HomeMy WebLinkAboutAgenda - 11-05-2007-6aREVISED ABSTRACT ONLY
11/2/07
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 5, 2007
Action Agenda
Item No. ~ -q
SUBJECT: Provisional Status Employees
DEPARTMENT: Personnel PUBLIC HEARING: (Y/N) No
ATTACHMENTS:
1. G.S. § 126-1.1, as amended
2. Letter: Career Status Defined for
Local Government Employees
from Office of State Personnel
(917/07)
3. Article I, Section 4.0, Provisional
Status Employees, as amended
INFORMATION CONTACT:
Annette Moore, Policy and
Compliance Officer
(919) 245-2317
Michael McGinnis, Human
Resources Director
(919) 245-2552
PURPOSE: To consider adopting an amendment to the Orange County Personnel Ordinance
Article I, Sections 2.0 and 4.0 to add an exception for Orange County employees covered by the
State Personnel Act, include a definition for "Provisional Status" Employees and to confer the
status of "provisional" employee on those employees who qualify according to the definition.
BACKGROUND: Social Services and Health Department employees are local government
employees subject to the State Personnel Act. (See G.S. 126-5(a)(2)) These employees are
also subject to some sections of the Orange County Personnel Ordinance. On August 19, 2007,
the Governor signed a bill into law that amended the State Personnel Act to require that local
government employees covered by the State Personnel Act be employed for 24 consecutives
months before they become career state employees and thus gain a property interest in their
position. The law, G.S. §1.26-1.1, became effect immediately. (See Attachment 1)
"Career" status is the legal designation conferred upon an employee by the State Personnel Act
that gives the employee a property interest in their job that cannot be altered or deleted without
due process. Career status provides employees with access to the contested case hearing
process in the Office of Administrative Hearings and the ability to have the decision reviewed by
the State Personnel Commission. (See Attachment 2)
This state statute amendment affects employees in local social services departments, county
health departments and local emergency management agencies that receive federal grant-in-aid
funds if they have not completed their probationary period on or before August 18, 2007 or were
employed after that date. For those employees, that means that they are now, in an at- will
REVISED ABSTRACT ONLY
11/2/07
status and must be employed for 24 consecutives months from the date of their employment
before they can obtain Career Status under the State Personnel Act. For these employees,
access to the state's contested case hearing and appeal process will be limited to cases of
unlawful discrimination.
Many organizations tie property interest and benefits to a permanent verses a probationary or
temporary employment status. However, while due process is tied to career status under the
State Personnel Act, benefits are not. A covered employee in a permanent position who has not
received career status receives the same health and leave benefits under the State Personnel
Policy as a career state employee. In other words, for purposes of health and leave benefits
there is no distinction between career status and successful completion of a probationary period
for employees in permanent positions. The North Carolina Administrative Code establishes a
probationary period as not less than "three months nor more than nine months." (25 NCAC 01 I
.2002(a)(2)) For now, this has not changed, although the Office of State Personnel has said
that that this could change in the administrative rulemaking process.
Orange County's Personnel Ordinance creates a distinction between probationary and
permanent employees for both benefits and acquiring a property right in the job. The Ordinance
grants "permanent employee" status to new employees once they have successfully completed
their probationary period. It provides that "an employee who has not obtained permanent status
at the end of nine (9) months will be terminated unless the delay is necessitated by a provisional
or trainee status." (emphasis added) (Article II, Section 6.3.5.)
An Orange County employee who is in a probationary status receives health and some leave
benefits. The Ordinance confers additional benefits to employees once they have completed
their probationary period. These benefits are: petty leave, funeral leave, maternity leave,
military leave, tuition refund and educational leave, the ability to donate or request shared leave,
and access to the grievance and appeal process.
While the Orange County Personnel Ordinance can confer some benefits on an employee who
is not permanent, it cannot confer "permanent status" to an employee subject to the State
Personnel Act who has not completed the twenty-four consecutive month period.
Presently, there are employees covered by this statutory amendment who were hired prior to
the start date of the new state law amendment who had not completed their probationary period
on or before August 18t". When hired, these employees were told that their probationary period
would be six months. The Personnel Department has discussed this situation and the impact of
it with the County Manager and the respective Department Heads and is in the process of
notifying employees of the changes and the effect they have on their career service status.
