Discussion question week 5 Public Administration
DevZealous
chapter6.week5_.docxNothing is more critical for an administrator than to effectively manage the people who work in his or her organization. Yet, the hiring and treatment of public employees often seem so bound up in rules, regulations, and “red tape” that effective management is extremely difficult. Many managers feel that civil service systems (and central personnel offices), originally designed to attract and retain competent personnel, exist merely to complicate the manager's life and make it more difficult to manage. Instead of simply hiring someone for a job, the manager must advise an applicant to take a competitive examination and join many other candidates on a register for the position (some of whom may be given special preferences in the hiring process) and then to wait until all the paperwork clears. After someone has been hired, the manager finds there are limits to the “rewards and punishments” that can be offered to encourage improved job performance. And, should the person fail to perform adequately, the paperwork and justifications required to terminate his or her employment seem endless. You may wonder how anything else gets done!
But there are good reasons for the way human resources or personnel management in government has developed. Even though it is true that some civil service systems have become overly rigid, even “fossilized,” most of the requirements relating to government employment are deeply rooted in important political and ethical principles. An understanding of how government personnel systems operate includes a knowledge of personnel techniques and a sensitivity to the values that underlie human resources management in public organizations.
Nowhere is the contest between the competing values of efficiency and responsiveness played out more clearly than in the area of human resources or personnel. On the one hand, staffing government agencies with the most competent people available is essential to effective management. On the other hand, those who staff the offices of government should be responsive to the citizenry. In any case, the human resources or personnel system for any public organization ultimately reflects the political priorities of the particular public involved. In certain cases or at certain times, managerial concern for efficiency may receive preference; in others, the democratic concern for responsiveness may be paramount.
Networking
For general information on personnel issues, see the International Personnel Management Association at www.ipma-hr.org. For jobs and recruiting, see http://www.publicservicecareers.org/, www.fedworld.gov, www.careersingovernment.com, and www.govtjob.net.
Merit Systems in Public Employment
Because the Constitution made little mention of either administrative structures or how they would be staffed, early leaders at all levels of government experimented with many different approaches to hiring, working with, and firing personnel. In the late 1800s, however, growing concern about the composition of the civil service led to a new focus on competence and professionalism and, in turn, to legislation establishing the merit principle in public employment. The merit principle , though widely varied in its application, generally means that selection and treatment of government employees should be based on merit or competence rather than on personal or political favoritism. Despite the apparent simplicity and appeal of this notion, the development of public personnel systems has been infused with controversy.
Most of the early American presidents followed George Washington's lead in seeking people of high competence and integrity—what he called “fitness of character“—to hold governmental positions. This approach resulted in a stable and fairly skilled government workforce, but not without several problems. Because there were few well-educated people in society and because those with education tended to be from the wealthier classes, the newly formed civil service soon took on a somewhat elitist character. Moreover, partisan considerations began to enter into the process. Presidents and members of Congress began to recognize not only that government employees needed to be loyal to the new government (and presumably the party in power), but also that public offices (and salaries) could be rewards to the party faithful. Finally, there was the question of tenure: should civil servants hold office for life, thus providing experience and continuity, or should they change with each administration, providing loyalty (and jobs) to the incoming party?
All these concerns were dramatically illustrated in the administration of Andrew Jackson. Jackson was swept into office on a strong wave of democratic sentiment and was especially concerned with making government more accessible to those previously excluded: the “common people.” Though Jackson was not the first to employ the spoils system (the notion that “to the victor belong the spoils”—in this case, the ability to give government jobs to the party faithful), his administration was notable for its expansion of the system and for his elaborate justification of it. Jackson argued that the common people had as much right to government jobs as the wealthy and that most government jobs could be done without special training.
Jackson is sometimes portrayed as something of a villain for his defense of the spoils system, though far greater abuses occurred later at all levels of government. At the same time, however, Jackson made several positive contributions to democratic government; for example, there is no question that he democratized the civil service of his era and set a tone for greater representativeness within government agencies for decades to come.
Even Jackson could not have foreseen the corruption and abuse that would soon become associated with the spoils system (see the box “Public Administration in History: The Spoils System”). Succeeding presidents went far beyond Jackson in applying the system, as did political bosses at the state and local levels. The quality of the civil service rapidly declined, and even those who found jobs in government became disenchanted with the financial contributions exacted from them each election year. The system also became a problem for each new president, as thousands of office-seekers came to press their claims for patronage positions, and presidents soon grew weary of the long lines of people seeking jobs.
Public Administration in History
THE SPOILS SYSTEM
By the late 1800s, the spoils system was firmly a part of political life in most jurisdictions. One aspect of the system was collecting funds from appointees to help sustain the party in power. Although such practices persisted in some jurisdictions well into the 1950s and even the 1960s, they were hardly as blatant as the tribute requested in the letter from a state party committee in 1870.
Dear Sir:
(We) have great and imperative need of funds at once, to carry the campaign to successful issue. An assessment of one percent on the annual gross receipts of your office is therefore called for, and you will please enclose that amount, without delay, to the treasurer, E. S. Rowse, in the envelope enclosed. This assessment is made after conference with our friends at Washington, where it is confidently expected that those who receive the benefits of Federal appointments will support the machinery that sustains the party which gives them pecuniary benefit and honor. The exigencies are great, and delay or neglect will rightly be construed into unfriendliness to the Administration. We do not look for such a record from you, and you will at once see the propriety and wisdom of the earliest attention to the matter.
Isaac Sheppard
Chairman of Committee
SOURCE: Reprinted with the permission of Simon & Schuster Adult Publishing Group, from The Republican Era: 1869–1901, A Study in Administrative History by Leonard D. White. © 1958 by the Macmillan Company. All rights reserved.
These factors set the stage for reform, but even more important in eventually bringing about change was the increasing corruption in government. There were kickbacks from contractors, private sales of surplus public property, skimming of tax receipts, and many other abuses. Corruption was becoming a normal way of doing government business.
The various ills that grew from the spoils system eventually led to a strong and active reform movement, spearheaded by such groups as the National Civil Service Reform League. The reformers made vigorous and eloquent appeals, but their eventual success was ensured more by a historical accident—the assassination of President Garfield—than by eloquence. Though Garfield had hardly been a proponent of civil service reform and had drawn criticism from reform groups for his failure to support a reform bill, the fact that he was killed by a disappointed office-seeker made him a martyr for the reform cause.
A man named Charles Guiteau had hoped to be consul to Paris. After weeks of making his case and after repeatedly being turned away from Garfield's office, he followed Garfield into a train station and shot him twice in the back. As he did so, he shouted that now Chester Arthur, a noted spoilsman, would be president. The reformers capitalized on this comment, portraying the situation as the obvious result of the evil spoils system. In a sudden change of heart (and reality), they described Garfield as a proponent of reform. After two more years of pressure, the Republican Congress finally acknowledged the rising sentiment for reform and passed the Pendleton Act, which was signed into law in January 1883.
The Pendleton Act is one of two landmark pieces of legislation in federal personnel administration (the other being the Civil Service Reform Act of 1978). The Pendleton Act was primarily an effort to eliminate political influence from administrative agencies and, secondarily, an effort to ensure more competent government employees. It pursued these aims through the following major provisions:
1. A bipartisan commission, the U.S. Civil Service Commission, was created within the executive branch to establish and implement personnel rules and procedures for the federal government.
2. Open and competitive examinations to test job-related skills were developed wherever practical within the agencies covered by the law and were to become the primary basis upon which to make hiring decisions.
3. Employees were given protection against political pressures, such as assessments (mandatory contributions) or “required” participation in campaign activities.
4. Lateral entry into government positions (that is, entry at any level as opposed to only the beginning level) was encouraged, thus maintaining an important element of Jacksonian openness.
5. Positions in Washington offices were to be apportioned among the various states, in an effort to provide geographical representation in the civil service.
6. The president was given authority to extend coverage to other groups of government employees beyond the approximately 10 percent of federal employees covered by the act.
These provisions, especially the last, provided the basis for the gradual extension of the idea of a merit system throughout most of the federal government as well as state and local governments (see the box “Exploring Concepts: Principles of Civil Service”). The concept of merit is so central to the American approach to public personnel administration that “merit system” and “civil service system” have become almost synonymous.
Exploring Concepts
PRINCIPLES OF CIVIL SERVICE
1. The selection of subordinate government officials should be based on merit…rather than … political favoritism;
2. that since jobs are to be filled by weighing the merits of applicants, those hired should have tenure regardless of political changes at the top of organizations;
3. that the price of job security should be a willing responsiveness to the legitimate political leaders of the day.
SOURCE: Hugh Heclo, A Government of Strangers (Washington, DC: Brookings Institution,1977), p. 20.
The Pendleton Act, although important in establishing the notion of a merit system of public employment, merely provided a framework within which a more full-blown system might develop. Unfortunately, development of the system was not well coordinated. Although the merit system was gradually extended to more and more government employees, its values were not always the primary motivation for extension. For example, one unlikely set of agents for the extension of personnel reforms turned out to be outgoing presidents. Many of them sought to “blanket in” those they had appointed to patronage positions by making the positions subject to the merit system. In this way, merit coverage was extended from its original 10 percent of all federal employees in 1883 to approximately 70 percent by the end of World War I and some 90 percent today.
Other changes in the system also occurred slowly. The Pendleton Act contained provisions for examinations, but other devices for improving the quality of the workforce, such as position classification, standard pay schedules, and objective performance appraisals, had not yet been developed. Over the next decades, these ideas too became a part of the federal system of civil service. The Classification Act of 1923, for example, established a system for classifying jobs according to the qualifications needed to carry them out and tying them to various pay grades, thus providing uniformity throughout the system.
Changes were also required to respond to a newly professionalized workforce and a larger and more activist government. In the early days, the main jobs in government were essentially clerkships, but as government grew and entered new fields, there was a need for more professional and more highly specialized people. Similarly, especially through the Roosevelt years, a multitude of new agencies were created, each placing different demands on the personnel system. Prior to this time, the Civil Service Commission had assumed the role of the government's central personnel agency; now it was necessary to decentralize personnel responsibilities to the various agencies, with the commission setting regulations and monitoring implementation.
The merit system has now become firmly established at the federal level. Nine out of ten federal employees are covered by either the general merit system or by one of several special systems created by law to pursue merit principles within specific agencies: the Postal Service, the Federal Bureau of Investigation, the Foreign Service, and so on. The remaining positions are exempt because they are not amenable to competitive selection or to regular personnel procedures; they include seasonal workers, those in intelligence, and a limited number of policy-making and confidential positions. Any incoming president now has over 2,500 positions to fill on a purely political basis—a number that has actually risen substantially in the last fifteen years. Questions about the background and preparation of political appointees were raised with the resignation of Michael Brown, a former commissioner of the Arabian Horse Association, as director of the Federal Emergency Management Agency (FEMA) after Hurricane Katrina. In addition, both the head of the recovery division and the FEMA chief-of-staff were political appointees, whose counterparts in the Clinton administration were career officials with decades of experience.
Many questions have been raised in recent years about whether there are too many political appointees in the federal government or, in other words, whether the federal bureaucracy has become too highly politicized. Others, however, argue that political appointees help in controlling the bureaucracy. In any case, this argument has intensified as the growth in numbers of political appointees has been accompanied by increasing centralization of the appointment process in the White House. At present, nearly all the political appointments that occur at the federal level—executives, members of boards and commissions, ambassadorships, and judgeships—are cleared through the White House personnel office.
The Civil Service Reform Act and Its Aftermath
For nearly one hundred years, the Pendleton Act provided the primary statutory basis for federal civil service. That changed with the passage and implementation of the Civil Service Reform Act of 1978. During the 1960s and 1970s, it became increasingly clear that there were serious problems in the federal personnel management system. The problems were in large part a result of the fairly haphazard pattern through which the system had been established. Responsibilities for personnel management were spread among the president, Congress, the courts, the Civil Service Commission, and various agencies; but there was often not agreement on the basic principles that should guide the development of the system.
Even within the Civil Service Commission itself, there was confusion about the direction of personnel policy. On the one hand, the commission existed to execute the president's personnel directives; on the other hand, it was also responsible for protecting employees from political abuse. At times, the two objectives came into conflict. As a result, the numbers of rules and regulations were not only excessive, but they often directly conflicted with one another.
President Carter made reform of the personnel system one of the central themes of his administration and targeted at least five problem areas:
1. Technical overkill. Critics charged that those in charge of the personnel function had, in their drive to achieve political neutrality, created overly detailed regulations for recruiting, testing, selecting, classifying, and releasing employees. In many cases, these technical rules became a maze that prevented rather than aided action, and sorting through the procedures to replace a key manager could take as long as two years.
2. Excessive protection of employees. Similarly, many felt that the drive to achieve political neutrality created excessive protections for employees. Although these protections were initiated for the best of reasons—so that employees would not be unduly or arbitrarily punished or dismissed—they sometimes resulted in incredible outcomes, such as an award of almost $5,000 in back pay to a postal employee who had been fired for shooting a coworker in the stomach! On the other hand, protections were needed in other areas. For example, employees who pointed out cases of waste, fraud, and abuse in public agencies—“whistle-blowers”—were often subjected to harassment or even dismissal.
1. Lack of management flexibility. Managers, especially political appointees, claimed that civil service regulations were so inflexible that they could not manage effectively. In an effort to counter this tendency, one official in the Nixon administration prepared a document, known as the Malek Manual, suggesting 130 ways that managers could subvert the intent of the merit system and do what they wanted to do. One entry described how to get rid of someone who doesn't enjoy traveling: “[He] is given extensive travel orders crisscrossing the country to towns (hopefully with the worst accommodations possible) of a population of 20,000 or under. Until his wife threatens him with divorce, unless he quits, you have him out of town and out of the way. When he finally asks for relief you tearfully reiterate the importance of the project and state that he must continue to obey travel orders or resign.”
2. Inadequate incentives to eliminate inefficiencies. It was also charged that a system that seemed to grant raises according to longevity rather than performance and that made raises and promotion appear almost automatic encouraged inefficiency. Over 99 percent of the nearly 3 million federal employees regularly received satisfactory performance ratings that entitled them to raises. Alan Campbell, a leading advocate of reform, wrote: “The current system provides few incentives for managers to manage or for employees to perform.”
3. Discrimination. Many—notably women and minorities—felt the federal personnel system was not adequately promoting their representation within the bureaucratic ranks. They wanted to make sure that any new system would be more attentive to their interests and better able to cope with the increasing number of complaints in this area.
