Personnel Actions Involving Employees of Area Mental Health Authorities

The provisions of the State Personnel Act govern discipline of all employees of Area Mental Health Authorities. N.C. Gen. Stat. § 126-5(a)(2)(a). The substantive law that governs discipline is set forth in Chapter 126 of the General Statutes and the administrative rules promulgated by the State Personnel Commission at Title 25 of the North Carolina Administrative Code ("NCAC"). The procedure that governs contested personnel cases is set forth in the State Personnel Act and Chapter 150B of the General Statutes ("North Carolina Administrative Procedure Act").

The list of personnel actions which can give rise to a contested personnel case by an employee against an Area Mental Health Authority are set forth at N.C. Gen. Stat. § 126-34.1(a). The list is exclusive. N.C. Gen. Stat. § 126-34.1(e).

The most common type of personnel action which gives rise to a contested case is dismissal for "just cause", N.C. Gen. Stat. § 126-34.1(a).

Employees can only be dismissed for "just cause". N.C. Gen. Stat. § 126-35(a). "Just cause" is broken into two broad categories: "unsatisfactory job performance", including "grossly inefficient job performance" and "unacceptable personal conduct". 25 NCAC 1I .2301(b).

"Unsatisfactory job performance" is work related performance that fails to satisfactorily meet job requirements specified in the job description, work plan or as directed by the management of the agency. 25 NCAC 1I .2302(a). "Grossly inefficient job performance" is a category of unsatisfactory job performance. Grossly inefficient job performance occurs when the employee fails to satisfactorily perform job requirements as specified in the job description or work plan and that failure results in the creation of the potential for death or serious harm, or the loss or damage to agency property or funds. 25 NCAC 1I .2303(a).

"Unacceptable personal conduct" is defined at 25 NCAC 1I .2304(b) through a list of several examples of such conduct. Prominent examples of unacceptable personal conduct include job related conduct which constitutes a violation of state or federal law, conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee’s service to the agency, and the willful violation of known or written work rules. Unacceptable personal conduct may be work related or non-work related conduct and may be intentional or unintentional. 25 NCAC 1I .2305.

In order to dismiss an employee for unsatisfactory job performance, the employee must have received one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal. 25 NCAC 1I.2302(c). Then, prior to the decision to dismiss the employee, the agency director must conduct a pre-dismissal conference. 25 NCAC 1I.2302(d). An employee who is dismissed must be given written notice of the specific reasons for dismissal as well as notice of any applicable appeal rights. 25 NCAC 1I.2302(e).

In order to dismiss an employee for grossly inefficient job performance there must be a pre-dismissal conference and written notification setting forth the specific reasons for dismissal and notice of the employee’s right of appeal. 25 NCAC 1I.2303(c), (d). The requirements to dismiss an employee for personal conduct are the same. 25 NCAC 1I.2304.

Requirements of what must be contained in the written warning are set forth in 25 NCAC 1I.2305. The written warning must inform the employee that it is a written warning and not counseling, the specific issues that are the basis for the warning, the specific improvements which must be made, the time frame for making the improvements, and consequences of failing to make the improvements.

Failing to Follow Procedural Requirements

Failure to follow these requirements can result in remedies provided in 25 NCAC 1B.0432. Specifically, failure to give written notice of appeal rights shall result in an extension of time in which to file an appeal. Failure to give specific reasons for dismissal may result in the award of back pay, attorneys fees, or both. Failure to conduct a pre-dismissal conference requires that the employee be granted back pay. Reinstatement is not a remedy for lack of a pre-dismissal conference.

If you have any questions regarding this article, please contact Tom West at 919.783.2897 or twest@poynerspruill.com. 

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