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Collective Bargaining Reporter

Civil Service Reform

2002 Number 1

By Brian Klopp

HISTORY OF CIVIL SERVICE

An environmental inspector hired by the mayor is assigned to investigate illegal dumping activity in an isolated part of the city. The finds that the business responsible for the dumping is a heavy contributor to the mayor's campaign. The inspector must decide between loyalty to the public and loyalty to the mayor who hired him. It is this type of situation that originally prompted civil service reform over a century ago. While these situations have not been wiped out, they are much less common since civil service systems were put in place.

Because of its history, it is not surprising that many experts view civil service as much more than a system of public personnel administration. Civil service began as a reform movement in reaction to abuses of the spoils system. Since the time Andrew Jackson was President in the 1830s, "spoils" had flourished as the nation's system for public personnel administration. The rationale behind the spoils system was that a new administration needed people in public positions who could be counted on to faithfully administer its policies.

The spoils system became indefensible, however, as the rapid "rotation-in-office" of unqualified individuals led to rampant corruption and inefficiency. Civil service was seen as critical for the success of our public institutions. It was in 1883, two years after Pres. James Garfield was assassinated by a disappointed office seeker, that the Pendleton Civil Service Act was put in place to "regulate and improve the civil service of the United States." Many states and local governments enacted civil service systems in the decades that followed.

Memories, however, are short. Now, citing a need to increase flexibility in hiring and firing, and to more closely resemble private-sector personnel systems, many jurisdictions are attempting to weaken or even eliminate civil service rules. Individuals pushing for changes to civil service systems claim that it takes too long to get positions classified and filled, that classification standards are too complex and inflexible — making it difficult to move employees around as needs and funding change — and that disciplining and removing poor performers is difficult.

CIVIL SERVICE AND THE MERIT PERSONNEL SYSTEM

The basis of a civil service system is the merit personnel system. The principles of a merit personnel system typically include the following elements, which apply to federal employees and are codified at 5 U.S.C. 2301 (b):

(1) Recruitment should be from qualified individuals, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management.

(3) Equal pay should be provided for work of equal value.

(4) Employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of the adequacy of their performance and inadequate performance should be corrected. Employees who cannot or will not improve their performance should be separated from service.

(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.

(8) Employees should be -

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.

(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences -

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

At the state, and occasionally local level, an administrative body, such as a civil service commission, is i usually established to ensure that the employer is following the civil service rules established by that jurisdiction.

RECENT DEVELOPMENTS

Regardless of the particulars of a jurisdiction's civil service law, some government officials now see "merit" as having a different meaning, and are setting out to eliminate the basic protections that have served as the foundation of the civil service for over a century. Proponents of civil service reform argue that changes will free public employees and managers from bureaucratic restraints, increase their authority and flexibility, and give them more control over their work. Proponents, however, often overstate potential benefits, and exaggerate problems with the current system, in order to sell the plan to colleagues and constituents.

Based on these claims, states across the country have recently made, or are considering, significant changes to their civil service systems. These changes range from complete overhauls, as occurred in Georgia in 1996, to reversals of reform measures enacted previously, as occurred recently in New Jersey.

Georgia

In 1996 Georgia enacted "GeorgiaGain," a comprehensive reform of its civil service system. GeorgiaGain went far beyond any other changes made to civil service systems in recent history. The biggest change, which went into effect July 1, 1996, made anyone hired by the state after that date an "at-will" employee, without merit-system protection. Gone are competitive testing and scientific methods to classify jobs. Now, each state agency is responsible for creating and administering its own personnel system: defining its own job classes, qualifications, pay, and recruiting and hiring standards. The state's central personnel agency now serves primarily as a consultant to those agencies.

There is no oversight to ensure consistency among agencies in how they deal with the whole range of personnel issues, including pay scales, hiring policies and disciplinary actions. The situation worries even some Georgia personnel professionals, who remain unconvinced that the new system will spur top performance. Perhaps more importantly, there are concerns that management will mistake freedom for license and that abuses will follow, whether based on personal or political favoritism, or simple incompetence.