The Civil Service Reform Act was proposed to “restore the merit principle to a system which has grown into a bureaucratic maze” (Carter, 1978). The act sought to deal with the often contradictory roles of the Civil Service Commission by creating a new Office of Personnel Management (OPM) responsible for policy leadership and a Merit Systems Protection Board to handle investigations and appeals. OPM is “the President's principal agent for managing the federal workforce”; it has responsibility for human resource management and enforcement of personnel regulations (Campbell, 1978, p. 100). The Merit Systems Protection Board, on the other hand, is the “watchdog” of the personnel system, hearing and resolving complaints, as well as protecting whistle-blowers from reprisals. The previously conflicting responsibilities of the Civil Service Commission were split between the two new agencies.
Beyond establishing the two new agencies, perhaps the most striking feature of the Civil Service Reform Act was the creation of the Senior Executive Service (SES). Following ideas that had been discussed for nearly forty years and specifically proposed but not adopted in the Nixon years, the SES created a separate personnel system for the highest-ranking civil service officials, permitting greater flexibility in assignments and establishing a new system of incentives for top-level managers. Basically, eligible managers would apply for positions in the SES and, if accepted, would hold SES rank as individuals, rather than being limited to the rank of a particular position. This meant that, within certain limitations, SES managers could be moved from agency to agency depending on their talents and the needs of the agencies. A new system of performance evaluations and pay increases closely tied to performance was also developed, along with an elaborate system of bonuses for exceptional executives. A 1991 “deal” involving pay plans and performance measures required SES members to be “recertified” every three years.
In addition to these major features, the Civil Service Reform Act made several other changes: giving agencies greater flexibility to administer their own personnel systems, establishing a new and more sophisticated performance appraisal system, creating a merit pay system for managers just below the SES range, providing protection for whistle-blowers, assigning the federal Equal Employment Opportunity program (previously with the Civil Service Commission) to the Equal Employment Opportunity Commission, and creating a more independent Federal Labor Relations Authority.
After more than three decades, the Civil Service Reform Act is still receiving mixed reviews. The most favorable opinion is that there is little wrong with the act itself, but that implementation has been flawed by lack of funding and administration pressures to increase the number of political appointees. Others suggest the act was based on questionable assumptions about the nature of the federal workforce and was doomed from the beginning. In any case, the Civil Service Reform Act represented the first major change in personnel policy at the federal level since the Pendleton Act. Its confirmation of the principle of merit, its effort to sort out the multiple responsibilities of the personnel system, and its attempt to produce greater managerial flexibility have been significant.
Networking
The Office of Personnel Management is located at www.opm.gov.
Reinvention and the National Performance Review
During the 1990s, Vice President Gore's National Performance Review (NPR), and the “Reinventing Government” movement generally, had a dramatic impact on personnel systems within the federal government. The goal of NPR was to enhance government productivity by streamlining processes, increasing accountability, and decentralizing authority to encourage entrepreneurial behavior. Decentralization and the focus on results instituted a fundamental change in the way government agencies, and thus personnel systems, work. Public employees are now held accountable for customer service and productivity and are rewarded based on their agency's efficiency and performance. While the NPR has given way to other reforms, and other administrations, its impact on the culture of the federal government has been substantial.
The Bush administration had its own approach to administrative reform in the federal government. In August 2001, President George W. Bush introduced the President's Management Agenda (PMA), which focused on management and performance measurements. Among the five areas of improvement, human capital development was the first to be emphasized. As an MBA business-oriented administrator, President Bush saw the need for competent and competitive personnel as a key to effectively delivering government services to citizens (Breul, 2007). Agencies were given the flexibility to “use their performance management and awards programs to develop results-based elements and standards, to align employee performance plans with organizational goals and objectives, and to design recognition and incentive programs that reward employees for accomplishing those goals and objectives to develop a strong performance culture within their organizations” (Office of Personnel Management [OPM], n.d., p. 35). While Bush continued the practice of giving chief operating officers the responsibility for day-to-day operations, he strengthened the requirements for performance-oriented management, focusing primarily on the results achieved by each individual department and agency (Breul, 2007, p. 22).
In 2002, the OPM established the Human Capital Assessment and Accountability Framework (HCAAF). According to the HCAAF, each agency had to “maintain a current human capital plan and submit to OPM an annual human capital accountability report” (Office of Personnel Management, Human Capital Assessment and Accountability Framework, n.d.). Human capital management in every organization was followed by the level of achieving certain merit standards in five key human capital areas: (1) strategic alignment (planning and goal setting), (2) leadership and knowledge management (implementation), (3) results-oriented performance culture (implementation), (4) talent management (implementation), and (5) accountability (evaluating results).
One of the six themes of President Obama's plan for building a high-performance government was “transforming the federal workforce” (OMB, 2009, p. 10). Noting that nearly half the federal workforce was projected to retire in the coming decade, the Obama administration described it as an opportunity to “reform and re-energize” the federal workforce and transform its capacity to address the challenges of the twenty-first century by implementing new systems and processes to “acquire, develop, engage, compensate, recognize, and effectively retain talented employees” (OMB, 2009, p. 10).
Under the leadership of the OPM, the federal hiring process would be reformed. Agencies would develop strategic workforce plans; post brief, clear job announcements in plain language; provide timely notification to applicants about the status of applications; measure the average length of the hiring process; and evaluate the effectiveness of hiring efforts and reforms. President Obama's plan also called for greater investments in the existing workforce, allowing workers to build skills and expertise. Agencies would increase and improve training and implement measures to evaluate training effectiveness; increase the rotation of managers within and between agencies to help individuals build a wide range of experience and skills; and put in place a “healthy leadership pipeline” by identifying potential successors for mission-critical positions well before incumbents retire. Methods of evaluating employee performance also would be improved; agencies would implement processes for rewarding success and “smart risk-taking” for both individuals and teams; and incentives would be created to retain talented workers.
In 2010 OPM was specifically charged with five high-priority performance goals that are measurable commitments to deliver specific results. The first is to reform federal recruiting, hiring, and retention policies and procedures, a multiyear process to streamline and improve the hiring process. The second is to increase the strategic use of telework to improve continuity of operations, reduce management costs, and increase employee job satisfaction. The third is to maintain or exceed OPM-related goals of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 and provide deliverables necessary to ensure that security clearance reforms are substantially operational across the federal government. The fourth is to ensure that every agency establishes and begins to implement a plan for a comprehensive health and wellness program that would achieve a 75 percent participation rate over five years. Finally, OPM was charged with increasing the number of retirement records it receives that are complete and require no development actions to 81 percent by the end of 2012.
State and Local Personnel Systems
Many of the same problems that led to institution of the federal civil service system in the late 1800s also existed at the state and local levels—indeed, the problems were often more severe. Although the federal government was certainly influenced by politicians interested in maintaining power through patronage, it was never so completely dominated by political bosses and machines as were the states and, especially, the cities.
Even after the federal government created its civil service system, states and localities were slow to follow. New York adopted the first state civil service law in 1883, followed by Massachusetts in 1884. It was twenty years, however, before another state joined these two. By 1935, only twenty states had adopted merit systems. Today nearly all states have relatively sophisticated civil service merit systems, although those systems don't cover everyone. Even now, only about 60 percent of state government employees are covered by merit systems.
The story is much the same at the local level: Albany, New York, was the first city to adopt a civil service system (1884), and a few other cities and counties followed prior to the turn of the century, but reform came slowly at the local level. Moreover, even where formal systems were adopted, patronage practices and political manipulation of the government workforce continued. Chicago and Cook County were among the first to adopt civil service systems. Yet, even today, mayoral candidates often run on a platform of reducing machine control in Chicago. Today almost 90 percent of local jurisdictions with populations of over 50,000 have some type of merit system on the books.
What Would You Do?
A department director that reports to you has had six sexual harassment claims filed against him over the last four years. All six have been investigated but dismissed. What would you do?
Over the years, a primary motivator for adopting merit systems at state and local levels has been the number of federal laws requiring such systems in order for states and localities to receive federal funds. By 1980, every state and thousands of local governments had federal grants that required personnel systems that met a set of federal standards. The result has been that most state agencies receiving large amounts of federal funding are now covered by merit systems; those that receive limited or no federal funds are much less likely to have a merit system. In addition to these requirements, the courts have extended due process protections to many public employees and have supported affirmative action and other personnel-related actions that place greater burdens on state and local governments for detailed testing, classification, and reporting. Many states have thus found it advisable to establish or to extend merit concepts for their own protection.
Though these regulations have been somewhat relaxed in recent years, it seems unlikely that state and local governments will return to massive use of the spoils system. Indeed, there is some evidence that governments are pursuing many of the same reforms pursued at the federal level in the late 1970s, which some charge have led to greater politicization of the public workforce. For example, states and localities are experimenting with decentralization of personnel functions, greater responsiveness of managerial and political authority, and closer ties between performance appraisals and merit pay. It remains to be seen whether elected officials at state and local levels will be subject to the same temptation as were those at the federal level to employ the new devices in a more politicized approach to public personnel.
Hiring, Firing, and Things in Between
Most provisions of public personnel systems exist to protect public employees from excessive political interference; however, in some cases, they appear to make public personnel actions unduly complicated. Knowing the “rules of the game” will be a considerable help in your administrative work and if you are looking for a job in a government agency.
The key to most public personnel systems is the notion of position classification: the arrangement of jobs on the basis of duties and responsibilities and the skills required to perform them. A position classification system usually begins with a set of job descriptions, each based on a thorough analysis of the work and the required capabilities. A job description typically contains the following elements: job title, duties required, responsibilities associated with the position, and qualifications needed to carry out the job. A clerk-typist position, for example, might be described as including duties such as typing reports, maintaining correspondence records, answering telephone and walk-in inquiries, arranging for meetings and conferences on behalf of the supervisor, and other duties “as assigned.” Qualifications might include a high school diploma or the equivalent, typing speed of forty words per minute, and two years of clerical experience.
Typically, sets of jobs that are closely related are then grouped together in classes that indicate increasing levels of difficulty—Clerk-Typist I, Clerk-Typist II, Clerk-Typist III, and so on. In larger jurisdictions, such as the federal government, classes may also be grouped into grade schedules that group jobs of varying levels of difficulty. For example, the federal General Schedule, which covers clerical and professional positions, lists a variety of different occupations under the grade GS-11.
Organizations use personnel classification systems for several reasons: to maintain an objective inventory of positions, to provide equity across similar jobs, to connect tasks and the skills required to perform them, and to provide standards for judging the work of specific employees. Historically, such systems developed out of a concern for objectivity and equity consistent with the idea of protecting employees from political abuse. The Position Classification Act of 1923, for example, required grouping jobs into classes on the basis of duties and responsibilities and, in language sounding much more contemporary, committed the federal government to providing “equal compensation for equal work, irrespective of sex.” With this early impetus, most public organizations have developed rather sophisticated classification systems that are usually more advanced than their private-sector counterparts.
Although most people agree that the objective of current classification systems—equal pay for substantially equal work—is basically sound, many have argued that classification systems have become burdensome, inflexible, and unfair. Specifically, many argue that the complexity of the system creates excessive requirements that interfere with agency performance. The National Academy of Public Administration (NAPA) developed an alternative classification scheme that groups hundreds of federal job categories into occupational “families” based on similarities in career progression, basic skills, recruitment training, and performance measurement. Families might include such areas as general support, office services, technical, engineering, health, or law enforcement. NAPA has also recommended the adoption of broadbanding for pay classification. (In broadbanding, the upper and lower limits are defined, but the number of different levels in between is reduced.)
Having objective statements of duties, responsibilities, and qualifications makes it possible to recruit personnel based not on who one knows, but on what one knows and what one can do. Recruitment efforts in the public sector must also be concerned with ensuring fairness, openness, and representativeness. Typically, the recruitment process involves the following steps:
1. Advertising or giving notice of a vacancy to be filled
2. Testing or otherwise screening applicants
3. Preparing a list of qualified candidates
4. Selecting someone to fill the position
In most jurisdictions, a personnel officer within a particular agency or someone from a central personnel department is significantly involved in the first three steps. Testing or screening processes have been subject to special scrutiny in recent years. Screening can occur through a review of written applications and recommendations, aptitude or ability testing, performance examinations, interviews, or assessment centers. Of the aptitude or ability tests that public organizations use, some measure general knowledge, others measure personality characteristics, and still others measure specific job-related knowledge or abilities. Performance examinations, such as typing tests, measure specific job capabilities.
The method of testing should relate to the job to be filled. Though individual interviews are a common part of the hiring process, for example, they tend to be poor predictors of eventual job performance. Generally speaking, structured interviews , in which a previously developed set of questions is used with each applicant, and panel interviews, which involve more than one interviewer, are preferable. Similarly, carefully constructed assessment centers using several independent raters may be used. (An assessment center puts several job applicants through a series of job-related simulations to observe their performance under “real-life” conditions.)
After testing or screening, a small number of eligible applicants are certified and forwarded to the hiring agency, often with rankings based on the candidates' qualifications. Most merit systems require that at least the top three names be forwarded to the agency so the manager will have some flexibility to consider personal or subjective characteristics in the final selection. This rule of three provision has proven controversial, however; many claim that it has been used as a device to discriminate against women and minorities. (Under this provision, for instance, a sexist employer could hire a male even if a woman candidate were objectively more capable.) An equally controversial provision of many merit systems requires that veterans (or sometimes even relatives of veterans) receive extra points in the ranking system. Obviously, such a provision works against the interests of nonveterans, most of whom are women; however, it is strongly supported by veterans' groups and has been upheld by the courts.
What Would You Do?
One of your employees, whose work is otherwise quite good, has annoyed many of her fellow employees with her arrogant attitude. You don't want to lose her, but her behavior is clearly bothering others and, they claim, affecting the quality of their work. What would you do?
The centralized process of recruitment traditionally underlying public personnel systems itself has come under fire in recent years. Many suggest that it places decision-making authority in the hands of human resources staff as opposed to public managers. For example, many have recommended that federal agencies be given the power to establish their own recruitment and examining programs. The argument suggests that managers in each policy area can be more effective in recognizing the skills and abilities needed to make the agency more productive and that they are in the best position to determine when to increase hiring levels.
As a result, the trend toward decentralized recruitment has gained in popularity even in larger, more diverse agencies within the federal government. Decentralized processes may rely on similar selection criteria as a centralized system, but the primary difference is that agency heads, rather than personnel managers, select the viable candidates. Those with the greatest knowledge of the policy field, therefore, choose the individuals they believe will enhance the organization. Moreover, by not having to engage in the selection process, personnel staff members are free to concentrate on broader concerns, such as diversity, affirmative action, and other factors affecting the organization.
Networking
For employment opportunities in the federal government, go to the Office of Personnel Management at www.opm.gov, or USAJOBS at www.usajobs.opm.gov/infocenter/howjobsgetfilled.asp, or www.careersingovernment.com, or visit any of the federal agencies online. Those interested in employment at other levels of government can go to www.PublicServiceCareers.org, or www.govtjobs.com. For nonprofit-sector jobs, go to www.philanthropy.com or www.opportunitynocs.org.
