Source: Susan Lorde Martin San Diego Law Review, August / September 2012
In April 2011, Theresa Kohutka, a twenty-four-year employee of the Hempstead Animal Shelter on Long Island in New York, sued the Town of Hempstead and five of her supervisors and coworkers. She claimed, inter alia, that her First Amendment rights were violated when her supervisor refused to promote her because she did not become more active in the local Republican Club after he urged her to do so.
This lawsuit should be surprising because the U.S. Supreme Court seemed to settle the issue of using political affiliation to make employment decisions in a series of three opinions more than twenty years ago. Nevertheless, cases on the issue continue to arise in significant numbers. This is an unfortunate situation because the ensuing litigation creates an expensive and unnecessary cost for cities and towns and their hard-pressed taxpayers. Because there is no end in sight, this Article suggests that it is time for the U.S. Supreme Court to revisit the issue and rethink its prior positions.
First, this Article describes the development of the patronage and civil service systems with a reflection on how they work in tandem. Then, the trio of cases, Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois, is reviewed. How the federal circuit courts have responded to these three cases is examined both in their immediate aftermath and in decisions in more recent cases. Finally, the Article discusses some specific examples of how the current law creating First Amendment rights against negative employment decisions for patronage appointees is not working and how it should be changed.
Source: Amanda Cuda, HR News Vol. 78 no. 8, August 2012
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A great amount of attention has been paid recently to how public sector employees are hired, fired, rewarded and disciplined. The loudest discussions on these topics have, arguably, focused mainly on collective bargaining. In Wisconsin, Gov. Scott Walker’s approval of legislation that severely limited the collective bargaining rights of most of the state’s government workers led the state to hold a recall election. The recall was unsuccessful and Walker remains in office. Yet that hasn’t silenced the ongoing discourse about how public employees are treated. And, in many circles, the talk has shifted from collective bargaining to civil service reform efforts.
These initiatives – which, in many cases, change the way workers are hired and fired – have become a hot button issue as several states have moved to revamp their personnel guidelines.
Tennessee, Arizona and Colorado have all passed civil service reforms in the past year. In many cases, these reforms don’t affect government workers on the city level, and mostly apply to state workers. But some city governments – including Nashville, Tenn.- are also considering their own personnel reforms. …
Source: Heather Kerrigan, Governing, June 13, 2012
Several states this year are changing how public employees are hired and fired. They may be able to learn a thing or two from states that already have…. Does reform increase the cronyism that civil service protections are meant to prevent? Or does it increase performance and productivity by making the hiring process more flexible?…While Sarvis gives civil service reform in the Peach State a generally positive review, Dr. Paul Battaglio, associate professor of public affairs at the University of Texas-Dallas, paints a more negative picture. In a 2006 survey of more than 250 Georgia human resource professionals, Battaglio found that most “felt [at-will employment] created a less-trusting environment. They felt they could no longer trust their managers and supervisors, and they found the environment was less motivational,” he says. Motivation, typically required for productivity, is often cited as an argument in favor of civil service reform. But Battaglio says there’s no evidence that at-will employment increases productivity and performance…
Civil Service Reform Passes in 3 States
Source: Melissa Maynard, Stateline.org, June 12, 2012
Source: Fred Glass, CPER Journal, No. 205, March 2012
AFSCME may have fallen behind at the outset of public worker organizing in California, but by the mid-1960s it was toiling hard to make up for lost time, organizing in schools, city and county employment, and in the University of California system.
In San Jose, the city’s civil service workers association, the Municipal Employees Federation, affiliated with AFSCME in 1972, forming AFSCME Local 101. It was here, in the city that Mayor Janet Gray Hayes never tired of describing as “the feminist capital of the world,” that the old civil service personnel administration methods of adjusting salaries and job descriptions ran into a three-way pileup with collective bargaining and the impact of feminism on workplace organizing.
Steering the women workers through the collision and out to the other side was a determined and visionary organizer, Maxine Jenkins. Her vehicle, or weapon: comparable worth, which was based on the revolutionary idea that male and female workers should be paid equally for work requiring comparable skill, effort, and responsibility under similar working conditions.