It is now five years since GeorgiaGain was implemented, and employee impressions have not been favorable. While Governing magazine recently reported that agencies are hiring faster and terminating low performers more quickly under GeorgiaGain (probably due to limited appeal rights), a November 2000 survey of 2,500 Georgia state employees, conducted by Professor Lloyd Nigro of Georgia State University and Professor J. Edward Kellough of the University of Georgia, revealed that:

(1) Over 75 percent of those surveyed disagreed with the statement that GeorgiaGain had resulted in a workforce that is more productive and responsive to the public.

(2) Sixty-four percent of respondents disagreed with the statement that their agencies had effective human resources programs under the new law.

(3) Only 36 percent felt that agencies effectively exercised their authority in establishing job classifications, assigning pay rates and determining performance standards.

Also, a substantial number of employees viewed promotions and pay increases as being bestowed upon favored employees under performance standards that are often vague and arbitrary. Meanwhile, with or without reforms, employees were upset that the previous administration's promise to raise pay didn't materialize — Governing recently reported that the salary structure continues to pay state employees 20 percent below market rates. At the time it was enacted, Gov. Zell Miller called GeorgiaGain the most significant change in state personnel administration in 50 years. While changes to the system may have been significant, thus far it does not appear that improvements in productivity or public service have been significant.

Florida

In 2001 Florida Gov. Jeb Bush announced his plan for civil service reform — Service First (or Service Worst, as dubbed by the Special Master assigned to hear the dispute between the state and AFSCME). Some of the key proposals in Governor Bush's plan included:

(1) Removing 16,000 employees from the career-service system and placing them in appointed positions, stripping them of any job protections.

(2) Allowing agency heads to use "sound discretion" in firing workers — a weakening of the just cause standard.

(3) Eliminating the independence of the Public Employee Relations Commission, the duties of which included hearing disciplinary appeals.

(4) Getting rid of bumping rights — the ability of senior employees to move into the jobs of less senior employees if they are laid off.

(5) Allowing agencies to award bonuses to workers for top performance — a change from the current system of giving across-the-board increases.

AFSCME, which represents state employees, countered with several proposals designed to give the parties the opportunity to discuss problems and solutions through a joint labor/management committee or similar process.

AFSCME did manage to soften the blow of Service First. Perhaps most importantly, the Senate Committee on Governmental Oversight and Productivity agreed to require "reasonable cause" as the standard for firing employees. The bill was then approved by the House and Senate along party lines. Thousands of state employees, however, followed the union's recommendation and voted decisively in May 2001 to reject a contract that incorporated the Service First plan. Meanwhile, AFSCME continues to negotiate and has challenged Service First in court.

Ohio

In Ohio, a Civil Service Review Commission recently recommended a series of technical changes that would undermine elements of the civil service system that protect employees from the political whims of appointing authorities (see box).

The proposed changes in Ohio could also have a significant impact on union members at the bargaining table, as management has historically pushed for revisions to the civil service laws and then argued that the corresponding changes should be adopted in bargaining.

Our Ohio affiliates have responded to these recommendations with their own plan, which proposes a labor/management partnership as the vehicle for addressing the real challenges facing Ohio government. Those challenges include an aging public workforce that could lead to a wave of retirements in the near future as well as funding pressures created by the weak economy coupled with increased demand for public services in the wake of Sept. 11.

