The initial language that is being considered, though not yet formally introduced, would likely keep some form of an independent due process system in place for state employees, while making major changes to the current system, said Sterling Zearley, executive director of the Oklahoma Public Employees Association.
OPEA representatives have been in talks with legislators and the governor’s office to hammer out a deal that would allow the state to move away from a mostly classified system of employment to a mostly unclassified employment system, he said.
“Our big deal is we know it needs to be modernized, we just want to ensure there’s an independent due process in place to make sure things don’t happen like political patronage or terminating someone improperly and all of a sudden it winds up in district court,” Zearley said. “Everybody is working in good faith, and I appreciate that. We’ve had some great conversations so far.”
Oklahoma has two broad categories of state employees — classified and unclassified.
Classified employees fall under the Merit System Protection system, are subject to set policies and procedures for selection, hiring, retention, advancement, career development, salary administration, discipline and other related activities. Their salaries are determined through set “pay bands,” and employees hold a property interest in their continued employment, which cannot be taken away without due process.
Unclassified employees are commonly referred to as “at-will” employees, and their positions are mostly not covered by the Merit Protection Commission. They serve at the pleasure of their appointing authorities and can be removed at any time, with or without cause, and their salaries do not conform to any set pay bands.
The majority of those state workers — nearly two-thirds — are considered classified workers.
“Put more simply, merit employment stands in counter distinction to a spoils system of government employment,” a recent report from the Office of Management and Enterprise Services’ Human Capital Management division states.
Zearly said the bill would be a “starting point” that would likely be changed further as it moves through the legislative process, but the bill would likely include language that would eliminate “classified” positions through attrition — when an employee leaves a classified position, it would be come “unclassified.”
Though the bill that Zearly said would likely be the vehicle for civil service reform, House Bill 3094 by Rep. Mike Osburn, R-Edmond, is currently a shell bill without any substantial language, it is assigned to the House Government Efficiency Committee, which Osburn chairs.
The bill is running up against an important legislative deadline — all bills must pass out of their assigned house of origin committees by the end of Thursday, Feb. 27.
Osburn did not return phone messages from The Frontier seeking comment.
Changing the state’s civil service employment system has been talked about at the Capitol for years. Advocates pushing for reform of civil service employment say the current system prevents good employees from receiving bonuses and makes advancement difficult, but simultaneously makes getting rid of poor-performing employees drawn out and difficult.
“If you have people who are doing their job well, you want to advance them,” said Jennifer Lepard, executive director of the State Chamber Research Foundation, which recently released its own report examining how other states have moved away from the classified system of employment. “When you’re classified, your hands are tied a bit. If you want to give them extra pay for example, you have to go to the head of OMES and you have to ask, so that’s kind of a challenge.”
While OPEA states that the system does need reforms, it also wants to keep an employee due process system, protections against retaliation and job qualification requirements in place.
“The thing we hear from our employees is we just want to do our jobs and the due process under the merit system right now gives us the protection to do our jobs,” said Tom Dunning, communications director for the Oklahoma Public Employees Association. “Can it be more efficient? Absolutely, and we would love to see that. But it’s a nonstarter for us to have a system where there is no due process for state employees. That’s a deal-breaker for us.”
Both sides agree the proposal would be a major undertaking that will likely to take years to be fully implemented, and would make fundamental changes to working for the state’s second largest employer — the state government.
The State of Oklahoma is the second largest employer in the state, behind the U.S. Department of Defense and just above the state’s largest private-sector employer Wal-Mart, even without counting state higher education employees, according to Oklahoma Department of Commerce and Office of Management and Enterprise Services figures. As of January 2020, there were around 33,000 non-higher education state government workers, according to OMES.
“That protection by the merit system gives them (classified employees) the protection they need so they can follow policy,” Dunning said. The system ensures “we have qualified state employees who have the skill and knowledge to do the job they’re doing and getting that job based on their merit, not on who they know. And when they’re in that job, that they have protections so they can do that job without someone looking over their shoulder and getting mad and firing them.”
Under a system with no employee due process protections, Dunning said, “You better have a good relationship with your supervisor. You’ll be at-will. They would be the ones signing off on whether you have your job or not without any checks or balances. Some arbitrary decisions could be made if there is not due process.”