To provide access to those benefits mentioned above for these and future employees covered
by the change in the statute, staff believes that the Ordinance can be amended to confer a
"provisional" status on those employees that would entitle them to benefits similarly conferred
upon permanent employees. This will not give them permanent status but will allow them
access to the full range of County Benefits after their probationary period has been successfully
completed.
REVISED ABSTRACT ONLY
11/2/07
Staff is recommending that the Board amend the Personnel Ordinance to confer "provisional"
status on local government employees covered by the State Personnel Act who .have
successfully completed their probationary period but who have not yet obtained career state
employment status under the State Personnel Act. Currently, the Ordinance refers to
"provisional" status employees in Article II, Section 6.3.5 (see above); however, provisional
status is not defined. Staff requests that the Board define provisional status as follows:
The Orange County Personnel Ordinance, Article 1, Section 4.0, can be amended to include
proposed section 4.33:
4.33 Provisional Employee - a person covered by the State Personnel Act appointed to
a position approved bathe Board of County Commissioners, who has completed
the designated probationaryperiod but has not obtained career service status
under the State Personnel Act. A provisional employee will have access to the full
County health and leave benefits package, as provided to permanent employees,
as well as access to the Caunty Grievance Process except for decisions to
dismiss demote or suspend without pay and to appeals of those decisions to the
Orange County Personnel Hearing Board. Provisional employees will obtain a
property interest in theirposition and the right to appeal any decision to dismiss,
demote or suspend without pay to the Office of State Personnel or Office of
Administrative Hearings only after they have obtained career status as defined by
the State Personnel Act.
In addition, the current sections of Article 1, Section 4.33 - 4.39 would be renumbered to include
the amended section. (See Attachment 3)
In addition, amend Article I, Section 2.0 to add:
2.6 All employees subject to the State Personnel Act to the extent that Orange County
has not obtained substantial equivalency under the G.S. 126, Article 3 and to the
extent not otherwise provided for in this Ordinance.
FINANCIAL IMPACT: None
RECOMMENDATIONS: The Manager recommends that the Board adopt the amendments to
Article I, of the Orange County Personnel Ordinance to add Sections 2.6 and 4.33, renumber
sections 4.33-4.39, and confer the status of Provisional Status employee on all employees who
qualify under these sections.
4
GENERA~ASSEMBLY OF NORTH CAROLINA
SESSION 2007
SESSION LAW 2007-372
SENATE BILL 1023
AN ACT TO CLARIFY THE STATUS OF LOCAL ENTITY EMPLOYEES SUBJECT TO
THE STATE PERSONNEL ACT, TO MODIFY THE PUBLIC RECORDS LAWS
APPLICABLE TO THE UNIVERSITY OF NORTH CAROLINA AND THE NORTH
CAROLINA COMM[CTNITY COLLEGES, ~TO PROTECT THE PRIVACY OF
APPLICANTS WHO ARE NOT ADMITTED OR WHO DO NOT ENROLL, AND TO
PROVIDE THAT CERTAIN AUDIT RECORDS ARE PUBLIC DOCUMENTS.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 126-1.1 reads as rewritten:
"§ 126-1.1. Career State employee defined.
For the purposes of this Chapter, unless the context clearly indicates otherwise, "career State
employee" means a State employee or an employee of a local entity who is covered by this
Chapter pursuant to G.S: 126-5(a)(2) who:
(1) Is in a permanent position appointment; and
(2) Has been continuously employed by the State of North Carolina or a local
entity as provided in G.S. 126-5(a)(2) in a position subject to the State
Personnel Act for the immediate 24 preceding months."
SECTION 2. G.S. 132-1.1 is amended by adding a new subsection to read:
"~f Personally Identifiable Admissions Information. -Records maintained by The
University of North Carolina or any constituent institution or by the Community Coile~es
System Office or any community college which contain personally identifiable information from
or about an applicant for admission to one or more constituent institutions or to one or more
community colleges shall be confidential and shall not be subject to public disclosure pursuant to
G S 132-6(a) Notwithstanding the preceding sentence any letter of recommendation or record
containing a communication from an elected official to The University of North Carolina, any of
its constituent institutions or to a communi college concerning an applicant for admission
who has not enrolled as a student shall be considered a public record subject to disclosure
pursuant to G S 132- Via) Nothin¢ in this subsection is intended to limit the disclosure of public
records that do not contain personally identifiable information including a~Qre~ated data,
guidelines instructions summaries or reports that do not contain personally identifiable
information or from which it is feasible to redact an~personall~identifiable information that the
record contains As used in this subsection the term "communi college" is as defined in
G S 115D-2(2) the term "constituent institution" is as defined in G.S. 116-2(4), and the term
"Communi Colleges System Office" is as defined in G.S. 115D-3."