For those interested in applying for positions in the federal government, or in other levels of government, and the nonprofit sector, the Internet has become a vital resource. Applicants can complete the necessary forms and submit their materials online, and in some cases the entire recruitment process can occur without the candidate ever visiting the hiring organization. The federal Office of Personnel Management in 2011 launched a new website called USAJobsRecruit, an online tool for showing best practices and advertising hiring events. The one-stop shop gives managers and human resources personnel access to recruiting and communication tools, such as discussion forums, chats, and blogs. Whether it's done in person or online, be sure to submit the appropriate application materials. In some cases this may be as simple as sending in a current resume with the vacancy number and level. Usually, however, resumes should be accompanied by the proper application forms. Many recruiters will not consider application materials unless they are submitted in a style and format consistent with those called for in the vacancy announcement.
One aspect of the recruitment process that is receiving increasing attention is the matter of succession planning (Riccucci, 2011, p. 135). The question here is how government can adequately recruit sufficient talent to overcome several structural difficulties it faces in the recruitment process. In the 1970s, with the growth of government, a large number of baby boomers were recruited to the public service. Those people have now reached or will soon reach retirement age. “By some estimates, up to 70% of the Senior Executive Service (SES) is currently eligible to retire” (PriceWaterhouseCoopers, 2006, p. 6.) Another challenge to the system is the large drop in government employment propelled by the recession. John Berry, head of the Office of Personnel Management, recently told Congress, “As agencies are looking at increasing their buyouts and other options to tighten their belts, it's increasing our retirement pressure” (Federal Times, 2010). As a result of these two factors, federal retirements jumped 24 percent in the first ten months of 2011 as compared with the previous year.
Even while there are challenges brought about by replacing retiring federal executives, there are other demographic concerns faced by federal recruiters as well. According to the Census Bureau, by the year 2050, current minorities will be the majority in America and the percentage of the population over sixty-five will more than double. In addition, other demographic patterns, including immigration and shifting patterns of migration, will challenge government agencies to find the appropriate mechanisms for recruiting populations different from those that currently staff the upper levels of government. Succession planning is the process of attracting, developing, and retaining appropriate executive talent at the upper levels of government. In this process, agencies are trying to match human resources decisions with their strategic objectives and, in turn, exploring new avenues for recruitment, training, job rotation, and performance evaluation to meet evolving circumstances. Clearly, succession planning will be a growing concern for public executives at all levels over the coming decades.
Naturally, both the recruiting process and the individual's job performance are affected by compensation patterns, including wages and benefits. Generally speaking, pay is determined by the nature of the work and the quality of job performance. But pay plans in the public sector are difficult to construct, for they must embody two often contradictory principles. To be fair and equitable, they must be highly structured; to be competitive, they must be responsive to changing political and economic conditions.
Most large government personnel systems (including states and big cities) base their pay plans on classification systems that usually define a series of grades, each containing a set of jobs that are comparable in terms of difficulty, and a number of steps within each grade. These steps represent approximately equal increments of pay, with the highest about 20 to 30 percent above the lowest. In most cases, the grades are slightly overlapping, so the first step in one grade is equal to one of the higher steps in the grade below. Individuals are assigned to a particular grade and step depending on the position description and individual qualifications for the position.
Employees in this type of system may receive pay increases in several ways. One way is to change grades; however, for an employee to change grades, either the position has to be reclassified or all equivalent positions have to be moved to a higher range. For an employee to receive increases within a grade, either the entire pay plan must be adjusted upward—for example, through a legislative action to improve overall pay (such as through cost-of-living increases)—or the individual may receive a raise. Raises can be based on several factors, ranging from seniority to merit pay (pay for performance).
The idea of merit pay is simply that increases in salaries and wages should be tied to the actual quality of the work being done, so that those who perform better or more productively receive greater rewards. Although governments have used various merit pay systems, such systems have not always worked well. In many cases, the money available for merit raises for a few is spread so thinly that meritorious employees aren't differentiated from others. Part of the reason for this is the difficulty of objectively measuring an individual's performance and the fact that many managers find it awkward to evaluate their employees' work.
Recall that the Civil Service Reform Act of 1978 sought to remedy this situation by requiring merit pay based on formal performance appraisal systems. Although agencies have been given considerable flexibility as to what systems they adopt, efforts have been made to base evaluations on critical elements of the individual's job or to develop results-oriented systems that tie evaluation to specific job outcomes. Any system of performance appraisal must be both accurate and fair.
Performance-appraisal systems must be based on the real requirements of the task. They must reflect realistic levels of performance, and be couched in terms that the workers understand, while at the same time providing workers with some insights on where and how performance improvements need to be made. (Siegel & Myrtle, 1985, p. 337)
One aspect of compensation policy that has received substantial attention over the years is the comparability of wages and salaries in the public and private sectors. Efforts to make such comparisons are similar to comparing apples and oranges; thus early studies tended to show public-sector salaries considerably below those in the private sector—today ranging between 22 and 38 percent, depending on grade level. (Incidentally, the greatest differences are at top-level positions.)
Under these conditions, the federal Pay Comparability Act of 1990 required the federal government to close the gap between the public and private sectors, beginning by closing the gap 20 percent in 1993 and then 10 percent in subsequent years. Both Presidents Reagan and Bush in the 1990s cited the country's economic problems as reason to impose lower wages than those suggested by comparability studies. President Clinton, although proposing some increases, rejected the comparability targets, arguing that the law's formulas were based on flawed methodology. More recently, President George W. Bush argued that full statutory pay raises would interfere with the nation's ability to fight terrorism. President Obama has frozen federal pay as one part of an effort to reduce the budget deficit.
In any case, the comparison remains difficult. A USA Today analysis concluded that, overall, federal government employees in 2008 earned about $7,000 more that their private-sector counterparts in similar jobs. Countering that analysis, a public union spokesperson argued that the study compares apples and oranges, because federal jobs require a higher set of skills. “When you look at the actual duties, you see that very few federal jobs align with those in the private sector” (USA Today, 2010). Meanwhile, a 2010 study by the Center for State and Local Government Excellence, based on data from the Bureau of Labor Statistics, concluded that wages and salaries of state and local employees are lower than those for private-sector employees with comparable education and work experience. And the gap is getting bigger (http://slge.org/publications/out-of-balance-comparing-public-and-private-sector-compensation-over-20-years). Others, however, argue that government benefits offset any differences.
Conditions of Employment and Related Matters
There are several contemporary issues in personnel management that relate either to conditions under which employees are hired or under which they must work. For example, increasing numbers of employers in both the public and private sectors are recognizing that substance abuse is responsible for greater absenteeism, higher accident rates, and generally lower productivity. Consequently, programs have been established to identify and aid or dismiss employees who have problems with drugs or alcohol.
Testing for drugs, primarily through urinalysis, has become quite common. Despite the fact that such programs violate personal dignity and have a variety of technical problems, a substantial number of private companies now use drug testing. But that number is declining. According to the American Management Association, the percentage of employers with testing programs has dropped steadily since 1996, from 81 percent to 62 percent in 2004 (http://www.time.eom/time/nation/article/0,8599,1211429,00.html). The decline may be due to people searching out employers who don't test. But the decline may also be due to agency calculations of costs and benefits. “According to a 1999 ACLU study, the federal government spent $11.7 million to find 153 drug users among almost 29,000 employees tested in 1990, a cost of $77,000 per positive test” (http://www.time.com/time/nation/article/0,8599,1211429,00.html).
Employees in private firms have little protection from testing and, in the absence of collective bargaining agreements to the contrary, may be tested at management discretion. Because public employees (at least civilian employees) are more clearly protected against illegal search and seizure and are guaranteed equal protection and due process, programs to test public employees have frequently been challenged in the courts. For the most part, the courts have held that random mandatory testing is a violation of employee rights, but that testing may be required where there is reasonable suspicion of abuse or where testing is made a part of the hiring process. But questions continue to be debated. For example, what type of testing is appropriate for those in “sensitive positions,” such as air traffic controllers or those in contact with nuclear or chemical weapons?
Networking
The following sites track contemporary issues in personnel management. Many others are available.
· www.ipma-hr.org (International Public Management Association for Human Resources; benefits)
· www.shrm.org (Society for Human Resource Management)
· www.hr.com (general information relating to human resource management)
· www.hr-guide.com (index of subjects relating to personnel management)
Another contemporary concern is establishing a work environment that is supportive of and sensitive to the needs of all people, regardless of gender. One aspect of this concern is sexual harassment, a topic that has received considerable national attention in the wake of several highly publicized cases. Sexual harassment may be defined as any unwanted and nonreciprocal verbal or physical sexual advances or derogatory remarks that the recipient finds offensive or that interfere with job performance. Sexual harassment especially includes (though is not limited to) situations in which one person in a position of power or influence uses his or her position to encourage or coerce a subordinate or coworker into undesired sexual activity, even to the point of withholding or taking away promotions or raises. The courts consider sexual harassment a type of inequality that employers must deal with, both by eliminating offensive behaviors and by creating a less hostile or intimidating work environment for both men and women.
Although sexual harassment appears to be a common problem, many instances remain unreported. (The number of reported incidents rose dramatically during the last two decades with the increase in public awareness.) One reason for unreported cases may be the complex and often ambiguous procedures many organizations have for dealing with complaints. Most tend to be lengthy, expensive, and psychologically draining. For this reason, public organizations are currently reviewing their policies on sexual harassment, establishing more clearly the seriousness of the offense and developing strong enforcement and disciplinary measures, including dismissal. The goal is to eliminate specific instances of harassment and create a work environment that is fully supportive of the potential of all employees. In fiscal year 2006, the federal Equal Employment Opportunities Commission received about 12,000 charges of sexual harassment, with 85 percent of those charges filed by women. EEOC resolved nearly all of these sexual harassment charges and recovered $48.8 million in monetary benefits for the charging parties (www.eeoc.gov/types/sexual_harassment.html).
Networking
For discussions of sexual harassment and other personnel issues, see http://www.eeoc.gov/.
Other issues relating to a positive work environment arise as public organizations, like others, work to protect the rights of individuals with HIV/AIDS. The Office of Personnel Management provided one of the first directives for federal agencies, setting a policy that prohibits the discrimination against employees with AIDS and that allows managers to take disciplinary action against anyone who refuses to work with an employee who has AIDS. The guidelines said that employees with AIDS “should be allowed to continue working as long as they are able to maintain acceptable performance and do not pose a safety or health threat to themselves or others in the workplace.” Moreover, because there is no medical basis for refusing to work with employees with AIDS, where managers feel the refusal is “impeding or disrupting the organization's work, [the manager] should consider appropriate corrective or disciplinary action against the threatening or disruptive employees” (Havemann, 1988a, p. 34).
These considerations have become even more important with the passage of the 1990 Americans with Disabilities Act (ADA), which considers those infected with HIV/AIDS as disabled individuals. (The ADA will be discussed in more detail later in this chapter.) Consequently, many agencies are developing HIV/AIDS plans for the workplace. Despite this attention, much work remains to be done to create a positive work environment for this protected group.
In recent years, incidents of violence in the public workplace have had a dramatic effect on work environments. Although multiple murders and acts of terrorism, such as the 1995 Oklahoma City bombing, tend to capture the public's attention, other forms of violence pose an equally significant threat to workplace safety and quality. Violent crime affects organizations in all sectors; however, the government remains a primary target. In 2005 alone, the U.S. Department of Labor reported that 32 percent of all state employees reported some type of workplace violence as compared to 15 percent of local government employees and 5 percent of employees in private industries (www.bls.gov/iif/oshwc/osnr0026.pdf). The increase in violence over the past decade has prompted administrators to implement strategies for reducing the risk of workplace crime. While the Department of Labor reported in 2006 that 70 percent of public workplaces do not have any formal plan to address workplace violence, preventive measures include improving the physical environment, adding security and related staff, and reducing hours of operation during high-risk periods (www.bls.gov/opub/ted/2006/oct/wk5/art02.htm). However, as we noted, many public administrators have yet to realize the actual threat of violence that affects their organization. Some continue to view occupational violence as someone else's problem. Recent research on violent crime, though, suggests otherwise. The political nature of government, the deterioration in public perception of government workers, and the increase in stress loads among public employees combine to make public organizations likely targets for workplace violence.
One particular aspect of workplace violence that deserves attention is violence against women, something that has been egregious in the military. An estimated 17 percent of women in the general population become victims at some point in their lives, while the number in the military is estimated to be between 23 and 33 percent. Defense Secretary Leon Panetta has estimated that, since victims are too often afraid to come forward, the actual number may be close to 19,000, more than six times the number of reported attacks in 2011. Mr. Panetta has announced reforms, including training in the prosecution of sexual assault cases, increased opportunities for reporting abuse, and greater support for victims (New York Times, 2012).
Occasionally things don't work out on the job. An employee may not live up to expectations or may become unproductive. In cases such as these, your first step as a manager is to try to improve the individual's work (a strategy that is far easier than recruiting and training a replacement). You may encourage or counsel the employee, either personally or, better, through an employee assistance program. In a surprising number of cases, you may be able to restructure the job to better motivate the employee. Concerns about an employee's work can often be addressed in positive and productive ways that are helpful to both the individual and the organization.
But if your efforts to help the employee fail, you may have to resort to disciplinary action: formal reprimands, reduction of pay, suspension without pay, or outright dismissal. In all cases, it is important to be able to demonstrate that there is adequate cause for disciplinary action. Simply firing someone for personal reasons unrelated to the job opens both you and the organization to possible lawsuits; and firing someone for political reasons is contrary to the whole concept of merit employment in the public sector.
There is a strong presumption that public-sector employees are entitled to notice and an opportunity to be heard before disciplinary action or before dismissal. This does not mean that a person cannot be demoted, suspended, or terminated but rather that the employer cannot take such action in an arbitrary way.
At the federal level, the Civil Service Reform Act encourages development of performance appraisal systems that make it easier for managers to document employee incompetence and remove employees from the organization. At the state and local levels, various court cases have indicated that employees being terminated have certain due process rights, such as advance notice and the opportunity for a hearing. In any case, if you decide to pursue disciplinary action, you should build a clear case to demonstrate the underlying reasons for your action.
There have been a number of efforts to reform the federal personnel management system. Two recent experiments have underscored the importance of agency flexibility in personnel matters. In November 2002, when the Department of Homeland Security (DHS) was created, it was given authority to work with the Office of Personnel Management to create a personnel system unique to its needs. DHS responded by creating a system with more open pay ranges, performance pay pools, and specific market-based pay adjustments. Similarly, in November 2003, the Department of Defense (DOD) was asked to create a National Security Personnel System, again one unique to its needs. The flexibilities that DOD incorporated included a broadband pay system, performance-based pay, and a simplification of the employee appeals process.