For years, legislators and state leaders have talked about changing the state’s civil service system, which was first created in the late 1950s, intended to buffer state employees from political and outside pressure.
“They did that as a way to decrease the amount of political patronage and undue influence in state government,” Rep. Osburn said during an interim study on the issue last year.
Though some small changes have been made in more recent years, the last major change came in 1982 under then-Gov. George Nigh, Osburn said. That change was the establishment of the Merit Protection Commission, a quasi-judicial agency established to oversee the merit system and provide state employees with a dispute resolution system.
Since then, Osburn said during the study, a lot has changed.
“Most of the language has gone untouched for 37 years,” Osburn said at the opening of the interim study. “I’ve likened it to owning a 1982 Chrysler LeBaron. If you haven’t done a bunch of maintenance work and some overhaul to it, it’s probably not still drivable today.”
Civil service reform has been one of Gov. Kevin Stitt’s first orders of business since his inauguration last year.
Shortly after being inaugurated, Stitt issued an amended 2019 executive order that continued a state hiring freeze, but also requested the Office of Management and Enterprise Service’s Human Capital Management division to conduct a study of all classified positions.
Stitt’s order required the study to identify classified job families or levels within those job families that would be better suited for unclassified service, determine the extent to which each agency under that receives federal grant-in-aid funds are required by federal law or regulations to maintain personnel standards on a merit basis, and define a framework for management and maintenance of an unclassified workforce.
State agencies can be placed under the merit system either by an executive order or through legislation, the report states. However, state law requires that once an agency or position is placed under the merit system, it can only be removed by legislation, according to the report.
In his Feb. 3 state of the state speech, Stitt called the state’s civil service program “broken” and called for legislation that would make the majority of the state government’s non-higher education workforce “at will” employees within five years.
“Today, I am calling for reform that requires all new hires in state government, moving forward, to be unclassified,” Stitt said during the state of the state speech. “I am requesting language that allows agency directors discretion to offer bonuses, within the confines of their budgets, for employees to receive a promotion out of their restricted classified positions.
“Through this attrition model, I am casting a vision for the majority of the State’s work force to be unclassified in the next five years.”
A similar attrition method to switching state employees from classified positions was used by Georgia in the 1990s, Lepard said. Now, about 2 percent of Georgia’s state employees are considered classified, she said.
Lepard said civil service reform is something that is of interest to the State Chamber because most businesses are regulated by government entities, and a more streamlined system would help benefit business.
“The thought here is that government reform is an issue that often doesn’t gets looked at by business, but government regulates business, so a government that is running well is one that is better for business,” Lepard said.
In the study ordered last year by Stitt, OMES determined that all positions within the executive branch, other than higher education, could feasibly be transitioned from the current merit system to “a decentralized system maintained by each agency that adheres to merit principles of personnel management.”
“In essence, there is a strong argument that all classified job families are better suited for unclassified service based on the administrative efficiencies inherent in such a system,” the report states.
Stitt hopes the effort will eventually lead to all state positions being unclassified, said Stitt spokeswoman Baylee Lakey. The governor’s office is still working with legislators to hammer out language that would begin the process, she said, but that under the plan, state employees would still be protected from political favoritism or retaliation, and there would be both whistleblower protections and a grievance process in place.
While federal requirements tied to grant funding requires that some agencies receiving that funding have some form of merit system in place, OMES recommended that both classified and unclassified positions “be administered pursuant to principles of a merit and fitness, regardless of federal funding requirements.”
“As long as there is a system in place to protect state employees from political pressure, the governor’s administrative believes federal funding will not be impacted,” Lakey said. “We also look at our own state agencies as an example — like the Oklahoma Health Care Authority, which receives a large amount of federal dollars, but has a completely unclassified workforce.”
Zearly said OPEA hopes to see a single system for all state employees, with the exception of those who are political appointees.
“If we’re going to have a system, we want one system for all employees, except for maybe the governor’s appointees,” Zearly said. “We don’t have classified or unclassified, but one system. That’s our ultimate goal and that’s what we’re pushing and moving toward — having one system in the future.”
The change, Zearly said, could be beneficial for both state agency managers and their employees.
“If we get this done, if it’s done right,” Zearly said, “I think it would be a major change and very beneficial — if it’s done right.”
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