Rutan Hiring Reform - Illinois.gov Conference... · Hiring State Employees Division of Hiring and...
Transcript of Rutan Hiring Reform - Illinois.gov Conference... · Hiring State Employees Division of Hiring and...
3/20/2017
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Rutan Hiring Reform
Joe Hartzler, Special CounselAlan Chen, Intern
Rutan Hiring Reform
Current Policy on Rutan‐Exempt Positions
Update on Rutan‐Exempt Positions
Governor’s Proposed Alternative Approach
Next Steps
Interim Policy
Current Policy on Rutan‐Exempt Positions
What are Rutan‐Exempt Positions?Positions for which the employer may take
into account political considerations
Do not improperly hire, promote, or transfer anyone into a Rutan‐exempt position that has job protection.
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Current Policy on Rutan‐Exempt Positions
Branti Standard Shakman Standard
Exempt positions are those for which:
“[employer] can demonstrate that party affiliation is an appropriate requirementfor the effective performance of the public office involved”
Branti v. Finkel, 445 U.S. 507, 507
“Exempt positions are those for which an employer may take into account political considerations when deciding whom to hire, promote, or transfer to fill those positions.”1
1Shakman v. Democratic Org. of Cook Cty. 69 CS125 (doc. #4798) (citing Branti v. Finkel, 445 U.S. 507, 518 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 78 (1990))
Challenge #1: Determining which Positions are Exempt
In Riley v. Blagojevich, Assistant Wardens sued then‐Governor Blagojevich after they were fired. The Court ruled against them because their positions were Rutan‐exempt.
425 F.3d 357, 357 (7th Cir. 2005)
However, the Court noted that:
“Identifying those jobs [that are exempt] is no mean feat.”
‐‐ and –
“[D]rawing a line [between exempt and non‐exempt] is inescapably arbitrary.”
Challenge #2: Reconciliation with the Personnel Code
The Commission says that these parallel tracks should be reconciled.
Rutan‐exempt jobs are not similarly “exempt” from the Personnel Code’s termination provisions.
Employees can be hired for political reasons but cannot be similarly terminated.
Illogical impediment to effective governance
Illinois Reform Commission (2009)
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Current Policy on Rutan‐Exempt Positions
Shakman Standard Personnel Code
“Exempt positions are those for which an employer may take into account political considerations when deciding whom to hire, promote, or transfer to fill those positions.”
Positions exempt from job protection (i.e., “at will”) are those that involve either (1) principal administrative responsibility for the determination of policy, or (2) principaladministrative responsibility for the way policies are carried out. 20 ILCS 415/4d(3).
1Shakman v. Democratic Org. of Cook Cty. 69 CS125 (doc. #4798) (citing Branti v. Finkel, 445 U.S. 507, 518 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 78 (1990)
Rutan Hiring Reform
Current Policy on Rutan‐Exempt Positions
Update on Rutan‐Exempt Positions
Governor’s Proposed Alternative Approach
Next Steps
Interim Policy
Update on Rutan‐Exempt Positions
This enabled the placement of political patrons into such positions and prevented subsequent administrations from demoting or discharging them.
Historically, Rutan‐exempt positions were available for internal promotions and external hires without posting or conducting structured interviews, even if those positions had job protection.
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Update on Rutan‐Exempt Positions
Prior administrations so abused that process, especially at the Illinois Department of Transportation (IDOT), that a federal judge in the Shakman case appointed a Special Master to:
Review all
Rutan‐exempt positions
Compile an
“exempt list” for IDOT
Include not only IDOT but all Rutan‐exemptpositions under the Governor’s authority
Rutan Hiring Reform
Current Policy on Rutan‐Exempt Positions
Update on Rutan‐Exempt Positions
Governor’s Proposed Alternative Approach
Next Steps
Reminder of Interim Policy
Governor’s Proposed Alternative Approach
The Governor’s proposed alternative approach prohibits any position from being designated Rutan‐exempt unless the employee in that position serves at the will of the Governor.
