ORD-2008-105 - Third Part Representation in the Employee Disciplinary Process

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ia-w ors C.4LEMAN, GLEDIgII.I; HARGRAVE & PEEK . A P1ONAI. COAPpRATIdN 129 E 1AYON STRF~P P. O.1]ItAWEIi 1529 ~F, NORTFI CAROLINA 2727! 919.732-2196 EA7C 919-73L7997 FBO~t7i~ DESY ~' M ww.eg~p-low.cam BRIAN M. FIItREI.t. , i<rrtan: t,~d~~ts,..~ . July 8, 2008 . lVis. Laura Blaclonon. Colmty Manager Orange Cotmty Manager's Office P.O. Box 81$1 Hillsborough, NC 27278 Re: Employee Representation at a Pre-disc~plmary Conference Dear Laura: You have provided us with a Dopy of a letter by Eugene Farrar, President of the Chapel Hill-Catrboro Branch of the North Carolina National Association for the Advancement of Colored People, dated Jlme Z, 2008 (the "Feuer Letter'. Among other things, the Fauar Letter asks for clarification concerning the County's policy fast denies its employees the right to counsel in the pre~disciplmary conference held prior to the suspension, demotion or termination of a County employee. l1llr. Farrar alleges that, "[tibia policy is mean spirited and, we believe, unconstitutional, when applied tti ~ employee, 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.l The County does have a policy that prevents third parties, including attorneys or other representatives from being present ax the pre-disciplinary confexence.2 The State of North Carolina similarly prohibits its employees from havi~ an atbomey gresent at the pre-disciplinary conference held pursuant to the State Personnel Act. In Orange County, a `ire-[disciplinary] conference" is requited under the Persoffiel Ordinance before a Petmaneut 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, m suspension. Sgecii3cally, Section 4.d.(1) of Appendix 1 "Required Dssciglinary Action Process" of the Orange County Personnel Ordinance states that, [n]a third parties, including afxoa~eys or other representatives may be present at this [pre- diseiplinary] conference." Unl3~se s pre-disciplinary conference held pursuant to the State Personnel Act, the County's Personnel Ordinance does contain a provision that allows the l Aldloagh not odlerwise discussed is this lettex, the same smadatds apply is a North Carolina Constitutional I~allenge based oa the North Carolma `2.aw of the Land" clause [N.C. Constitution Artide I, § 19] which includes die applicable due process of law requirements of the United States Constitution Z See Section 4.d.(1) of Appendix 1 `2tequired Disciplinary Action Process" to Section 4.0 `~aP~Y Action° of the Orange Conaty Pelsomlel Ordinance. 9 See Part VF. of the `~pliaetAppeats/Grievances Section of the Nord Carolina State Personnel Manual.