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Gossett / CIVIL SERVICE REFORM IN GEORGIA
Civil Service Reform
The Case of Georgia
CHARLES W. GOSSETT
Georgia Southern University
In 1996, the State of Georgia passed the Merit System Reform Act, which made
dramatic changes to the traditional civil service system in the state. These reforms
included placing all newly hired civil servants in positions that were “at will” and
greatly decentralized responsibility for recruitment and classification to individual operating agencies. The role of the central personnel office changed from that
of a regulating agency ensuring that merit principles were followed to a consulting service organization designed to encourage best practices. This article examines these changes as manifestations of a “managerialist” ideology more concerned with empowering managers for the sake of greater efficiency than with
protecting individual employee rights.
The need for change is well established. Although the [merit] system is out of
date . . . the concept of merit is not. It is necessary to clearly draw the line
between the baggage of merit and the essentially sound principles that the system should support government wide. The need for a public management
system that is fair and equitable, that addresses issues of recruiting, rewarding, and managing a committed and qualified workforce, and that serves the
public and elected officials productively and effectively remains central to
good government.
—Ingraham (1995, p. 141)
Beginning in the late 1800s, “merit systems” for selecting and managing
public employees at the national, state, and local levels of American government were adopted with differing expectations on the parts of supporters
and opponents of civil service reform. Advocates of reform argued that
selecting candidates for government positions based on job-related criteria
rather than on patronage considerations would lead to a more technically
competent and efficient government administration. Opponents argued
that a merit system based on testing would be elitist and antidemocratic
Author’s Note: The author would like to thank Pama Caraway and Donna Scott for
research assistance on this article.
Review of Public Personnel Administration, Vol. 22, No. 2 Summer 2002 94-113
© 2002 Sage Publications
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(Maranto & Schultz, 1991). The advocates of reform won that battle and
for approximately the next century, American national, state, and local governments tended to focus on ways to limit the interference of political considerations in the management of public personnel.
By 1978, President Jimmy Carter, who had been elected in part on his
claims of having reformed the state bureaucracy while serving as governor
of Georgia from 1971-1975, succeeded in getting the Civil Service Reform
Act of 1978 (CSRA) passed. He and his team successfully created a coalition of forces who had become disenchanted with or frustrated by one or
more aspects of the federal merit system as it had evolved, with Carter
claiming, notably, that there was “not enough merit in the merit system”
(quoted in Shafritz, Riccucci, Rosenbloom, & Hyde, 1992). Although this
led to some major structural realignments in the architecture of federal personnel management and to a number of changes in how senior-level
employees were utilized and compensated, the success of the reform has
been limited (Kettl, Ingraham, Sanders, & Horner, 1996).
Over the past decade or so, a number of observers have noted what they
consider to be a radical change in the nature of public administration in
general and in public personnel administration in particular (Kearney &
Hays, 1998; Maor, 1999; Pollitt, 1993). Nearly a century of public personnel management, guided by the desire to create a system of neutral competence and political responsiveness accomplished through selection on the
basis of merit and protection of employees from improper political pressure, now seems to many a quaint but definitely outdated approach to staffing government (Howard, 1994; Osborne & Gaebler, 1992). In place of the
merit systems of the past, today’s reformers are calling for public personnel
management systems based on selected principles derived from business,
which emphasize the ability of senior-level managers to direct and control
the activities of subordinates (Pollitt, 1993), often giving those same managers greater freedom from political control and oversight and the opportunity to be entrepreneurial (Terry, 1998). This approach has been labeled
“managerialism.” Although the term has broader applicability than just
personnel management, it is a particularly useful term when summarizing
the philosophy (or in Pollitt’s [1993] term, “ideology”) behind the changes
that have taken place in, or that have been proposed for, the way the public
services of U.S. federal, state, and local governments are managed.