This alternative is consistent with the Governor’s pledge to:1. Clean up hiring abuse, and 2. Reduce the number of patronage positions in State government
Note: A variety of exemptions from the Personnel Code determine which positions in State government are “at will.”
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Governor’s Proposed Alternative Approach
1. Identifies categories of positions now Rutan–exempt but not “at will.”2. Re‐designates them as non‐exempt [after we overcome various
obstacles].3. Avoids a case‐by‐case evaluation of each exempt position.
Parties are currently in agreement that positions that enjoy job protection under either the Personnel Code or a collective bargaining agreement should not be Rutan‐exempt.
Instead, Rutan‐exempt employees should only be in positions that serve at the pleasure of the Governor and meet applicable legal standards.
Governor’s Proposed Alternative Approach
Rutan‐covered
[wholly apart from the specific duties of those positions]
Large number of currently Rutan‐exempt positions that are also subject to job protection
under either the Personnel Code or a collective bargaining agreement should be
Re‐categorized
To the extent that these positions can be classified as Rutan‐covered positions, it may not be necessary for the Special Master to review the exempt status of those positions on a case‐by‐case basis.
Identify positions that properly should be Rutan‐exempt by reference to specific provisions of the Personnel Code that eliminate job protection.
Under this part of the proposal, the “exempt lists” will consist of jobs that are truly “at will.”
Governor’s Proposed Alternative ApproachCurrent & Future States:
Current State Future State
Rutan‐Exempt/non‐Code/BU‐exempt• OK to consider political affiliation.
At‐Will (such as 4d3‐exempt)• OK to consider political affiliation
Rutan‐Exempt/Code‐protected/non‐BU• Structured interview not required• OK to consider political affiliation
Executive Service• Selection process to be modeled on federal system. • No political affiliation may be considered.
1.
Bargaining Unit: • Same.
3. Rutan‐Exempt/BU• Civil service & union protections.
Category would no longer exist.
4. Ru‐Covered/Code‐protected/non‐BU: • Structured interview process.• No political affiliation may be considered.
Civil Service: • Same.
5. Ru‐Covered/BU:• Structured interview process. • No political affiliation may be considered.
2.
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Governor’s Proposed Alternative Approach
Outcome of Reform in the Case of Rutan‐exempt Positions at the Dept. of Natural Resources (DNR)
Now Then
Total Exempt Positions
Bargaining Unit
Code Protected
At Will
32 0
0
32
63
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127 32
Rutan Hiring Reform Update
Current Policy on Rutan‐Exempt Positions
Update on Rutan‐Exempt Positions
Governor’s Proposed Alternative Approach
Next Steps
Interim Policy
Next Steps
Shakman plaintiffs have not yet agreed to our plan‐ but they have agreed to consider it.
We expect the judge will wait to issue an implementation order so the parties can work on a mutually acceptable alternative to expanding the Special Master’s review.
We will try to reach an agreement as soon as possible.
In the meantime, we must avoid taking any employment action that is inconsistent with our proposed reform.
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Rutan Hiring Reform
Current Policy on Rutan‐Exempt Positions
Update on Rutan‐Exempt Positions
Governor’s Proposed Alternative Approach
Next Steps
Reminder of Interim Policy
Interim Policy Steps
Treat the position as if it is Rutan‐covered; post it and fill it in accordance with the Rutan‐certified structured interview process;
Draft your own, verifiably non‐political selection process and submit it to your liaison in the Governor’s Office‐ who will in turn provide it to the Special Master and the Office of the Executive Inspector General to review and object.
When hiring, promoting, or transferring people into positions currently designated as Rutan‐exempt but which have job protection:
or
Interim Policy Steps
Going forth State hiring only in the event of dire operational need• Prevent opening the floodgates to State hiring.
Dire operational need = employee is needed to:• adequately serve the public; or • maintain federal funding.
