Civil Service Tsunami
Florida's radical overhaul of its personnel system is making big political waves.
As Florida's commerce secretary, John Ellis Bush had a notion for how to streamline personnel management in the Sunshine State: make every state employee "at will"--subject to being hired and fired as easily as a waitress in a Tallahassee waffle shop.
That was in 1987, and the state wasn't ready for such a radical plan. But in 1999, Jeb Bush was back--and not as a single, voice-in-the- wilderness cabinet member. He was governor. And when Bush took aim at civil service this time, it was with conviction and clout. On May 14, 2001, Bush signed into law a sweeping civil service overhaul package dubbed "Service First," a set of changes he hailed as a significant modernization of personnel administration in Florida.
Service First is a revolution in the wake of evolution: In the early 1980s, Florida began chipping away at civil service, decentralizing authority for personnel management to departments, experimenting with broadbanding of job titles and pay, and reducing the emphasis on formal exams and tightly ranked lists of eligible candidates as an avenue into and up the ladder of state service.
But compared with the waves of personnel administration reform that had been washing over Florida, Service First is a tsunami. In particular, Service First makes three major changes: Most significant, it eliminates seniority for all state workers. The long-standing idea that more-senior employees ought to be protected during downsizings and accorded the right to "bump" newer staff out of jobs during layoffs is gone. At the same time, Service First moves a huge cohort of employees--anyone with even a remotely managerial or supervisory title--into a "selected exempt service," all of whom do serve at will. Third, the law lays the groundwork for a major overhaul of job titles and pay, reducing thousands of job classes to dozens of occupational groups, and assigning to each group a pay band that allows management wide discretion in how to compensate individual employees.
In adopting Service First, Florida became one of only three states to substantially eliminate civil service protection for executive-branch employees. Texas has never had much in the way of a centralized merit system, and what it did have it abolished back in 1985. But Florida's reforms most closely track those of Georgia, which passed legislation in 1996 that eliminates civil service for state workers over time: State employees hired after July 1, 1996, serve at will, completely outside an ever-shrinking civil service system. They can be hired, promoted, disciplined and fired quickly and with relative impunity; they accrue no seniority and therefore have no bumping rights whatsoever.
But whereas there wasn't much of a fight in Georgia over the merit system's overhaul, the battle in Florida over Service First was--and continues to be--fierce. Mark Neimeiser, political director for the American Federation of State, County and Municipal Employees Council 79, which represents most of the state's rank-and-file employees, calls the law "Service Worst." He and his colleagues in Council 79 see the law not as a rational attempt to fix what might be wrong with civil service but as a frontal assault on organized labor and on state government employees. With a governor who seems determined to shrink government employment and privatize everything from the state library to child protective services to personnel administration itself, Service First, critics say, is a thinly disguised mechanism for simplifying the removal of public employees for whatever reason: political, practical or ideological. "This is about management control of the most radical kind," says Neimeiser. "This is a governor who just wants to be able to do whatever he wants with state employees."
Two concerns in particular are raised by those who view Service First as a wholly cynical effort on the part of the Bush administration to seize control of state hiring and firing. First, it exposes state workers who enforce regulations and license businesses and professionals to the risk of retribution for pursuing cases against politically well-connected Floridians. Second, it leaves higher- salaried senior staff exposed to the whims of departmental budget cutters who, like a sports-team owner trying to meet a salary cap, might be tempted to off-load more senior, high-paid staff just to save money, regardless of what it means by way of institutional brain drain or employee morale.
With regard to the first concern, it is certainly not hard to find Florida whistleblowers who claim to have been fired for political reasons--either because they took regulatory action against an ally of the governor, or simply because they were registered in the wrong party and were picked off for political reasons. A Florida Web site-- www.whoseflorida.com (a twist on the Bush administration's official home page myflorida.com)--is packed with allegations of politically driven personnel shenanigans. Depending on one's view of the spoils system and what it ought to deliver to whom, such stories are either shocking or just par for the political course and no different than stories that filter out of Albany, Springfield or Sacramento whenever there's a change of party, regardless of the civil service rules.
As for dumping senior staff, there is evidence of the widespread removal of long-time employees. In the wake of Service First, releasing a couple hundred senior employees has become very simple-- there is no imperative to find them other jobs in their department or anywhere else in government. A number of agencies have experienced significant downsizings, including, health, transportation and juvenile justice. The Bush administration says that most laid-off employees were given the option of taking other jobs in government. Critics of Service First say the jobs offered typically represented demotions in both rank and pay. For example, a group of employees in the Department of Business and Professional Regulation were terminated, then allowed to reapply for jobs paying 25 percent less.
While it's not hard to find critics of Service First in every corner of state government, there is one notable group of long-time Tallahassee denizens who couldn't be more pleased with the new law: department personnel directors who for years have been laboring under the strictures of what they view as an onerous set of rules that have far outlived their usefulness.