Similar recommendations have come from other sources. In 2001, a National Commission on the Public Service, chaired by former Federal Reserve chairman Paul A. Volcker, was convened to analyze and report on the state of the public service at the federal level. The commission released its report, titled “Urgent Business for America,” in January 2003, commenting that “the organization of the federal government and the operation of public programs are not good enough: Not good enough for the American people, not good enough to meet the extraordinary challenges of the century just beginning, and not good enough for the hundreds of thousands of talented federal workers who hate the constraints that keep them from serving their country with the full measure of their talents and energy.” The commission made a series of recommendations to improve the quality of management of the federal government (see the box “Public Administration Reform: Urgent Business for America”).
Public Administration Reform
URGENT BUSINESS FOR AMERICA
The Organization of Government
Fundamental reorganization of the federal government is urgently needed to improve the capacity for coherent design and efficient implementation of public policy:
· The federal government should be reorganized into a limited number of mission-related executive departments.
· The operating agencies in these new departments should be run by managers chosen for their operational skills and given the authority to develop management and personnel systems appropriate to their missions.
· The President should be given expedited authority to recommend structural reorganization of federal agencies and departments.
· The House and Senate should realign their committee oversight to match the mission-driven reorganization of the executive branch.
Leadership for Government
Effective government leadership requires immediate changes in the entry process for top leaders and the long-term development of a highly skilled federal management corps:
· The President and Congress should develop a cooperative approach to speeding and streamlining the presidential appointments process.
· Congress and the President should work together to significantly reduce the number of executive branch political positions.
· The Senior Executive Service should be divided into an Executive Management Corps and a Professional and Technical Corps.
· Congress should undertake a critical examination of “ethics” regulations imposed on federal employees, modifying those with little demonstrated public benefit.
· Congress should grant an immediate and significant increase in judicial, executive, and legislative salaries to ensure a reasonable relationship to other professional opportunities.
· Congress should break the statutory link between the salaries of members of Congress and those of judges and senior political appointees.
Operational Effectiveness in Government
The federal workforce must be reshaped, and the systems that support it must be rooted in new personnel management principles that ensure much higher levels of government performance:
· More flexible personnel management systems should be developed by operating agencies to meet their special needs.
· Congress and the Office of Personnel Management should continue their efforts to simplify and accelerate the recruitment of federal employees.
· Congress should establish policies that permit agencies to set compensation related to current market comparisons.
· Competitive outsourcing should follow clear preset standards and goals that advance the public interest and do not undermine core competencies of the government.
SOURCE: The National Commission on the Public Service, Urgent Business for America (http://www.brookings.eduresearch/reports/2003/01/01governance).
The Changing Character of Labor-Management Relations
An interesting issue that cuts across the field of public personnel management is the rise and decline of public-sector unions. At the federal level, many rather narrow issues, having to do primarily with working conditions, are resolved through collective bargaining, though more controversial issues, such as compensation and hiring practices, are rarely considered. At state and local levels, there is a patchwork of labor relations practices, ranging from highly restrictive to extremely permissive labor legislation.
The early development of public-sector unions was tied to the reform of the patronage system. With the establishment of merit principles in public employment, employees had greater protection from political intrusions, but they also had fewer direct ways to get the attention of political leaders. To combat the possibility that they might simply be ignored, public employees began organizing in the late 1800s and early 1900s. At first, political leaders strenuously opposed these efforts; at least two presidents issued gag orders to prevent federal workers from pursuing wage demands except through departmental channels. In response, the newly organized employees, led by the postal workers, pressed Congress for recognition, which they finally received in the Lloyd-LaFollette Act of 1912. The only statutory basis for public-sector unionization for more than half a century, this act permitted federal employees to join unions (that did not advocate the right to strike) and to appeal directly to Congress.
With the early emergence of unions at the federal level, a few agencies, such as the Tennessee Valley Authority, developed advanced patterns of labor-management relations; elsewhere, however, public unions emerged slowly, especially in comparison to their counterparts in the private sector. The slow development of public unions can be explained in part by several difficult questions.
First, there was the issue of sovereignty, the notion that the ultimate power to decide issues of public policy in a democracy lies with the people or their elected representatives and cannot properly be delegated, even partially, to some nongovernmental group such as a union. Illustrating this position, President Franklin Roosevelt wrote, “The process of collective bargaining, as usually understood, cannot be transplanted into the public service…. The very nature and purpose of Government makes it impossible for administrative officials to represent fully or bind the employer in mutual discussions. The employer is the whole people who speak by means of laws enacted by their representatives in Congress” (Klingner & Nalbandian, 1985, p. 292).
A second set of factors restricting the growth of public unions concerns the nature of governmental services, which are considered either essential to the community (police, fire, national defense) or unprofitable (systems of mass transportation). In the case of essential services, the ultimate union weapon—the strike—may be seen as holding the public interest hostage and can backfire. In the case of low-profit undertakings, the balancing factor of the market—the fact that a company may go out of business if pressed too far—does not appear to operate. In either case, the private-sector model of collective bargaining seems to apply only loosely.
A third factor limiting the growth of public-sector unions through much of this century is the varied nature of government employment and the difficulties this presents for unionizing. Traditionally, unions have organized around occupational groups, such as truck drivers or garment workers. But government employs people in thousands of occupational groups; to have a union for each group would lead to endless and unsuccessful bargaining for both sides. The federal government is also characterized by geographic dispersion (only about 10 percent of the federal workforce is located in the Washington area) and the fact that there are so many white-collar workers in government, workers who have been historically reluctant to organize. Thus, finding an appropriate focus for union activity has been especially difficult at the federal level.
Networking
For information on labor-management issues, see www.labornet.org and www.dol.gov. On specific unions, see www.afge.org and www.afscme.org.
Yet, unions have been able to organize. Sparked at least partly by the success of unions in the private sector, where the right to bargain collectively was never seriously questioned after passage of the Wagner Act in 1935, public employees continued to press for recognition of their right to negotiate labor-management disputes. Soon even the sovereignty argument was eroded; Secretary of Labor Willard Wirtz commented, “This doctrine is wrong in theory; what's more, it doesn't work” (Levitan, 1983, p. 6). Bills providing recognition for unions in the public sector were introduced (although unsuccessfully) in every session of Congress from 1949 to 1961.
Just as another such bill seemed stalled in Congress, President Kennedy took the initiative in reforming public labor-management relations by issuing Executive Order 10988 in 1962. Kennedy's order affirmed the right of federal employees to form and join unions, set up conditions under which unions would be recognized for purposes of “meeting and conferring” (discussing, not necessarily negotiating) with management on certain issues, and established limits on the kinds of issues that could be discussed. Though the order placed a great deal of administrative authority in the hands of the various agencies, it did seek some uniformity in application through the Civil Service Commission.
The Kennedy order was expanded somewhat by several executive orders during the Nixon and Ford administrations. Principally, Executive Order 11491, issued in 1969, sought a more coherent labor policy at the federal level through establishment of the Federal Labor Relations Council (FLRC) and slightly expanded the scope of bargaining. The essential items of wages and benefits, however, remained outside the bargaining process.
The next landmark in federal employee unions was the Civil Service Reform Act of 1978. Though the CSRA did little to expand areas of bargaining or to alter administration of federal labor practices (other than replacing the FLRC with a Federal Labor Relations Authority separate from the Office of Personnel Management), the act was important in that it based federal labor relations on a single, comprehensive statute rather than a series of executive orders.
Currently, about a third of all federal workers are represented by unions, the largest of which is the American Federation of Government Employees (AFGE), a part of the AFL-CIO, which has 600,000 federal employees as members. But because Congress has refused to permit a “union shop” among federal workers, though it exists in the private sector, the actual membership of federal unions is significantly less than it might otherwise be. (A union shop is an arrangement under which all members of an agency are required to join the union that represents them.) The AFGE, for instance, negotiates agreements that apply to three times its actual membership. Despite that fact, the percentage of federal workers who pay dues to unions compares quite favorably to that among workers in the private sector; public unions have done quite well in terms of membership. Indeed, overall, public-sector union membership is higher than that in the private sector. In 2010, for example, the membership rate among public employees was over four times that of private-sector employees. While government union membership has remained fairly stable over the last thirty years, that in the private sector has declined significantly. Most public employees in unions are at the local level, many in highly unionized occupations of teachers, firefighters, and police officers (ftp://ftp.bls.gov/pub/news.release/Hirstory/union2.01212004).
At state and local levels, there is incredible variety in the kinds of labor-management relations permitted by law. Though there has been occasional talk of uniform federal statutes to govern state and local practices, the case of National League of Cities v. Usery (1976) seemed to indicate that states have considerable sovereignty over public employees. More recently, however, the case of Garcia v. San Antonio Metropolitan Transit Authority (1985) again opened the possibility of further federal intervention. But until federal legislation is passed, states will continue to exercise control over labor relations in widely varying ways. At present, some states follow the “meet and confer” model of the Kennedy program, while others establish a “negotiations” process similar to the private-sector model. Some states differentiate between state and local employees, while others differentiate among various occupational groups as well. Some states require enforced arbitration of one kind or another, and eight states permit strikes by public employees.
In all, forty-three states have comprehensive labor-relations laws, most of which are more favorable to unions than the existing federal legislation. Over the last thirty years, in fact, the two most rapidly growing unions in this country were the American Federation of State, County, and Municipal Employees and the American Federation of Teachers, both of which operate exclusively at the state and local levels.
Steps in the Bargaining Process
The first and major steps in the bargaining process are recognizing the union's right to exist, determining the type of bargaining permitted, and determining the scope of bargaining. Scope of bargaining is a source of continuing debate in many jurisdictions. Legislation may prescribe areas where negotiation is permitted, where it is prohibited, and where it is required. But the applicable legislation may range from a prohibition on negotiating wages and salaries (as exists at the federal level) to situations in which wages and salaries are at the heart of the process (as in many states and localities). Even beyond these questions, many other issues are less clear. For example, does inclusion of “work methods and procedures” in a bargaining arrangement for public schools mean that teachers can negotiate class sizes?
The typical procedure requires that organizers who wish to represent employees petition the administrative authority to establish a bargaining unit that will represent the employees in conferring or negotiating various issues. (The decision to include or exclude certain groups in the bargaining unit is called unit determination .) Whereas the traditional standard for setting unit boundaries has been to establish a “community of interests,” governments have loosely applied this concept, in some cases recognizing agency-based units (the Department of Social Services or the Department of Mental Health) and in others recognizing units based on occupational classes (nurses, custodians, or security officers). After deciding on the bargaining unit, some mechanism must be established to ensure coordination among the various groups and to prevent whipsaw tactics (arguing that pay or benefits negotiated by one group should apply to others as well).
A similar concern is where to draw the line between managers and workers; for example, are first-line supervisors part of the bargaining unit or part of management? The importance of this issue was illustrated in the case of NLRB v. Yeshiva University (1980), in which it was determined that faculty at Yeshiva University, a private university, are management personnel, participating in decisions such as curricula and scheduling, and therefore outside the coverage of federal labor laws. Similar questions are raised in almost any unit determination; inclusion or exclusion of supervisors in the bargaining process varies greatly from place to place.
After appropriate bargaining units have been established, the administrative authority may either voluntarily recognize a particular union, essentially by petition, as representing a group of employees, or it may conduct an election to determine which, if any, union will represent the employees. Once a union has been recognized, it is usually granted exclusive representation of employees in the unit, including the ability to bargain on all issues required or permitted by law. (The reverse of this process, decertification, is rare, though it can occur.) Bargaining may then begin, typically with both sides bargaining in good faith—attempting to resolve the issues at hand even while following the strategy they feel will be most advantageous to them. In most cases, the bargaining process results in an agreement; occasionally it does not. Where an impasse occurs, there are several possibilities for resolving the issue: mediation, fact-finding, and arbitration.
1. Mediation involves the use of a neutral third party to attempt to work out a settlement. The work of the mediator is to assist the parties in communicating and clarifying their positions, but not to impose solutions. Though the mediator's recommendations are not binding, professional mediators are remarkably successful in helping parties reach agreements.
2. Fact-finding employs the third party in a somewhat more investigatory and judicial role: to examine evidence on both sides of the issue, present the evidence, and, in most cases, make specific recommendations for a settlement. Some jurisdictions require making the recommendations public on the assumption that public pressure will then lead toward an agreement.
3. Arbitration is a form of impasse resolution involving fact-finding followed by specific recommendations that are usually binding on the parties. One form of arbitration that has received attention recently is final-offer arbitration , a technique in which both parties must present their best offer with the understanding that the arbitrator will choose one or the other without modification. Presumably, since both parties know that unreasonable proposals will lead to the arbitrator choosing the opposing proposal, it is in the interest of both parties to submit their most reasonable position.
A significant recent development in labor-management relations in the federal government has been the increasing use of alternative dispute resolution (ADR). As we noted earlier, ADR was encouraged in federal legislation passed in the early 1990s and reaffirmed in the Administrative Dispute Resolution Act of 1996. ADR typically involves the use of a neutral third party, often a mediator, who can help the disputing parties arrive at some agreement, short of imposing legal remedies. In addition, ADR may involve conciliation, problem solving, dispute panels, fact-finding, and facilitation. While ADR is not intended to replace more traditional approaches, it often can lead to solutions that are not only quicker and less costly, but also have significant buy-in from the parties involved. The Bureau of the Treasury's Engraving and Printing Bureau began using ADR in 1997 and, in its first five years, processed over 165 cases with an estimated cost avoidance of $3 million to $4 million (www.opm.gove/er/adrguide_2002). More recently the Federal Labor Relations Authority has created a Collaboration and Alternative Dispute Resolution Program, which provides interest-based dispute resolution assistance in cases of unfair labor practices or impasse bargaining. CADR also provides training for labor and management to create more collaborative workplaces and to provide the basis for dispute resolution efforts.
Change in labor-management relations also has been targeted in the culture and leadership styles that characterize public organizations. Many public agencies have opted for a more participatory form of management, thus precluding the legalistic, not to mention lengthy, process of collective bargaining. Administrators work to dismantle bureaucratic hierarchies and distribute power throughout the organization. Public employees enjoy a more meaningful form of empowerment than could ever have been facilitated through traditional channels. The result is a more effective and productive organization.
Of course, such an alternative does not completely resolve the issue. The structural factors that pit the two sides against each other, for the most part, remain in place. Public unions still hold a level of power in government personnel administration, and the gains made on behalf of workers through lobbying and court decisions continue to influence the administrative process. However, the relationship is changing. Though the direction of this change remains to be seen, reform of the system and the search for alternative forms of communication between labor and management appear necessary.
