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HomeMy WebLinkAboutAgenda - 10-28-2008 - 6ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 28, 2008 Action Agen a Item No. SUBJECT: Third Party Representation in the Employee Disciplinary Process DEPARTMENT: County Manager Human Resources Department PUBLIC HEARING: (Y/N) NO ATTACHMENT(S): 1-County Attorney'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. Coaching 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 Sheriff's 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 Social 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 warning 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 warning, 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 recommenda#ion 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 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 slow 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. A~l~m~f 1 LAW OFFICES COLEMAN, GLEDHILI:, HARaGItAVE & PEEK A PROFESSIONAL CORPORATION 124 E TRYON STREET P. O. DRAWER 1529 H¢LSBOROUGH, NORT'Ei CAROLWA 27278 919-73ZZi96 FAX 919-732-?997 FROM THE DESK OP www.c~p-lew.c~ BRIAN M. FERRELL E-MAIL: bfemellC~~P-law.cau . July $, 2008 Ms. Laura Blackmon, County Manager Orange County Manager's Office P.O. Box 8181 Hillsborough, NC 27278 Re: Employee Representation at aPre-disciplinary Conference Deaz Laura: You have provided us with a copy of a letter by Eugene •Farraz, President of the Chapel Hill-Carrboro Branch of the North Carolina 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 ~ emgloyee, 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.m The County does have a policy that prevents third parties, including attorneys or other representatives from being present at the pre-disciplinary conference.2 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 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, or suspension. Specifically, Section 4.d.(1) of Appendix 1 "Required Disciplinary Action Process" of the Orange County Personnel Ordinance states that, "[n]a Hurd parties, including attorneys or other representatives may be present at this [pre- diseiplinary] conference." Unlike apre-disciplinary conference held pursuant to the State Personnel Act, the County's Personnel Ordinance does contain a provision that allows the 1 Although not otherwise discussed in this letter, the same standards apply in a North Carolina Constitutional challenge based on the North Carolina `2.aw of the Land' clause [N.C. Constitution Article T, ~ 19] which includes the applicable due process of law requirements of the United States Constitution. 2 See Section 4.d.(1) of Appendix 1 "Required Disciplinary Adion Process" to Section 4.0 `Disciplinary Action" of the Orange County Persommet Ordinance. 3 See Part V.F. of the "DisciplinelAppeals/Grievances Section of the North Carolina State Personnel Manual. prohibition on the presence of attorneys or other representatives to be waived with the consent of bath the department head and the employee. 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 apost-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 Appeals5 has developed a two part test for determining whether or 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 in which the discipline was imposed satisfies constitutionally mandated protections ~ The Orange County Board of Commissioners has conferred a property interest ~in the jobs of many of its employees. We will assume, without conducting furthei 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 ehaz~es against hinq~ 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 lroudermill, the United States Supreme Court ruled that Due Process requires, at a minimum, that a public employed with a protected property interest in employment be provided adequate notice of the charges a~ainst him and an opportunity to respond to those charges before being deprived of that interest.l .There is no allegation in the Farrar 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 apre-deprivation hearing in the public employment context, "jt]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings."1 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 Ordinance. s The Fourth Circuit Court of Appeals is the Federal appellate court for each Federal District Court of North Carolina, and its decisions constitute binding precedent for Federal District Courts in Nor#h Camlina.. e See Gar<sehty v. Jordan, 830 F.2d 1295,1299 (1987). r S~ I~ {internal citations omitted). e Garra~hty v. Jordan, 830 F.2d 1295, 1299 (1987)(uiternal citations omitted). 9 See Id. at 1299. 10 Cleveland Board of Education v. Loudermill. et. all.. 470 U.S. 532, 541(1985). `~ Gana at 1300 (quoting Laudermill at 569-570). '/ is used to determine whether or not the pre-disciplinary hearing of an employee is adequate under the Dne 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 Garta~hty 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 five days and subsequently challenged the suspension on due process and other grounds. The facts of brat case were that Garraghty was ordered by his superior to travel from his post to his superior's once im order to discuss allegations of insubordination. Garraghty was not told directly that the meeting could result in his suspension, nor was he irtformed directly about the nature of the accusations against him until he arrived at the meeting with his superiox. Garraghty was given am 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 suspensions of less than ten days so Garraghty had no post suspension administrative hearing.s13 Garraghty was suspended for five days without pay by his superior after fmding his explanation o~ the insubordination lacking. After analyzing the balancing factors listed above, the. Garra• Court noted that, "[f]urther formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the disciplinary process."~4 Ultimately, the Garra Court held that, "[w]e agree with the district court that Garraghty received `all the hearing he was entitled to. ",15 • Orange County employees receive greater due process protections prior to receiving a suspension without pay than did.Garraghty. First, unlike in Gaixa 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 andJor management representatives wherein the employee receives a review of the facts giving rise to the proposed dismissal and the employee has an opportunity to respond to the charges against him. The applicable rules in Orange County require the department head to consider the information the employee has presented at the pre-disciplinary conference grior to determining if the disciplinary action is wasanted. Finally, also unlike Ga~aah •v. 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 Soard. Because the Due Frocess Clause of the United States Constitution requires apre- deprivation hearing or conference• in the public employment context that is no more formal or extensive than those required by Gana and because the County's pre deprivation ~ Gar l at 1301 (citing Laudeamill). ~ Id. at 1297. is Id. at 1302, quoting Goss v. Lopez. 419 U.S. 565, 583 (1975). 151d at 1299. '¢ Section 4.c., Appendix I, Article IX, Orange County Personnel Ordinance. 