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

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'/ is used to determine whether or not the Pre-disciplinary ~ ~ ~P~y~ ~ ~~N~ under the Dne Process Clause of the fptubeenth amendment '17iis test involves the balancing of "the motion between (a) the employee's interest in his employment, (b} the government's interest in an expeditious and eve .tool to discipline unsatisfactory employees, (c) the government's interest in the avoidance of undue admm~trative or fiscal burdens, and (d} the risk of an erroneous deprivation of the employee's interest." The Fourth (~rcauit Com# of Appeals is Gaaaght4 v. Jordan, applied the Loudermll balancing test in a case where plaintiff; a prison warden is Vn-ginia, was suspended without pay from his job for five days and subsequently challe;aged the suspension on due. process and other grounds. The facts of that case were that Garraghty was ordered by his superior to travel from his post to his superior's ofl"ioe as order to discuss allegations of insubordination. Garraghty was not told directly that the meeting crnild result in his suspension, nor was he informed directly abau~t the nature of the accusations against him until he arrived at the meeting with his superior. Gaaaghty was given am opportunity to explain his act of insubordination at the meeting. However, "Virginia regalaEions in place at the tame of Garraghty's suspension only allowed for an appeal of suspensions of less than ten days so Garraghty had no post suspension administrative hearing."13 Ganaghty was suspended for five days without pay by his superior after finding his explanation of the insubordination lacking. After analyzing the balancing factors listed above, the. Garra~ Court noted that, "[fJuurther formalizing the suspension process and escalating its formality and adversary nature may nut only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the disciplinary pa+ocess."14 Ultimately, the Gaeta t Court held that, "[w]e agree with the district court that Gatraghty received `all the hearing he was entitled to."'~ • Orange County employees receive greater due process protedians prior to receiving a suspension witho~ pay than did_Gauaghty. First, tmifiCe in Ci 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 sumuaary of the information which management believes supports the proposed action prior tv the pre-disciplinary conferemce.;6 Thereafter, the pre- disciplinary confeaenc~ is held with the employee's department head and/or management representatives wherein theemployee receives a review of the facts giving rise to the pmposed~ dismissal and the employee has an opportunity to respond fie the charges against him. The applicable Holes in Orange County requiure the department head to consider the information the employee has preseited at the predisciplinary cmnfeaence prior to determining if the disciplinary action is wazramted. Finally, also unlike Ganaghty. County employees are given notice of their appeal tights and can challenge the disciplinary action via the formal appeals process that includes being represented by counsel at a hearing before the County Personnel Board. Because the Uue Process Clause of the United States Constitution regmre; a Pre- deprivation hearing or conference' in the public employment context that is no more formal or extensive than those requuEd by ~, and because the County's pre-deprivation ~ ~ >1301(«~ r~aermtm. ~ ltd. at 1297. I4I~ ~ 130? QnO~ ~~ V. Lopez. 419 U.S. 565, 583 (1975). Is ~ at 1299. 16 $eC170n 4.C.. Alspeodtx 7, Art1C1C IX, OI'811$C County PersonIIel OIdIOSIICe.