If impasse resolution fails, the employee organization may consider a strike. Although most governmental jurisdictions prohibit strikes by public employees, they do occur. There are usually several hundred work stoppages in public agencies each year. These strikes raise difficult questions for public-sector labor-management relations. Certainly public employees have the right to form associations, and one might argue that they should have the right to withhold services just as employees in the private sector do. On the other hand, the importance of public services, especially those such as fire or police protection, may justify different standards in the public sector.
Experts make the following arguments against public employee strikes:
1. Strikes violate sovereignty (conceding authority to any special-interest group contravenes the public interest).
2. Public services are essential and cannot be interrupted. In effect, all government services are vital.
3. Traditional channels of influence on public policy exist for unions: lobbying and voting.
4. Whereas strikes in the private sector are usually of an economic nature, those in the public service are political. They are strategies that use the leverage of public inconvenience to cause a redirection of budgetary priorities (Siegel & Myrtle, 1985, pp. 377–378).
On the other hand, advocates of public employees' right to strike make these points:
1. Public employee strikes occur whether or not they are illegal and regardless of heavy penalties prescribed by law.
2. In strike situations, labor-management conflict becomes channeled and socially constructive: both labor and management gain greater understanding of each other and of the consequences of work stoppages.
3. The right to strike enhances a union's strength as a bargaining agent. Lack of the ultimate ability to withdraw services weakens labor's position at the bargaining table.
4. Many private workers doing the same work that public employees do (for example, in transit, health care, garbage collection, and communications) have the right to strike, and for many other public employees (clerks, for instance), the public consequences of striking would be little different from what they are when private-sector clerks strike.
Though strikes at the state and especially at the local level are more frequent, two landmark strikes at the federal level were especially dramatic. The postal workers' strike of 1970 occurred when members of the Manhattan-Bronx Branch of the National Association of Letter Carriers voted to strike against the U.S. Postal Service. The immediate issue was the low wage scale for carriers—a scale that left a substantial number of postal workers on welfare. Beyond this concern, the postal workers desired the right to negotiate wages and benefits, especially if the Nixon administration followed its plans to make the post office a government corporation. The strike began with about 25,000 postal workers in New York City, but soon spread up and down the East Coast and to several major cities around the country, ultimately involving some 200,000 union members. As the situation became more intolerable, President Nixon sent 27,500 National Guardsmen into New York to sort and deliver the mail. He also broke a long-standing precedent, however, and agreed to permit postal workers to bargain for wages. Following this agreement, the postal workers returned to work, most claiming victory in the strike. Eventually, the Postal Reorganization Act was passed, setting up the government corporation Nixon sought, and also providing for a bargaining pattern similar to that in the private sector.
A quite different result occurred when members of the Professional Air Traffic Controllers Organization (PATCO) went on strike in August 1981. PATCO had earlier established itself as one of the most powerful and most militant of the public unions, boasting 90 percent of the air traffic controllers in the Federal Aviation Authority (FAA) as members (probably the highest percentage among federal-level unions at the time). Early in the year, the FAA was pressured into negotiating with the union concerning issues of wages and working conditions, even though it had no statutory power to do so and could only recommend wage increases to Congress. The union, arguing that the controllers were underpaid and subject to severe job stress, presented several demands, including a $10,000 across-the-board annual salary increase for the controllers and a four-day, 32-hour work week. Although the FAA did not meet these demands, Secretary of Transportation Drew Lewis agreed to support a $40 million package of improvements, including a $4,000 wage increase. However, 95 percent of the union membership rejected this proposal.
After a final round of negotiations was unsuccessful, the union decided to strike; union leader Robert Poli declared, “The only illegal strike is one that fails” (Steele, 1982, p. 38). As it turned out, this strike was to fail. What had begun as a confrontation between the union and the FAA now became a confrontation between the union and the White House.
President Reagan acted decisively, fining the union and firing nearly 11,500 striking controllers for participating in an illegal strike. Although there was severe disruption in the air transportation system for several days, new controllers were hired, airline schedules were altered, and training programs were accelerated. The situation soon gave at least the appearance of a return to normalcy. Beaten in the strike and decertified by the Federal Labor Relations Authority (FLRA), less than a year later PATCO filed for bankruptcy.
While the PATCO example has made strikes by public employees extremely difficult, unions still exert significant influence, especially at the state and local levels. But, in many ways, the character and role of organized labor have undergone a fundamental change during the last three or four decades, as efforts to reinvent government and reform personnel processes have redefined the ties between labor and management. In some respects, the influence of unions has been diminished by the more businesslike approach taken by government agencies. Contracting out and privatization, too, have contributed to labor's troubles, due to more and more services being delivered by private or nongovernmental organizations. The net result has been a drop not only in the power of unions, but also, depending on how you count, in some cases in the level of union membership. Quoting the Bureau of Labor Statistics, the Washington Post reported in 2010 that as a percentage of the total federal workforce, union membership remained essentially flat between 2008 and 2009. “Twenty-eight percent of federal workers were union members in 2009, compared with 28.1 percent in 2008….”At the same time, the total number of “unionized workers climbed slightly to more than 1 million, versus 994,000 the year before. The number surpassed the percentage growth because the federal workforce grew by more than 50,000 in 2009” (Washington Post, 2010). What remains the same, however, is the often confrontational nature of the labor-management relationship, with many identifying collective bargaining as a key contributor to bitter contests between management and staff personnel. As a result, an adversarial climate has often prevailed. Public organizations often spend months, or sometimes years, trying to reach agreements or attempting to effectively manage existing contracts. Meanwhile, the relationship between managers and union employees becomes bogged down over what amounts to minuscule matters.
During the past decades, however, both labor and management have sought more peaceful, less adversarial alternatives to bargaining and dispute resolution. A major step toward this goal came in 1993 when President Clinton issued Executive Order 12871, which encouraged the two sides to form partnerships and take a cooperative approach to labor issues. This executive order was augmented by congressional passage of the Alternative Dispute Resolution Act in 1996. The order created the National Partnership Council, with representatives from public unions, management, and the Public Employee Department of the AFL-CIO. However, in 2002, President George W. Bush used Executive Order 13203 to eliminate the requirement for partnerships in federal agencies, preferring a less structured form of labor-management cooperation. Interestingly, the Obama administration recently cleared the way for unionization of employees of the Transportation Security Administration, including airport screeners and others, an action that will add 50,000 to 60,000 union members to federal employment. Many take this action to portend greater support for union activity at the federal level.
Unions, however, have not gained as much favor at the state and local levels. The economic recession brought on by the near collapse of the financial sector in 2008 created significant budget deficits at all levels of government. As state officials wrestled with ways to rein in spending and save money, they took aim at government workers' salaries and benefits as a means to help ease their budget crises. Pension funds and collective bargaining rights were specific targets in several states as governors and other elected officials introduced legislation to cut benefits, increase workers' pension contributions, and curb the bargaining power of public-sector unions as ways to control costs.
One of the most notable of these efforts took place in Wisconsin. Governor Scott Walker, a Republican who won office in the 2010 midterm elections, proposed as part of a “budget repair bill” a measure that would increase public employees' health-care and pension contributions while eliminating most of their collective bargaining rights. Despite widespread public protests and questions about the legality of the Wisconsin State Assembly's process of approving the measure, the law went into effect on July 1, 2011. Opponents of the measure subsequently gathered enough signatures to force recall elections for Governor Walker, Lieutenant Governor Rebecca Kleefisch, and four Republican state senators in May 2012.
Despite the Wisconsin controversy, several other governors, such as John Kasich of Ohio and New Jersey's Chris Christie, also advocated plans to limit collective bargaining rights for public employees. The state of Michigan in March 2011 passed a measure giving unelected emergency financial managers, who are appointed to financially struggling municipalities and schools, the power to dissolve local governments, void union contracts, and impose new union agreements. In Florida, a law passed in 2011 mandated that, for the first time, public workers contribute to the state's pension system. New York governor Andrew Cuomo negotiated a three-year salary freeze and increased health-care contributions with the state's largest public employee union in 2011, while California's Jerry Brown proposed sweeping changes to the pension system for public employees that included a hike in current worker contributions and a cut in benefits for new hires.
Correcting Patterns of Discrimination in Public Employment
Whereas civil service systems have traditionally emphasized the concept of merit in public employment, other values have become increasingly important. Most prominent is a concern for correcting patterns of discrimination in hiring and treatment of workers in public agencies. The two terms that have been central to that debate are equal employment opportunity and affirmative action . Equal employment opportunity refers to efforts to eliminate employment discrimination on the basis of race, ethnic background, sex, sexual orientation, age, or physical handicap. It simply seeks to ensure that all people have an equal chance to compete for and hold positions of employment based on their job qualifications. Affirmative action, on the other hand, involves the use of “positive, results-oriented practices to ensure that women, minorities, handicapped persons, and other protected classes of people will be equitably represented in the organization” (Hall & Albrecht, 1979, p. 26).
The concept of equal opportunity has a firm basis in constitutional and legal history, but the primary piece of federal legislation guiding current practices is the Civil Rights Act of 1964. (Many states had passed equal employment legislation in advance of the federal act.) Title VII of the Civil Rights Act banned employment discrimination in areas such as selection, promotion, and training based on race, national origin, sex, or religion and created the Equal Employment Opportunity Commission to investigate complaints of discrimination in the private sector. In 1972 the act was amended through the Equal Employment Opportunity Act to extend coverage to all public-sector employees (at the federal, state, and local levels) and to provide for stronger actions, including filing suits, against those who did not comply with the act.
The original Civil Rights Act did not require affirmative action to correct past patterns of discrimination; this requirement was included in an executive order issued by President Johnson. Executive Order 11246 sought to secure compliance with the Civil Rights Act by requiring that federal contractors not discriminate on the basis of race, creed, or national origin and that they develop affirmative action programs leading to equal employment practices. President Johnson's Executive Order 11375 later added women to the list of protected groups and specified requirements for affirmative action plans.
These requirements were first applied to federal contractors but were soon adopted elsewhere in government and the private sector. The Civil Rights Act of 1964 had declared “that it shall be the policy of the United States to ensure equal employment opportunities for federal employees,” but it was an executive order issued by President Nixon in 1969 that required agency heads to create “affirmative programs” in eliminating patterns of discrimination (Shafritz, Hyde, & Rosenbloom, 1981, pp. 185–186). Similarly, state and local governments were brought under the provisions of the Civil Rights Act in 1972 and were threatened with loss of federal funds in the event of noncompliance. Title IX of the Higher Education Act of 1972 was interpreted to require universities to provide equal athletic opportunities for both sexes in intercollegiate sports; the penalty was withdrawal of federal funds from universities found not in compliance.
During the past two decades, however, there has been a waning of support for equal employment opportunity programs. Beginning in 1984, with the Supreme Court's ruling in Grove City v. Bell (1984), limits on the applicability of civil rights legislation have been the source of considerable controversy. In Grove, the Court narrowly interpreted the law as it regarded sex discrimination to mean that federal funds were to be restricted from the particular program receiving funds rather than from an educational institution as a whole. This meant that if an English department was found guilty of discrimination, its federal funds would be cut off, but funds to other parts of the institution would not be.
Obviously, the effect of the Grove case was to severely limit the enforcement power of federal legislation dealing with sex discrimination and, by implication, similar legislation dealing with discrimination based on race, age, or handicap. Barely a week after the Grove ruling, for example, the Department of not. Where an impasse occurs, there are several possibilities for resolving the issue: mediation, fact-finding, and arbitration.
1. Mediation involves the use of a neutral third party to attempt to work out a settlement. The work of the mediator is to assist the parties in communicating and clarifying their positions, but not to impose solutions. Though the mediator's recommendations are not binding, professional mediators are remarkably successful in helping parties reach agreements.
2. Fact-finding employs the third party in a somewhat more investigatory and judicial role: to examine evidence on both sides of the issue, present the evidence, and, in most cases, make specific recommendations for a settlement. Some jurisdictions require making the recommendations public on the assumption that public pressure will then lead toward an agreement.
3. Arbitration is a form of impasse resolution involving fact-finding followed by specific recommendations that are usually binding on the parties. One form of arbitration that has received attention recently is final-offer arbitration , a technique in which both parties must present their best offer with the understanding that the arbitrator will choose one or the other without modification. Presumably, since both parties know that unreasonable proposals will lead to the arbitrator choosing the opposing proposal, it is in the interest of both parties to submit their most reasonable position.
A significant recent development in labor-management relations in the federal government has been the increasing use of alternative dispute resolution (ADR). As we noted earlier, ADR was encouraged in federal legislation passed in the early 1990s and reaffirmed in the Administrative Dispute Resolution Act of 1996. ADR typically involves the use of a neutral third party, often a mediator, who can help the disputing parties arrive at some agreement, short of imposing legal remedies. In addition, ADR may involve conciliation, problem solving, dispute panels, fact-finding, and facilitation. While ADR is not intended to replace more traditional approaches, it often can lead to solutions that are not only quicker and less costly, but also have significant buy-in from the parties involved. The Bureau of the Treasury's Engraving and Printing Bureau began using ADR in 1997 and, in its first five years, processed over 165 cases with an estimated cost avoidance of $3 million to $4 million (www.opm.gove/er/adrguide_2002). More recently the Federal Labor Relations Authority has created a Collaboration and Alternative Dispute Resolution Program, which provides interest-based dispute resolution assistance in cases of unfair labor practices or impasse bargaining. CADR also provides training for labor and management to create more collaborative workplaces and to provide the basis for dispute resolution efforts.
Change in labor-management relations also has been targeted in the culture and leadership styles that characterize public organizations. Many public agencies have opted for a more participatory form of management, thus precluding the legalistic, not to mention lengthy, process of collective bargaining. Administrators work to dismantle bureaucratic hierarchies and distribute power throughout the organization. Public employees enjoy a more meaningful form of empowerment than could ever have been facilitated through traditional channels. The result is a more effective and productive organization.
Of course, such an alternative does not completely resolve the issue. The structural factors that pit the two sides against each other, for the most part, remain in place. Public unions still hold a level of power in government personnel administration, and the gains made on behalf of workers through lobbying and court decisions continue to influence the administrative process. However, the relationship is changing. Though the direction of this change remains to be seen, reform of the system and the search for alternative forms of communication between labor and management appear necessary.
If impasse resolution fails, the employee organization may consider a strike. Although most governmental jurisdictions prohibit strikes by public employees, they do occur. There are usually several hundred work stoppages in public agencies each year. These strikes raise difficult questions for public-sector labor-management relations. Certainly public employees have the right to form associations, and one might argue that they should have the right to withhold services just as employees in the private sector do. On the other hand, the importance of public services, especially those such as fire or police protection, may justify different standards in the public sector.