Source: James R. Thompson, Review of Public Personnel Administration, Vol. 30 no. 4, December 2010
From the abstract:
As the Obama administration pieces together its own civil service reform program, it may find solutions to key reform challenges in an oft-overlooked Bush administration human resource management initiative in the national security arena. While press and scholarly attention focused largely on the administration’s reform efforts at the Departments of Homeland Security and Defense, discussed at length in the article by Kellough, Nigro, and Brewer in this symposium, the development of a common personnel framework across the U.S. Intelligence Community went relatively unnoticed. The author argues that human resource management changes made pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004 provide a potential model for the Obama administration as it addresses three key reform challenges that have long plagued policymakers: replacing the General Schedule with a modernized approach to compensation and classification, achieving a balance between uniformity at the executive branch level and flexibility at the agency level, and reconfiguring the Senior Executive Service.
Source: J. Edward Kellough, Lloyd G. Nigro, and Gene A. Brewer, Review of Public Personnel Administration, Vol. 30 no. 4, December 2010
From the abstract:
This article focuses on the George W. Bush administration’s failed effort to impose radical personnel reforms on the Department of Homeland Security and the Department of Defense in the wake of the September 11, 2001, terrorist attacks. We use an analytical framework suggesting three overlapping primary reasons for reform: (a) technical concerns, (b) ideological beliefs, and (c) a desire by the executive to enhance political control. The results of our analysis show that, whereas motivations for the Bush reforms were mixed, changes advocated by the administration were largely politically and ideologically motivated. As a result, they met stiff resistance from stakeholders, particularly federal employee unions and their supporters in Congress, and the reforms were ultimately scuttled. One lesson from this experience is that reformers should avoid radical changes to personnel systems based largely on ideological and political preferences. Reforms that are more incremental in nature and grounded more firmly on technical matters related to the implementation of core personnel functions will, in our view, be more likely to succeed. Yet a conundrum exists: if presidential scholars are correct, even these types of reforms may be held hostage by proposals that reflect the views of partisans unwilling to compromise in what appears to be an enduring era of polarized politics in Washington.
Source: Katelin P. Isaacs, Congressional Research Service, 94-834, October 15, 2010
Cost-of-living adjustments (COLAs) for the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are based on the rate of inflation as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). COLAs for both CSRS and FERS are determined by the average monthly CPI-W during the third quarter (July to September) of the current calendar year and the third quarter of the base year, which is the last previous year in which a COLA was applied. Because the price level fell between the third quarter of 2008 and the third quarter of 2009, the average monthly CPI for the third quarter of 2008 remains the base year for determining the next COLA. The “effective date” for COLAs is December, but they first appear in the benefit checks issued during the following January. All CSRS retirees and survivors receive COLAs. Under FERS, however, non-disabled retirees under the age of 62 do not receive COLAs. Survivors and disabled retirees are eligible for COLAs under FERS regardless of age. CSRS pays a COLA that is equal to the percentage change in the CPI-W during the measurement period, but COLAs under FERS are limited if the rate of inflation is greater than 2.0%. If the rate of inflation during the measurement period is between 2.0% and 3.0%, the COLA under FERS is 2.0%. If inflation is greater than 3.0%, then the COLA for FERS benefits is equal to the CPI-W minus one percentage point. Congress passed the first law requiring automatic COLAs for federal civil service retirement benefits in 1962, and it has adjusted either the formula by which they are calculated or the date on which they take effect more than a dozen times since then. If consumer prices as measured by the CPI-W do not increase from the third quarter of the base year to the third quarter of the current calendar year, there is no COLA for annuities paid under CSRS or FERS. From the third quarter of 2008 to the third quarter of 2010, the CPI-W fell by 0.6%. Therefore, there will be no COLA under either CSRS or FERS in January 2011.
