State HR chief defends plan to change state worker appeals

In an interview Friday morning, state personnel Director Neal Alexander said transferring hearing responsibilities to the State Human Resources Commission would allow a significant reduction in the time it takes for an appeal to be resolved.

"What we're doing is a lift and shift," Alexander said. "The current process that is there today, we're lifting and shifting and adding that review of the commission."

McCrory's budget proposal would transfer two employees responsible for hearing employee disputes out of the Office of Administrative Hearings to the commission, which would make the ultimate decisions in cases.

In an email statement Thursday night, McCrory spokesman Josh Ellis said the governor has never had any input into the commission's work.

But five of the commission's nine members are appointed by the governor, who also selects the group's chair.

That's what worries Michael Byrne, a Raleigh attorney who regularly represents state employees in appeals cases.

“I find it most difficult to believe that the governor would have no input on personnel decisions made by his own appointees," Byrne said in an email Friday. "Elimination of actual or potential political influence is why we have independent administrative law judges in the first place.”

These protections exist, Byrne said, to prevent state workers from having to serve at the "pleasure of the governor" and help cut down on political patronage inside agencies responsible for transportation, health policy and environmental protection.

"Otherwise, you have a situation like Hazzard County and Boss Hogg," Byrne said in an interview Thursday. "Nobody wants that."

Alexander said all of the court-like elements of the current system would remain, including open proceedings, participation of lawyers and judicial ethics requirements for the two full-time hearing officers, who directly report to the commission.

He argues that placing the final decision in the hands of the entire commission rather than one judge makes the process even more fair for employees.

"While they may be appointed by the governor and General Assembly, they're made up of a group of people from diverse backgrounds," Alexander said. "You're getting more of a business view."

But the biggest benefit to the state and its employees, he said, is the appeal time the move will save.

Legislative action in 2013 culled the time administrative law judges could take to render a decision to 180 days, a measure the McCrory administration supported. Under the proposed change, officers and the commission would have a total of 120 days to hear and rule on a case.

"This is really win-win for employees," Alexander said. "It's in the best interest of the attorneys to draw this out as long as possible."

Byrne said the OAH is getting the job done just fine. His data show OAH judges have closed half of the 86 cases filed since August 2013, when the 180-day rule went into effect. That's on top of closing another 36 existing cases during the same time frame.

Of the 43 that remain, some haven't met the 180-day deadline, are waiting on additional information or have been delayed under civil rights regulations.

Alexander contends the changes can help the state do better, and he said he sees no risk of increased politicization as a result of the proposal.

"My whole premise is making sure we do good HR," he said. "There is no one more of an employee advocate than me."