Experts make the following arguments against public employee strikes:
1. Strikes violate sovereignty (conceding authority to any special-interest group contravenes the public interest).
2. Public services are essential and cannot be interrupted. In effect, all government services are vital.
3. Traditional channels of influence on public policy exist for unions: lobbying and voting.
4. Whereas strikes in the private sector are usually of an economic nature, those in the public service are political. They are strategies that use the leverage of public inconvenience to cause a redirection of budgetary priorities (Siegel & Myrtle, 1985, pp. 377–378).
On the other hand, advocates of public employees' right to strike make these points:
1. Public employee strikes occur whether or not they are illegal and regardless of heavy penalties prescribed by law.
2. In strike situations, labor-management conflict becomes channeled and socially constructive: both labor and management gain greater understanding of each other and of the consequences of work stoppages.
3. The right to strike enhances a union's strength as a bargaining agent. Lack of the ultimate ability to withdraw services weakens labor's position at the bargaining table.
4. Many private workers doing the same work that public employees do (for example, in transit, health care, garbage collection, and communications) have the right to strike, and for many other public employees (clerks, for instance), the public consequences of striking would be little different from what they are when private-sector clerks strike.
Though strikes at the state and especially at the local level are more frequent, two landmark strikes at the federal level were especially dramatic. The postal workers' strike of 1970 occurred when members of the Manhattan-Bronx Branch of the National Association of Letter Carriers voted to strike against the U.S. Postal Service. The immediate issue was the low wage scale for carriers—a scale that left a substantial number of postal workers on welfare. Beyond this concern, the postal workers desired the right to negotiate wages and benefits, especially if the Nixon administration followed its plans to make the post office a government corporation. The strike began with about 25,000 postal workers in New York City, but soon spread up and down the East Coast and to several major cities around the country, ultimately involving some 200,000 union members. As the situation became more intolerable, President Nixon sent 27,500 National Guardsmen into New York to sort and deliver the mail. He also broke a long-standing precedent, however, and agreed to permit postal workers to bargain for wages. Following this agreement, the postal workers returned to work, most claiming victory in the strike. Eventually, the Postal Reorganization Act was passed, setting up the government corporation Nixon sought, and also providing for a bargaining pattern similar to that in the private sector.
A quite different result occurred when members of the Professional Air Traffic Controllers Organization (PATCO) went on strike in August 1981. PATCO had earlier established itself as one of the most powerful and most militant of the public unions, boasting 90 percent of the air traffic controllers in the Federal Aviation Authority (FAA) as members (probably the highest percentage among federal-level unions at the time). Early in the year, the FAA was pressured into negotiating with the union concerning issues of wages and working conditions, even though it had no statutory power to do so and could only recommend wage increases to Congress. The union, arguing that the controllers were underpaid and subject to severe job stress, presented several demands, including a $10,000 across-the-board annual salary increase for the controllers and a four-day, 32-hour work week. Although the FAA did not meet these demands, Secretary of Transportation Drew Lewis agreed to support a $40 million package of improvements, including a $4,000 wage increase. However, 95 percent of the union membership rejected this proposal.
After a final round of negotiations was unsuccessful, the union decided to strike; union leader Robert Poli declared, “The only illegal strike is one that fails” (Steele, 1982, p. 38). As it turned out, this strike was to fail. What had begun as a confrontation between the union and the FAA now became a confrontation between the union and the White House.
President Reagan acted decisively, fining the union and firing nearly 11,500 striking controllers for participating in an illegal strike. Although there was severe disruption in the air transportation system for several days, new controllers were hired, airline schedules were altered, and training programs were accelerated. The situation soon gave at least the appearance of a return to normalcy. Beaten in the strike and decertified by the Federal Labor Relations Authority (FLRA), less than a year later PATCO filed for bankruptcy.
While the PATCO example has made strikes by public employees extremely difficult, unions still exert significant influence, especially at the state and local levels. But, in many ways, the character and role of organized labor have undergone a fundamental change during the last three or four decades, as efforts to reinvent government and reform personnel processes have redefined the ties between labor and management. In some respects, the influence of unions has been diminished by the more businesslike approach taken by government agencies. Contracting out and privatization, too, have contributed to labor's troubles, due to more and more services being delivered by private or nongovernmental organizations. The net result has been a drop not only in the power of unions, but also, depending on how you count, in some cases in the level of union membership. Quoting the Bureau of Labor Statistics, the Washington Post reported in 2010 that as a percentage of the total federal workforce, union membership remained essentially flat between 2008 and 2009. “Twenty-eight percent of federal workers were union members in 2009, compared with 28.1 percent in 2008….”At the same time, the total number of “unionized workers climbed slightly to more than 1 million, versus 994,000 the year before. The number surpassed the percentage growth because the federal workforce grew by more than 50,000 in 2009” (Washington Post, 2010). What remains the same, however, is the often confrontational nature of the labor-management relationship, with many identifying collective bargaining as a key contributor to bitter contests between management and staff personnel. As a result, an adversarial climate has often prevailed. Public organizations often spend months, or sometimes years, trying to reach agreements or attempting to effectively manage existing contracts. Meanwhile, the relationship between managers and union employees becomes bogged down over what amounts to minuscule matters.
During the past decades, however, both labor and management have sought more peaceful, less adversarial alternatives to bargaining and dispute resolution. A major step toward this goal came in 1993 when President Clinton issued Executive Order 12871, which encouraged the two sides to form partnerships and take a cooperative approach to labor issues. This executive order was augmented by congressional passage of the Alternative Dispute Resolution Act in 1996. The order created the National Partnership Council, with representatives from public unions, management, and the Public Employee Department of the AFL-CIO. However, in 2002, President George W. Bush used Executive Order 13203 to eliminate the requirement for partnerships in federal agencies, preferring a less structured form of labor-management cooperation. Interestingly, the Obama administration recently cleared the way for unionization of employees of the Transportation Security Administration, including airport screeners and others, an action that will add 50,000 to 60,000 union members to federal employment. Many take this action to portend greater support for union activity at the federal level.
Unions, however, have not gained as much favor at the state and local levels. The economic recession brought on by the near collapse of the financial sector in 2008 created significant budget deficits at all levels of government. As state officials wrestled with ways to rein in spending and save money, they took aim at government workers' salaries and benefits as a means to help ease their budget crises. Pension funds and collective bargaining rights were specific targets in several states as governors and other elected officials introduced legislation to cut benefits, increase workers' pension contributions, and curb the bargaining power of public-sector unions as ways to control costs.
One of the most notable of these efforts took place in Wisconsin. Governor Scott Walker, a Republican who won office in the 2010 midterm elections, proposed as part of a “budget repair bill” a measure that would increase public employees' health-care and pension contributions while eliminating most of their collective bargaining rights. Despite widespread public protests and questions about the legality of the Wisconsin State Assembly's process of approving the measure, the law went into effect on July 1, 2011. Opponents of the measure subsequently gathered enough signatures to force recall elections for Governor Walker, Lieutenant Governor Rebecca Kleefisch, and four Republican state senators in May 2012.
Despite the Wisconsin controversy, several other governors, such as John Kasich of Ohio and New Jersey's Chris Christie, also advocated plans to limit collective bargaining rights for public employees. The state of Michigan in March 2011 passed a measure giving unelected emergency financial managers, who are appointed to financially struggling municipalities and schools, the power to dissolve local governments, void union contracts, and impose new union agreements. In Florida, a law passed in 2011 mandated that, for the first time, public workers contribute to the state's pension system. New York governor Andrew Cuomo negotiated a three-year salary freeze and increased health-care contributions with the state's largest public employee union in 2011, while California's Jerry Brown proposed sweeping changes to the pension system for public employees that included a hike in current worker contributions and a cut in benefits for new hires.
Correcting Patterns of Discrimination in Public Employment
Whereas civil service systems have traditionally emphasized the concept of merit in public employment, other values have become increasingly important. Most prominent is a concern for correcting patterns of discrimination in hiring and treatment of workers in public agencies. The two terms that have been central to that debate are equal employment opportunity and affirmative action . Equal employment opportunity refers to efforts to eliminate employment discrimination on the basis of race, ethnic background, sex, sexual orientation, age, or physical handicap. It simply seeks to ensure that all people have an equal chance to compete for and hold positions of employment based on their job qualifications. Affirmative action, on the other hand, involves the use of “positive, results-oriented practices to ensure that women, minorities, handicapped persons, and other protected classes of people will be equitably represented in the organization” (Hall & Albrecht, 1979, p. 26).
The concept of equal opportunity has a firm basis in constitutional and legal history, but the primary piece of federal legislation guiding current practices is the Civil Rights Act of 1964. (Many states had passed equal employment legislation in advance of the federal act.) Title VII of the Civil Rights Act banned employment discrimination in areas such as selection, promotion, and training based on race, national origin, sex, or religion and created the Equal Employment Opportunity Commission to investigate complaints of discrimination in the private sector. In 1972 the act was amended through the Equal Employment Opportunity Act to extend coverage to all public-sector employees (at the federal, state, and local levels) and to provide for stronger actions, including filing suits, against those who did not comply with the act.
The original Civil Rights Act did not require affirmative action to correct past patterns of discrimination; this requirement was included in an executive order issued by President Johnson. Executive Order 11246 sought to secure compliance with the Civil Rights Act by requiring that federal contractors not discriminate on the basis of race, creed, or national origin and that they develop affirmative action programs leading to equal employment practices. President Johnson's Executive Order 11375 later added women to the list of protected groups and specified requirements for affirmative action plans.
These requirements were first applied to federal contractors but were soon adopted elsewhere in government and the private sector. The Civil Rights Act of 1964 had declared “that it shall be the policy of the United States to ensure equal employment opportunities for federal employees,” but it was an executive order issued by President Nixon in 1969 that required agency heads to create “affirmative programs” in eliminating patterns of discrimination (Shafritz, Hyde, & Rosenbloom, 1981, pp. 185–186). Similarly, state and local governments were brought under the provisions of the Civil Rights Act in 1972 and were threatened with loss of federal funds in the event of noncompliance. Title IX of the Higher Education Act of 1972 was interpreted to require universities to provide equal athletic opportunities for both sexes in intercollegiate sports; the penalty was withdrawal of federal funds from universities found not in compliance.
During the past two decades, however, there has been a waning of support for equal employment opportunity programs. Beginning in 1984, with the Supreme Court's ruling in Grove City v. Bell (1984), limits on the applicability of civil rights legislation have been the source of considerable controversy. In Grove, the Court narrowly interpreted the law as it regarded sex discrimination to mean that federal funds were to be restricted from the particular program receiving funds rather than from an educational institution as a whole. This meant that if an English department was found guilty of discrimination, its federal funds would be cut off, but funds to other parts of the institution would not be.
Obviously, the effect of the Grove case was to severely limit the enforcement power of federal legislation dealing with sex discrimination and, by implication, similar legislation dealing with discrimination based on race, age, or handicap. Barely a week after the Grove ruling, for example, the Department of of Education dropped charges against the University of Maryland's athletic programs because they did not receive federal aid—though the institution as a whole received substantial federal funding in scholarships, research money, and so on. Not surprisingly, legislation was soon introduced in Congress to put teeth back into the various civil rights laws. The Civil Rights Restoration Act, passed by an overwhelming bipartisan majority, applies not only to educational institutions, but also to a wide range of other public and private organizations receiving federal funds.
The act, in many respects, proved to be the last of Congress's progressive stances on civil rights. Since then, equal opportunity legislation has come under fire from a conservative judiciary as well as from a conservative trend in legislatures at all levels of government. The result has been a shift in the balance of power toward employers and away from those petitioning on the grounds of discrimination.
Americans with Disabilities Act
In 1990, the Americans with Disabilities Act (ADA) was passed. The purpose of the ADA is to prohibit discrimination against 54 million Americans who live with some type of disability (and with the aging of the population that number can be expected to rise). Beginning in 1992, the ADA prohibited employers of twenty-five or more people from discriminating against those with disabilities who can satisfactorily meet the expectations of the job they hold or seek, with or without reasonable accommodation. A disabled person must be qualified, meet educational and skill requirements, and be able to perform the essential functions of the position. However, the employer is required to make reasonable accommodations to the work environment so that the disabled person can perform to the best of his or her ability (Bishop & Jones, 1993, p. 122).
With respect to public services, the ADA prohibits excluding a person from participating in programs or activities of a public entity or denying an individual benefits of its services. A public entity is defined to include not only the federal government but also any part of state or local government. Other sections of the act deal with transportation, public accommodations, and telecommunications.
Although the ADA has substantially changed both employment patterns and the design of public facilities, Supreme Court decisions dealt a major blow to the enforceability of the law. In Sutton v. United Airlines (1999), the Court ruled that mitigating devices such as medical therapies and supplies (other than eyeglasses) could be used by employers as the basis for arguing against ADA enforcement. In University of Alabama v. Garrett (2001), the Court reviewed a petition brought by employees of the state who claimed to have been discriminated against under the ADA. The Court ruled against the plaintiffs, stating that suits of this nature abrogate states' immunity under the Eleventh Amendment. In doing so, the Court effectively blocked the rights of state employees to file suit for monetary damages in federal court for discrimination under the ADA.
As a result of these and other Supreme Court cases, lower courts have found that people with a range of substantially limiting impairments are not people with disabilities. To correct that situation, Congress passed the ADA Amendments Act of 2008, which became law January 1,2009. Directly citing the Supreme Court decisions that Congress felt were inappropriate, the Amendments Act revises the definition of “disability” to more broadly encompass impairments that substantially limit major life activity. Congress also decided that mitigating measures have no bearing in determining whether disability qualifies for ADA protection and that impairments that are episodic but substantially limit one's activities when active (for example, epilepsy or post-traumatic stress disorder) can also be used to define disability.
Early efforts to prove discrimination against an employer required proof of “evil intention”: evidence that the employer was knowingly discriminating. The difficulty of proving intent led to a new focus on “unequal treatment”: proof that an employer used different selection procedures for different groups or used the same procedure in different ways. Still, under this definition, minorities made little progress entering the workforce.
In 1971, however, the Supreme Court, in Griggs v. Duke Power Company, settled on a new definition: adverse or disparate impact . The Griggs decision held that it was no longer necessary to prove discriminatory motive or differential treatment; it was simply necessary to show that employment practices affect one group more harshly than another. The Court stated, “Practices, procedures, or tests neutral on their face, and even neutral in terms of intent cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory practices” (Hays & Reeves, 1984, p. 354).
