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HomeMy WebLinkAboutAgenda - 11-18-2008 - 6cORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 18, 2008 Action Agenda Item No. (p -- G _SUBJECT: Third Party Presence in the Employee Disciplinary Process DEPARTMENT: County Manager Human Resources Department PUBLIC HEARING: (Y/N) No ATTACHMENT(S): 1- Survey of Counties 2- Amended Article IX, Section4d(1) Personnel Ordinance INFORMATION CONTACT: Laura Blackmon, County Manager, 245-2300 Michael McGinnis, Human Resource Director, 245-2550 Annette Moore, Staff Attorney, 245-2317 PURPOSE: To provide information and a possible recommendation of an amendment to the Orange County Personnel Ordinance Article IX, Section 4d(1); third party presence or representation for eligible employees at a pre-disciplinary conference involving demotion, suspension or termination. BACKGROUND: At the October 28, 2008 Work Session, the Board discussed having third party presence at pre-disciplinary conference during the disciplinary process involving demotion, suspension, or termination of an employee. The Board requested additional information on whether other counties and the Office of State Personnel provided employees with the option of having a third party present and, if so, what models were being used. Additionally, staff was asked to propose a recommended amendment to the Personnel Ordinance to provide a third party presence during pre-disciplinary conferences involving demotion, suspension or termination of eligible County employees. The Orange County Personnel Ordinance Article IX, Section 4d(1) currently states third parties, including attorney or other third parties representatives, may not be at the pre-disciplinary conferences. Article IX, Section 4d(1) d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) No third parties, including attorneys or other representatives may be present at this conference. The Personnel Director or the Personnel Director's designee may be present at management's or the employee's request. Note: This prohibition may be waived with the consent of the department head and the employee. 2 This provision can be waived with the consent of both management and the employee. Staff surveyed Human Resource Directors in other counties and in the Office of State Personnel on allowing a third party presence or representation in pre-disciplinary conferences. (See Attachment 1.) None of the counties or the Office of State Personnel either through ordinance or policy provide for third party presence at pre-disciplinary conferences. Alamance County's policy does not provide for third party presence; however, in practice a third party presence is allowed. Several reasons stated by the Office of State Personnel and others for not allowing a third party presence or representation in pre-disciplinary conferences were: • a third party presence would make the conference more of a hearing and less of meeting; • the pre-disciplinary conference is a time of information sharing and having a third party present or representation may make it more adversarial and reduce the opportunity to resolve both performance and conduct concerns at a lower level. The lack of a third party presence was also countered by the thorough review made by the Human Resources Department of the circumstances surrounding the incident prior to the consideration of discipline. Many indicated Human Resources staff served as a neutral part of the disciplinary process assisting both the employee and management and not advocating for either side. Models While none of the counties surveyed or the Office of State Personnel provide third party presence or representation at pre-disciplinary conference, staff, as requested, has provided several models of third party presence or representation and the pros and cons of each for the Board's consideration: 1. The employee is permitted to select a person of their choice to accompany them to the Pre-disciplinary Conference. This person may be a friend, family member or another employee, but not an attorney. This person is considered a support person only and is not allowed to participate in any way in the conference. • This may help the employee feel more at ease in the proceeding and provide a second set of ears to hear information enhancing the employee's ability to comprehend the information being provided. • There would be no cost to the employee or management unless the person selected was an employee (employee time off would not be charged to leave.) • The support person would not be allowed to actively participate in helping the employee and must remain mute during the conference. • The support person may not. have any training or specific ability to provide the assistance needed by the employee. 2. An employee- would be allowed to select a person from a diverse group of human resources professionals and other staff specifically trained to provide assistance to employees in the Pre-disciplinary Conference. This specifically trained person would act as an ombudsman in helping the employee prepare for the conference and accompanying the 3 employee to the conference. This position is allowed to assist the employee in understanding information being provided by the department or in providing additional information for consideration. The human resources professional would not be the person who helped the supervisor or department in preparing for the disciplinary proceedings. • This would provide the employee with a trained human resources professional to assist them throughout the process including during the conference. • This would not have an additional cost outside of human resources or other County employee staff time. • This would limit the employee's choice to the specifically trained County personnel. 