8 proceedings are more formal and extensive that those in Gams t it is our opinion that the County's pre-disciplinary Proceedings pass constitutio~aal. muster. Please let me know if you have any further questions regazding this matter. Best Regards, CaLEMAN; GLEDHILL, HARGRAV~, & PEEK, P.C. cc: Board of County Coma Barry Jacobs, Chair Moses Carey, Jr. Valerie P. Foushee Alice Gordon Mike Nelson Michael McGinnis, Human Resources Director ~. Orange County Personnel Ordinance Issue Date: August 1,1997 Appendix Y Article IX Required Disciplinary Action Pracessl Y.. ,Oral Warning nth Written Confirmation - ~ ~ a.' The supervisor may issue an Oral Warning without otherapprovals. b. The supervisor completes fire 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 no# 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. • (G) Advises the employee that subsequent disciplinary action, including • dismissal, maybe taken if needed corrections are not achieved within the time allowed or if other problems arise. . (~ 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. 1 For employees in the departments of Aealth and Social Services, ,State requirements as to dismissal, disciglinarysuspension without pay and disciplinary demotion are controlling and, if any • - variation exists, the State requirements override those of this Ordinance. • • ~ Artiele IX -Page 7 • - f0 Orange County Personnel Ordinance - Issue 17ate: • August 1,1997 . Z. 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 coaections 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 or if other problems arise. ... .. (g) The employee•'s right to appeal under the Orange County Grievance Procedure. . e. 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 1X, Sectioa 4,5.1. 3. Final Written Warning a. A Final Written Warning requires the Department Heady advance agproval b. The supervisor eomgletes the following steps: AriicIe IX -.Page 8 •, . i~ 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 prier disciplinary action(s). (~ T)rat fiuther disciplinary action, including dismissal, may be taken if corrections are not made within the tune allowed. - (g) The employee's right to appeal under the ©range 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 awat~ that,. for unsatisfactory, -work performance, a Final Written Warning may be •issired only after a First Written Warning, excepf as provided in Article TX, Section 4.5:1. 4. Ilism~s 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- Managers agpmval #o proceed with apre-dismissal conference with the employee. In the case of an employee in the Department of Health or Social Services, the Health a See Article IX, Section 4.7.4. Article IX -Page 9 Orange County Personnel Ordinance Issue Date• Ate st 1,19y1 Director or Social Services Director determines whether to proceed with apre- dismissal conference. e. Prior to the pr+e-dismissal conference; the department head gives the employee written notice 6f 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. {I) 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 employees request. Note: This prohibition may be waived with the consent of the department head and the employee. .. (2) The department headand/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 gre-dismissal conference, the .department head considers the information the employee has presented. . f. ~ ~ If the department head deterrines that dismissal is waaanted' 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 employee's appeal rights umder the Orange County Personnel Ordinance. 5. Discinlinary Susneaswn ~'~thaut Pav3 3 See Article IX, Section 4.7.4.. Article lX -Page 10 Orange County Personnel Ordinance ~ Issue Date: August 1,1997 .t - -. •`~ a. An employee may receive a disciplinary suspension without pay based on work performance ar personal conduct. For work performance, a disciplinary ' snspension 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 Articie ]7C, Section 4.5, 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 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 Fast Written Warning,'except as provided in Article IX, Section 4.5.1. For serious misconduct, an employee may be demoted without any prior .warning. 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 employees salary is handled as provided under the Personnel Ordinance for a ~' demotion. ° Sae Article IX, Section 4.7.4: l . ' Article IX -Page 11 a++am +~ 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 1~ 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. 1 G.S. §126-5(a)(2)b and c z G.S. §126-11 s G.S. § 126-11(b) and (d) a 25 NCAC 1L2308 ~~f 3 0 Orange County Personnel Ordinance Issue Date: August I, 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 regard to their employment. 2. D 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 are 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 are 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 IX -Page 1 Orange County Personnel Ordinance Issue Date: August 1, 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 `~ Orange County Personnel Ordinance Issue Date: August 1, 1997 This Section applies to Permanent employees who have completed the probationary period. Exce tp ion: This section does not apply to employees of the Sheriff's Department, Register of Deeds Office or others specifically exempted under Article I of the Personnel Ordinance. 4.3 Types of Disci linary 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. Exce tion: 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 Disciplinary 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: August 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 matter involving the employee. S.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 are 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 ~1_ Orange County Personnel Ordinance Issue Date: August 1,.1997 Appendix 1 Article IX Required Disciplinary Action Process' 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 ofthis Ordinance. Article IX -Page 7 ~~ 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). (f) 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). (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. 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. Dismissah 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 employee in the Department of Health or Social Services, the Health ~ See Article IX, Section 4.7.4. Article IX -Page 9 ~~ Orange County Personnel Ordinance 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 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) 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. f. 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 employee's appeal rights under the Orange County Personnel Ordinance. 5. Disciplinary Suspension Without Pay3 s See Article IX, Section 4.7.4. Article IX -Page 10 ~fJ 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. Demotion4 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 warning. b. Before a Permanent employee may be demoted for disciplinary reasons, the same process as that specified in Item 4a through 4g must occur. 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 ~~ Orange County Personnel Ordinance Issue Date: August 1, 1997 Appendix 2 Article IX 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 (6) 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 Coun Personnel Ordinance ~~ g tY Issue Date: August 1, 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