Nov. 4, 2015 – The Wisconsin Legislature is considering significant changes to the state civil service system, which governs personnel management of state employees – including government lawyers – and the process for hiring and firing. The Assembly has already passed the civil service reform bill, which is now in the Senate's hands.
Most significantly, the bill replaces job application exams with a resume process, deemphasizes seniority as an objective basis in the order of layoff, establishes a definition of “just cause” for termination, and creates nine per se bases for termination.
The article explains the changes proposed after viewing the counterpart bills – Assembly Bill 373 and Senate Bill 285 – through the lens of history and the purpose of the civil service system under Wis. Stat. Chapter 230, subchapter II.
Brief History of the Civil Service System
Beginning in the late 1880s, federal, state, and local government political patronage abuses prompted reforms, including creation of civil service systems.
By 1905, Wisconsin enacted a comprehensive civil service system to provide “competent personnel who will furnish state services to citizens as fairly, efficiently, and effectively as possible.”1
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Current law provides a comprehensive “system of personnel management which fills positions in the classified service through methods which apply the merit principle, with adequate civil service safeguards.”2 It applies to “classified” employees, not “unclassified” employees (elected officials; employees appointed by the Governor; agency administrators; staff to legislators, the judiciary and many others).
Chapter 230 protects the public interest through required competitive examinations of prospective employees, which rank their fitness for the vacant position and reflect job-related criteria and standards.3 After reaching permanent status, an employee receives protection from arbitrary discipline and termination, as the state employer must have “just cause” for demotion, suspension, or discharge.4
State agency disciplinary actions are subject to review by the Wisconsin Employment Relations Commission (WERC). According to the WERC and courts, “just cause” requires that an agency’s discipline is based on its examination of whether the employee’s conduct “sufficiently undermined the efficient performance of the duties of employment.”5
The most significant proposed changes are: 1) a resume process to replace examinations; 2) a statutory definition of just cause, including nine per se bases for termination; and 3) de-emphasizing seniority as an objective basis in the order of layoff.
Timothy Hawks (Iowa 1977) is a labor and employment attorney at Hawks Quindel S.C., Milwaukee, representing workers and unions throughout Wisconsin.
Michele Sumara (U.W. 1986), also of Hawks Quindel S.C., Milwaukee, focuses her law practice on union-side labor law and wage and hour litigation.
The authors wish to thank attorney Barbara Quindel (Northeastern 1976) for providing editorial support.
1. Resumes: Repealing the requirement of an examination before hire and replacing it with applicant resumes is controversial. A fundamental purpose of a civil service system is to protect the public by reducing political patronage. Using resumes allows for the employer’s subjective interpretation of the applicant’s candidacy for hiring or promotion.
Its critics argue this permits patronage to reenter public service – a serious public policy danger, because whatever party is in power has the perceived and perhaps actual ability to reward thousands of partisans with a decent job. Proponents argue that resume review is a contemporary practice, necessary because it is expeditious. As for the dangers of patronage, they add that current law, Wis. Stat. section 230.18, will continue to prohibit discrimination on the basis of “partisan political affiliation.”
However, in the authors’ opinion, replacing competitive, validated exams by which applicants are ranked on the basis of their scores with resumes reviewed subjectively opens the door to bias. Compounding this issue, the current law (and the resume process amendments) excludes the evaluators’ record of review from the public records law, making employment decisions opaque to the public.6
The proposed changes also fail to address the potential abuse of Internet and social media to profile candidates for their political or social opinions.
2. Just Cause: Both bills define specific conduct and offenses that qualify for employee discipline, as follows: “It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee for work performance or personal conduct that is inadequate, unsuitable, or inferior, as determined by the appointing authority, but only after imposing progressive discipline that complies with the administrator’s standards under s. 230.04(13m). It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee without imposing progressive discipline for any of the following conduct:
While on duty, harassing a person;
While on duty, intentionally inflicting physical harm on another person;
While on duty, being intoxicated or under the influence of a controlled substance … or a controlled substance analog;
While on duty, being in possession of a controlled substance… or a controlled substance analog… without a prescription;
Falsifying records of the agency;
Theft of agency property or services with intent to deprive an agency of the property or services permanently, theft of currency of any value, felonious conduct connected with the employee’s employment with the agency, or intentional or negligent conduct by an employee that causes substantial damage to agency property;
A conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for the agency;
Misuse or abuse of agency property, including the intentional use of the agency’s equipment to download, view, solicit, seek, display, or distribute pornographic material;
A serious violation of the code of ethics established by the director under s. 19.45(11)(a), as determined by the director.”