SECTION 3. G.S. 116-40.7(c) reads as rewritten:
"(c) An internal auditor shall maintain, for 10 years, a complete file of all audit reports
and reports of other examinations, investigations, surveys, and reviews issued under the internal
auditor's authority. Audit work papers and other evidence and related supportive material directly
pertaining to the work of that auditor's office shall be retained in accordance with Chapter 132 of
the General Statutes. To promote cooperation. and avoid unnecessary duplication of audit effort,
audit work papers related to issued audit reports shall be, unless otherwise prohibited by law,
made available for inspection by duly authorized representatives of the State and federal
governments in connection with some matter officially before them. Except as otherwise
provided in this subsection, or upon subpoena issued by a duly authorized court or court official,
audit work papers shall be kept confidential and shall not be open to examination or inspection
under ~'~i-~-G.S. 132-6 until completion of the audit report that is based on the working
paper__Audit reports and the working- papers on which they are based shall be public records
subject to examination and inspection to the extent that they do not include information that,
under State l~aw~law, is confidential and exempt from Chapter 132 of the General Statutes or
would compromise the security systems of The University of North Carolina. At the time that,
audit working, papers are made available for public examination or inspection the custodian of
the audit working paper may redact the name and personally identi ing information of a person
who has initiated an allegation of i) a violation of State or federal law or rule or regulation; (ii)
fraud• ,iii) misappropriation of State resources• (iv) substantial and specific dander to the public
health and safe or (v) gross mismanagement gross waste of monies, or gross abuse of
authori if that person requests that the person's name and personally identifying information be
kept confidential."
SECTION 4. This act is effective when it becomes law, and Sections 2 and 3 apply
to public records existing before, on, or after that date.
In the General Assembly read three times and ratified this the 26th day of July, 2007.
s/Beverly E. Perdue
President of the Senate
s/ Joe Hackney
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 6:08 p.m. this 19th day of August, 2007
6
MEMORANDUM
TO: Directors, Local Departments of Social Services
Directors, Local Departments of Public Health
Directors, Area Mental Health Authorities (LMEs)
FROM: Drake Maynard
HR Managing Partner/Local Government
DATE: September 7, 2007
SUBJECT: Career Status Defined for Local Government Employees
This session, the General Assembly passed, and the Governor signed into law on August 19,
2007, an amendment to the State Personnel Act that requires that local government employees
subject to the State Personnel Act must work for 24 consecutive months before they gain a
property interest that is protected by due process.
The law states:
§ 126-1.1. Career State employee defined.
For the purposes of this Chapter, unless the context clearly indicates otherwise, "career State
employee" means a State employee or an employee of a local entity who is covered b~his
Chapter pursuant to G.S. 126-5(a)(2) who:
(1) Is in a permanent position appointment; and
(2) Has been continuously employed by the State of North Carolina or a local entity
as provided in G.S. 126-5(a)(2) in a position subject to the State Personnel Act for the
immediate 24 preceding months." [Underlining indicates new language.]
A "local entity ...covered by ...126-5(a)(2)" includes:
All employees of the following local entities:
a. Area mental health, developmental disabilities, and substance abuse authorities.
b. Local social services departments.
c. County health departments and district health departments.
d. Local emergency management agencies that receive federal grant-in-aid funds.
Persons who complete this 24 consecutive month service period have what is known as "career
status."
This change divides your SPA employees into 2 groups: those who completed a probationary
period on or before August 18, 2007 and those who complete a probationary period on or after
August 19, 2007. The immediate practical effect is this:
For those persons who completed a probationary period with your agency ON OR
BEFORE August 18, 2007, they have gained a property interest that is protected by due
process.
