McCrory plan makes worker firings political, critics say
Posted May 15, 2014
Updated May 16, 2014
Raleigh, N.C. — A small item in Gov. Pat McCrory's budget would give his appointees, not independent judges, the power to decide whether a state employee has been unfairly fired or disciplined.
Critics say the proposal would expose state employees to the political whims of the governor and increase patronage inside agencies responsible for transportation, health policy and environmental protection. But the McCrory administration contends in the proposal that it's an effort to streamline the appeals process for workers subject to the state's personnel laws.
Under the current system, administrative law judges in the independent Office of Administrative Hearings listen to appeals after a fired or disciplined employee follows an internal agency grievance process. The court-like hearings are open to the public.
McCrory's budget proposal would transfer two employees responsible for hearing and ruling on employee grievances in OAH to the Office of State Human Resources, which is part of the executive branch. Appealing the case to Superior Court would still be an option for employees.
The General Assembly will consider McCrory's budget proposal during this summer's short session.
Michael Byrne, a Raleigh attorney who regularly represents state employees in appeals cases, called the move "budgetary sleight of hand" intended to strip workers of rights guaranteed by law.
These protections exist, Byrne said, to prevent state workers from having to serve at the "pleasure of the governor."
"Otherwise, you have a situation like Hazzard County and Boss Hogg," he said. "Nobody wants that."
In a written statement to WRAL News Thursday night, OSHR Director Neal Alexander said the governor's proposal will ensure employees' due process rights while reducing the length of the grievance process.
“As result, our state employees will successfully avoid finding themselves in limbo before they receive resolution of their grievance," Alexander said in the statement.
Byrne said it's unclear whether the new hearing officers defined in McCrory's proposal would listen to appeals in open proceedings, allow lawyers or even be subject to judicial ethics codes.
"The net result is that, if the governor wants the employee to lose the appeal, they're going to lose the appeal," Byrne said. "That is simply not a fair hearing process."
Tom Harris, general counsel for the State Employees Association of North Carolina, said that lack of due process and impartiality is why the union opposes the plan.
"This wouldn't work, and it would need to stay in the Office of Administrative Hearings," Harris said.
McCrory Communications Director Josh Ellis said in an email Thursday night that employees will be treated fairly by the hearing officers, both of whom will be appointed by the State Human Resources Commission. He said that commission has "never had any input whatsoever" from the governor's office and receives no instructions on how to rule in the cases it reviews.
But five of the commission's nine members are appointed by the governor, who also selects the chair. State law also says the actions of the group are "subject to the approval of the governor."
Absent a fair, independent process, Byrne said, North Carolina would move toward a more politicized civil service corps.
That was the case before the 1980s, when a long string of Democratic governors controlled an essentially unlimited number of patronage positions within state agencies. These workers could be hired and fired without notice and essentially served at the will of the governor.
When Republican Gov. Jim Martin's administration began in 1985, Democratic legislators capped the number of these so-called at-will positions at around 300.
The cap remained largely unchanged for a quarter-century. But in 2012 and 2013, the Republican-controlled General Assembly raised the number of at-will positions a sitting governor could designate to about 1,500.
Byrne said the public's interest is best served by state workers who can act on the state's behalf without political dismissals, and he said that principle applies no matter which party is in power.
"The question comes to the citizens: Do you want the state trooper who protects you on the highway to be the best trooper or the best and most loyal Democrat?" Byrne said. "Do you want the highway engineer to be the best bridge builder or the best and most loyal Republican?"
CORRECTION: A previous version of this story incorrectly reported that the Office of State Human Resources is housed in the Department of Administration. It now reports directly to the gover