McCrory exempts more state workers from civil service protections

lbonner@newsobserver.com bsiceloff@newsobserver.comAugust 30, 2013 

  • Political patronage, then and now

    The number of “at will” positions under Gov. Pat McCrory and under former Gov. Bev Perdue, according to the Office of State Human Resources:

    Agency Perdue McCrory
    Department of Administration 1550
    Department of Environment and Natural Resources 24167*
    Department of Commerce 3562
    Department of Health and Human Services 79388
    Department of Public Safety 102106
    Department of Revenue 1623
    Department of Cultural Resources 1311
    Department of Transportation 44167*

    * DENR puts McCrory’s number at 165. DOT put the numbers at 54 under Perdue and 175 under McCrory

Hundreds of state workers received notice this summer that they are in patronage jobs and no longer have the right to protest being fired.

It’s not only Cabinet leaders, their deputies and division leaders who are exempt from civil service protections. Gov. Pat McCrory expanded the employees who work without protections to local transportation managers who pave roads and build bridges, and regional environmental regulators who approve permits and fine polluters.

Months after former Gov. Bev Perdue left office, at-will government jobs nearly tripled under McCrory, and he’s allowed to add hundreds more before the year ends. In two waves, the Republican-controlled legislature opened up state law to give McCrory 1,500 positions exempt from civil service protections. McCrory has assigned 974 jobs to at-will status so far.

During the Perdue administration, about 400 exempt positions were allowed, and she designated about 330 at-will jobs.

Proponents say the new positions give McCrory the flexibility to shape government to match his vision, while critics contend that it improperly exposes former rank-and-file employees to political pressure.

Exempt positions “allow an administration to put leadership in place that aligns with the administration’s goals and objectives,” McCrory spokeswoman Kim Genardo said in an email. “Typically, exempt managerial and exempt policymaking employees serve as decision-makers, senior management or senior advisory positions, assisting the secretary of the agency in developing and carrying out the policies of the agency and managing the primary divisions of the agency.”

Less than 2 percent of state jobs are exempt positions, she noted.

Political loyalty

Eight agencies were affected by the patronage changes. The two departments where politics threaten to impinge on agency decisions, the state Department of Transportation and the state Department of Environment and Natural Resources, saw some of the biggest jumps in exempt positions.

The state Department of Transportation doubled the number of top-tier administrators with job descriptions that include an expectation of political loyalty.

DOT now has 33 employees in “exempt policy-making” positions, up from a previous 16. For these policy-makers, the state personnel law says, “a loyalty to the governor or other elected department head in their respective offices is reasonably necessary” to implement agency policies.

That makes sense, said Jim Trogdon, a 26-year DOT veteran who has been the department’s chief operating officer since 2009.

“At the policy level, it’s very important that we’re carrying out the policies of the executive branch,” said Trogdon, a Democrat. “It helps make sure we’re all aligning very well, pulling the wagon in the same direction.”

Most of these newly designated policy-makers are DOT’s 14 division engineers – regional administrators who oversee operations and implement policy changes at the local level. The division engineers are lightning rods for local political concerns.

Their authority is growing as McCrory and the legislature continue changes that they say will curb the role of political influence in road-building decisions.

The new personnel exemptions also make far-reaching changes in the ranks of second-tier DOT managers who formerly enjoyed all the job protections of the state personnel law. Now 134 of them – the previous number was 33, including those division engineers – are classified as “exempt managerial” employees.

Easier to replace managers

These newly exempt managers include nine Division of Motor Vehicles unit heads along with three supervisors reporting to each of the 14 division engineers – overseeing construction, operations and maintenance in the regional offices.

The new designation will make it easier for DOT bosses to replace these managers.

“Maybe the job isn’t a good fit for you, or you’re just not doing a good-enough job,” Trogdon said. “But it doesn’t mean a bad performance. It means (we’ve been) trying to put a square peg in a round hole.”

But Ted Vaden, a former DOT deputy secretary under Perdue, said it’s a bad idea to remove personnel protections from so many construction and maintenance engineers in regional offices, people who can be in close touch with local elected officials.

“I do feel they would be more vulnerable and susceptible to those kinds of contacts knowing they no longer have the protections they used to have,” Vaden said.

Ideally, people below the division directors responsible for several counties would have civil service protections, he said.

“The broad sweep of new exempt positions exposes a lot of people to pressure that doesn’t have much to do with their jobs and can impair even their ability to do their jobs,” he said.

One former DOT supervisor, who was fired in 2010 after clashing with bosses over a controversial highway project in Jackson County, warned that the new shift will hurt the public by giving politics a bigger role in local DOT decisions.

“In my opinion, professional engineering and the safety of the citizens is something that will be compromised,” said Jamie Wilson of Sylva, a 25-year veteran and former Division 14 construction engineer. “It will weaken the ability of a managing engineer, and you will become more of a political manager.”