The notion of adverse impact has been articulated more fully in a set of Uniform Guidelines agreed upon by federal agencies. Under the Uniform Guidelines, employers are required to keep records indicating the relationship between those hired and minorities, including women, and the comparative success of various groups in selection for a position. If, for example, women constitute 50 percent of the labor market, yet only 20 percent of the workforce are women, there is evidence of adverse impact. (Actual figures show that about 41 percent of employees in local government are women, 41 percent in state government are women, and 43 percent in federal government are women. Women are disproportionately represented in lower-paying positions, such as secretarial or clerical jobs.)
The guidelines also follow another aspect of the Griggs case. Employers whose practices are found to have adverse impact are required to demonstrate the job relatedness of tests or procedures used in hiring or promotion decisions. That is, if a screening test cannot be shown to relate specifically to job performance, then it cannot be used as a criterion in making employment decisions. Elimination of the Professional and Administrative Career Examination (PACE) is a classic case of the job-relatedness issue. In a court challenge, it was ruled that the PACE exam, at that time the primary test given to applicants for federal managerial positions, was not related to the eventual jobs these people would hold and had an adverse impact on African Americans and Hispanics. For this reason, the exam was shelved.
A conservative shift in the Supreme Court, however, led to an end to these protective standards. In Wards Cove v. San Antonio (1989), the Court reversed the Griggs interpretation of Title VII and ruled that plaintiffs, not employers, must substantiate their position in discrimination cases. In particular, the Court deemed unconstitutional the earlier ruling that allowed the establishment of a prima facie case based on the “four-fifths rule”—that is, when minority hires constitute less than 80 percent of the nonminority hires. Although the Wards Cove packing plant paid minority employees less and segregated their living and dining quarters, justices said that the workers would have to prove that such practices created a gap between the percentage of minorities actually employed and the percentage in the workforce.
Federal lawmakers tried repeatedly to counter the Wards Cove ruling and restore the more progressive provisions of Griggs, finally adopting the Civil Rights Act of 1991. In many respects, though, the act only confused the issue of Title VII protection. Progressive critics argued that too much had to be sacrificed to gain the act's approval. Although it contained several important provisions, such as extending the definition of discrimination to personnel decisions other than hiring and promotion, the act still placed in the Court's hands the final decision on what can be considered discrimination in the workplace.
Consequently, the courts have continued to narrow the bounds on what constitutes discrimination. The Supreme Court's decision in University of Alabama v. Garrett (2001) was discussed previously, but another example of this trend can be seen in Kimel v. Florida Board of Regents (2000). In Kimel, the Court considered a challenge to the Age Discrimination in Employment Act (ADEA) that allows suits to be filed against state governments for monetary damages on the grounds of discrimination in employment decisions. The case was filed by three sets of petitioners in Florida, who claimed to have experienced discrimination on the basis of age during the employment process. However, the Court not only ruled against the plaintiffs, but also criticized Congress for passing the ADEA in the first place. The Court held that (1) “age is not a suspect classification under the Equal Protection Clause, and so states may discriminate on the basis of age without offending the Fourteenth Amendment, if the age classification in question is rationally related to a legitimate state interest,” and (2) Congress had “failed to identify a widespread pattern of age discrimination by states,” and it concluded that “this failure confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field” (Wise, 2001, p. 348).
Two other cases are likely to confuse matters even further. The Ricci v. DeStefano (2009) case concerned a lawsuit brought against the city of New Haven, Connecticut, by a number of white and Hispanic firefighters. The city had used a test for promotion in which none of the black firefighters who passed the exam had scored high enough to be considered for the new positions. After seeing the results the city invalidated the exam, feeling it might be accused of discriminating against the black firefighters. The Supreme Court ruled that New Haven's decision to ignore the test results violated the Civil Rights Act. On the other hand, in Staub v. Proctor Hospital (2011), the Court ruled that an employer may be liable for discrimination even when the person who takes the action has no discriminatory intent, if it can be demonstrated that the person was acting in behalf of a supervisor who did have such intent.
The long-term impact of these decisions remains to be seen, but in general the immediate effect is that the burden of proof now lies with the plaintiff on matters of discrimination. Moreover, given the underlying message in the Court's rulings, it appears that even the statutory foundation of equal opportunity employment has come under scrutiny, leaving us to wonder if our days of formal protection against discrimination may be numbered.
Affirmative Action and Reverse Discrimination
Another area of intense controversy involves attempts to correct past patterns of discrimination against minorities and women through the use of affirmative action programs. Such plans typically include (1) a statement of policy indicating a commitment to correct discrimination in employment practices, (2) an analysis of existing practices and their results, and (3) a statement of goals to improve those practices.
Unfortunately, a great deal of popular and legal confusion has developed around the notion of goals and quotas, often resulting in charges of reverse discrimination against white males. Although quotas require hiring specific numbers of people from specific groups (and are rarely used in actual practice), goals or timetables are intended to be flexible and are to be established internally by the employer. Both goals and quotas may involve numbers (and this causes some of the confusion), but the goals are merely intended to show a direction in which an employer wishes to move. Generally, a good faith effort in that direction will be viewed as satisfactory in terms of providing opportunities for equal employment and the advantages diversity brings. Even the Supreme Court has found it difficult to clarify exactly what is acceptable and what constitutes reverse discrimination. In Bakke v. The Regents of the University of California (1978), the Supreme Court ruled that it was illegal for a university to reserve a specific number of slots in its medical school for minority applicants who were less qualified than other students who were rejected. The Court agreed that race could be considered one factor in an admissions decision, but only one among several.
On a slightly different issue, the Court held in United Steel Workers of America v. Weber (1979) that a training program that admitted black workers before white workers with more seniority was acceptable. The key here seemed to be that the company initiated the program voluntarily to eliminate obvious patterns of discrimination and that it did not necessitate the discharge of white workers (Stewart, 1983). On the other hand, in Firefighters Local Union #1784 v. Stotts (1984), the Court held that a lower court could not order an employer to lay off more senior employees in favor of less senior employees on the basis of race to preserve a specific percentage of minority employees. Most recently, as we saw earlier, the Court ruled in Ricci v. DeStefano (2009) that a hiring test could not be used as a justification for discrimination against those in the majority. The emerging consensus seems to be that affirmative action programs will be limited to specific needs and circumstances. Broad-scale programs are not likely to be accepted.
Federal courts have begun to hear challenges to affirmative action programs used by universities to increase student diversity. The Supreme Court sought to clarify the use of race in admissions in two University of Michigan decisions. In Grutter v. Bollinger (2003), the Court upheld the law school's policy of narrowly tailoring the use of race in admissions policy, but in Gratz v. Bollinger (2003) the same Court upheld Bakke in ruling that the use of a point system awarding minorities extra points in undergraduate admissions was illegal given that it, in effect, was a quota system.
Given this trend, as well as the increasingly conservative view in Washington and in many states as evident in California's Proposition 209 (1996), which ended affirmative action programs, the future of affirmative action seems questionable. Some suggest that although preferences and so-called set asides have leveled the playing field, they no longer offer what the nation needs to ensure a diverse workforce. Unfortunately, the discourse on the issue often degenerates into political rhetoric, with both sides losing sight of an important principle: not only must all people have an equal opportunity to serve, but also the distinct contribution made by each person must be appreciated. By pursuing an agenda to enhance diversity, organizations may gain important contributions from a broader range of viewpoints. (See the box “Take Action: Advantages of Diversity.”)
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Read “Diversity in the US Federal Government: Diversity Management and Employee Turnover in Federal Agencies,” by Sungjoo Choi. This article specifically explores the relationship between diversity management and employee turnover. However, in the process it raises interesting issues about diversity more generally. |
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What do you see as the advantages of diversity in public organizations? What does it mean to “manage” diversity? In addition to its effect on employee turnover, what other relationships do you think we might find between diversity and other organizational factors? How might those be “managed”? |
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Take Action ADVANTAGES OF DIVERSITY
1. More democratic decision making and better decisions from the number and diversity of views brought to bear on policy making;
2. Improved bureaucratic operations and outputs from decisions and services that are more responsive to the needs of all citizens, particularly members of minority groups;
3. Better human talent development and management decisions;
4. An increase, both symbolically and actually, in the legitimacy of public service and other governance institutions; and
5. Elevation of social equity and justice to prime administrative values on par with other values in public administration paradigms
Adapted from Harvey L. White and Mitchell F. Rice, “The Multiple Dimensions of Diversity and Culture,” in Diversity and Public Administration: Theory, Issues, and Perspectives, ed. Mitchell F. Rice (Armonk, NY: M.E.Sharpe, 2010), pp. 3–22.
A few alternatives have been offered for promoting and sustaining diversity, including several strategies that target the underlying culture of organizations. The process begins with creating a shared sense of purpose toward diversity and then empowering those at all levels to contribute action steps for achieving this goal. Periodic assessments can be used to determine how successful the organizational change has been and to identify any future barriers the group may need to overcome. As Walter Broadnax comments, “Diversity of individuals and diversity of public organizations once kept us apart. Increasingly, it is the benefits of diversity that will bring us closer together” (Broadnax, 2010, p. S-179).
Unfortunately, extending diversity throughout the organization, especially at the highest levels of management, has proven difficult. Although the representation of women and minorities in the federal workforce has generally improved along with their representation in the middle- and upper-management levels, certain groups remain underrepresented in the overall workforce, and white women and all minorities remain underrepresented in the key jobs that lead to middle- and upper-management positions. Similarly, at the state and local level, about 51 percent of government employees are women, but they still fill only 40 percent of the management positions (Equal Employment Opportunity Commission, 2009).
The “glass ceiling” encountered by many women and minorities has been recognized in several recent studies. Data from OPM revealed that “women were promoted less than men who had comparable amounts of formal education and experience and who entered government at the same grade levels as the women; and women face obstacles to advancement at lower levels in the pipeline. For those women who have advanced, it usually meant staying late, relocating, or working longer hours” (Desky, 1992, p. 1). Recognizing these concerns, the Civil Rights Act of 1991 set up a “glass ceiling” commission to study the barriers to the advancement of women and minorities in the private sector.
However, efforts to remove the glass ceiling have been thwarted by similar trends affecting affirmative action, and only rarely does the issue of equitable treatment for women in the workplace receive its share of the national spotlight. Congress in 2000 addressed the issue by passing the Equity Contracting for Women Act, which encourages contractors to do business with women-owned businesses in industries where women are underrepresented. The downside of the legislation is that it relies mainly on market forces to achieve parity, meaning that firms are not obligated to contract with women contractors.
The result of these trends is that despite some gains made by women to achieve equal treatment, they still experience a significant gap in pay, job status, and overall employment opportunity (Guy, 1993). The ratio of women's to men's earnings, for all occupations, was 81.2 percent in 2010. The ratio varies by occupation and by industry.
In 1964, about 19 million of the nation's nonfarm employees were women; the three industries that employed the most women—manufacturing; trade, transportation, and utilities; and local government—accounted for 54 percent of these women. By 2010, nearly 65 million women had jobs, and 53 percent of these women worked in the three industries that employed the most women: education and health services; trade, transportation, and utilities; and local government. During this period, the growth of the education and health industry, and the number of women employed in it, has been notable, (http://www.bls.gov/spotlight/2011/women/)
The political debate in Washington, and in communities across the country, has shifted so far away from any type of “set asides” or “preferential treatment” that even advocates for women find themselves sidestepping the labels outright in their efforts to lobby for new legislation. In fact, even some advocates for protection on the basis of race, sexual preference, and other factors have turned away from protection of women, arguing that women have achieved equal opportunity and that continuation of affirmative action would not only provide an undue advantage but would soon negatively affect women's self-perception.
Relations between Political Appointees and Career Executives
The tension between political responsiveness and managerial effectiveness that characterizes public management is especially well illustrated in the relationship between political appointees and career executives. Each newly elected administration, whether at the federal, state, or local level, has a certain number of top-level managerial positions to fill with people of its choosing. These appointees become the “bosses” of career civil servants who staff the various agencies of government. As you might imagine, there is occasionally some tension between the two groups. Incoming presidents are usually elected on a platform of change and view career employees as representing opposition to change. The political executive wants to move in new policy directions but often has little experience in government operations; the career executive, on the other hand, has both knowledge and expertise but, aware of potential problems, may appear reluctant to change. At the same time, the legality of using political appointments, or patronage, for certain kinds of positions has been challenged in the courts. Political patronage practices were declared unconstitutional by the U.S. Supreme Court in three cases between 1976 and 1990. In Elrod v. Burns (1976), the Court held that the Sheriff's Office of Cook County, Illinois, could not fire employees because of their political affiliation. It would be a violation of their First Amendment rights to freedom of belief and association. Similarly, in Branti v. Finkel (1980), the Court found that assistant public defenders in Rockland County, New York, could not be terminated because of their party affiliation. These protections were extended to include politically motivated transfers, promotions, recalls from layoffs, and hires in Rutan v. Republican Party in 1990. The only exception to this prohibition against patronage is when a position can be shown to have partisan affiliation as a necessary requirement for effective performance. As a practical matter, this still allows appointment of political executives, but it curtails the use of non-civil service appointments for other types of employees.
What Would You Do?
You are the top civil service official in a large federal agency. The new administration has just appointed the cabinet secretary and her top political appointees. You want the agency to work well but are afraid that the new appointees, all drawn from large corporations, may not understand how government works and may make some mistakes that could be damaging to some of your most important programs. What would you do?
In any case, sorting out the relationship between politically appointed executives and career executives brings us back to the old question of politics and administration. One interpretation suggests that the role of the career executive is solely to execute orders given by superior authorities—elected officials and their appointees. In the most extreme formulation of this view, the career executive should be isolated from any involvement in policy development and should concentrate on implementing policies handed down from above.
In contrast to this extreme position, career executives and many others find another interpretation of the politics-administration issue more appealing. This view holds that there are important reasons for career executives' involvement in policy development. Certainly, career executives have the background and expertise to contribute substantially to developing practical and effective public policies. In addition, these executives are likely to be more effective in implementing policy if they have been involved in developing it, if they understand the need for policy changes, and if they feel some sense of ownership of the new policies.
Political appointees, on the other hand, generally come to government with relatively little knowledge about their subject matter (at least compared to career bureaucrats) and certainly with little understanding of how policies are developed in a governmental setting. While the average tenure of career civil servants is over thirteen years, political executives last an average of only eighteen to twenty-two months. If the stereotype of the bureaucrat is one of hostility to any change, the stereotype of the political appointee is of someone brash, inexperienced, and intent on bringing about change.
There appear to be at least three areas in which further improvements might be made in the relationship between political appointees and career executives. First, political appointees must receive the training and orientation they need to effectively manage public organizations and to work with career executives in both developing and implementing policies. Second, an exchange of views between political leaders and careerists, including team-building sessions, may help to develop greater understanding between the groups and forge more effective working relationships. Third, Congress should reassess the structure of executive management in government and make whatever structural changes are needed to establish a more balanced politics-career interface. But the basic dilemma continues: the political appointee must make sure that the bureaucracy is responsive to the policy directives of the current president; the career executive must maintain high standards of professionalism so that the work of the organization is carried out in the best way possible.
