NorCo: What Are Exempt Employees?

When he was elected NorCo Executive, John Brown's idea of a transition was a private meeting with GOP party leaders in the back room of Michael Snover's law office. That's how he made his initial appointments. There was no transition team and no transparency. So it should come as no shock that one of the first things he did as Executive was to fire a career service employee without due process. This mistake cost the county at least a quarter million dollars.

This employee, who just happened to be an assistant county solicitor, sued. A damages award in her favor was affirmed by the Third Circuit Court of Appeals, the second highest court in the nation.

In that case, Brown tried to argue he was merely reorganizing the department. Here's what the court said.

We are aware of no court that has permitted the government to subvert the requirements of the Fourteenth Amendment with a sham reorganization. If the government were allowed to undertake sham reorganizations to dismiss an employee who was otherwise entitled to due process, Northampton’s proposed “reorganization exception” would eviscerate a public employee’s procedural due process rights altogether.

Unlike John Brown, Lamont McClure has a real transition team in place. They can steer him away from mistakes like the one made by Brown. But as a lawyer who served on Council for en years, McClure already knows that he is unable to terminate a career service employee through a sham reorganization.

Career service employees can only be terminated for "just cause," and are entitled to a pre-termination hearing.

He can, however, terminate an "exempt" employee for any reason he wants.

What are exempt employees? The Third Circuit answers that question, too.

The nine exemptions from the career service are: (1) all elected officials; (2) the heads of agencies immediately under the direction and supervision of the County Executive; (3) one confidential or clerical employee for each of the above officials, except for members of the County Council; (4) the Clerk of Council and the staff of the County Council; (5) the members of authorities, boards, and commissions; (6) permanent, part-time professional employees; (7) provisional, probationary, and temporary employees; (8) officers and employees required to be included in a state merit or civil service system; and (9) officers and employees whose inclusion in the career service would be prohibited by the law of Pennsylvania.

Put simply, all cabinet officials serve at McClure's discretion. So does one confidential employee for each one of them. He can also discharge permanent, part-time professional employees like Assistant County Solicitors or the Chief Public Defender.

The obvious reason for this is that an executive should have a core of employees in whom he can confide and who he knows are loyal to him.

I have no idea what, if any, changes McClure expects to make. That's his call. But I am sure that whatever personnel changes there may be, they will be done correctly.