Asheville City Council

Lawyers didn’t get an ounce of respect during Council’s Feb. 9 debate on proposed changes to Asheville’s personnel policy.

City Human Resources Director Jeff Richardson brought nine amendments to the policy before Council members — such as allowing department heads to grant vacation time to probationary employees (under the old policy, new employees had to wait until after their six-month probationary period before qualifying for vacation time). Another noncontroversial recommendation was permitting two consecutive workdays for bereavement leave, when a member of an employee’s immediate family dies.

Richardson also mentioned a change in the language defining “immediate family”: “In-laws were left out [in the old policy], and that was a mistake.”

Council members laughed, and it appeared that the nine amendments would be easily and quickly approved — prompting Council to applaud the efforts of Richardson and Assistant Director Kevin Wilson.

But then Asheville firefighter Mike Kniseley complained about changes to section 69 — that would remove an employee’s option to have his attorney present during what staff call a “predisciplinary conference.” Said Kniseley, who is president of the Asheville Firefighters Association: “If the employee is there by himself, the potential exists for the violation of due process. The option to have an attorney has worked well in the past: Please don’t change it.”

Such conferences are held as part of the formal investigation made when department heads are considering firing, demoting or suspending an employee, following an incident or complaint, Richardson explained. A Human Resources staffer — usually Wilson or Richardson — would normally attend such hearings, as a neutral party. The employee’s supervisor and department head would also normally be present. In the past year, there have been 15 such hearings; at nearly half of them, the employee brought an attorney; five of the hearings resulted in no action being taken against the employee; 10 resulted in dismissal, indicated Richardson.

Council member Barbara Field observed, “As soon as you bring the lawyer in, you create an adversarial atmosphere.”

Council member Chuck Cloninger, a lawyer, smiled at the gibe, and asked whether information gathered during the hearing could be used in criminal prosecution against the employee; in that case, said Cloninger, he could understand the employee’s need to have an attorney present.

“We may not turn that information over … for subsequent criminal prosecution,” Richardson replied, adding that state statutes prohibit it.

Council member O.T. Tomes suggested letting an outside mediator be present. Stressing that he trusts Richardson and Wilson to be fair and neutral in such meetings, Tomes observed that an employee walking in to confront his boss might naturally feel “the cards are stacked against him.”

City Manager Jim Westbrook noted that, if disciplinary action is taken subsequent to such a meeting, the employee has the right to an attorney and a hearing before the city’s Civil Service Board. “With an attorney present, it’s difficult to get the information out on the table,” Westbrook added.

“With all due respect to lawyers, there is that win/lose attitude,” said Mayor Leni Sitnick. She agreed with Tomes’ suggestion to let an outside mediator be present. Even though Richardson, Wilson or another Human Resources Department representative takes notes and functions as a neutral party at the hearings, “Who’s taking notes for the employees?” she asked, stressing the adversarial atmosphere lawyers create.

Cloninger burst out laughing: “For god’s sake! All this talk about atmosphere …”

Westbrook maintained that the atmosphere at such hearings isn’t really adversarial: “It’s an exchange of views on what happened.” He emphasized that no action is taken at such meetings. As for bringing in an outside mediator, Westbrook queried, “Who’s going to pay for that, and how long will [the process] last?”

But Tomes insisted on involving a neutral party. “Take it from me, when you know the establishment is against you …”

Cloninger interjected that renaming the hearings might lessen the adversarial atmosphere. “‘Predisciplinary’: Doesn’t that imply you’re going to be disciplined?”

Kniseley added that, while he respects Richardson and Wilson and trusts their ability to be fair, circumstances could arise in which their participation wasn’t sufficient to protect the employee. Removing the attorney option is “a step back,” he said.

As the discussion meandered back and forth, Westbrook suggested allowing the employee to choose a co-worker to attend the meeting with him.

Kniseley said that was a fine suggestion — if the invited employee were well-versed in the disciplinary process. Still pushing for the attorney option, he suggested that Council adopt the eight other, noncontroversial changes and put off addressing section 69 until “we can come up with a third answer.”

Vice Mayor Ed Hay — an attorney — took the opportunity to sum things up. He restated Richardson’s report that, about half the time, employees have felt the need to have an attorney present during predisciplinary hearings. And he reiterated a point Kniseley had made: “We shouldn’t expect all employees to be articulate [at these hearings] and say what they need to say. They may need someone to speak for them.” And an attorney, continued Hay, might already be representing the employee in some ancilliary case or issue related to the hearing, such as a workers’ compensation claim. In that case, too, an attorney would need to be present.

After his summary, Hay paused before conceding: “Kevin and Jeff are wonderful; lawyers are scum. Just take that as a given.”

“Lawyers are only scum till you need one,” Sitnick added, after the laughter subsided.

Then Hay came back to his original point: “Cutting lawyers out of it is not good idea.” He could also see the value of letting the employee to bring someone else with him to the hearing, whether it was a friend, a fellow employee, or a pastor.

“Leave the attorney option in there,” Council member Earl Cobb agreed.

So did John Hayes, president of the Asheville chapter of the NAACP. “If it’s not broke, don’t fix it. There are times when you need someone,” he remarked.

“I know what it means not to be treated fairly,” Wilson commented. He assured Council that he has been a neutral party during the hearings he has attended, and has often had to step in and protect the employee’s interests, when proper procedures weren’t being followed. “We wouldn’t have advocated pulling out the attorney if we didn’t think we could be fair,” he noted.

Changing the name of the hearings, however, would be a good idea, concluded Wilson: “‘Predisciplinary’ sounds like you’re going to walk through the door and the hatchet’s going to fall.”

Shortly after that comment, Cloninger moved that Council approve the eight nondisputed changes and direct staff to further study section 69. Seconded by Tomes, the motion passed, 7-0.