Civil protections curtailed for state workers under McCrory bill

rchristensen@newsobserver.comMay 14, 2013 

— The legislature is poised to curtail civil service protections for state employees, giving preliminary approval Tuesday to a bill pushed by Gov. Pat McCrory.

House lawmakers voted 110-5 to remake the grievance procedures for about 90,000 state workers, moving the key link in the appeal process from the hands of an independent administrative law judge to hearing officers named by political appointees of the governor. The House is expected to give its final approval Wednesday, sending the bill to the Senate.

At the same time, the bill would increase the number of political hires – positions exempt from the civil service protections of the State Personnel Act to 1,500. Six months ago there were just 400.

“What North Carolina is proposing to do, is happening in other states,” said Rick Kearney, a public policy professor at N.C. State University and an expert on government personnel policy.

Similar legislation has been pushed by other Republican governors. Georgia and Florida did it a decade ago, Tennessee and Arizona did last year and Kansas is now considering a similar bill.

Only five Democrats voted against McCrory’s proposal. Dana Cope, head of the State Employees Association of North Carolina, said his group opposes the bill in its current form, but is making progress on discussions with the administration and hopes to see changes in the Senate. Cope said SEANC had not urged House Democrats to fight the bill in consideration of the ongoing negotiations.

But some public policy experts are not reticent about their criticism.

“What is being proposed here would basically revoke meaningful employee grievance rights and make it purely up to management, i.e. political appointees, to determine the outcome of grievances,” Kearney said. “So it would really be a losing game for state employees.”

But Leslie Scott, executive director of the National Association of State Personnel Directors in Lexington, Ky., says recession-battered states are trying to gain more flexibility over their work forces.

“It’s not an effort to harm employees,” Scott said. “It’s an effort to make the work force much more nimble and adaptable to the current business environment and government environment.”

Neal Alexander, McCrory’s state personnel director, disagrees that the measure diminishes job protections.

“There is nothing in this act that takes anything away from employees that they have now,” Alexander said.

He described the legislation as an effort to both modernize the state personnel laws and streamline the grievance process, cutting the average 462 days period by more than half. It also allows new employees to go from probation to career status more quickly.

Lawyers, judges critical

In addition to SEANC’s opposition, the administration bill has also drawn criticism from attorneys who represent state employees and judges who hear the cases.

They argue that, aside from making it easier to fire state workers, House Bill 834 does nothing to improve the process. They argue the changes lengthen the appeals process and are likely to make it more costly and less open to public scrutiny.

The key change involves how the new law handles a state employee’s right to appeal a disciplinary dismissal, suspension or demotion.

The appeal process now has several steps. In contested cases, the important step is at the Office of Administrative Hearings, where independent, administrative law judges hold quasi-judicial hearings with discovery, evidence, witness testimony and attorney arguments.

The proposed law would replace those judges with “hearing officers” designated by the director of the Office of State Personnel, a political appointee serving at the pleasure of the governor.

The Office of Administrative Hearings would be relegated to a lesser role. It would have 60 days to conduct an appellate-style review of the decision of the hearing officer.

“We think employees need timely resolution to their concerns,” Alexander said. “If there are situations that have to be overturned and employees brought back to work, then back pay and re-instatement would be done quicker.”

It is not clear from the new law, say lawyers, what rights a state employee would have before the hearing officer, whether they could have counsel and whether witnesses could be cross examined.

Although not stated in the bill, Alexander said state employees would likely be able to have their lawyers present. He said hearing officers would be trained, career employees who would not be influenced by politics. And he said the hearings would not be conducted like quasi-judicial hearings as they are now and would be closed to the public.

“I understand the need for being transparent, but the other thing is that we also want to be fair and use discretion,” Alexander said.

In the past, administrative hearings held in public have brought to light such indiscretions as a Department of Transportation employee accused of sleeping on the job five times, a state trooper who lost his job after having a drunken sexual encounter with another trooper’s wife in the back seat of a car, and of a trooper kicking his dog.

Julian Mann III, the director and chief administrative law judge, said the current system is working well. Of the 13,000 cases the OAH hears every year, only 200 involve personnel issues – and in most cases judges try to mediate the cases and resolve them before they go to a full-blown hearing.

Legal challenge possible

He said the U.S. Supreme Court has approved the due process procedures used in grievance procedures by the administrative law judges, but said it not clear that is the case involving the system being proposed.

“These procedures ... would likely be subject to some sort of constitutional challenge,” Mann said.

The proposal would also expand the number of state employees exempt from the protections of the State Personnel Act to 1,500. It was expanded by the legislature from 400 to 1,000 in January. Alexander said McCrory wanted to add three offices that had no exempt positions: ITS, Office of Budget Management and the Office of State Personnel.

The trend in North Carolina and other states to move away from civil service protections is troubling to some experts such as Kearney of NCSU. He said it was the business community that initially pushed for a civil service system as part of the Progressive Movement in the late 1800s and early 1900s as a way to develop professionalism in government.

“This is taking a step away from a core principal of American government which is that the bureaucracy should be neutrally competent, should be objective, should not be politicized, and there should be a professional public service,” he said.

But Scott, of the state personnel executives, sees the changes as part of a national reform effort.

“It is focusing on rewarding performance and having higher performers interested in working for state government and possibly staying there.”

Christensen: 919-829-4532

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