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 National Association of Counties * Washington, DC / Vol. 30, No. 8 * April 27, 1998
This is the second of three HR Doctor columns focusing on one of public administration's most significant quests - the search for reforms to the 19th century concept of civil service protections. In a prior column, the HR Doctor described one of the three major components of civil service procedures in need of reform. That was the "merit pay" approach. This time, the focus will be on the "flagship" of traditional civil service - the concept of employee tenure. Court precedents have established the concept of "job ownership" and property rights" for employees in a merit or civil service system. The concept is that a non-probationary employee in such a system "owns" his or her job as a matter of personal property. In other words, the public agency job is akin to a person's microwave oven, VCR, TV, or car (that is, if it is paid off). Once the concept of property rights in employment is established, it is a logical step to invoke the Constitutional protections found in the Fifth Amendment (for federal employees) and the 14th Amendment affecting state and local government employees. The very powerful protection of the Constitution requires that no person be deprived of property without "due process." Due process, in turn, means a rich array of employee protections and management burdens, such as burdens of proof, documentation, hearings, rights of representation, etc., in any personnel decision involving termination, demotion or suspension. It places extremely difficult burdens on supervisors and mangers who are very often not at all equipped to deal with these requirements. The issue is not at all that public employees should be deprived of their "property" in a callous manner. In fact, speaking from the vantage point of public administration at the end of the 19th Century or the first part of the 20th Century, this civil service protection paradigm was an obvious great step forward when it first replaced the spoils system model. However, in the current environment of the last one or two generations in public administration, property rights have been reinforced very substantially by other factors. An obvious one is collective bargaining which often brings many restrictions, procedural requirements and the legal contract framework for the further challenging of management actions and flexibility. In Florida, for example, state law mandates a "just cause" standard and binding, compulsory arbitration in disciplinary actions in a collective bargaining context. Second, the array of unlawful discrimination complaint processes provides further opportunities for challenge to the actions of supervisors. Third is the combination of public safety "presumption clauses," under which certain illnesses such as coronary artery disease are presumed to have been job-related irrespective of other factors such as diet, exercise and family history. Additionally, Workers' Compensation requirements to "construe facts liberally" for the claimant, result in an employment lawyer's "mother lode" of opportunity to challenge the actions of a supervisor. What results is a "layering" of rights, protections and procedures. The fundamental problem is that the layering of protections has not been met with appropriate attention to the needs of supervisors for training, self-confidence and support to be effective in human interaction under these circumstances. The mangers "tool kit" to respond to the challenges of an employee not performing or behaving appropriately in the work place is very often inadequate. The mountain of procedural obstacles and risks in corrective action frustrates and scares supervisors. They may tend to avoid constructive criticism and coaching out of fear of personal liability and lack of support from above. This, in turn, fosters the growing concern about mediocrity and tolerance for poor behavior and performance. Rather than practice proactive HR management techniques to intervene and modify these situations, managers may either act out of frustration and compound the problem or not act at all, with troublesome long-range consequences. Is it any wonder that these problems have been growing? In part, the answer to this dilemma involves helping supervisors and mangers regain the self-confidence that they may have lost. A "training academy" mandatory for all new supervisors covering legal liabilities, the reason behind policies and laws that exist to protect employees, techniques to hold employees accountable and to document performance outcomes, and to help improve supervisors' morale is a great step recommended by the HR Doctor. Next, conduct a review of how far civil service tenure extends in the organization. Increasingly, executive, managers and professionals will be employed on performance-based contracts, not unlike some private corporations. In place of tenure will come recognized and significantly different benefits and performance-based bonuses. Third, outsourcing, privatizing and regional approaches to service deliveries will also be prominent features in the landscape of 21st century human resource practices in public agencies. The HR Doctor urges his "patients" throughout the United States to begin preventive steps to review their systems now to be "in front" of these problems before the liabilities expand and harm the health of the organization on a long-term basis. Finally, the layering of protections is a breeding ground for what the HR Doctor regards as the number one problem in our agencies and, perhaps, in society at large - that is, arrogance. Employees who perform or behave inappropriately or marginally, in the face of all of the protections available to them and weak or poor management responses are "enabled" to continue or worsen their behavior and performance. The danger to local government can be overcome by assertive and consistent human resource interventions. Best wishes as you review the health of your own agency. The HR Doctor (The HR Doctor is written by Phil Rosenberg, Broward County Fla. personnel director.)
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