Managerialism, as described by Pollitt (1993, pp. 2-3), is an ideology
with two key components: (a) The goals of government can best be
achieved by “continuing increases in economically defined productivity”;
and (b) managers are critical to improving productivity and, therefore,
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must be given the “right to manage.” In this context, managers at the lowest levels should focus on and have authority over performance management, productivity improvement, cost reduction, and development of a
“customer-focused” workforce. With such authority comes an ability to
achieve specific goals and to hold managers accountable. Some authors
have argued that the CSRA is based on this managerialist ideology (Pollitt,
1993; Thayer, 1984), but a close examination of merit system principles
listed in the CSRA reveals a series of requirements more focused on controlling and limiting the scope of action managers can take with respect to individual employees. Thayer (1984), for example, pointed out the contradiction between various elements of the act designed to increase managerial
discretion and those designed to strengthen the merit system. In the legislative process leading to the CSRA, one can note the tension between retaining at least some semblance of the principles of the merit system while
introducing elements of the managerialist ideology focused on increased
productivity (e.g., revised performance appraisal systems and merit pay)
and increased management rights over employees (e.g., the senior executive
service and changes in the scope of collective bargaining favorable to management) (Ingraham & Ban, 1984).
Whereas many authors have written about the role managerialist ideology has played in shaping civil service reform efforts, most have focused on
national-level bureaucracies. Managerialism has informed state-level civil service reform efforts as well, as can be seen in a number of case studies (Ban &
Riccucci, 1994; Wechsler, 1994). None of these states, however, has gone as
far as the State of Georgia in reforming (some might say abolishing) its state
merit system (Barrett & Green, 1999, p. 39; Walters, 1997).
What follows is a case study of the adoption of a program of civil service
reform in Georgia. Implementation of these reforms is discussed in more
detail by Condrey (2002 [this issue]). The extent to which the managerialist
ideology guided reform will become apparent. Additionally, however, the
unwillingness of policy makers to give up certain types of control over public servants that had emerged during the preceding decades under the merit
system will also become apparent. Emerging will be a picture of a management ideology that might be called “managerialism plus” in the sense that it
not only seeks to remove various civil service limitations on management
flexibility, but also because it retains existing restrictions on public employees that go beyond the types of control that are legally available to private
sector employers. In particular, the state’s refusal to collectively bargain with
employee organizations and legal prohibitions on the ability of employees
to strike, which the state justifies because of its unique position as a sover-
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eign entity, demonstrate an unwillingness to give up those elements of state
power against which, in part, civil service protections were originally
adopted.
BACKGROUND AND THE LAW
Georgia’s State Merit System of Personnel Administration was established by the Georgia General Assembly in 1943. Adoption was largely the
result of federal pressure to establish merit systems whenever states were
required to administer federal programs or use federal grant monies. The
merit system law was rewritten and employee protections and the scope of
coverage under the system were expanded by the General Assembly in the
1970s.
In words that echo former President (and former Georgia governor)
Jimmy Carter, Governor Zell Miller (1996a) used his annual State of the
State address to call for merit system reform:
I will also bring you [the General Assembly] legislation to revise the State
Merit System which was established more than 50 years ago to create a professional workforce that was free of political cronyism. And at that time, that
was a valid and important goal. But too often in government, we pass laws to
fix particular problems of the moment, and then we allow half a century to
roll by without ever following up to see what the long term consequences
have been. Folks, the truth of the matter is that a solution in 1943 is a problem in 1996. The problem is governmental paralysis, because despite its
name, our present Merit System is not about merit. It offers no reward to
good workers. It only provides cover for bad workers.
The governor went on to list additional complaints about the merit
system—takes too long to hire and fire people, hurts morale, discourages
managers from disciplining employees, and “makes it difficult in many
cases to hire qualified minorities.” All of these complaints were justified
anecdotally rather than on the basis of rigorous analysis. Responding to
critics who feared proposed changes could allow the revival of political
influences dominating employee hiring, the governor stated that the “gains
are worth the risks” (“Job Rules Targeted,” 1995). A few months later, the
General Assembly passed (by votes of 40-8 in the Senate and 141-35 in the
House of Representatives) the Merit System Reform Act, which made significant changes in Georgia’s personnel system. According to the legislation, which became effective July 1, 1996,
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It is the purpose of this article to establish in the state a system of personnel
administration which will attract, select, and retain the best employees based
on merit, free from coercive political influences, with incentives in the form
of equal opportunities for all; which will provide technically competent and
loyal personnel to render impartial service to the public at all times and to
render such service according to the dictates of ethics and morality; and
which will eliminate unnecessary and inefficient employees. (Official Code
of Georgia Acts [OCGA], 1998)
The language sounds a lot like the language used in preambles to laws
defining merit systems in other states (although the use of the words loyalty
and morality perhaps reflect particular concerns of Georgia legislators), but
the approach the act takes to achieving these goals differs substantially from
what the term merit system probably suggests to most students of civil service reform. Some indication of the difference can be foretold by looking at
the language that was stricken from the statement of purpose in the previous act:
It is the purpose of this article to establish in the state a system of personnel
administration based on merit principles and scientific methods governing
the classification of positions and the employment, conduct movement, and
separation of public officers and employees. It is also the purpose of this article to build a career service in government which will attract, select, and
retain the best employees based on merit. (S. 635, 1996)
Georgia, like most governmental jurisdictions, has in recent years had
two basic categories of employees: classified, which included those people
who competed for jobs and filled what one often calls the career service, and
unclassified, which included political appointees, confidential assistants,
lawyers, and so on. A number of agencies had been increasing the number
of unclassified positions in the past few years, but the previous process for
unclassifying positions was cumbersome and required providing independent justification for changing each position’s status. That process is all but
gone now. The Merit System Reform Act prospectively eliminates the classified service by making all employees hired after July 1, 1996, unclassified.
