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

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'/ is used to determine whether or not the pre-disciplinary hearing of an employee is adequate under the Dne Process Clause of the fourteenth amendment This test involves the balancing of "the competition between (a) the employee's interest in his employment, (b} the• government's interest in an expeditious and effective tool to discipline unsatisfactory employees, (c) the government's interest in the avoidance of undue administrative or fiscal burdens, and (d} the risk of an erroneous deprivation of the employee's interest "i2 The Fourth Circuit Court of Appeals in Garta~hty v. Jordan, applied the Loudermill balancing test in a case where plaintiff, a prison warden in Virginia, was suspended without pay from his job for five days and subsequently challenged the suspension on due process and other grounds. The facts of brat case were that Garraghty was ordered by his superior to travel from his post to his superior's once im order to discuss allegations of insubordination. Garraghty was not told directly that the meeting could result in his suspension, nor was he irtformed directly about the nature of the accusations against him until he arrived at the meeting with his superiox. Garraghty was given am opportunity to explain his act of insubordination at the meeting. However, "Virginia regulations in place at the time of Garraghty's suspension only allowed for an appeal of suspensions of less than ten days so Garraghty had no post suspension administrative hearing.s13 Garraghty was suspended for five days without pay by his superior after fmding his explanation o~ the insubordination lacking. After analyzing the balancing factors listed above, the. Garra• Court noted that, "[f]urther formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the disciplinary process."~4 Ultimately, the Garra Court held that, "[w]e agree with the district court that Garraghty received `all the hearing he was entitled to. ",15 • Orange County employees receive greater due process protections prior to receiving a suspension without pay than did.Garraghty. First, unlike in Gaixa 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 summary of the information which management believes supports the proposed action prior to the pre-disciplinary conference.;6 Thereafter, the pre- discipiinary conference is held with the employee's department head andJor management representatives wherein the employee receives a review of the facts giving rise to the proposed dismissal and the employee has an opportunity to respond to the charges against him. The applicable rules in Orange County require the department head to consider the information the employee has presented at the pre-disciplinary conference grior to determining if the disciplinary action is wasanted. Finally, also unlike Ga~aah •v. County employees are given notice of their appeal rights and can challenge the disciplinary action via the formal appeals process that includes being represented by counsel at a hearing before the County Personnel Soard. Because the Due Frocess Clause of the United States Constitution requires apre- deprivation hearing or conference• in the public employment context that is no more formal or extensive than those required by Gana and because the County's pre deprivation ~ Gar l at 1301 (citing Laudeamill). ~ Id. at 1297. is Id. at 1302, quoting Goss v. Lopez. 419 U.S. 565, 583 (1975). 151d at 1299. '¢ Section 4.c., Appendix I, Article IX, Orange County Personnel Ordinance.