Board approves first draft of administrative leave policy changes

LAKEPORT – The Board of Supervisors on Tuesday approved an update to county personnel rules that would impose a limit on the time alloted for paid administrative leave.


Board members asked county Human Resources Director Kathy Ferguson – who worked on the policy updates – to bring back a final version for next week's meeting.


Supervisor Rob Brown, who put the item on the agenda, said he surveyed county department heads on the issue, and received a good response, with all those replying saying they supported it and it was necessary.


Currently, county policy does not limit the length of time for paid administrative leave that results when an employee is under investigation for misconduct. The new policy would impose a 45-day limit on the time department heads have to conduct investigations into allegations against employees.


Brown said he and Sheriff Rod Mitchell discussed the matter several months ago and agreed it should go before the board.


Supervisor Denise Rushing asked if there was any idea about how many employees currently are on administrative leave.


Ferguson said they didn't currently have such a determination, because there is no unique payroll code to track it.


County Administrative Officer Kelly Cox said there has never been an issue with too many employees being on administrative leave at one time.


He said there is one department that uses it more than others, and he estimated that about 90 percent of departments – including his – have never used it at all. After the meeting he told Lake County News that he estimated the sheriff's department used the policy the most because of the nature of the work it does.


Brown said that some staff on administrative leave are still receiving stipends, and that needed to be cleaned up. Cox said employees continue to accrue holiday pay and benefits while on leave.


Brown also raised the issue of employees on leave working at other jobs, which he said he had indication was happening. However, after the meeting he told Lake County News that he couldn't discuss the specifics because the cases in question may be coming before the board on appeal.


Cox said he supported Brown's request, and suggested they can start requiring department heads to file some kind of document with the Human Resources Department so they can track the leave.


Board Chair Anthony Farrington said he was concerned about employees being placed on leave without swift action being taken. He said he wanted to make sure employees' rights are protected, but added, “There is a cost to the taxpayer” if such leave stretches out too long.


Farrington said the board's job is to be a good conduit from the community to the government, and it's hard for the community to have faith in them if they can't keep track of their own employees. He questioned the ability to enforce a 45-day investigation timeline, and asked if extensions could be offered if the work can't be done in time.


The draft policy said that extensions to the 45-day investigation limit must be requested by the department head in advance, and would require both the approval of the human resources director and county administrative officer.


“I support this policy. I think it's a great idea,” said Farrington, but he added that they need to be able to communicate about the employees to the board without violating confidentiality.


Rushing suggested the board could receive a report on how many employees are on leave that resembles an accounting aging report.


Farrington said if there are certain “egregious or heinous acts” involved, the board needs to be aware of that. He said it's happened to him twice this year that he's found out about a serious case from either a constituent or the media.


Ferguson said that once they establish a payroll code tracking administrative leave it will be very doable to monitor such leave. Now, she may not know of a situation until there is a notice of proposed discipline.


“I don't even know the reason why some employees are on administrative leave right now,” added Cox.


County Counsel Anita Grant pointed out that the proposed rules include three situations under which an employee can be removed from duty: their presence at work will obstruct, hamper or otherwise hinder the investigation into the allegations; the employee poses a threat to the department or county; and termination of the employee is likely to be the investigation's outcome of the allegations are upheld.


Grant said a report to the board on administrative leave could refer to the reasons for employees being on leave by referring generally to one of those three reasons.


“It seems to me that I don't want to know those details,” Brown said, noting his concern that some of those cases could come to the Board of Supervisors, which would act as a board of appeal. He said employees have the right to an appeal process without prejudice.


Farrington said they could have generic language in a report. “I don't think we should have specifics.”


Cox said department heads don't want information to get out about their employee-related investigations. “It's going to be hard to provide as much information as you'd like to have because we don't have it,” he said.


Rushing asked if there were circumstances in which an employee would be put on leave without pay. Cox said that could happen in circumstances where, if something is bad enough, discipline could start immediately.


“Is there ever a time when this comes to the board where we say, enough is enough?” Rushing asked.


Cox said he wanted to see a limit to the number of extensions granted for the investigation process before it gets to the board.


Supervisor Jeff Smith said he believed all the information the board needed to have is that an employee is on leave pending an investigation, because they may find allegations aren't true.


Brown added, “Not all appeals have gone in favor of the department.”


