Mark Flatten

Undisciplined Bureaucracy: Raucous special session likely for Brewer's personnel reform plan

Posted on May 12, 2011 | Type: Investigative Report | Author: Mark Flatten
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Overhauling Arizona’s rules for disciplining state workers who are incompetent, ineffective, or behave badly remains a top priority for Governor Jan Brewer and lawmakers who say they will likely advance the issue in a special legislative session.

If they do, they can expect a backlash that could erupt into protests akin to those that occurred in Wisconsin earlier this year when legislators there were mulling a bill to curb the collective bargaining rights of public employees, the head of an Arizona labor union for government workers said.

A roughly 300-page proposal from Brewer would phase out existing civil service protections for state workers, moving them into an “at-will” system similar to what is typical in the private sector. Brewer has not released the bill or even a summary of the legislation. However, she did ask lawmakers in the waning days of the just-concluded legislative session to take up the issue before adjourning. But the governor’s request came too late, as lawmakers were anxious to wrap up a tough session, top legislators say.

The Goldwater Institute exposed the costly and cumbersome process that must be followed to discipline a government worker in a recent report, “Undisciplined Bureaucracy,” which showed that bad behavior ranging from sleeping on duty to sexual harassment typically is not enough to get a public employee fired. That investigation also showed that state workers are frequently put on prolonged periods of paid administrative leave during disciplinary investigations, often for conduct that ultimately warrants only minor reprimands.

A month after that report was published, Brewer included revamping the state’s personnel rules as one of her “Four Cornerstones of Reform,” a blueprint for changing state government she planned to pursue in the Legislature.

But Brewer did not publicly push her proposal to change the personnel rules throughout most of the legislative session. A few days before it ended in April, details of Brewer’s plan to give agency directors more power over personnel decisions began to leak out.

Support for Brewer’s changes is strong, said Senate President Russell Pearce, R-Mesa. Pearce said he and Senate Republicans wanted to take up the bill during the regular session, but logistical problems in the House led to the decision to put it off until later.

“I was disappointed that we didn’t stay and get it done,” Pearce said of passing the governor’s proposal. “It is huge. It’s way overdue and I’d love to see us do it.”

Kirk Adams, who resigned as House speaker on April 28 to run for Congress next year, said support for Brewer’s plan is high among Republicans who dominate the House. The bill came too late in the last session to send through the committee process and negotiate changes, Adams said, adding he expects it to either pass in a special session or be the dominant issue in the next regular session, which begins in January 2012.

If there is a special session on Brewer’s plan, labor unions that represent government workers would respond with massive protests as they did in Wisconsin in February 2011, said Sheri Van Horsen, president of the Phoenix chapter of the American Federation of State, County and Municipal Employees (AFSCME) that represents state workers. Union protesters jammed the Wisconsin capitol for weeks after Gov. Scott Walker sought limits on collective bargaining rights of state workers.

Putting state employees into an at-will system is unacceptable, she said.

“If she puts out just what she has in those bullet points, we will rally these state employees,” Van Horsen said of the governor’s proposal. “We are going to tell them that this is the last line in the sand for you.”

The Goldwater Institute’s two-part investigation into government personnel rules tracked more than 600 disciplinary cases from state agencies, the City of Phoenix, and the Tucson Unified School District. The reports showed that dismissing incompetent or disruptive government employees in Arizona has become a nightmare of paperwork and delay.

 Among the findings of the investigation:

• Firing an employee can take months, and in some cases years, because of the civil service rules built into the law, even when there is little dispute about the underlying facts of the case. As a disciplinary action proceeds through the appeals process, the employee’s conduct often becomes less relevant than procedural issues.
• Blatant misconduct alone is typically not enough to ensure a government worker gets fired or stays fired. Requirements in Arizona statutes and personnel rules set up an extensive review process within an agency before the decision is made to terminate an employee. Once an employee is dismissed, the termination can be appealed to an independent review panel which can overturn or change the discipline the agency imposed.
• It is rare that a government worker is terminated for poor performance alone. Almost every dismissal was triggered by a specific incident that came after a long history of performance problems.
• Many government agencies put off making disciplinary decisions by putting an employee accused of misconduct on paid administrative leave. That means the worker stays at home and draws full pay and benefits while the agency investigates allegations that could lead to discipline. In a two-year period, state agencies racked up about 100,000 hours of paid administrative leave.

Brewer spokesman Matt Benson said the problems outlined in the Goldwater Institute’s investigation illustrate why the governor is seeking reforms to state personnel rules.

“Generally speaking, the goal [is] to give the state more flexibility to reward and retain its best employees and likewise more flexibility to eliminate employees that are unproductive,” Benson said. “As you’ve seen in your [report], some of them are more than just unproductive.”

Brewer’s preference would be to pass the bill in a special session, said Benson, who would not disclose details of the governor’s proposal.

“It certainly is a top priority for the governor,” he said. “She’d like to get this accomplished as quickly as possible and the best way to do that is a special session at this point.”

The most complete outline of the governor’s proposal is a two-page summary published by the Arizona Capitol Times. Brewer wants to phase out traditional civil service protections and move state employees to an at-will system, which would give agency directors final say over most personnel decisions. After an effective date—October 1, 2011, in the Capitol Times’ summary—all new hires would be at-will employees, as would supervisors. Any existing employee covered under traditional civil service who accepts a new assignment or pay raise would become an at-will employee. Workers also could volunteer to become at-will employees.

