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Agenda - 09-16-2008 - 6f
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Agenda - 09-16-2008 - 6f
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9/17/2008 1:32:50 PM
Creation date
9/17/2008 1:32:23 PM
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BOCC
Date
9/16/2008
Meeting Type
Regular Meeting
Document Type
Agenda
Agenda Item
6f
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Minutes - 20080916
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\Board of County Commissioners\Minutes - Approved\2000's\2008
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i,Aw or~zcES ~ a <br />CC3LEMAN, GLEDHILi;, HARGRAVE & PEEK <br />A PROF£S510NAL CORPORATION <br />IZ4 E. TRYON STEtEEI' <br />P. O. DRAWER 1529 <br />HII.Y5BOROUGEi, NORTH CAROLWA 27278 <br />919-73L219b <br />FROM 7HE DESK OP <br />FAX 919.732-7947 BRIAN M. FE.RI3EI.1. <br />www.cghp-law.com <br /> E-MAIL: b£ecrdl@cghg-law.caa <br />. July 8, 2008 <br />Ms. Laura Blackmon, County Manager <br />Orange County Manager's Office <br />P.O. Box 8181 <br />Hillsborough, NC 27278 <br />Re: :Employee Representation at a l?re-disciplinary Conference <br />Deaz Laura: <br />You have provided us with a copy of a letter by Eugene Farrar, President of the Chapel <br />Hill-Carrboro Branch of the North Catalina National Association for the Advancement of <br />Colored People, dated June 2, 2008 (the "Farrar Letter"). Among other things, the Farrar Letter <br />asks for clarification concerning the County's policy that denies its employees the right to <br />counsel in the pre=disciplinary conference held prior to the suspension, demotion or termination <br />of a County employee. Mr. Farrar alleges that, "[t]his policy is mean spirited and, we believe, <br />unconstitutional, when applied to ~ employee, Slack or White, ..." (emphasis in the original}. <br />Below we provide an opinion on the issue of whether or not the County's policy regarding an <br />employee having the assistance of counsel at apre-disciplinary conference violates the United <br />States Constitution.I <br />The County does have a policy that prevents third parties, including attorneys or other <br />representatives from being present at the pre-disciplinary conference? The State of North <br />Carolina similarly prohibits its employees from havin~ an attorney present at the pre-disciplinary <br />conference held pursuant to the State Personnel Act. In Orange County, a "pre-[disciplinary] <br />conference" is required under the Personnel Ordinance before a Permanent employee ionay be <br />dismissed, demoted for disciplinary reasons or suspended without pay. This letter will refer <br />generically to the "pre-disciplinary conference" without regard to whether the conference <br />precedes a dismissal, demotion, or suspension. Specifically, Section 4.d.(1} of Appendix l <br />"Required Disciplinary Action Process" of the Orange County Personnel Ordinance states that, <br />"[n]o third parties, including attorneys or other representatives may be present at this [pre- <br />disciplinary] conference." Unlike apre-disciplinary conference held pursuant to the State <br />Personnel Act, the County's Personnel Ordinance does contain a provision that allows the <br />I Although not otherwise discussed in this letter, the same standards apply in a North Carolina Constitutional <br />challenge based on the North Carolina. "Law of the Land" clause [N.C. Constitution Article Y, § 19] which includes <br />the applicable due process of law requirements of the United States Constitution. <br />a See Section 4.d.(1) of Appendix 1 "Required Disciplinary Action Process" to Section 4.0 "Disciplinary Action" of <br />the Orange County Personnel Ordinance. <br />s See Part V.P, of the S`DisciplinelAppeals/Grievances Section of the North Carolina State Personnel Manual. <br />
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