He said what drove the discussion was the county's midyear budget review a few weeks ago, and the realization that they may have to lay off some employees. He asked how the county can, in good conscience, have a policy that allows someone to be on leave indefinitely while good people who want to work are being laid off.


Smith asked if they can put language in the policy preventing an employee on leave working a second job.


Grant said the county's personnel policy covers second jobs, which Ferguson later explained requires permission from the department head.


“With administrative leave they should not be working on another job at the same time,” because there is an automatic conflict, said Grant.


Grant said that there would not be a need to meet and confer with the county's employee unions on these changes to personnel policy. “There is no penalty to the employee here, the onus is on the department head to complete the investigation within the time frame.”


At the end of the 45-day investigation, Ferguson said the department head must do a notice of proposed discipline or put the employee back to work if the allegations are unsubstantiated.


She said the policy change doesn't limit the time on the overall administrative leave process, just the time for investigation.


Ferguson told Lake County News that there is a second aspect to such personnel matters, which is the "pre-disciplinary process." That begins once a notice of proposed discipline is served. It can vary in length depending on which employees' unit is involved.


During the pre-disciplinary process, the employee has the right to respond in writing or verbally and has the right to have representation present during the response, which Ferguson said is made to a hearing officer.


She said the hearing officer then prepares a report and recommendation for the department head in the case that the officer isn't also the department head. The department head then considers those final recommendations and makes a decision on the final discipline notice.


Mitchell said he supports plan


Sheriff Rod Mitchell joined the discussion, noting that he had contacted law enforcement agencies in other counties to see how they handle administrative leave, and he was asked by some of them to let them know what Lake County ultimately implements.


“It's an issue for other agencies, too,” he said.


He said most don't agencies have a time line for administrative leave investigations.


In his department, they're averaging about 57 days for administrative leave, minus the extreme cases. Those include people who are brought back to work.


He said the 45-day investigation time frame “seems to be very doable.” His department also is analyzing how they can complete investigations more quickly.


Between January 2008 and this past January, there have been 11 administrative leave cases in the sheriff's office, Mitchell said. The average case lasted just under two and a half months.


Cases involving termination averaged six and three-quarter months from start to finish, while those not resulting in termination averaged five weeks, Mitchell said.


He said the sheriff's office wants to fully support the changes. The reporting requirements and time lines can ensure investigations aren't placed on the back burner.


If the policy was adopted, Mitchell said they would immediately include it in their employees' notification packet. That would put the employees' legal counsel on notice.


He said he also wants to explore with Grant and Ferguson a kind of “administrative assignment.” He said they can't reassign employees to other duties for the purposes of discipline unless such an assignment already exists.


Mitchell also noted during the discussion that they all agree that there is a prohibition against an employee on administrative leave working another job.


Ferguson said she could have an updated version of the policy to the board within a day or so. Brown said he wanted the matter placed on next Tuesday's agenda.


Grant told Lake County News after the meeting that the updated draft of the policy likely will include a restating of check-in policies that employees on leave must follow with their departments, as well as reinforcing that they will be held to all standards, including not being able to have a second job without permission.


A copy of the draft policy follows. Changes to the existing county policy are underlined.


1508: Leave With Pay – Upon the determination by the department head or his/her designee that an employee should be removed from duty pending proposed disciplinary action, such employee may be placed on leave with pay when:


  1. the employee's presence at work will obstruct, hamper, or otherwise hinder the investigation into the allegations;

  2. the employee poses a threat to the department/County; or

  3. termination of the employee is the likely outcome if the allegations are upheld.


Such leave shall extend for the actual period necessary to complete an investigation into the allegations; however, such leave shall not exceed 45 calendar days except as provided by this rule. A the conclusion of the investigation or the 45 calendar days of paid leave, whichever is sooner, the employee shall be served with a notice of proposed discipline or shall be instructed to return to active work at the beginning of the next work shift. If discipline is proposed then leave with pay shall extend through the period required to complete the pre-disciplinary process.


Extensions to the 45 day investigation limit must be requested by the department head in advance and in writing using the required form. Approval of an extension request requires the concurrence of both the Human Resources Director and the County Administrative Officer.


E-mail Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow Lake County News on Twitter at http://twitter.com/LakeCoNews and on Facebook at http://www.facebook.com/pages/Lake-County-News/143156775604?ref=mf .

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