The proposal also codifies the grievance procedure and shortens deadlines from 30 to 14 days for filing a complaint.
History teaches us that the flip side of a patronage system is the ability of a newly elected administration to fire government employees who opposed it. The just cause standard was intended to end this abuse. However, in the authors’ opinion, the proposal suffers from two serious flaws. It dilutes employment security, weakening its intended purpose. And, it is a remedy in search of a problem.
As noted above, the current judicially crafted definition of just cause sets a very low bar. It asks whether the employee’s conduct sufficiently undermined the efficient performance of the employment duties. The addition of the phrase, “inadequate, unsuitable, or inferior” neither adds nor subtracts from the current standard.
Current WERC and judicial decisions permit immediate termination of an employee who has engaged in serious misconduct. The record demonstrates that current law does not impede the state employer from terminating an inefficient, inadequate, unsuitable or inferior employee. Since Jan. 1, 2014, the WERC or its examiners issued 31 decisions involving state employee appeals of suspension, demotion or termination in which it applied the just cause standard. The state employer won in 23 cases; the employee in eight, or roughly 25 percent of the time.
An example of one of the eight employee wins is Hilbert v. DOC, Dec. No. 35683 (WERC Aug. 17, 2015), where the employee admitted using a personal cell phone at work, but appealed the 10-day suspension as excessive. The evidence offered by both the employer and employee demonstrated that DOC imposed surprisingly different disciplines for the offense, including a number of lighter disciplines for employees with worse disciplinary records. The WERC reduced the discipline.
More striking is the data regarding termination appeals. Of the 14 WERC decisions since Jan. 1, 2014 regarding terminations, only one reversed the state employer: a 93 percent success rate for the state employer.
3. Subordination of seniority to performance in determining the order of layoff: Currently, the order of layoff “may be determined by seniority or performance or a combination thereof or by other factors.”7 The bills propose that the employer “shall determine the order of layoff . . . primarily based on job performance and thereafter, in accordance with the rules of the director, on disciplinary records, seniority, and ability.”
The proposals also delete the current law’s requirement that probationary and limited term employees be terminated prior to a layoff of employees who have completed their probationary period.8 Additionally, the bills eliminate mandatory “restoration” (commonly known as “recall”) rights from lay off for employees hired after the effective date of the act and shortens the discretionary “reinstatement” privilege of laid off employees from five to three years.9
The bills’ proponents argue that they provide state employers greater flexibility. Critics observe that they substitute subjective judgment for objective measures, reinserting the sins of patronage and favoritism; that laid off employees should enjoy rights to their former positions as their performance had no relationship to their job loss; and that the employment security created by restoration rights enhances the state’s ability to attract and retain a competent workforce.
These are only three areas addressed in the proposed civil service system changes. Others are important, but we highlight three, as they raise most directly the concern that those who have not studied history are bound to repeat its mistakes.
While government exists to serve the public good, an administration in power is often concerned with retaining its power. This has led to the spoils system of government employment in the past. The bills should only be considered with great care and a robust exchange of ideas with public involvement.
1 Wis. Stat. § 230.01(1).
2 § 230.01(2).
3 § 230.16.
4 § 230.34.
5 Safransky v. State Personnel Bd., 62 Wis. 2d 464, 215 N.W.2d 379 (1974); Reinke v. Personnel Bd., 53 Wis. 2d 123, 191 N.W.2d 833 (1971); Russell v. Board of Regents, Dec. No. 33845-B (WERC Aug. 13, 2014).
6 § 230.13.
7 § 230.34(2)(a).
8 § 230.34(2).
9 § 230.31(1).