The Arizona State Personnel Board could no longer modify an agency’s disciplinary decisions, but would still have power to overturn a disciplinary action if there was no cause.

Brewer’s plan would also limit the use of paid administrative leave for disciplinary investigations, requiring agencies to notify the state Department of Administration if any worker is on paid leave for 80 hours or more, and to obtain approval for any leave extending beyond 30 days.

The Goldwater Institute’s investigation showed state workers frequently spent months on paid leave, often for minor infractions that resulted in minor discipline.

Workers would still be protected against illegal disciplinary actions such as discrimination based on age, sex, religion, or political preference under long-standing federal laws and court rulings.

Brewer’s proposal is modeled in large part after a similar law passed in Georgia in 1996. Transitioning existing employees to an at-will system protects the state from running afoul of federal court rulings that civil service protections amount to a property right and cannot be taken away without due process.

Senator Pearce said the changes the governor is proposing are essential to making government more efficient. Under the current system, there is a disincentive to risk a long fight through the appeals process to get rid of a poor-performing government worker, Pearce said. In addition to making it easier to get rid of bad workers, moving to an at-will system will give agencies more flexibility in recruiting new employees, he said.

Current workers who are doing their jobs have nothing to fear from the switch, Pearce said. Those who don’t do their jobs will know their performance will have to improve or they face the real prospect of being fired.

“At-will employment is a good thing,” Pearce said. “We don’t fire good employees. You don’t do it, so the good employees have nothing to worry about. This is about hiring faster and more efficiently and firing faster and more efficiently for those who need to be terminated. It’s a good policy. It’s just like the private sector.”

Parts of the governor’s plan will likely be changed, according to Pearce. For instance, Brewer would give the governor more power to fire the director of the Department of Public Safety, something Pearce, a former sheriff’s chief deputy, opposes.

Despite her calls to reform personnel rules, Brewer vetoed a bill in April that would have required all counties except Maricopa County to move their employees to an at-will system. Though the measure was similar to what she is proposing for state workers, Brewer said technical problems in the legislation and the fact that it excluded Maricopa County led to her veto.

The governor said in her veto message that her reform plan is “a prime candidate for consideration in a special legislative session,” adding that such a session would be an appropriate forum to include a similar overhaul for counties.

House Minority Leader Chad Campbell, D-Phoenix, said he does not see the need to overhaul state personnel rules, though some changes may be appropriate. State employees in Arizona already have few protections and no right to collective bargaining, which was the issue that led to union protests in Wisconsin and other states, Campbell said.

“There is no massive problem with public sector employees in this state,” Campbell said, adding Democrats in Arizona cannot block the governor’s plan since Republicans control large majorities in both the House and Senate. “I don’t see any reason to do it. There isn’t some massive abuse or gaming of the public employee system in Arizona. Public employees don’t have many rights in this state.”

Traditional civil service protections were created to prevent politicians from filling the bureaucracy with their cronies, said Van Horsen, the AFSCME union president. It also gives workers protection when their supervisors order them to do things that are illegal or improper.

Van Horsen said truly bad employees can be fired under the existing system if supervisors do their job and properly document poor performance or bad behavior.

“As a taxpayer, I don’t want a bunch of these positions uncovered and a bunch of these political appointees or cronies stuck into these positions and using state government as their own little bank account to do what they want,” she said. “These employees are covered for a reason. It’s to keep the political corruption and cronyism out of government. This is to allow state employees to blow the whistle when they need to.”

While the union will fight any attempt to do away with civil service protections, it would support some parts of the governor’s plan. Van Horsen said limits on paid administrative leave are badly needed, as are standardizing procedures and forms used in hiring new employees in different agencies, as the governor proposes.

Independent academic studies done in the three states that have moved to at-will employment for government workers—Texas, Georgia, and Florida—show there was no wholesale firing of rank-and-file employees when new governors took over, or that patronage had creeped into personnel decisions.

Byron Schlomach, Ph.D., director of the Goldwater Institute’s Center for Economic Prosperity, says politics is already a big part of the state’s bureaucracy and “it’s government employees that are the most talented politicians in the game.”

What is lacking, he says, is accountability from both employees and managers. Schlomach was an at-will employee when he worked for the state government in Texas, which moved to an at-will system in the 1980s for most of its workers. Government employees worked diligently to do their jobs because they knew they could be fired for poor performance or misbehavior, he said.

Existing civil service rules make getting rid of incompetent or problem employees so difficult that supervisors often simply move them around rather than risk a costly and time-consuming disciplinary process, Schlomach said. 
“It’s a waste for taxpayers. It’s a waste for the employees. It’s a waste for the employees around that employee,” he said.

“If you don’t have an at-will system, you’re not responsible to taxpayers. You are responsible to a process and whoever controls that process. I’d prefer an at-will system from the taxpayer point of view because, speaking as a former at-will government employee, I could see that it made a difference in people’s attitudes.”

An at-will personnel system should be coupled with a stronger state whistleblower law to give employees who raise legitimate complaints against their supervisors protection from retaliation, said Schlomach. It is also critical that supervisors be held accountable for weeding out bad employees and ensuring good workers keep their jobs, which protects both good employees and the taxpayers, he said.
“When the managers are accountable, they are going to hold on to the best personnel and they’re not going to be arbitrarily firing people on a whim,” Schlomach said. “And they’ll even put up with some antics and contrary behavior from somebody who’s really good. Sometimes employees make trouble for all the right reasons, and a manager who is being held accountable will appreciate that.”

Mark Flatten is an investigative reporter for the Goldwater Institute.

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