Source: Patrick Purcell, Congressional Research Service, 94-971, January 20, 2010
From the summary:
Pay increases for current federal employees and cost-of-living adjustments (COLAs) for retired federal employees often differ because they are based on changes in different economic variables. Increases in pay for civilian federal workers are indexed to wage and salary increases in the private sector, as measured by the Employment Cost Index (ECI), whereas federal retirement and disability benefits are indexed to price increases as measured by the Consumer Price Index (CPI). Both the ECI and the CPI are calculated by the Bureau of Labor Statistics of the U.S. Department of Labor. Under the terms of the Federal Employees’ Pay Comparability Act of 1990 (P.L. 101-509), pay for civilian federal employees is adjusted each year to keep the salaries of federal workers competitive with comparable occupations in the private sector. The annual increases in federal employee pay are based on changes in the cash compensation paid to workers in the private sector, as measured by the ECI. Under certain circumstances, the President may limit the annual increase in federal pay by executive order. Federal law also requires Social Security benefits and the pensions paid to retired federal employees to be adjusted for inflation each year. The COLAs for both Social Security and civil service pensions are based on the rate of inflation as measured by the CPI. Congress has linked increases in federal pay to the ECI so that wages for federal employees will remain competitive with wages paid by firms in the private sector. Congress has linked COLAs for Social Security and federal retirement benefits to the rate of increase in the prices of goods and services to protect retirement income from losing purchasing power through the effects of inflation. In general, wage increases reflect both improvements in the productivity of labor and increases in the general level of prices in the economy. Consequently, when measured over long periods of time, wages tend to rise faster than prices. Because COLAs for retirees do not reflect increases in the productivity of people who are still in the work force, COLAs do not make retirees financially better off. COLAs merely protect retirees from becoming financially worse-off as prices rise over time. In 2010, there was no COLA for recipients of Social Security benefits or federal civil service pensions because the price level as measured by the CPI fell between 2008 and 2009. Increases in retirement benefits for retired federal employees were first linked to the CPI by law in 1962. Increases in Social Security benefits have been linked by law to changes in the CPI since 1973. Before then, Congress periodically adjusted Social Security benefits through legislation. Congress chose to tie increases in these benefits to the CPI to make the process less subject to political influences. At year-end 2009, the overall price level as measured by the CPI was 477% higher than it was in 1969. As of January 2010, Social Security benefits have risen by 626% since 1969, and federal civil service retirement benefits have risen by 496%. Average wages among all workers in the economy have risen by 632% since 1969. Salaries for civilian federal employees have increased by 428% since 1969, and the salaries of Members of Congress have increased by 309%. This report is updated annually.
Source: Heritage Foundation, 2010
From the press release:
The Heritage Foundation today released “Solutions for America,” a comprehensive policy agenda addressing the nation’s most pressing and ingrained problems.
Compiled by experts at Heritage, the leading conservative think tank, the guidebook outlines critical challenges on 23 policy fronts and makes 128 specific recommendations for Congress to confront and overcome these obstacles. Among them:
* Trim excessive compensation for federal employees by bringing their salaries and benefits in line with those of private-sector pay.
* Exempt those who work beyond the retirement age from paying payroll taxes.
* Establish a unified budget governing all 71 federal welfare programs; cap their year-to-year growth at the rate of inflation; expand work requirements and treat a portion of benefits as loans to be repaid, not grants from taxpayers.
* Spur investment, job creation and global competition by reducing the top corporate tax rate and allowing firms to deduct immediately all investments in new facilities and equipment.
Source: Barbara I. Haga, Roger Richman, and William Leavitt, Public Personnel Management, Volume 39 No. 3, Fall 2010
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The National Security Personnel System (NSPS) was to be a transformational reform of the federal civil service, designed to increase manager’s flexibility, discretion and effectiveness in supervising some 700,000 Defense Department civilian employees. The new system replaced the traditional GS classification and rating system with a pay for performance model. The NSPS used broad pay bands, pay pools, “performance shares,” distribution formulas, a new five-level rating system, and important changes to labor relations and collective bargaining subjects, all without significant participation and support from employee unions. It didn’t work. After five years of troubled implementation, widespread employee dissatisfaction and mistrust of the new system, lawsuits and lobbying, Congress dismantled the NSPS and directed that more than 200,000 participants be returned to the GS system. This article reviews the history of pay for performance in the federal government, then reviews the failed implementation of NSPS, and concludes with a preview of the future of pay for performance within the federal government after the demise of the NSPS.