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

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. pmhrbition ~ the presence of auarneys or other representatives to be waived with the consent of both the dent head and the employee.4 For the fallowing 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 attatney or other representative, present at a pre-disciplinary aonfeaeace does not violate the United States Constitution as Iong as the employee: (a) is given notice arf the pre-disciplinary conference; (b) has an opportunity m refute the charges against him at thepre-disciplinary conference; and (c) is entitled to a past-deprivati~ appeal. Each of th.e tlu+ee processes above are curreaatly required and/or allowed under the County's Personnel Ordinance. - The Faurth Circuit Court of AppealsS has developed a two part test for deterniinia~ whexher or not a public employee's due process rights are violated by a disciglinary action. The relevant test is: (a) whetbe~r the discipline imposed deprived the employee of a property interest protected by the fotuteenth auoeadmeat 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 -ut the jobs of many of its employees. We will assume, without conducting fartbec analysis, that the employee that is the subject of the Farrar I.ett~ does in fact have a property interest in his continued employment with the County. "It is well settled that due process requires that a gublic employee who hss a property inte~st in his emgloyment be given notice of the char~es against hurl and a meaniagfinl opportunity to respond tv those charges prior to his discharge: ' It is also welt settled that the suspension of an employee without pay.is not a de mini-nus 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 are 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 ~oudermall. the United States Supreme Court ruled that Due Process requires, at a minim ,rr: that a public employee with a protectedl property interest in employment be provided adequate notice of the charges a~ainst him and ati oppornmity to respond to those charges before being deprived of that interest: t .There is no allegation is the Farrar l:.etter that the euigloyee at issue did not receive proper ns~tice of the pre-disciplinary conference, rather the allegation is that conducting the conference without the employee having an attDmey present is unconstitutional. The Fourth Circuit Court of Appeals has held that, is regards to a pre-deprivation hearing in the public employment context, "jtjhe formality and procedural requisites for the healing can vary, depeadin~ upon the importance of the interests involvexl and the nature of the subsequent proceedsngs.s1 The United States Supreme Court in Loudermill developed a balancing test that a Sx Section 4.d.(1) of Appendac 1 "Required D~seiplinary Action Process" bo Section 4,0 "Diseipliasry Action" of .~ oraa~e Coumy Persomuet ~ s The Fotuth t3rcuit Court of Appeals is tine Federal appellate court for tech Federal District Court of Nordt Carolina, and ~ decisions eoastitute binding precedent for Federal District Coasts is Norm Carolioa. e SeeC~ra~ty v Sordau. 830 F2d 1295,1299 (198?}. ',gee ~ (infernal ci~ions omitted). s GflitAahri v Jordan 830 F.2d 1295, 1299 (1987)(ua~val citatioais omitted)- So ~ Id. at IZ99. ~ Cleveland Board of Educ~tia v Ill et, alt 470 U.S. 532, 541(1985). ~ ~ ,ratraty at 130Q tQuo~ ~ 569-5T0). -