rutan hiring reform - illinois.gov conference... · hiring state employees division of hiring and...

3/20/2017

1

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


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.

3/20/2017

2


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)

3/20/2017

3


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




Next Steps

Interim Policy


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.

3/20/2017

4


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




Next Steps

Reminder of Interim Policy


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.”

3/20/2017

5


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.


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.

3/20/2017

6


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

32

127 32

Rutan Hiring Reform Update




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.

3/20/2017

7

Rutan Hiring Reform




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.)

3/20/2017

8

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).

23

HEM BackgroundCompliance-based division Proactive

ConsultativeIdentify pitfalls to avoid inferences of manipulation or

intentional wrongdoing

Separate from OEIG Investigations

24

3/20/2017

9

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

25

OEIG Investigations

Investigations of Hiring or Employment Matters, FY16 –Present:

41 Investigations Opened

13 Founded Reports

20 Unfounded Reports

8 Closed without Report

26

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.”

27

3/20/2017

10

HEM STAFF

Director

Supervising Analyst

3 Analysts

1 Attorney

28

HEM Activities

Interview Monitoring

File Reviews

Work on Hiring Reforms

29

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

30

3/20/2017

11

Interview Monitoring, cont.

Interviewers Interactions with one another

Station

Within Agency

With regard to interview position

Documentation Review Pre-, mid- and post- interview sequence

31


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

32


Mid-Interview Documentation

Interview notes

Scores

Composites/Rankings

Draft evaluations

33

3/20/2017

12

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)

34

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

35

File Reviews, cont.

Paperwork

Incomplete or missing documentation

Applications for each candidate interviewed

Questionnaires from each panel member

Candidate Evaluation Forms (CEFs)

36

3/20/2017

13

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

37

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

38

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

39

rutan hiring reform - illinois.gov conference... · hiring state employees division of hiring and...

Documents