Any new positions created after that date become unclassified. Classified
employees already in the Georgia state civil service before July 1 retain their
status and positions. Those positions that were classified before July 1 also
will remain as such. This means an employee with classified status can keep
his or her status by remaining in the current position or by taking a new
position that still retains classified status. If a classified employee moves to a
newly created position (i.e., unclassified), he or she becomes an unclassified
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employee. If a new employee occupies a position that has classified status,
he or she does not become a classified employee. Once a classified employee
accepts an unclassified position, he or she can never regain classified status;
likewise, once a position is occupied by an unclassified employee, it can
never be returned to the classified service.
The obvious question becomes “What does it mean to be an unclassified
employee?” The State Merit System of Personnel Administration made
clear what the change meant:
As you know, the Merit System Reform Act changes the employment conditions for all new employees hired on and after July 1, 1996. While state and
federal laws provide that hiring must be conducted free of unlawful discrimination, new hires will be hired on the basis of “at will” employment. One of
the meanings of “at will” employment is that employees will no longer be
employed on “working test”[i.e., probationary period] or gain a “property
interest” in their jobs. (Georgia State Merit System of Personnel Administration, 1996a)
The language of the act itself and an executive order from the governor
(the chief sponsor of the act) emphasize that agencies are to “assure fair
treatment of applicants and employees in all aspects of personnel administration without regard to race, color, national origin, sex, age, disability,
religious creed, or political affiliations.” (Miller, 1996b, p.1) There are also
statements that selections are to be based on competency, although the following specific language was deleted from the original law as part of the
reform:
Impartial selection of the best qualified person for government service by
means of competitive tests which are fair, objective, practical, and predictive
of or significantly correlated with important elements of work behavior
which comprise or are relevant to the position or positions for which such
persons are being evaluated.
Impartial selection of the best qualified person for government service by
means of competitive tests which are fair, objective, practical, and predictive of or significantly correlated with important elements of work behavior
which compose or are relevant to the position or positions for which such
persons are being evaluated.
Furthermore, the act states that training should be provided, employees
should receive “equitable and adequate compensation based on merit and
performance” (S.35, 1996, § 1[b][3]) and an employee whose performance
is inadequate should be fired. A statement that employees should be pro-
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tected from political coercion and should not use their offices to affect election outcomes is also included. Dropped from the language of the previous
law was the following statement requiring the merit system to maintain
“proper balance in employer-employee relations to achieve a well-trained,
productive, and happy working force” (S.35, 1996, § 1[b]). There is authority granted to the state merit system to “audit agencies’ processes and report
findings as appropriate” (S. 635, 1996, § 1 [c][9]), however, there are neither standards on which to base the audits nor mechanisms for enforcing
any of the provisions included in the law.
THE LEGISLATIVE PROCESS
Reform of the merit system in Georgia was a priority in the 1996 legislative agenda of Governor Zell Miller. The mood of the times was that government needed to be shaken up. The Democratic administration in Washington was busy reinventing everything, including the federal personnel
system. The Olympics were coming to Atlanta. Governor Miller was entering the last 3 years of his term-limited time in office and was attempting to
leave several substantial marks on the way state government operated, most
notably a major effort at privatizing a number of government services.
Efforts to reform the state civil service system, in his view, were entirely consistent with his overall direction (Levin & Gebo, 1997).
The staff of the Merit System learned of the governor’s plans via the
newspapers in late 1995, when the governor announced that no employee
“should have a job for life” and that he wanted to make substantial changes
to the existing merit system. The point man for the governor on this issue
was Joe Tanner, director of the Governor’s Commission on Privatization.