For those persons who completed a probationary' period with your agency ON OR
AFTER August 19, 2007, they have will have to be employed with your county for at
Director's Office Phone: 919-807-4800 Fax: 919-715-9750
An Equal Opportunity Employer
least 24 consecutive months (measured from their original date of employment) before
they gain a property interest that is protected by due process.
Persons in the first group will be covered by the disciplinary action and appeals policy in 25
NCAC 1I.2300. They will, if demoted, suspended without pay or dismissed, need to have apre-
disciplinary conference, a written letter of discipline with specific reasons, written information
about accessing your internal grievance procedure, and will be able to request a contested case
hearing from OAH and a decision by the State Personnel Commission.
Persons in the second group will be covered by the disciplinary action and appeals policy in 25
NCAC 1I.2300 only after they have served 24 consecutive months in a position in your county
that is subject to the State Personnel Act. They will, if demoted, suspended without pay or
dismissed, have the same rights as persons in the first group only after they have served 24
consecutive months in a position in your county that is subject to the State Personnel Act.
With this change, this might be a good time to review your internal, departmental grievance
procedures. It is likely that a number of you give access to your internal grievance procedure
based on completion of a probationary period. You may keep this practice, but if you do, you
(and your employees) need to know that persons who do not have career status have only limited
access to the Office of Administrative Hearings/State Personnel Commission. You may want to
consider whether you want to limit access to your internal procedure to only those individuals
with career status. ~~
The legal effect of this statutory change is to extend the period of at-will employment for
employees in the second group from whatever the length of your department's probationary
period is to a period of 24 months. This means that these employees are not entitled to the
protections of the disciplinary action policy in 25 NCAC 1I.2300, nor are they entitled to access
your department's grievance procedure or appeal to the State Personnel Commission (except in
cases of prohibited discrimination.)
It does not affect the probationary period at all. What it does change is the probationary period
to a device that maybe of significance in salary administration or leave usage. Some counties
provide a salary increase once an employee completes a probationary period. Some counties
only allow employees to begin using earned, accumulated paid leave after they have completed a
probationary period. This law will not change those policies.
Clearly, this raises a number of practical issues. A significant issue is how to handle transfers
between county SPA agencies, such as a transfer from DSS to Public Health, within the same
county. At the State level, once a person gains career status, it is lost only after a "break in
service" occurs.
[A break in service is defined in State policy as being off the payroll (that is, not being a
State employee, whether in pay status or in LWOP status) for more than 31 calendar
days. There is no such a definition in the Administrative Code for local government.]
Since the law requires consecutive service in a position subject to the State Personnel Act, a
transfer from one SPA county agency to another would not appear to trigger a break in service,
especially since this is all within the employment of a single county.
Director's Office Phone: 919-807-4800 Fax: 919-715-9750
An Equal Opportunity Employer
8
Another significant issue is how to handle transfers between SPA agencies in different counties.
It is my understanding that what occurs at the present time when an employee moves from one
county to another (even if they leave County A on Friday and start work in County B the
following Monday), is that the receiving County requires a new probationary period.
Following this practice, it would be logical to say that movement from one county to another
would constitute a break in service and re-set the career status calendar. This would require a
new or amended rule in the Administrative Code.
Another issue is how LWOP or unpaid FMLA would affect career status. Currently, LWOP
does not affect a State employee's career status. It would seem prudent to follow that same
practice with local government SPA employees as well.
In summary, the principal effect of this legislative change is tb require an additional fifteen
months or more (depending on the current length of your department's probationary period)
before a new employee comes under the protection of the disciplinary and grievarice policies
found in 25 NCAC lI, and the State Personnel Act. The Office of State Personnel will be
working on making any necessary changes to the Administrative Code. Your input on this will
be appreciated.
Director's Office Phone: 919-807-4800 Fax: 919-715-9750
An Equal Opportunity Employer
Orange County Personnel Ordinance Issue Date: October 25, 2004 (( G
0~
Article I
The Personnel Organization
1.0 Purpose
The purpose of this policy is to establish a personnel system which will recruit, select,
develop and maintain an effective and responsible work force for Orange County.