David Ferguson, head of personnel for the Department of Transportation for the past 30 years, says unequivocally that Service First is the best thing that's ever happened in Florida with regard to personnel administration. The ability to freely and quickly hire, promote, transfer or offer raises to employees has allowed his department to manage personnel in a rational, business-like way, competing for the best and brightest and retaining top-performing staff, he notes. "It gives us the flexibility to operate like we need to operate to get the job done for the citizens of Florida."
Personnel directors in Florida acknowledge that all state employees are now more vulnerable. When it comes to potential political pressure on state regulators, Alyce Parmer, head of human resources management for the Department of Environmental Protection says, "I can see where that potential is there. But I don't know that it's had a chilling effect at DEP and our ability to vigorously address [enforcement] issues. We haven't seen that."
To the extent that political pressure might be brought to bear, personnel managers say, state whistle-blower laws offer ample protection for wronged employees. Florida whistle-blowers vehemently disagree. One former Florida regulator, who says he was fired for taking action against a well-connected businessman, notes that whistle-blowing is a lonely, difficult and ultimately career- threatening activity. "It takes a special kind of person with the right kind of support," he says.
As for potential brain drain that might come with off-loading senior staff for fiscal reasons, David Ferguson says that the budget and staffing squeeze in his department has actually led his organization to do the opposite. His department is trying to hang on to veterans because of their depth of knowledge and ability to handle a variety of different jobs.
The specifics of Service First and its day-to-day impacts aside, HR managers in Florida make a more global argument about new personnel policies in an era of a new kind of employee. Tightly wound civil service laws are simply no longer relevant in today's employment world, they say, where it's understood that individuals will be job- hopping for their entire work lives. In the view of personnel directors like Ferguson and Parmer, the approach represented by Service First is simply part of a natural evolution in an emerging new view of state service: No longer should states be looking for people who will make working for the state a lifelong career. Rather, government should, like the private sector, accept the fact that workers in modern times are inclined to do three and four-year stints here and there and then move on. The state needs to adapt to the wishes and habits of these new-style employees. In fact, to accommodate a more peripatetic work force, Florida now allows employees to opt into a 401(k)-style defined-contribution plan that workers can take with them when they leave state service, as opposed to the traditional defined-benefit plan that requires a minimum length of service for vesting and that gets sweeter with time.
If state personnel directors have any criticism of Service First, it is that it still contains too much micromanaging language, instances where departments must go to the Department of Management Services-- which oversees state personnel policies--or the governor's budget office to ask "mother may I," Parmer says. "I view agency heads as CEOs. If you have confidence in them, then give them the authority and the flexibility to manage and then hold them accountable."
For a law that supporters say is all about management flexibility, it does contain some oddly meddlesome provisions, ranging from major to minuscule. For example, it requires that agencies get gubernatorial approval to work temporary employees longer than 1,040 hours in a year. At the same time the law takes on the weighty matter of how much can be spent on congratulatory plaques for state service: "Each department head is authorized to incur expenditures not to exceed $100 each plus applicable taxes for suitable framed certificates, plaques or other tokens of recognition."
Service First actually gets into quite a bit of detail on a wide variety of issues. It caps the ratio of upper-level managers to rank- and-file employees. It makes all of the personal secretaries of key executive branch officials at-will employees. And it calls for the establishment of a professional development program to help employees understand strategic planning and performance measurement. Yet the law also contains at least one notable omission: There is no language at all about how the effects of Service First itself will be assessed.
One effect to date is very clear, though: It has organized labor in Florida riled up, especially Council 79. Because of organized labor's opposition, the fight over Service First from the outset was much tougher, acrimonious and ideologically divisive than was Georgia's push to eliminate civil service. While hardly a political powerhouse-- Florida is an "open shop" state, which means that unions can organize but employees can't be compelled to pay dues--AFSCME 79 is at least a presence in Florida politics, with enough resources to lobby and sue.
Also nettling to labor is that key support for the measure comes from the Florida Council of 100, an influential corps of top businesspeople statewide who haven't exactly evinced great affection for unions. Where Georgia Governor Zell Miller invoked an arguably disinterested Philip K. Howard, author of "The Death of Common Sense," in declaring that civil service in Georgia had outlived its purpose, Governor Bush invoked "Modernizing Florida's Civil Service System: Moving From Protection to Performance," a report released at the end of 2000 by the arguably very interested Council of 100.
At the beginning of the report, the Council's chairman, Charles E. Cobb Jr., states "one of the primary reasons for the public's mistrust [in government] lies in the antiquated and cumbersome personnel system for most of Florida state employees called Career Service." However, no survey is cited in the report to demonstrate broad Floridian disgust with step and grade, bumping or cumbersome appeals processes for coddled state staffers. In fact, the whole report is extremely thin on data about the negative impacts of civil service on state government. But the report's tone and message are unmistakable: In the mind of business, Florida's civil service system was public enemy number one and needed to be rubbed out. The report called for at-will status for all state employees, a move that would eliminate what the report described as a "complicated web of restrictions" for removing employees "called 'due process.'"