Scandal led to restrictions

The legislative decisions giving McCrory more power to hire and fire in the state agencies reverse 1997 restrictions on patronage born of scandal involving a DMV employee. The employee received a $100,000 settlement from Democratic Gov. Jim Hunt’s administration and a patronage job at the state Department of Health and Human Services. Reportedly, he complained of intimidation at DOT.

The legislature passed a law that year restricting governors to 100 policy-making appointees from whom they could expect loyalty, and as many as 30 jobs in each department that were expected to be filled on merit, but where employees could be dismissed at will.

Exempt employees with 10 or more years’ experience removed from their jobs without just cause must be offered other jobs at the same pay. The state Office of Human Resources doesn’t know how many of the people McCrory exempted from civil service protections would be entitled to new jobs, but at DOT, 110 of the 114 newly exempt managers are 10-year veterans. To remove any of them from their jobs, DOT bosses would have to find them other jobs.

John Hood, president of the conservative John Locke Foundation, was critical of Hunt for his use of patronage, but approves of the legislature putting more jobs under McCrory’s control, considering the growth in the state’s population and in state government.

McCrory is the state’s first Republican elected governor in 20 years, and he took office overseeing agencies stocked with employees hired during Democratic administrations.

“It’s not surprising you might find a situation where a fair number of senior employees have strong views and have extreme difficulty carrying out different positions,” Hood said. “Fifteen hundred strikes me as a pretty large number. The question is, did they get the balance right?”

DENR targeted

The state Department of Environment and Natural Resources and its employees have been a target of Republican complaints for years.

In 2003, before the GOP won control of the legislature, Republican Rep. Roger West tried to use legislation to eliminate the jobs of two wetlands enforcement officers and an air quality supervisor. The Cherokee County lawmaker is now chairman of the House Environment Committee that considers new policies and the committee that helps write DENR’s budget.

Former GOP Sen. Don East of Pilot Mountain wanted to run a budget amendment in 2011 to eliminate the jobs of two top DENR deputies under Perdue. And former Rep. Mitch Gillespie, now a top DENR official, had a bulls-eye target on his legislative office window aimed at the agency’s headquarters.

McCrory made 167 DENR employees exempt from civil service protections – up from 24, the number the Office of Human Resources reports Perdue having in October.

It is common for DENR to field calls from governors, legislators and congressmen about constituents’ permits, former top officials said.

“There’s relentless pressure on regulatory agencies from the regulated community,” said Bill Holman, a former DENR secretary under Hunt.

People get mad when they’re fined or don’t like restrictions on the permits they get, Holman said, and they call their legislators.

It’s appropriate for top DENR officials, down to division directors, to serve at the governor’s pleasure, Holman said. But people in the field need to be professionals who can run complicated programs and enforce the law.

The new exemptions reach below the division directors and into the regional offices where employees make decisions about some permits and fines. Even the state geologist is now an at-will employee.

Coleen Sullins, a former director of DENR’s Division of Water Quality, said it’s not appropriate to extend patronage to front-line supervisors. “Those are career professional staff” who have the responsibility to see that regulations are properly followed, she said, and they should be shielded from political pressure.

She cited an unusual DENR decision in July to waive a permit that Cleveland County ordinarily would have needed to build a reservoir it wants as an example of “politics brought to bear on a very important decision.”

The Southern Environmental Law Center, representing American Rivers, is challenging the waiver decision at the state Office of Administrative Hearings, saying political ties and threats influenced the decision.

Asked about the rationale for the designations, a DENR spokesman said Gillespie was not available for an interview and referred to an email that DENR Secretary John Skvarla sent to employees.

“At all levels, our leadership is composed of scientists and professionals who are passionate about what we do. It would be not only irresponsible, but truly impossible to replace the knowledge, experience, and dedication of our key managers on a wholesale basis,” Skvarla wrote.

But another DENR leader, Tom Reeder, told water resources employees the legislature is watching them, and some of their jobs could be at stake.

The McCrory administration has combined the divisions of water quality and water resources. Reeder, the water resources division director, told employees in a video message last month that “specific elements” in the water divisions “have a poor reputation with the General Assembly” and only heavy lobbying from top DENR officials held off punitive legislative action last session.

“We’re only getting a six- to nine-month reprieve,” he said. The job of regulators is to help people get permits, help people who inadvertently violate regulations to avoid future problems rather then hand down heavy fines, and help citizens “meet whatever objectives they might have,” Reeder said.

“We’re in the people business,” he said. “If you don’t like that, you’re probably in the wrong line of work. I don’t mean to be negative, but I’m just being honest with you.”

Who's exempt, now and then

Positions exempt under McCrory's administration, by department:

Positions exempt under Perdue's administration

Bonner: 919-829-4821

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