2.0 Organizations Affected
The provisions of this Ordinance shall be applicable to all employees except as provided
below:
2.1 Members of the Board of Commissioners, County Attorney, County Manager,
Clerk to the Board, and members of advisory and special.boards and commissions
will be exempted, except in sections where.specifically included.
2.2 Employees of the Agricultural Extension Service, whose annual compensation is
supplemented by State and/or Federal funds, will be exempted, except that these
employees shall be included in benefits of longevity pay and holidays.
2.3 The Executive Secretary to the County Board of Elections will be exempted from
Article II, Section 3.
2.4 All employees governed by the rules of the State Competitive Service System are
exempted from Article VI, Section 1-3; and '
2.5 Temporary employees are exempt from the following: Article II, Amended
2 6 All employees subiect to the State Personnel Act to the extent that Orange County
has not obtained substantiall~quivalency under the G.S. 126, Article 3 and to the
extent not otherwise provided for in this Ordinance.
Sections 5, 7, and S; Article VI; and Article VIII. Temporary 03/05/90
employees are also exempt from Article IV, Employee Benefits, with
the exception of: Worker's Compensation, Civil Leave, Administrative Leave and
Social Security.
3.0 Adoption Of Rules And Regulations
3.1 Policies Repealed -All policies, resolutions, or regulations are hereby repealed.
Article I -Page 1
Orange County Personnel Ordinance Issue Date: October 25, 2004
4.0 De anitions ~ ~
.f
4.27 Part-time Employee - an employee, either permanent or temporary, who is
regularly scheduled less than the number of hours per work week designated by
the Board of County Commissioners as full-time.
4.28 Salary Schedule - a schedule of salary ranges systematized into Amended
sequential rates including Minimum and Maximum salaries for each o~/oi/o3
class assigned to any given salary range.
4.29 Permanent Employee - a person appointed to a position which has Amended
been approved by the Board of Commissioners and has the full 03/05/90
County benefits package. The employee also has completed a
probationary period.
4.30 Personnel File - as used herein, consists of any information in any form gathered
by the County with respect to that employee and, by way of illustration but not
limitation, relating to employee's application, selection or non-selection,
performance, promotions, demotions, transfers, suspension and other disciplinary
actions, evaluation forms, leave, salary, and termination of employment.
4.31 Position - a group of current duties and responsibilities, assigned by a competent
authority, requiring the full or part-time employment of one person, but the
existence of a position or its identity does not depend upon its being occupied by
an employee.
4.32 Probationary Period - a period of time (usually six months) at the Amended
beginning of employment of a permanent employee, used to evaluate 03/05/90
the employee's suitability for continued permanent employment.
4.33 Provisional Employee - a person covered by the State Personnel Act appointed to
a position approved by the Board of County Commissioners who has completed
the designated Count probationary period but has not obtained career service
status under the State Personnel Act. A provisional employee will have access to
the full County health and leave benefits package, as provided to permanent
employees as well as access to the County Grievance Process; however,
provisional employees will not obtain a property interest in their position and the
right to appeal and decision under the grievance procedure until theme
obtained career status as defined by the State Personnel Act and permanent status
under the Personnel Ordinance.
4.34 Promotion -the reassignment of an employee to a position or classification
having a higher salary range than the position from which the reassignment is
made.
Article I -Page 2
Orange County Personnel Ordinance Issue Date: October 25, 2004
~~
4.35 Reclassification -the reassignment of an existing position from one Amended
class to another based on changes in job content such as required 03/05/90
knowledge, required skill, difficulty and responsibility of the work
performed.
4.36 Recruitment -the process of soliciting the most qualified applications. Amended
03/05/90
4.37 Salary Range Revision -the raising or lowering of the salary range for one or
more specific classes of positions within the classification plan.
4.38 Temporary Employee - an employee appointed to serve in a position Amended
for a period of six calendar months or less. The Department Head 08/01/92
may extend the temporary appointment for six additional months. A
temporary appointment may not extend beyond one year except as provided in
Article II, Section 5.2 of this Ordinance.
4.39 Transfer -the reassignment of an employee from one position or department to
another.
4.40 Time Limited Permanent Employee - a person appointed to serve in a permanent
full-time or permanent part-time position for a predetermined period of time.
Note: Underlined sections indicate proposed amendments to the Orange County Personnel
Ordinance.
Article I -Page 3