Summary and Action Implications
Personnel systems in the public sector have evolved in response to a variety of competing demands. Much of the earliest personnel legislation at the federal level was directed toward ensuring a neutral and competent bureaucracy protected from the potentially corrupting influences of politics. More recent efforts have sought greater responsiveness on the part of the bureaucracy to political leadership. Personnel systems in the public sector—like systems of budgeting and financial management—reflect important, though sometimes changing, values.
The development of merit systems for public employment reflects such concerns. Basically, policies governing recruitment and classification in the public sector reflect the fact that public organizations must, by definition, operate in the public interest. Similar concerns significantly affect the way contemporary issues such as conditions of employment (drug testing, etc.), labor-management relations, and pay equity are played out in the public sector.
As a manager, you must be concerned with recruitment, training, and retention of the best possible people to work in your organization. You may often feel that public personnel systems and the people who monitor them are simply roadblocks to effective management. Fortunately, in many jurisdictions, the relationship between manager and personnel officer is shifting in a more positive direction.
Personnel managers have been given the responsibility of protecting the merit system from abuse by maintaining detailed records of personnel transactions and enforcing personnel rules and procedures. Personnel officers have thus often been placed in the position of exercising control over the activities of program managers. But public personnel officers, like their private-sector counterparts, have always had another role as well—helping managers employ and utilize personnel effectively.
Although this service aspect of the personnel officer's role has often been treated as a secondary function, there is every reason to believe that the more progressive personnel systems will increasingly emphasize this aspect. Increasingly, personnel officers are shifting from the traditional emphasis on compliance to a new emphasis on consultation. In this role, those in personnel will be available to help with human resource management questions of all kinds. For example, a personnel specialist might be called in to help develop a productivity improvement program or to advise on legal questions. As this new orientation becomes established, line managers will tend to view the personnel officer more as an ally than as a protagonist.
Consequently, you are likely to be more effective as a public manager if you are able to develop a good understanding of the technical details of personnel transactions and an effective working relationship with the personnel professionals in your agency. The support of trained experts in the field of personnel management can help improve your organization's performance and, in turn, its service to the public.
1. “To the victor belong the spoils” was a phrase used to define the spoils system for filling vacancies of government jobs. Discuss the historical use of this system and its contemporary manifestations.
2. What was the Pendleton Act, and how did it help to reform federal personnel procedures?
3. Explain the basic principles of the civil service system.
4. Discuss some of the basic problems President Carter faced regarding personnel and civil service reform.
5. The Civil Service Reform Act provided for various changes in personnel procedures. Explain the importance of this legislation and discuss the impact of its major provisions on the civil service system.
6. What are some of the criticisms of the Civil Service Reform Act?
7. List the steps in recruiting for a government position.
8. Identify various methods of testing and screening applicants.
9. Discuss government methods to combat discrimination in employment activities.
10. What are some of the tools governments use to ensure compliance with equal employment opportunity regulations?
11. With changing labor-management relations, public unionization has become an issue. Explain the factors public managers must recognize to unionize the public sector.
12. Discuss the major components of the bargaining process.
13. Identify arguments against strikes by public employees and give a few examples of strikes that have occurred.
14. Discuss the relationship between political appointees and career executives and how it might be improved.
1. Consider the following case: You are Steve Style, a programming director in a large city's data-processing department. You manage five sections of computer programmers, each made up of a senior programmer and three to four trainees. The department generates computer systems for the other city departments, thus requiring you and your staff to spend a lot of time with the users of the systems. Your staff has a reputation throughout the city for being highly professional. For some time, your boss, Isabel Info, has been talking about the need to expand the programming staff by adding a database administrator.
A few months ago, a new police chief was hired, brought in from another city. In the past, when a new department head came in, if he or she were married, the spouse also found a job somewhere in city government. You had heard that the police chief's wife has a degree in computer science. On Monday, Isabel calls to tell you she has just hired Theresa Topcop as the database administrator in your area. Isabel is happy to get someone with Theresa's education and background, which includes working for several software companies. Isabel also tells you that Theresa is the police chief's wife and that she will be making more money than any of your current senior programmers.
Excited about the addition of a database administrator, you go to tell the staff about the program expansion. Rather than the positive reaction you had expected, theirs is quite negative. David Denman, the most experienced programmer, is upset for two reasons: First, isn't she the police chief's wife? It sounds to him like a deal was made. And second, why didn't any of the current staff have a chance to interview for the new position? Another staff member leaves the meeting grumbling about how much money Theresa will be making in comparison to the other senior programmers.
You go back to your office trying to figure out how to deal with this problem. You're looking forward to having a database administrator, and from what Isabel tells you, Theresa is well qualified. You are concerned about the staff's reaction. You know you will face an uphill battle to convince the users that Theresa is qualified for the position.
· As a practical matter, how does an administration deal with the problem of a “qualified spouse”?
· How do you justify to your staff the fact that Theresa is making a higher salary than any of them and that they didn't have the chance to interview for the position?
· How does the personnel office handle this problem in light of the city's civil service system?
SOURCE: The preceding case was provided by Perri Lampe.
2. Through contacts with the U.S. Office of Personnel Management, the state's personnel office, and the city's personnel office, learn as much as you can about finding employment in a government agency in your area. Ask the following questions:
· What kinds of positions are typically available?
· What should you expect in terms of the salary range for entry at the bachelor's or master's level?
· What benefits and salary increments are associated with these positions?
· What is the hiring process (how do you apply; what types of tests or interviews are required; who makes the final decision)?
In addition, contact a variety of nonprofit organizations in your community or a representative of the American Society of Association Executives to discuss career possibilities in the nonprofit sector. Make your report available to students on campus through your academic department and through your school's placement center.
3. Obtain a copy of your school's policy (or policies) on sexual harassment regarding administrators, faculty, staff, and students. Based on conversations with knowledgeable faculty and other school officials, as well as your own reading and research, analyze the policy in terms of the following questions:
· Does the policy define sexual harassment in terms that are generally understandable?
· Does the policy specify particular types of actions that will be considered harassment?
· Are there clearly defined procedures through which charges of harassment can be brought and heard?
· Are there specific penalties, including dismissal from the school, for prohibited actions?
· Has the policy been employed in actual cases with success?
· Does the policy act as a deterrent to sexual harassment?
· Are there training programs or other educational materials available to help administrators, faculty, and students understand the issue of sexual harassment specifically and gender sensitivity more generally?
· What would you suggest to strengthen, clarify, or more easily enforce the policy?
SOURCE: The preceding exercise was adapted from material provided by Charles Sampson of the University of Missouri-Columbia.
4. Form small groups to complete the following exercise.
You have just accepted membership on the Energy Resources Commission (ERC) Recruitment Task Force. This task force was recently created by the newly elected governor. The purpose of the task force is to develop recruitment strategies to staff the ERC, which has just been established to fulfill the following functions:
· Determine the future energy needs for the state
· Develop strategies to meet these needs
· Provide technical assistance to the public utilities and agencies involved in meeting these needs
Special recruitment problems are anticipated because this is a completely new agency that will require a significant number of professional and technical personnel. The task force has been charged with the responsibility for developing specific action plans to recruit the required personnel over the next three years. The ERC will require approximately 250 employees by the end of this three-year period, in the following categories:
(1) Management and management staff (50 employees)
(2) Clerical support staff (65 employees)
(3) Professional/technical personnel (100 employees)
(4) Blue-collar/maintenance-type personnel (35 employees)
Factors that may or may not complicate the recruitment effort include the following:
(1) The primary sources of employment in the state are in agriculture, mining, and transportation.
(2) The population of the state totals 10 million, but almost 40 percent of the population resides in a single upstate metropolitan district.
(3) The political environment has traditionally been characterized by conflict between upstate Democrats and downstate Republicans.
(4) This political competition has produced extensive reliance on patronage as the means for staffing most public agencies.
(5) Control of state government has just shifted to the Republicans after twelve years of Democratic control, but one of the new governor's major campaign promises was to professionalize the personnel system and expand civil service coverage to most state employees.
(6) During the campaign, the governor also committed himself to hiring within the state whenever possible.
(7) The state is currently involved in two employment discrimination lawsuits: one brought by the National Organization for Women and the other by the NAACP.
(8) Racial minorities compose 15 percent of the population, but most of these individuals reside in the upstate metropolitan area.
(9) Of the total state workforce, 22 percent are women and 4 percent are classified minority.
(10) The unemployment rate for the state is 12 percent, but most of the unemployed reside in the upstate area.
(11) The unemployment rate by occupational class is as follows: 18 percent blue-collar, 7 percent white-collar, and 3 percent professional/technical.
(12) The unemployment rate for minorities is 21 percent, and the rate for women is 16 percent.
4. (13) Public-sector unionization is in its early stages of development in the state. Unions are competing for membership and becoming more and more militant. A key demand, which is currently before the legislature, is to establish “agency shop” for public utility employees.
(14) Citizens' groups and professional associations actively lobbied for the creation of the ERC.
(15) The ERC is being partially funded by a federal grant-in-aid program that, in addition to requiring 50 percent matching funds from the state, also requires establishment of a merit system to ensure nondiscrimination in employment.
The task force is to design a specific recruitment strategy to meet all the staffing needs of the new Energy Resources Commission. Besides paying particular interest to the preceding characteristics, you might also consider the following in your deliberations:
(1) Need and approach for determining the commission's specific staffing requirements
(2) Characteristics of the labor market geographically and by occupational field
(3) Level and availability of the state's labor resources
(4) Extent of search process for candidates geographically and occupationally; type of institutions/organizations/agencies to be covered in recruitment process
(5) Qualification standards (education, training, work experience, residency, physical characteristics, and so on) that should be required for each occupational category in the commission
(6) Implications of these standards for the recruitment effort
(7) Selection devices (practical or aptitude tests, credentials examination, interviews, and so on) and their effect on recruitment
(8) Whether recruitment should be for specific jobs or for a career (and the implication of this decision for qualification standards, selection devices, and so on)
(9) Recruitment approaches for each occupational category—for example, job announcements, written brochures and materials, recruitment visits (and institutions that will be covered, if any), use of professional/collegial contacts (whose?), and so on
(10) Consideration of the factors to emphasize to prospective candidates (that is, what would be the attractive aspects of a job/career in this agency in this locale?)
FOR ADDITIONAL READING
Bowman, J. S., J. P. West, and M. A. Beck. Achieving Competencies in Public Service: The Professional Edge. Armonk, NY: M.E. Sharpe, 2009.
Capozzoli, Thomas, and R. Steven McVey. Managing Violence in the Workplace. Delray Beach, FL: St. Lucie Press, 1996.
Cayer, N. Joseph. Public Personnel Administration. Belmont, CA: Wadsworth/Thomson Learning, 2003.
Coleman, Charles J. Managing Labor Relations in the Public Sector. San Francisco: Jossey-Bass, 1990.
Condrey, Stephen E., and James L. Perry. Handbook of Human Resource Management in Government. San Francisco: Jossey-Bass, 2005.
Dresang, Dennis L. Public Personnel Management and Public Policy. Dallas: Pearson Publications, 1999.
Durant, Robert F. The Oxford Handbook of American Bureaucracy. New York: Oxford University Press, 2010.
Farazmand, Ali. Strategic Public Personnel Administration: Building and Managing Human Capital for the 21st Century. Westport, CT: Praeger Publishers, 2007.
Farnham, David. Managing People in the Public Service. Basingstoke, UK: Macmillan Business, 1996.
Huddleston, Mark, and William Boyer. The Higher Civil Service in the United States. Pittsburgh: University of Pittsburgh Press, 1996.
Ingraham, Patricia, and Carolyn Ban, eds. Legislating Bureaucratic Change: The Civil Service Reform Act of 1978. Albany: State University of New York Press, 1984.
Jackson, Susan E., ed. Diversity in the Workplace: Human Resource Initiatives. New York: Guilford Press, 1992.
Kearney, Richard C. Public Sector Performance: Management, Motivation and Measurement Boulder, CO: Westview Press, 2000.
Klingner, Donald E., John Nalbandian, and Jared Llorens. Public Personnel Management: Contexts and Strategies. New York: Longman, 2009.
Maranto, Robert, and David Shultz. A Short History of the United States Civil Service. Lanham, MD: University Press of America, 1991.
Menzel, Donald C, and Harvey L.White. The State of Public Administration: Issues, Challenges, and Opportunities. Armonk, NY: M.E. Sharpe, 2011.
National Academy of Public Administration. Modernizing Federal Classification: An Opportunity for Excellence. Washington, DC: National Academy, 1991.
Nigro, Lloyd G., and Felix A. Nigro. The New Public Personnel Administration. 4th ed. Itasca, IL: F. E. Peacock Publishers, 1993.
Pynes, Joan E. Human Resources Management for Public and Nonprofit Organizations. 2nd ed. San Francisco: Jossey-Bass, 2004.
Riccucci, Norma. Public Personnel Administration and Labor Relations. Armonk, NY: M.E. Sharpe, 2007.
Riccucci, Norma, Katherine C. Naff, Jay M. Shafritz, and David H. Rosenbloom. Personnel Management in Government: Politics and Process.Boca Raton, FL: CRC Press, 2007.
Rice, Kenneth W. Strategic Diversity: How to Leverage the Differences within the New Workforce for Improved Organizational Performance. Bloomington, IN: Xlibris Corp., 2009.
Rice, Mitchell F., ed. Diversity and Public Administration: Theory, Issues, and Perspectives.Armonk, NY: M.E. Sharpe, 2010.
Risher, Howard, Charles H. Fay, et al. New Strategies for Public Pay. San Francisco: Jossey-Bass, 1997.
Robinson, Dana Gaines, and James C. Robinson. Performance Consulting. San Francisco: Berrett Koehler Publishers, 1995.
Selden, Sally Coleman. The Promise of Representative Bureaucracy. Armonk, NY: M.E. Sharpe, 1997.
Shafritz, Jay M., Albert C. Hyde, and David H. Rosenbloom. Personnel Management in Government: Politics and Process. 4th ed. New York: Marcel Dekker, 1991.
Sloane, Arthur A., and Fred Witney. Labor Relations. 8th ed. Englewood Cliffs, NJ: Prentice-Hall, 1994.
Stivers, Camilla. Gender Images in Public Administration: Legitimacy and the Administrative State.2nd ed. Thousand Oaks, CA: Sage Publications, 2002.
Sylvia, Ronald D., and C. Kenneth Meyer. Public Personnel Administration: Fort Worth, TX: Harcourt College Publishers, 2002.
