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HomeMy WebLinkAboutAgenda - 09-16-2008 - 6fORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 16, 2008 Action Agenda Item No. ~ ~`~ SUBJECT: Legal Representation for Employee Disciplinary Process DEPARTMENT: County Manager PUBLIC HEARING: (Y/N) No County Attorney ATTACHMENT(S): 7/8/08 County Attorney's Office Letter to Laura Blackmon Concerning Employee Representation at a Pre- Disciplinary Conference INFORMATION CONTACT: Laura Blackmon, 245-2300 Geof Gledhill, 732-2196 PURPOSE: To follow-up on a request from the Board of Commissioners for information regarding the current County policy related to legal representation for employees during the employee disciplinary process. BACKGROUND: At the August 19, 2008 regular Board meeting, Eugene Farrar, President of the Chapel Hill-Carrboro Branch of the National Association for the Advancement of Colored People, appeared before the Board under "Matters Not on the Printed Agenda". Mr. Farrar asked the Board to review the County's current. policy not permitting an employee to have legal representation during the employee disciplinary process. Based on Mr. Farrars request, the Board asked the County Manager to provide information to the Board regarding the County's policy. County staff and the County Attorney's Office had recently addressed this same topic with Mr. Farrar, and the County Attorn.ey's Office had provided the County Manager with a letter dated July 8, 2008 concerning the County's policy. That letter is provided as an attachment to this abstract in response to the Board's request for information. FINANCIAL IMPACT: There is no financial impact associated with receiving this response from the County Manager regarding the County's policy relative to legal representation not being permitted during the employee disciplinary process. RECOMMENDATION(S): The Manager recommends that the Board receive the information and provide comments and/or directions, if any, to staff on this matter. i,Aw or~zcES ~ a CC3LEMAN, GLEDHILi;, HARGRAVE & PEEK A PROF£S510NAL CORPORATION IZ4 E. TRYON STEtEEI' P. O. DRAWER 1529 HII.Y5BOROUGEi, NORTH CAROLWA 27278 919-73L219b FROM 7HE DESK OP FAX 919.732-7947 BRIAN M. FE.RI3EI.1. www.cghp-law.com E-MAIL: b£ecrdl@cghg-law.caa . July 8, 2008 Ms. Laura Blackmon, County Manager Orange County Manager's Office P.O. Box 8181 Hillsborough, NC 27278 Re: :Employee Representation at a l?re-disciplinary Conference Deaz Laura: You have provided us with a copy of a letter by Eugene Farrar, President of the Chapel Hill-Carrboro Branch of the North Catalina National Association for the Advancement of Colored People, dated June 2, 2008 (the "Farrar Letter"). Among other things, the Farrar Letter asks for clarification concerning the County's policy that denies its employees the right to counsel in the pre=disciplinary conference held prior to the suspension, demotion or termination of a County employee. Mr. Farrar alleges that, "[t]his policy is mean spirited and, we believe, unconstitutional, when applied to ~ employee, Slack 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.I The County does have a policy that prevents third parties, including attorneys or other representatives from being present at the pre-disciplinary conference? The State of North Carolina similarly prohibits its employees from havin~ an attorney present at the pre-disciplinary conference held pursuant to the State Personnel Act. In Orange County, a "pre-[disciplinary] conference" is required under the Personnel Ordinance before a Permanent employee ionay 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, or suspension. Specifically, Section 4.d.(1} of Appendix l "Required Disciplinary Action Process" of the Orange County Personnel Ordinance states that, "[n]o third parties, including attorneys or other representatives may be present at this [pre- disciplinary] conference." Unlike apre-disciplinary conference held pursuant to the State Personnel Act, the County's Personnel Ordinance does contain a provision that allows the I Although not otherwise discussed in this letter, the same standards apply in a North Carolina Constitutional challenge based on the North Carolina. "Law of the Land" clause [N.C. Constitution Article Y, § 19] which includes the applicable due process of law requirements of the United States Constitution. a See Section 4.d.(1) of Appendix 1 "Required Disciplinary Action Process" to Section 4.0 "Disciplinary Action" of the Orange County Personnel Ordinance. s See Part V.P, of the S`DisciplinelAppeals/Grievances Section of the North Carolina State Personnel Manual. prohibition an the presence of attorneys or other representatives to be waived with the consent of both the department head and the emplayee.