the criminal action is concluded. 2. Information that might identify and undercover law enforcement officer or a law enforcement informer. 3. Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or a duly authorized agent shall have the right to inspect such materials. I. Access to Confidential Information. All information contained in a county employee's personnel file, other than the information listed in Section C of these Rules and Regulations, will be maintained as confidential in accordance with the requirements of §§ G.S. 153A-98 and 126, Article 7. 1. Confidential Information shall be open to public inspection only in the following instances: a. The employee or his or her duly authorized agent may examine all portions of their personnel files except (i) letters of reference solicited prior to employment and information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient. b. A licensed physician designated with written authorization from the employee or their agent may examine the employee's medical record. c. A county employee having supervisory authority over the employee may examine all material in the employee's personnel file as necessary. d. By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court. An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspection agency, but no information shall be divulged for the purpose of Issue Date: October 1, 2010 Page 4 Orange County Personnel Rules and Regulations Manual Effective Date: 10/1/2010 ~ ~ assisting in a criminal prosecution of the employee, or for the purpose if assisting in an investigation of the employee's tax liability. However, a the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation. f. An employee may sign a written release, to be placed with their personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release. 2. Each individual requesting access to confidential information will be required to submit satisfactory proof of identity. 3. A record shall be made of each disclosure and placed in the employee's file, except of disclosures to the employee and the supervisor. 4. Personnel records containing confidential information will be routed undercover, either by inter-office envelope marked confidential or other protective means. J. An employee who objects to material in the file may place in the file a statement relating to the material considered to be inaccurate or misleading. The employee may seek the removal of such material in accordance with established grievance procedures. This Policy will be effective: Frank C. Clifton, County Manager Issue Date: October 1, 2010 Page 5