1. [Safest & Fastest Option:] Post and fill the position as you would a Rutan‐non‐exempt position.
2. Check references and vet! But ensure that any vetting is strictly non‐political. (For high‐level positions, we’ll set up a non‐political system to ensure you’re not hiring someone with adverse ethics findings or job action.)
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Hiring State Employees
Division of Hiring and Employment Monitoring (HEM)
Erin K. Bonales, HEM DirectorMarch 28, 2017
EIG Duties
“[R]eview hiring and employment files of each State agency withinthe Executive Inspector General’s jurisdiction to ensure compliancewith Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), andwith all applicable employment laws.” 5 ILCS 430/20-20(9).
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HEM BackgroundCompliance-based division Proactive
ConsultativeIdentify pitfalls to avoid inferences of manipulation or
intentional wrongdoing
Separate from OEIG Investigations
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HEM Background, cont.
Assess Agency hiring systems, processes, decisions against governing frameworkPersonnel Code and Rules
CMS Interview and Selection Criteria and Techniques Manual
Executive/Administrative Orders
Collective Bargaining Agreements
Agency Policies
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OEIG Investigations
Investigations of Hiring or Employment Matters, FY16 –Present:
41 Investigations Opened
13 Founded Reports
20 Unfounded Reports
8 Closed without Report
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Executive Order 16-4, §VI
OEIG Authority to Review Hiring and Employment Files: “Each State Agency and every State Employee shall cooperate with, and
provide assistance to, [the HEM] division of the OEIG in theperformance of any hiring and/or employment review…. OEIG staffmay also monitor the interview and/or selection processes utilized by orwithin each State Agency.”
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HEM STAFF
Director
Supervising Analyst
3 Analysts
1 Attorney
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HEM Activities
Interview Monitoring
File Reviews
Work on Hiring Reforms
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Interview Monitoring
In-person, on-site monitoring of interviews
25 sequences, including 300 interviews
Consistent and standardized
Manner in which questions are asked
Information elicited or considered
Evidence of bias
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Interview Monitoring, cont.
Interviewers Interactions with one another
Station
Within Agency
With regard to interview position
Documentation Review Pre-, mid- and post- interview sequence
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Interview Monitoring, cont.
Pre-Interview Documentation Posting, position description, applications
Screening tool(s) application
Position duties versus interview criteria and questions
Interview panel members Relationship disclosures – conflicts
Certification
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Interview Monitoring, cont.
Mid-Interview Documentation
Interview notes
Scores
Composites/Rankings
Draft evaluations
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Interview Monitoring, cont. Post-Interview Documentation
Selected candidate(s)
In keeping with panel recommendation
Changes to documentation, e.g., scores, CEFs
Propriety of selection
Qualifications
Non-merit based factors
Post-interview checks
Salary recommendation(s)
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File Reviews
On-Site Review of Random Hiring Files
File Retention
Separate from personnel files
Appropriately labeled and ordered
3 years or per Agency retention schedules, whichever is longer
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File Reviews, cont.
Paperwork
Incomplete or missing documentation
Applications for each candidate interviewed
Questionnaires from each panel member
Candidate Evaluation Forms (CEFs)
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File Reviews, cont. Insufficient or Conflicting Substantive Information
Differing questionnaire notes
CEF notations differ from or are not supported by notes (or applications)
Scores – inaccurately calculated or transcribed
Employment decision forms lacking: Candidate comparison
Justifications regarding job-relatedness or candidate rankings
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Work on Hiring Reforms
Special Master’s Office IDOT
Statewide Review of Exempt Positions
Governor’s Office and State Agencies Exempt determination process(es)
Hiring into exempt positions with job protections
Reviewing proposed methods of selection
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Work on Hiring Reforms, cont.
Review of Proposed Methods of Selection Assess:
Necessity
Allowance for consideration of (non)merit-based factors
Accordance with Shakman decree and oversight, among other authorities
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