~ For the following 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 attorney or other representative, present at apre-disciplinary conference does not violate the United States Constitution as long as the employee: (a) is given notice of the pre-disciplinary conference; {b} has an opportunity to refute the charges against him at the pre-disciplinary conference; and (c) is entitled to a post-deprivation appeal. Each of the three processes above are currently required and/or allowed under the County's Personnel Ordinance. The Fourth Circuit Court of Appealss has developed a two part test far determining whether ar not a public employee's due process rights are violated by a disciplinary action. The relevant test is: (a) whether the discipline imposed deprived the employee of a property interest protected by the fourteenth amendment Due Process Clause of the United States Constitution; and {b) if so, whether the manner iin which the discipline was imposed satisfies constitutionally mandated protections ~ The Orange County Board of COmxr]]S510IlELS has conferred a property interest ~in the jobs of many of its employees. We will assume, without conducting further analysis, that the employee that is the subject of the Farrar Letter does in fact have a property interest in his continued employment with the County. "It is well settled that due process requires that a public employee who has a property interest in his employment be given notice of the char~es against hirx~. and a meaningful opportunity to respond to those charges prior to his discharge." It is also well settled that the suspension of an employee without pay. is not a de minimus 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 aze 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 Loudersnill, the United States Supreme Court ruled that Due Process requires, at a minimum, that a public employee with a protected property interest in employment be provided adequate notice of the charges a~ainst him axed an opportunity to respond tv those charges before being deprived of that interest.l .There is no allegation in the Fazzaz Letter that the. employee at issue did not receive proper notice of the pre-disciplinary conference, rather the allegation is that conducting the conference without the employee having an attorney present is unconstitutional. The Fourth Circuit Court of Appeals has held that, in regards to ogre-deprivation hearing in the public employment context, "[t]he formality and procedural requisites for the hearing can vary, depending upon the imporkance of the interests involved and the nature of the subsequent proceedings.:11 The United States Supreme Court in Loudermill developed a balancing test that a See Section 4.d.(1) of Appendix 1 "Required Disciplinary Action Process" to Section 4,0 "Disciplinary Action" of .the Orange County Personnel Ordinanc•~. s The Fourth Circuit Court of Appeals is fire Federal appellate court for each Federal District Court of North Carolina, and its decisions consritute binding precedent for Federal District Courts in North Carolina. e See Gana~hty v. 3ordan, 830 F.2d 1295,1299 (1987}. T See Id. {internal citations omitted). s Gatrashty v. Jordan, 830 F.2d 1295, 1299 (1987){inbeanal citations omitted). v See Td. at 1294. LD Cleveland Board of Education v. I.oudernull et. all. 470 U.S. 532, 541(1985). ~ ~ Gana at 1300 (quoting Laudermill at 569-570). 4 is used to determine whether ar not the gre-disciplinary hearing of an employee is adequate under the Uue Process Clause of the fourteenth amendment. This test involves the balancing of "the competition between {a} the employee's interest in his employment, {b} the government's interest in an expeditious and effective tool to discipline unsatisfactory employees, (c) the government's interest in the avoidance of undue administrative or fiscal burdens, and (d} the risk of an erroneous deprivation of the employee's interest „i2 The Fourth Circuit Court of Appeals in Garraght~ v. Jordan, applied the Loudermill balancing test in a case where plaintiff, a prison warden in Virginia, was suspended without pay from his job for frve days and subsequently challenged 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 office in order to discuss allegations of insubordination. Garraghty was not told directly that the meeting could result in his suspension, nor was he informed directly about the nature of the accusations against him until he arrived at the meeting with his superior. Garraghty was given an. opportunity to explain his act of insubordination at the meeting. However, "Virginia regulations in place at the time of Garraghty's suspension only allowed for an appeal of susgensions of less than ten days so Garraghty had na post suspension administrative hearing."13 Garraghty was suspended for five days without pay by his superior after fmdurg his explanation of the insubordination lacking. After analyzing the balancing factors listed above, the. Garrat~.,h~ Court noted that, "[f]urther formalizing the suspension process and escalating its formality and adversary .nature may not only make it too costly as 14 regular disciplinary tool but also destroy its effectiveness as part of the disciplinaryy process. Ultimately, the Garry t Court held that, "[w]e agree with the district court that Garraghty received `all the hearing he was entitled to."'15 Urange County employees receive greater due process protections prior to receiving a suspension without pay than did_Garraghty. First, unlike iin Garragl~ty 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 summary of the information which management believes supports the proposed action prior to the pre-disciplinary conference.;6 Thereafter, the pre- discipiinary conference is held with the employee's department head and/or management representatives wherein the employee receives a review of the fads giving rise to the proposed dismissal and the employee has an opportunity to respond to the charges against him. The applicable rules in C}rarrge County require the department head to consider the information the employee has presented at the pre-disciplinary conference prior to determining if the disciplinary action is warranted. Finally, also unlike Garry t County employees are given notice of their appeal rights 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 Due Process Clause of the United States Constitution requires a gre- deprivation hearing or conference in the public employment context that is no mare formal. or extensive than those required by Garra~h~, and because the County's pre-deprivation is G ~ at 130 i (cit[ttg Laudermill). 