As early voting for the May 16 ballot approaches, Leaders for a Better Louisiana will take an individual look at each of the five amendments being presented to voters. Our hope is that citizens will use this information as a resource to familiarize themselves with each of the amendments before they cast their votes.
Here is our analysis of Amendment #1. You can find our review of all of the amendments here.
Allows the Legislature to Add Unclassified Positions Outside of State Civil Service
What It Does: Currently only the Louisiana State Civil Service Commission and its Director (on a temporary basis only) can designate positions in state government as “unclassified.” These are generally at-will positions that serve at the pleasure of whoever hires them and lack most of the employment protections of “classified” state employees. Passage of this amendment would allow the Legislature to add new unclassified positions to the state workforce or take them away if they pass a law to do so.
Background:
There have been concerns raised by legislators and others that state civil service laws make it difficult for state agencies to operate efficiently and effectively because they make it hard to hire and fire state employees as needed.
According to the most recent data there are 38,737 employees working in the executive branch of government. Of these, 4,997, or about 13%, are unclassified employees.
The constitution specifically delineates a number of positions that are unclassified. These include:
- Statewide elected officials.
- The heads of executive departments appointed by the Governor.
- Most teaching and professional staff in higher education.
- Employees of the legislative and judicial branches.
- Employees of the Governor, Lt. Governor, and Attorney General.
- All employees of the Governor’s Office of Homeland Security and Emergency Preparedness.
The constitution goes on to say that: “Additional positions may be added to the unclassified service, and those positions may be revoked by rules adopted by” the State Civil Service Commission.
This constitutional amendment would extend that same authority to the Legislature. It says: “Additional officers, positions, and employees may be added to the unclassified service in the state civil service by law and such additional officers, positions, and employees may be removed from the unclassified service only by law.”
Civil service-type protections vary considerably among states. Louisiana is often considered a state with a high-level of protection because many of its civil service provisions are placed in the constitution. That makes them difficult to change.
A number of states have some language in their constitution relating to civil service, but in most cases their powers are actually governed and can be changed by their Legislature by statute, rather than requiring an amendment to the constitution. At the other end of the spectrum, there are also states like Texas and Georgia where virtually all of their state employees are unclassified or serve “at-will.”
Comments: The fact that there is a statewide vote on a constitutional amendment demonstrates a sentiment by a super-majority of the Legislature and the Governor to treat the state’s civil service system in a new way. As policies evolve and some agencies seek to become more “customer focused,” momentum to provide state agencies and leaders more flexibility in hiring and firing employees seems to be building. This amendment seeks to address this issue in a potentially sweeping manner.
From Huey Long’s “deduct box” to the infamous “spoils system,” Louisiana was notorious for the way its politicians used the hiring and firing of state workers and other forms of coercion to gain and maintain political power. It all came to a head in the “Louisiana Hayride” scandals of 1939 which led to the passage of one of the most significant good government reforms of that era, the Civil Service Act of 1940. It didn’t last long, however. The act was repealed in 1948 when Earl K. Long became Governor. Reformers came back with a new version in 1952 and that one was placed more permanently in the constitution, where it has been ever since.
In saying that the Legislature can add additional positions to the unclassified service, this amendment would provide more legislative control over civil service, which has some parallels with other states. However, it also appears to open a door that harkens back to our state’s political past, where a strong governor and Legislature could potentially make any or all positions unclassified, including targeting specific employees. This would likely raise legal concerns about due process and could lead to other unforeseen consequences.
Even states that have relatively few protections for their employees, generally have a human resource function that sets employment qualifications, job descriptions and pay scales. Many also have grievance procedures in place for at-will, unclassified employees.
In Louisiana, that human resource function is handled by the State Civil Service Commission, but for the most part, that only covers the classified staff. If Louisiana were to make larger numbers of its workers unclassified, state agencies would theoretically have to take over more human resources functions to manage that growing cadre of unclassified workers. This amendment is silent on whether a new HR system would exist for unclassified state employees or how agencies would implement the change.
It is also worth noting that the constitution currently prohibits classified workers from participating in political activity such as soliciting or making campaign contributions to candidates or taking part in political campaigns. There are no such restrictions placed on unclassified employees so if the unclassified service were to be expanded by the passage of this amendment these public employees would be allowed to participate in political activities and would not be bound by the current classified civil service rules.
If state leaders wish to make major changes in Louisiana’s civil service system, they might consider a more comprehensive study to answer some basic questions not answered during the legislative debate on this amendment. These include: 1) what problem with the civil service system are we trying to fix, 2) what would a new, perhaps more flexible, civil service system look like, 3) what employee protections and restrictions should be retained, and 4) if the unclassified service were to expand significantly, what kind of human resources function, if any, should be in place to deal with issues such as pay scales, job qualifications, and due process rights?
Our Recommendation: No position. While we see risks to the wording of this proposed constitutional amendment, we also see examples of states with fewer protections in their constitution. If this effort fails, we strongly recommend the Legislature create a more structured process to reconsider the design of its civil service system and its approach to reform. If this amendment passes, we recommend that the Legislature craft a very thoughtful statutory companion to govern this law’s implementation including rules governing political activities for any new swath of unclassified employees.