Agenda - 10-28-2008 - 6 - Laserfiche WebLink

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A~l~m~f 1 LAW OFFICES COLEMAN, GLEDHILI:, HARaGItAVE & PEEK A PROFESSIONAL CORPORATION 124 E TRYON STREET P. O. DRAWER 1529 H¢LSBOROUGH, NORT'Ei CAROLWA 27278 919-73ZZi96 FAX 919-732-?997 FROM THE DESK OP www.c~p-lew.c~ BRIAN M. FERRELL E-MAIL: bfemellC~~P-law.cau . July $, 2008 Ms. Laura Blackmon, County Manager Orange County Manager's Office P.O. Box 8181 Hillsborough, NC 27278 Re: Employee Representation at aPre-disciplinary Conference Deaz Laura: You have provided us with a copy of a letter by Eugene •Farraz, President of the Chapel Hill-Carrboro Branch of the North Carolina National Association for the Advancement of Colored People, dated June 2, 2008 (the "Farrar Letter'. Among other things, the Farrar Letter asks for clarification concerning the County's. policy that denies its employees the right to counsel in the pre=disciplinary conference held prior to the suspension, demotion or termination of a County employee. Mr. Farrar alleges that, "[t]his policy is mean-spirited and, we believe, unconstitutional, when applied to ~ emgloyee, 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.m The County does have a policy that prevents third parties, including attorneys or other representatives from being present at the pre-disciplinary conference.2 The State of North Carolina similarly prohibits its employees from havin~ an attorney present at the pre-disciplinary conference held pursuant to the State Personnel Act. In Orange County, a "pre-[disciplinary] conference" is required under the Personnel Ordinance before a Permanent 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, or suspension. Specifically, Section 4.d.(1) of Appendix 1 "Required Disciplinary Action Process" of the Orange County Personnel Ordinance states that, "[n]a Hurd parties, including attorneys or other representatives may be present at this [pre- diseiplinary] conference." Unlike apre-disciplinary conference held pursuant to the State Personnel Act, the County's Personnel Ordinance does contain a provision that allows the 1 Although not otherwise discussed in this letter, the same standards apply in a North Carolina Constitutional challenge based on the North Carolina `2.aw of the Land' clause [N.C. Constitution Article T, ~ 19] which includes the applicable due process of law requirements of the United States Constitution. 2 See Section 4.d.(1) of Appendix 1 "Required Disciplinary Adion Process" to Section 4.0 `Disciplinary Action" of the Orange County Persommet Ordinance. 3 See Part V.F. of the "DisciplinelAppeals/Grievances Section of the North Carolina State Personnel Manual.