13 Id at 1297. 14Id. at 1302, quoting Goss v. Lopez, 419 U.S. 565, 583 (1970. 15 Id. at 1299. i6 Section 4.c., Appendix I, Article IX, Orange County Personnel Ordinance. proceedings are more formal and extensive that those in Garra t , it is our opinion that the County's pre-disciplinary proceedings pass constitutional muster. Please let me know if you have any further questions regarding this matter. CQLEMAN; GLEDHII..L, HARGRA cc: Board of County Cornr Barry Jacobs, Chair 1Vloses Carey, 7r. Valerie P. Foushee Alice Gordon Mike Nelson PEEK, P.C. Michael McGinnis, Human Resources Director Best Regards, Orange CvuntyPersonnelOrdinance ~ Issue Date: August l,199~ Appendix I Article IX Required Disciplii~iaryActionProcessl I.. 'Oral 6Yarnin,~ nth R'ritten 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 tune allowed, if any, for the corrections to be r~tade_ (6) Advises the employee that subs_ equent disciplinary action, including dismiissal, maybe taken if needed corrections are not achieved within the time allowed or if other problems arise. . (7J 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. i 1 For employees in the departments of Health and Social Services, ,State requirements as to dismissal, disciplinary suspension without pay and disciplinary~demation are controlling and, if any variation exists, the State requirements override those of this ordinance. Artiele iX -Page 7 • - •~ Orange County Personnel Ordinance Issue Date: • 19ugust 1,1997 Z. First Written Warning a. A First Written Warning requires the Depar4nent 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) 'T`hat it is a "First Written Warning." -• ~ (b) The specific actions or omissions leading to the First Written Wareing. (c) The corrections the employee must make. (d) The time allowed, ~ any, for corrections to be made. (e} Any prior disciplinary action(s). (f) That further disciplinary action; including dismissal, maybe taken if corrections are not made within the time allowed or if other problems arise. •- .. (g) The employee's right to appeal under the tJrange 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 eomgletes the following steps: Article IX -.Page 8 -, • Qrange County Personnel Ordinance Issue Date: August I, 1997 t ~ (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 Ieading • 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). . - - • (f) 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. - a. The department provides a copy of the ~Fina.I Written Warning to the Personnel -- ~ ~ Department far 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 I~, Section 4.5:1. 4. Distnrssad~ • Before a Permanent employee maybe 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 enmliloyee in the Department of Health or Social Services, the Health • a See Article 1X, Section 4.7.4. Article Ix -Page 9 Orange County Personnel Chdinance Issue Date: August 1,1997 Director or Social Services Director determines whether to proceed with apre- 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 confexence. The Personnel Director ar 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) The department head and/or management representative(s): -Review with the employee the facts giving rise to the proposed . ~ . ~ dismiissal and~the.specific reasons for the proposed dismissal. -Provide an opporluuity for the employee to respond. e. Following the pre-dismissal conference, the ..department head considers the information the employee has presented. . . f. ~ ~ If the department head determines that dismissal is warranted' following the pre- dismissal conference, he or she reviews the dismissal recomrriendation 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 ar 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 sunvnary of the information which management believes warrants the action. -The employee's appeal rights under the Orange County Personnel Ordinance. 5. Disciplinary Suspension Without Parr; 3 See Article 17C, Section 4.7.4. . Article 1X -Page 10 jo Prange county Permaneet Ordinance Issue Date: august 1,1997 a. An employee may receive a disciplinary suspension without pay based on work performance ar personal Conduct. For work peiformance, a disciplinary - suspension without pay may be given in conjunction with a Final Written - Warning and only aver an oral Warning and a First Written Warning, except as - provided in Article IX, Section 4.S.i. - - 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. 17emotian°- a. An employee may be demoted on the basis of work performance or personak 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 grior Wamina. b. Before a Permanent employee maybe 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 trdinance for a - demotion. ' ° See Article IX, Section 4.7.4: Article !X -Page 11