Tanner was a former commissioner of the Department of Natural
Resources (DNR) in two gubernatorial administrations and the elected
state labor commissioner for 6 years. In his incarnation as DNR commissioner under Governor Miller, he succeeded in abolishing the merit system
in his own agency by obtaining the right to hire almost all employees into
unclassified positions (“Governor Miller Seeks,” 1995). At the same time,
the DNR had a reputation as a well-run agency and even senior staffers at
the Merit System offices agree that Tanner was a professional and fair
administrator who did not allow abuses of personnel practices for political
or personal reasons (F. Daley, personal interview, June 30, 1997; S. Pope,
personal interview, June 30, 1997). Nevertheless, Tanner stated his position
while supporting the governor in the following terms:
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What we’ve got is a rigid inflexible system. It’s antiquated. And it needs to be
changed. . . . We don’t believe that public employees should have any protection that the private employees don’t have. Why should government be any
different? (“Merit in Personnel Reform,” 1995)
Following the governor’s announcement, an interagency committee,
consisting of personnel officers from several state agencies and two senior
officials from the Merit System, was tasked with developing a specific legislative proposal to accomplish the governor’s objective. Although there was
some discussion of scrapping the merit system altogether for both current
and future employees, the original draft of the bill produced by the committee provided that employees who stayed in their current positions could
retain their existing merit system protections (D. Russell, personal interview, June 30, 1997).
Opponents, particularly the Georgia State Employees Union, fought the
bill. The union was successful in clarifying that classified employees could
move from their current position to another classified position (i.e., one
that had been established in the classified system prior to July 1, 1996) (A.
Freeman, telephone interview, June 26, 1997). However, on the floor of the
Senate, an amendment seeking to provide a right to appeal adverse actions
was proposed but soundly defeated by a 3-to-1 margin (S. 635, 1996). The
Senate then went on—5 minutes later—to pass the bill overwhelmingly,
picking up three of the senators who had supported the losing effort to add
an appeals amendment. In only about 1 hour of debate, the Senate voted to
abolish the merit system for new employees (Wooten, 1996). With respect
to the final vote, 20% of Democrats and 5% of Republicans opposed the
reforms; looking at the vote another way, 50% of Black senators and 6% of
White senators opposed the reforms.
In the House of Representatives, the story was similar. An amendment
was introduced on the floor that would have specified that dismissals could
only be for “cause,” including a list of specific justifications that could be
employed, and which guaranteed employees a right of appeal for any
adverse action. Again, this amendment met resounding defeat and the bill
went on to passage by a 4-to-1 margin (Georgia House of Representatives,
1996). In analyzing the vote, a couple of interesting patterns appear that
reflect the same trends as in the Senate: 26% of all Democratic representatives and 9% of Republicans opposed the reforms as did 64% of Black legislators and 10% of White legislators.
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REFLECTIONS ON THE MANAGERIALIST IDEOLOGY
Clearly, the removal of all employee rights to challenge managerial
actions to discipline or remove them from their positions is an extreme
example of the application of managerialist ideology to the civil service in
Georgia. However, the act went even further and decentralized almost every
basic personnel function from the central offices of the merit system to the
individual agencies. This strengthening of the ability of agency heads to
control classification and compensation, hiring, affirmative action, and
employee grievances is consistent with managerialist ideology.
Classification and Compensation
The Merit System is still tasked with developing position descriptions
for certain common job functions such as secretaries and other clerical positions, but agencies are free to identify any of their positions as unique and
assume responsibility for classifying the position themselves. The central
Merit System office is still responsible for “establish[ing] and maintain[ing]
a statewide system of pay ranges for all classes,” but they have no authority
to determine what classification should be given to any particular job in
another agency.
For years, politicians have justified lower than market rate salaries for
public sector employees on the grounds that their benefit packages and,
most important, substantial job security more than compensated for the
disparity between public and private sector salaries. The goal and effect of
the reform act, however, was to specifically eliminate the “job security”
advantage of civil service workers. Obviously, the salary and benefit packages necessary to “attract, select, and retain the best employees,” in the
words of the law, will need to be more competitive with the private sector.
Unintentionally, the reform act originally made state employment even
more unattractive because there were no provisions for annual, sick, or personal leave for unclassified employees. Rather than afford individual agency
heads or managers complete discretion over leave for such employees, the
governor issued an executive order requiring that all unclassified employees
receive the same leave benefits as classified employees (Miller, 1996c).