CURRENT STANDARDSPROPOSED CHANGES
As a form of discipline, appointing authority may reduce, suspend or remove the employee.Allow for other forms of disciplinary action such as decreasing or eliminating an employee's longevity.
Reasons for layoffs are limited to a lack of funds or work, or effective reorganization.Expand the "lack of funds" rationale for layoffs so that if the shortage is in a program area funded through special revenue and proprietary accounts the movement of funds is no longer mandated.
Allows displacement of less senior employees in the same or similar job classifications, or in classifications held by the employee within the last five years.Limit displacement so that employees can displace only less senior employees within their current classification series.
Recall and re-employment rights provide employees options with minimal loss; each department maintains its own recall list.Establish one recall list for all employees, with an employee's refusal to accept employment with any agency resulting in the removal of the employee's name from the recall list.
Restrictions on temporary and interim appointments; 30-day limit on emergency appointments.Remove restrictions on temporary, interim and intermittent appointments, and extend limit on emergency appointments to 120 days.
Applicants take written civil service exam administered by the Ohio Department of Administrative Services.Expand testing to include all types of measures, including personality tests and honesty tests.
Veterans receive a credit when they achieve a passing score on a civil service examination for a position at the state or local level.Give city and county employers the option to establish their own veteran's preference policy based on community interest.

Other States

In New Jersey, then Gov. Donald DiFrancesco signed two measures in 2001 that reversed civil service reforms enacted by the previous administration. One measure reinstates the requirement that the state negotiate with public employee unions over changes in compensation, and the other makes seniority, rather than performance evaluations, the most important factor in creating layoff lists.

Hawaii, where the legislature sunsetted all existing civil service rules as of July 1, 2002, intends to create a "modern" civil service system from scratch. Proponents claim the old system was rigid and led agencies to hire temporary workers in droves as a backdoor way of avoiding the rules. Although it is not yet clear what Hawaii's new civil service system will look like, the state has already moved forward with some changes, and there is concern that additional changes could be harmful to employees.

The state has implemented broadbanding: a job classification structure with significantly fewer classifications than a traditional system. For workers, this could be either good or bad. If implemented in the context of broader organizational changes to promote worker participation in decision-making, teamwork and career development for employees, broadbanding can have a positive effect. If, however, the goal of broadbanding is to cut costs and make it easier for managers to shift workers from task to task, it could lead to arbitrary job assignments, stifled promotional opportunities or, worse, the downgrading of work. (See the Spring 1997 issue of the CBR for more information on broadbanding.) Also, although state employees no longer have interest arbitration, they do now have the right to strike.

In Arizona last year, a state law was enacted that allows employees to sacrifice their civil service protections for an increase in pay. Thus, by moving into an "uncovered" position, an employee can be terminated at any time by the state without reason. Furthermore, once a position is uncovered, it remains uncovered even after the incumbent leaves that position and is replaced by a new employee. In May 2001 the Arizona Attorney General issued an opinion concluding that a state employee is covered by the state merit system absent a constitutional limitation or unless the employee holds a position that is exempt from the state personnel system. As a result of the Attorney General's opinion, it appears that there may be legal grounds for challenging the "uncovering" of positions.

EFFECTIVE RESPONSES TO CIVIL SERVICE REFORM

There is no denying that public service faces serious challenges. The focus of any reform effort should be how to best deliver cost-effective, high quality public services. The best forum for addressing those issues is a labor/management partnership that includes real input from employees and other stakeholders. There may well be aspects of an existing civil service system that are antiquated and inefficient. On the other hand, many proposed changes may bring about perceived convenience without addressing any real issue. Problems with civil service will not be solved by merely freeing management from rules and limits. Managers, given flexibility, will not automatically do what is right. It is important to keep in the forefront the principles that provide crucial protection for employees from arbitrary and discriminatory treatment, and protections to the public to minimize patronage, promote fairness and create a professional and stable workforce.

It is also important to ensure that changes in civil service do not weaken the collective bargaining agreement. A general clause in a collective bargaining agreement may provide some protection against changes to civil service rules: "Any provision of this Agreement shall be determined a valid exception to, and shall supersede any existing or future civil service laws, rules, regulations, directives, orders, policies, or practices which conflict with this Agreement."

For more information on civil service reform, please e-mail research@afscme.org, call (202) 429-1215 or write to: AFSCME Department of Research and Collective Bargaining Services, 1625 L Street, N.W., Washington, D.C. 20036-5687.