AFSCME 79 fought the law hard, and it won at least a partial victory. In its original form, Service First took both the governor's and the Council of 100's cue and made all state employees at will, in effect doing instantly what will take a few decades to do in Georgia. The Florida House passed a version of the law embracing immediate, universal at-will status for all state employees, but the Senate pulled back, which is when Bush administration strategists decided to carve out as many employees as possible for the selected exempt service. The 120,000 or so employees left in the "career service" category, however, didn't escape unscathed.
The new law makes it considerably easier to discipline employees, and it curbs the Public Employee Relations Commission's authority and discretion in deciding such appeals. Meanwhile, it overturns the long- standing practice of reimbursing employees for their legal fees in cases where they appeal adverse personnel actions to PERC and prevail. And in a major shift in how the state goes about collective bargaining, the law short-circuits the traditional process for working through contract impasses, allowing the governor to bypass mediation and kick deadlocked negotiations directly to the legislature for final resolution. In Neimeiser's opinion, the new language reflects an overall attitude of the Bush administration: They don't want to negotiate anything. "It's catch me if you can; sue me if you can," he says.
COPS ESCAPE UNSCATHED
Key pieces of Service First aren't about reform at all, Neimeiser and other labor activists argue. Rather, they are aimed at weakening organized labor. But Service First does not treat organized labor monolithically. Specific language in Service First excludes certain professions from coverage under the new, flexible personnel regime, including police, fire fighters and dietitians. It is a curious combination, and certainly begs the question of what the three occupational groups might have in common when it comes to what state personnel rules ought to apply.
In fact, what the three groups have in common has nothing to do with their job responsibilities, says Democratic Senator Al Lawson Jr., who was on both the Senate and conference committees that worked on Service First. He says the police and fire unions endorsed Bush in 1998, as did the union that represents the state's dietitians, nurses, psychologists, physical and speech therapists, dentists and pharmacists. Furthermore, Lawson says, language removing the three groups from coverage under Service First was inserted at some point between when the joint committee finished its work--or thought it had- -and when the law was printed. "That was a secret deal," he says. "I went to bed that night and woke up the next day and there they were. It was nothing that ever came before our committee."
If it had the feel of a midnight hit-and-run political payoff to it, supporters of Service First didn't care. Even though such freelance tinkering violates legislative rules, Governor Bush and Republican lawmakers forged forward. "We tried to hold them up and they said, 'We're going to roll you,' and they did," Lawson says.
Certainly the Bush administration would have an easier time defending Service First as management reform without such exceptions. If Georgia's radical overhaul of civil service treats state employees roughly, as some believe, it at least treats them all equally--no job title is spared from evaporating protection. In considering the exceptions crafted in Florida, even some supporters of Service First have questions. Florida TaxWatch, a business-financed, nonpartisan, nonprofit group that advocates for fiscally responsible state policies, backed Service First on the grounds that management flexibility in personnel administration is a good thing. But TaxWatch head Dominic Calabro says the exceptions weren't anything his group endorsed. When it comes to who is covered under Service First, says Calabro, "what's good for the goose is good for the gander."
Asked about the special exceptions, Simone Marstiller, interim secretary at the Department of Management Services, says they were extended to job titles that "are demanding, both physically and intellectually." As for the charge that politics had more of a role to play in the exceptions than anything else, Marstiller says, "That doesn't sound like anything that makes a whole lot of sense. I've not heard that from anybody."
Whether such exceptions serve a legitimate purpose or whether they were just a routine political payoff, they certainly have added to the controversy surrounding the whole Service First effort, and they are just one of the many reasons why the fight surrounding the law shows little sign of abating at the moment.
Also keeping the issue very much alive is the fact that AFSCME 79 is in the middle of a three-count lawsuit against the state and Governor Bush, claiming, among other things, that Service First has "unconstitutionally waived and impaired collective bargaining rights protected by the Florida Constitution." A decision on the suit is expected later this year; other legal skirmishes around Service First have not ended happily for organized labor.
Regardless of the motivation for Service First, or how the controversy surrounding it plays out, the law gives management a powerful new hand in all matters related to personnel administration, including the freedom to pursue the kind of aggressive downsizing the state has seen in the past few years. Already lean, Florida went from ranking 47th on the national list of state employees per capita in July 2000, to 49th in July 2002, with 24,000 positions lopped off the payroll during that time period.
A recent Florida State University survey of employees who were shifted into the at-will, selected exempt class by Service First found that nearly two-thirds of them believed that "a goal of Service First is to downsize government." Indeed, in considering the most significant effects of Service First to date, Florida state employees probably can't be blamed if they're feeling more and more like they've joined the manatee and black panther on an expanding list of the state's endangered species.
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