In a practice consistent with managerialism, Georgia introduced a merit
pay plan for employees shortly before the reform act was adopted. This payfor-performance plan, called GeorgiaGain (Georgia Merit System, 1999),
gave agencies the ability to set differential pay increases (a choice of four
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rates, 0%, 4%, 5.5%, or 7%) for employees based on their overall performance evaluation. However, consistent with problems noted in other public sector pay plans, the lack of adequate funding for merit pay resulted in
either an overall reduction in the size of the awards so more people could
receive them or the imposition of a quota on the number of employees who
could receive a particular rating so that the funds would support the full
increases allowed. Different agencies adopting different approaches
resulted in differential treatment of employees who exhibited the same level
of performance (Kellough & Selden, 1997; “Any Questions?”, 1998).
GeorgiaGain has now been replaced with a new system called
PerformancePLUS that provides all employees performing at a satisfactory
level or above with the same percentage increase to base pay and, for those
performing above the satisfactory level, a one-time lump sum bonus (“State
Employees Move,” 2001).
Job insecurity among government employees could have a number of
consequences based on historical experience with at-will government
employment systems. If a pattern is established that a change in political
leadership leads to dismissal of public servants, one should anticipate that
employees will use their government positions as opportunities to position
themselves for their next job. Although such an attitude can be healthy and
admirable, it must be recognized that there is a significant difference
between grooming oneself for a position in a career system (such as a meritbased civil service system) and getting ready to move to another organization. Organizational loyalty, attention to the unique features of the organization, and efforts to ensure effective cooperation among organizational
units are not characteristics that one should expect to see in ambitious
employees of an at-will employment system with a history of periodic staffing changes. And although there are disloyal, disinterested, and uncooperative employees in any merit system, “ambitious” employees who expect a
career with the organization are more inclined to be loyal because of confidence that they will be retained based on their performance and not be subject to employment based on election results. Of course, if the tradition
develops that political party change in the elected executive offices does not
significantly affect public employees, the advantages of a merit-based career
service may be secured. A number of private companies, prior to the era of
downsizing, essentially guaranteed lifetime employment for people meeting job expectations, although they, like governmental entities, always
reserved the right to dismiss nonperformers, albeit with fewer procedural
hurdles to taking adverse actions.
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Hiring
The central office of the Georgia Merit System is to serve as a point of
contact for anyone looking for a job with the state, even though there is no
requirement that agencies list their job openings with the Merit System
offices. The most that the Merit System is able to do is insist that any agency
that does not want to list jobs with them at least provide the name of a contact person to whom they can refer inquiries (Georgia Merit System, 1997d).
Agencies are free to choose a selection method for hiring into any of their
positions. Written tests may or may not be used. The law’s only requirements are that competition for the position be open and that there be compliance with “all state and federal equal employment opportunity and nondiscrimination laws” (S. 635, 1996). As Merit System officials made clear in
one of their implementing instructions to agency personnel directors,
Agency managers will have a great deal of flexibility and autonomy under
the new provisions; however, agency managers should continue to hire the
“best” qualified candidate, whether that person is from outside state government or is a current classified employee. . . . For example, it is clearly not consistent with legislative intent for managers to abolish a classified position
and recreate it as a new unclassified position solely to prevent classified
employees from remaining in the classified service upon accepting a promotion. (Georgia State Merit System of Personnel Administration, 1996a)
The concern here was that agency managers would discriminate against
current employees whenever they had a vacancy in a classified position
because if they filled the position with a new hire, they could remove the
position from the roll of classified positions. What is implied in the language reminding managers that they should continue to select the best candidate is that they might decide to make selections on some other basis,
such as political or personal connections.
Although written and performance tests were no longer required, many
agencies were expected to continue to use them, particularly when they had
to hire a large number of employees at a number of different locations across
the state. The Merit System office continues to test employees for such positions but in the past sent only a restricted listing of the highest scorers to
agencies seeking to fill a particular vacancy. Now, however, because there is
no “appointable range,” as the Georgia equivalent of the “rule-of-three” was
called, the Merit System simply sends the list of everyone who took the test
in descending order based on their scores. Agencies are free to hire anyone
from anywhere on the list, although, of course, they may be called to defend
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their selection at some point, not by the Merit System central office but by a
passed over applicant with a higher score who seeks redress in court (Georgia State Merit System of Personnel Administration, 1996b).
