07 June 2006

Morgan Caroll On Civil Service Protections

Colorado State House Judiciary Committee Vice Chair Morgan Carroll (D-Aurora) (incidentally the Judiciary Committee Chair is Terrance Carroll (D-Denver), no relation), has a blog! And, she is exactly right on the issue of civil service protections for fire and police departments. She states (emphasis added):

There have been recent efforts to “reform” civil service for Aurora’s police and fire departments. While there are some improvements that could stand to be made in transparency of process and improved input from the chiefs of the departments, recent proposals for charter changes in Aurora seem to be more geared toward gutting civil service rather than reforming it.

We emphatically should not gut or remove civil service (but we can improve it). Civil Service protections are born out the realization that when government officials have jobs to hand out that without protections there is a high likelihood that those jobs will be handed out as political favors, reflect nepotism, personal biases, emphasize connections over merit, or revert to the prior patronage system — all of which have the potential for corruption.

She is right. The threats guarded against by the civil service system are as real as they were when it was created. But, many civil service systems do need improvement. While Morgan Carroll doesn't elaborate on solutions, I will.

Some Problems With The Civil Service System

My father, while he was a professor of environmental science, took some time on sabbatical to go to Washington, D.C. to help develop a national drought atlas for his former employer, the Army Corps of Civil Engineers. (The project, by the way, was a great success and probably the greatest scientific contribution of his career; I personally helped him interpret some of the L-moment mathematics used in the project.) As part of the project, he had to round up people from within the department to work on his project. One of his key staffers had been sentenced to the almost mythical form of employee discipline under the federal civil service system. He was left in his job, at full pay, but reassigned to a windowless office in the basement and given no work to do, in the hope that he would quit, or at least, cease to influence any projects. It does happen and is a gross waste. Either the employee should be fired, or the management should be reigned in for making an unjustified decision.

This need is particularly pressing in the case of police departments. In Denver, the flaws in the civil service system that unreasonably limit the extent to which bad cops can be disciplined for apolitical reasons is an even more serious problem than it is in Aurora. Every member of the force who has faced discipline for serious misconduct towards members of the public in recent memory has received an unduely mild punishment as a result, while discpline for technical paperwork violations is unduly common.

But, the problems Carroll describes are a real problem too. Today, you see them mostly in small rural departments, which civil service systems are too small to provide effectively insulation from corrupting political forces. Recently, one rural department in the South, civil service system notwithstanding, was exposed as having guards letting prisoners out of jail on furloughs to use as the Mayor's personal home improvement crew, and to have sex with the Mayor's wife.

It is also worth noting that the civil service system is really a couple of systems.

One part of the civil service system is a merit based system of hiring new employees. This does a very effective job of preventing incompetent people from being hired based on political nepotism. This part of the system is not associated with major flaws, although it does have a tendency to view merit too narrowly.

While the technical requirements of many government jobs are far greater than they used to be, President Jackson's assumption when he instituted an extreme version of the patronage system that many government jobs could be filled by anyone who was literate, remains true in many cases. Many jobs need someone who is good enough, but can be done more or less equally well by anyone who is qualified. To take a particularly clear example, any library shelver or postal delivery person who meets the basic qualifications for the job on a paper and pencil test is probably equally good, and an extra high score on a paper and pencil test is probably meaningless when it comes to the on the job reality. But, by exclusively using paper and pencil test scores to narrow the pool of final applicants, one can often effectively prevent equal opportunity hiring by imposing a de facto requirement far in excess of what is needed for the job.

The other part of the merit based systems, the controversial part in the eyes of most reformers and students of public service employment, is the limitations it imposes in firing or disciplining government employees. Simply put, it is too hard to fire employees who are genuinely lazy or doing a poor job. The due process that exists for employees make the likelihood of employee firings or discipline more likely to hinge of the ease with which wrongdoing can be proven, than the severity of the offense. This kind of protection is appropriate in the criminal context or a civil lawsuit involving an isolated incident like a car accident, when we are trying solely to judge a response for something that is done and over. It is overprotective in the case of an ongoing employment situation, where a bad employee is a continuing problem and poses a risk of future harm to the institution and the public, particularly in the case of a bad police officer or fireman.

Solutions To Civil Service System Weaknesses

Probably the best solution in the American context to this problem, is to distinguish between employees who report directly to political appointees and employees who report to career civil service employees. In the case of career civil servants who report to political appointees, the risk of political influence is acute. For civil service employees who report to career civil service employees, there is still some risk of political influence (career civil service managers still have an incentive to please their superiors by acting politically), but this may be outweighed by the need to address the difficult day to day process of managing the minority of public employees who genuinely perform their jobs poorly.

One of the better solutions to this problem would be to dramatically reduce civil service protections after employees are hired, for civil servants who report to career civil service employees (I'll call them rank and file civil servants). While they probably shouldn't be employees at will, in light of the still real risks of political influence involved, the system could be changed. I would suggest that it should be possible for rank and file civil servants to be fired by their career civil service employers without any form of administrative review. Instead, the sole remedy of a fired rank and file employee would be to bring a wrongful termination suit. In that suit, the employee would have to show that no good faith non-political cause existed for the firing, a system similar to that already in place for dismissals on the basis of race or gender or retaliation for private employers. No particular documentation of the firing would be legally required.

Even if this reform isn't implemented in every department of a government, it should, at least, be implemented for public safety employees, for whom the risks of not taking disciplinary action are finely balanced with those of taking incorrect action. There is already a precedent for this, which is the military justice system. Most federal employees are very hard to discipline, but soldiers are subject to the summary and swift procedures of the Uniform Code of Military Justice, which provide only limited due process protections, are far easier to discipline because the risk posed by permitting a person in control of lethal weapons on a daily basis are far greater than those posed by your typical civil servant.

The full protection of the civil service would continue for career civil servants who report to political appointees, but in large governments, like the City and County of Denver, the State of Colorado, or the federal government, this would often reduce the number of employees with full civil service protections by 90%-98%, while still imposing real barriers on the nepotism the system is designed to protect, by retaining full merit hiring protections and by forbidding political appointees from firing or disciplining any civil servant without going through the full fledged civil service protection process.

Why Should Democrats Push For Civil Service Reform?

Civil Service reform is a particular concern for Democrats because we believe that government can do worthwhile things. We need government to work effectively to achieve those ends, and if the civil service system is disfunctional, it is simply one more argument for privatization, even when privatization doesn't make sense. Republicans, in contrast, often simply hate all government and are happy to let it become inefficient in an effort to prove their case.

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