3. The Employee is permitted to select a person of his/her choice that will be allowed to advocate for the employee during the Pre-disciplinary conference. The person representing the employee may be an attorney. • The recommendation would provide the greatest level of advocacy for the support of the employee. • This may provide unequal treatment and unfair results for persons who could not afford attorneys. • An attorney's presence at pre-disciplinary conferences in cases of serious work performance deficiencies endangering the safety of persons or property may slow the process when resolving the issue may be in the best interest of all parties. • This would increase the County's costs because if the employee had an attorney, the County would also seek to be represented to provide legal support to the supervisor and the department head. Staff Recommendation The County must ensure all employees are treated fairly and have the opportunity to resolve issues at the lowest level possible. Staff recommends the Board continue the current system of not allowing a third presence or representation at pre-disciplinary conferences involving demotion, suspension or termination for the following reasons: • Third party representatives would create an inequity among employees within the personnel system applying to only 53% of Orange County employees; • The personnel system currently allows for third party representation if both parties agree. • Human Resource professionals are present in the process to ensure the system is followed and all parties are treated fairly; • Employees view the disciplinary system as fair (as evidenced by a recent employee survey); and • The presence of third parties and attorneys at the pre-disciplinary conference could make the process more adversarial and decrease the likelihood of the issue being resolved. . However, if the Board is not inclined to leave the current system in place, staff would recommend the Board select Model 2 above. Attached are proposed amendments to the Personnel Ordinance to accommodate each model. (See Attachment 2) FINANCIAL IMPACT: There will be no additional cost if the policy is not changed. However, if the Ordinance is changed to allow legal representation, there may be a cost to adequately represent the Department and County. RECOMMENDATION(S): The Manager recommends: 1. The Board approve no changes to the current Article IX, Section 4d(1) of the Orange County Personnel Ordinance; or 2. Select Model 2 above and amend Article IX, Section 4d(1) of the Orange County Personnel Ordinance as provided in Attachment 2, to be effective on the date printed in the Administrative Rules and Regulation promulgated by the County Manager. 0 3rd Party Representation attachment ~ 3rd Party Representation in Pre- Coun Disciplinary Conference HR Involvement Alamance Representation is not referred to in HR is involved in the process and may olic , in ractice it is allowed artici ate in the conference Bertie Representation is not allowed HR with Department director conducts the conference Cabarrus Representation is not allowed HR is informed prior proposed conference and participates and monitors conference to ensure employment laws, rules, regulations are followed and fair treatment. Chatham Representation is not allowed HR is contact person and helps supervisor determine appropriateness of discipline, meets with employee to help prepare for conference. Durham Representation is not allowed HR works with supervisor and employee and may participate in conference Forsyth Representation is not allowed HR must be consulted prior to action and upon request by supervisor or employee will artici ate in conference Guilford Representation is not allowed HR may be involved in the process to support process for emplyee or department Representation is not allowed The employee, their supervisor and the department director or their designee. Prior to the conference a fact finding conference is held between the employee and the supervisor. At the fact finding conference information is gathered to evaluate a situation information that may lead to discipline. Mecklenber Wake Representation is not allowed HR does not attend the the conference. Works behind the scene with supervisors and employees to prepare for the conference. Department directors are also not encouraged to attend so that it remains between employee and supervisor. ( ~l Office of Representation is not allowed .~ HR is involved in reviewing the actions and State assisting the supervisor in determining the Personnel appropriate action. HR provides training on problem resolution for supervisors and employees. 0 PROPOSED AMENDMENTS TO ORANGE COUNTY PERSONNEL ORDINANCE ARTICLE IX, SECTION 4d(1) MODEL 1 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) An eligible employee may have a third party, present at this conference as provided in the Rules and Regulations adopted for this Section. The third party may be a friend, family member, or another employee but not an attorney. The third party is an observer and may not participate in the conference. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. MODEL 2 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) An eligible employee may have a third party present at this conference as provided in the Administrative Rules and Regulations adopted for this Section. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. MODEL 3 d. The department head and/or management representative(s) hold the pre-dismissal conference with the employee. (1) An eligible employee may have third parties, including attorneys or other representatives present at this conference as provided in the Administrative Rules and Regulations adopted for this Section.. The Human Resource Director, the Human Resource Director's designee or the County Attorney or the County Attorney's designee may be present at management's request.