A special class of hiring is promotions. In a typical career service, mobility within the government, with the exception of appointment to policymaking positions, does not entail a change in status with respect to one’s
rights as an employee. Under the changes adopted by the Georgia legislature, however, many possible career moves that would have been viewed by
an employee as overwhelmingly positive now have an element of risk not
present previously. Again, it is too early to tell whether this will emerge as a
significant problem for agencies, but some speculation about its consequences may be appropriate. For newer, and younger, employees, there will
probably be little hesitation to take promotions and career-enhancing
transfers regardless of the consequences with respect to merit system
protections. Older employees, on the other hand, may become much more
reluctant to accept such changes given that the loss of civil service rights
could expose them to arbitrary job termination just before pension eligibility, though federal age discrimination laws might provide some protection
(Ruegger, 1989).
Georgia, like most southern states in recent years, has seen the emergence of a competitive two-party system replacing a long-dominant Democratic Party that controlled all elective statewide offices and legislative bodies until the last decade. In the last few elections, however, Republicans have
won several statewide offices—insurance commissioner (1994, 1998), state
superintendent of education (1994, 1998), attorney general (1994), and a
majority of the public service commission—and have become a substantial
minority in both legislative chambers. Though the most recent gubernatorial election resulted in the election of another Democrat as governor (one
who voted for the reform act as a state representative), one can anticipate
that as the state’s elected executive branch offices change hands, there will
be pressure not only to make changes in policy-making positions, a practice
accepted in even some of the strictest state merit systems, but to reward supporters with jobs at lower levels—jobs that were traditionally covered by
civil service protections. The ability to resist requests from supporters,
assuming the elected official was inclined to resist such pressure, will be
more difficult inasmuch as he or she lacks the ability to refer to the “rules”
that prevent an unqualified or less qualified supporter from being
appointed or promoted. Several federal cases have limited the ability of governments to make personnel firing and hiring decisions on explicitly political grounds (e.g., Elrod v. Burns, 1976; Rutan v. Republican Party of Illinois,
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1990), but those cases were decided by narrow margins with multiple concurring and dissenting opinions. The dissenters in the Rutan case—Chief
Justice Rehnquist and Justices Scalia, Kennedy, and O’Connor—are arguably in a more influential position today should a new case arise. The general trend in recent Supreme Court decisions to support states’ rights and
limit rights of individuals to sue states in federal courts (Weissert & Schram,
2000) suggests that aggrieved state government employees who feel they are
the victim of political hiring and firing should not have much confidence in
finding protection under the U.S. Constitution.
Affirmative Action
Given the greater discretion by state managers to make selections and
promotions, it is reasonable to ask whether this power to achieve greater
diversity in the state government workforce will hinder or help. Because test
scores are no longer the required principal selection tool, managers have
greater flexibility to select employees from traditionally underrepresented
groups. The governor, in his State of the State address announcing his merit
system reform proposal, claimed that an increased ability to achieve minority hiring would ensue from the proposed changes (Miller, 1996a). The
DNR claimed that its early experiments with hiring most employees as
excepted service personnel allowed it to obtain greater diversity among its
employees (“Governor Miller Seeks,” 1995). For some time now, advocates
of increased minority employment in government jobs have criticized the
use of testing procedures as having an adverse impact on potential hiring of
minority applicants. Although this may not have been a specific complaint
against testing procedures used by the State of Georgia, clearly the elimination of a requirement to hire only from among those with the highest scores
will render this concern less relevant.
There may also be a substantial impact on the debate over affirmative
action in state government employment practices. Critics of affirmative
action have frequently pointed to cases where minority or female job applicants with lower scores on written tests or interview ratings were selected
over nonminority or male applicants (Urofsky, 1997). Now, in Georgia, it is
clearly established that written tests are not necessarily required for any job
and, even in cases where written tests are used, they do not necessarily limit
the employing agency’s ability to hire any candidate they wish from the list.
