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

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prohibition on the presence of attorneys or other representatives to be waived with the consent of bath the department head and the employee. For the following 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 attorney or other representative, present at apre-disciplinary conference does not violate the United States Constitution as long as the employee: (a) is given notice of the pre-disciplinary conference; (b) has an opportunity to refute the charges against him at the pre-disciplinary conference; and (c) is entitled to apost-deprivation appeal. Each of the three processes above are currently required and/or allowed under the County's Personnel Ordinance. The Fourth Circuit Court of Appeals5 has developed a two part test for determining whether or not a public employee's due process rights are violated by a disciplinary action. The relevant test is: (a) whether the discipline imposed deprived the employee of a property interest protected by the fourteenth amendment 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 ~in the jobs of many of its employees. We will assume, without conducting furthei analysis, that the employee that is the subject of the Farrar Letter does in fact have a property interest in his continued employment with the County. "It is well settled that due process requires that a public employee who has a property interest in his employment be given notice of the ehaz~es against hinq~ and a meaningful opportunity to respond to those charges prior to his discharge." It is also well settled that the suspension of an employee without pay. is not a de minimus 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 aze 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 lroudermill, the United States Supreme Court ruled that Due Process requires, at a minimum, that a public employed with a protected property interest in employment be provided adequate notice of the charges a~ainst him and an opportunity to respond to those charges before being deprived of that interest.l .There is no allegation in the Farrar Letter that the. employee at issue did not receive proper notice of the pre-disciplinary conference, rather the allegation is that conducting the conference without the employee having an attorney present is unconstitutional. The Fourth Circuit Court of Appeals has held that, in regards to apre-deprivation hearing in the public employment context, "jt]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings."1 The United States Supreme Court in Loudermill developed a balancing test that a See Section 4.d.(1} of Appendix 1 "Required Disciplinary Action Process" to Section 4.0 "Disciplinary Action" of .the Orange County Personnel Ordinance. s The Fourth Circuit Court of Appeals is the Federal appellate court for each Federal District Court of North Carolina, and its decisions constitute binding precedent for Federal District Courts in Nor#h Camlina.. e See Gar<sehty v. Jordan, 830 F.2d 1295,1299 (1987). r S~ I~ {internal citations omitted). e Garra~hty v. Jordan, 830 F.2d 1295, 1299 (1987)(uiternal citations omitted). 9 See Id. at 1299. 10 Cleveland Board of Education v. Loudermill. et. all.. 470 U.S. 532, 541(1985). `~ Gana at 1300 (quoting Laudermill at 569-570).