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HomeMy WebLinkAboutAgenda - 12-01-2008 - 6dORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 1, 2008 Action Agen a Item No. SUBJECT: Second Readin :Third Party Presence in the Employee Disciplinary Process DEPARTMENT: County Manager PUBLIC HEARING: (Y/N) NO Human Resources Department ATTACHMENT(S): INFORMATION CONTACT: Laura Blackmon, County Manager 245-2300 Michael McGinnis, Human Resource Director 245-2550 Annette Moore, Staff Attorney 245-2317 PURPOSE: A second reading of an amendment to the Orange County Personnel Ordinance Article IX, section 4d(1) which provides a third party presence at pre-disciplinary conferences prior to demotion, suspension or termination of an employee and a request for the Board to delay voting on the amendment until its first meeting in January 2009 and at that time consider a revision to the amendment voted on at its November 18th meeting. BACKGROUND: The Board, at its August 19, 2008 meeting requested Staff bring forward information on third party presence at pre-disciplinary conferences in cases of suspension without pay, demotion or dismissal after a resident raised concerns that an employee was not allowed to have legal representation at apre-disciplinary conference. On September 16th Staff provided information from the County Attorney's Office indicating the Personnel Ordinance prohibition on third party presence at pre-disciplinary conferences, unless agreed upon by both parties, was constitutional On October 28th, Staff provided additional information to the Board indicating the amendment would not apply to 47% of the County employees because employees in the Sheriff and the Register of Deeds Offices as well as the Departments of Social Services and Health would be exempt from the provision unless the Sheriff, Register of Deeds and Directors of Health and Social Services agreed to allow a third party presence. In addition, Staff provided information from a survey conducted by the North Carolina Employment Security Commission (with a 59.4% response from employees) indicating 72% of employees believe the County makes an "honest attempt to resolve problems that exist." Employees also found: 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% 2 Staff also provided information on the disciplinary process and coaching and counseling, the primary tool used by management to improve or correct employee performance and conduct. Staff recommended the Board not change the Ordinance to include third party representation or presence at pre-disciplinary conferences involving suspension without pay, demotion or dismissal 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 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. The Board asked Staff to bring the issue forward at their November 18, 2008 meeting and provide the Board with options for third party representation. At the November 18th meeting, three proposals were brought forward to amend the Orange County Personnel Ordinance Article IX, Section 4d(1) which currently provides: 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. The three models presented were: allowing a third party of the employees choice, not an attorney, to be present but not participate in the pre-disciplinary conference; allowing a person selected from a diverse group of specially trained HR Professionals and other staff to act as an ombudsman to assist the employee in preparing for the conference as well as accompanying the employee to the conference; and allowing a third party of the employee choice, including and attorney, who could advocate on the employees behalf at the conference. While Staff again recommended not having a third party presence at pre-disciplinary conferences, they believed the best option available was the use of specially trained ombudsman to assist the employee. Several board members had questions about the amendment such as: what would be the unintended consequences of the amendment; whether family members should be present at the pre-disciplinary conference; whether or not the mediator indicated in the amendment should be "trained or not trained" and whether or not employees in the Offices of the Sheriff and Register of Deeds and Departments of Social Services and Health would have access to the third party presence. After the discussion, the Board voted 3-2 on an amendment different than what Staff had proposed as indicated below: (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, trained mediator, or another employee but not an attorney. The person is considered a support person and is allowed to participate in the 3 conference. The support person may have training or specific ability to provide the assistance needed by the employee. The Human Resource Director or the Human Resource Director's designee may be present at management's or the- employee's request. Staff has some concerns about the support persons allowed into the pre-disciplinary conference in the .amendment voted on by the Board. Specifically, staff is concerned about what changes may occur in pre-disciplinary conference with family members not only present but also participating verbally in the pre-disciplinary conference and the intense emotions that may be brought into the conference with family member presence, especially spouses and domestic partners. Additionally, having a mediator, trained or otherwise, at the pre-disciplinary conference creates confusion about the mediator's role at the pre-disciplinary conference. A mediator is a neutral facilitator and is not present to support or advocate for either the employee or management. While in the grievance process a mediator may be helpful; but, in the disciplinary action process a mediator may create confusion amongst some employees who believe the mediator is there to help and support them. Staff proposes several alternatives for the Boards consideration. These alternatives delete the presence of a spouse or a domestic partner and the trained mediator at the pre-disciplinary conference as well as not allowing and allowing some verbal participation in the pre-disciplinary conference by third persons: Alternative 1: (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 (but not a spouse or domestic partner) or another employee but not an attorney. The person is considered a support person and is not allowed to 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. Alternative 2: (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 (but not a spouse or a domestic partner), or another employee but not an attorney. The person is considered a support person and is not allowed to participate in the conference. If the support person has had specific training as determined in the Rules and Regulations then the person may be designated as an ombudsman and allowed to accompany and provide assistance to the employee at the pre-disciplinary conference. The Human Resource Director or the Human Resource Director's designee may be present at management's or the employee's request. The G.S. §153A-45 provides that in order for an ordinance to be adopted on its first reading it "must receive the approval of all the members of the board of commissioners. If the ordinance is approved by a majority of those voting but not by all the members of the board... it shall be considered at the next regular meeting of the board." The Board then has 100 days after introduction of the ordinance to adopt the change to the ordinance. While the amendment voted on November 18t" does not require unanimous vote, any changes to the amendment to the Orange County Personnel Ordinance Article IX, Section 4d(1) voted on at the Board's November 18t" meeting will require unanimous consent or will have to come back for consideration at the Board's next meeting. Staff is mindful that Board members either those sitting on November 18t" or new Board members may need additional information before either the amendment or a revised amendment can be considered. If the Board needs additional time or information, staff would recommend the delay consideration of the amendment or a revised amendment until its first meeting in January 2009 and allow Staff to get any additional information required. FINANCIAL IMPACT: None RECOMMENDATION(S): The Manager recommends the Board revise its decision to amend the Orange County Personnel Ordinance Article IX, Section 4d(1) on November 18t" and consider the alternatives 1 as presented by Staff. If additional information is needed, the Manager recommends the Board delay consideration of the amendment or revision to the amendment until its first meeting in January 2009.