Although opportunities for increasing workforce diversity may be
enhanced, employing agencies that are reluctant to diversify have also lost
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the ability to use the absence of minority candidates’ scoring high on written tests or interview ratings as a justification for a predominantly male
and/or nonminority workforce. As one of the first sets of guidelines promulgated, the Georgia Merit System advised agencies of the importance of
doing careful job analyses and ensuring that job qualifications were set in a
manner consistent with the Equal Employment Opportunity Commission’s (EEOC’s) Uniform Guidelines on Employee Selection Procedures (Georgia Merit System, 1997b). A second set of Georgia Merit System guidelines
concerned recruitment and job posting, again with strict cautions about
following EEOC guidelines (Georgia Merit System, 1997d). Although a
set of guidelines specifically for selection has not been issued, one can imagine that it will give at least as much emphasis to nondiscriminatory practices
and federal requirements as the already-issued guidelines. Managers may
feel as constrained as they allegedly felt in the past about selecting candidates for positions, although there is no longer a central personnel agency
reviewing their hiring practices. Individual job applicants who feel
aggrieved by the agency’s hiring decision will have to appeal to the courts for
resolution of their claims, although their chances of success are not promising given the U.S. Supreme Court’s recent decision in Alexander v. Sandoval
(2001), Board of Trustees v. Garrett (2001), and Kimel v. Florida Board of
Regents (2000), which protect state governments from lawsuits under Title
VI of the 1964 Civil Rights Act, the Americans with Disabilities Act of
1990, and the Age Discrimination in Employment Act, respectively.
Grievances
An important argument used to convince wavering supporters of the
reform bill was that there were already numerous state and federal laws and
precedential court decisions that would prevent arbitrary dismissals (“To
Downsize,” 1996; “1996 Georgia Legislative Session,” 1996; Hamilton,
1999). Principally, reform advocates were referring to federal civil rights
laws, a rather weak state fair employment law, and several U.S. Supreme
Court decisions that found public employees may have a property interest
in their jobs and that public employees cannot be dismissed for appropriately exercising their free speech rights as citizens. The effectiveness of such
laws as substitutes for merit system protections is likely to be tested in the
coming years, although as noted in previous sections, the outlook under the
current Supreme Court does not seem promising for protecting employees.
Governor Miller issued an executive order requiring all agencies to have
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internal grievance procedures, but there is no provision for external oversight of an agency’s action unless the employee resorts to the court system.
The executive order that was issued merely requires that the agency head
personally sign off on any decision to “separate, demote, or suspend without pay” any unclassified employee (Miller, 1996b).
Auditing
The Georgia Merit System is charged with “auditing” the personnel
practices of agencies, but there are no standards specified in the law against
which the agency actions can be evaluated at the present time. The Merit
System has developed some model standards (not laws or regulations) in the
areas of classification, compensation, and recruitment (Georgia Merit System, 1997a, 1997b, 1997c, 1997d). The tone of the standards make very
clear that they are guidelines and not requirements, although there is clearly
an effort being made to alert agencies to the legal dangers they may face if
they ignore the advice. With respect to audits themselves, Merit System
officials have prepared some unofficial internal documents that outline
how they see this function being performed and raise some question about
how critical they might be. A “junkyard dog” approach to auditing wrongdoing has clearly been ruled out. Rather, the outline suggests that audits of
each agency will only occur every 3 to 5 years. The description of the audit
function was developed by merit system officials in consultation with the
governor-appointed Personnel Administration Advisory Council, made up
of the heads of the major executive branch agencies that are to be audited
(Miller, 1996b). The document listed the following “guiding principles of
the audit function”:
1. The role of the MS [Merit System] audit function is to improve state human
resource practices rather than identify past deficiencies;
2. The desired outcome of an audit is development of an improvement plan
rather than “findings” of deficiencies;
3. Audits are conducted jointly, in partnership with the customer agency;
4. Audits are seen as an opportunity to discuss agency processes and activities
in light of model processes and best practices; and
5. Audit resources are focused initially on those agencies that may have difficulty transitioning to their new role due to a lack of adequate internal
resources or skills. (Georgia Merit System, n.d.a)
This statement is consistent with language in the governor’s Executive
Order (Miller, 1996b), which states that
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in performing audits, the State Merit System shall comply with professional
auditing standards and methods, with the State Merit System offering
advice and guidance, and working cooperatively to address any exceptions,
prior to [italics added] issuing its report to the appropriate legislative and
executive members.
The independence of the audit function may be in doubt as a result of a
significant change in how the Georgia Merit System will be funded. In the
past, each agency was assessed a fee based on the number of classified positions it had. Now that the number of classified positions is declining, with
the goal of eliminating all of them eventually, this funding mechanism is no
longer appropriate. Also, the number of functions performed by the Merit
System will decline as agencies assume more of the personnel functions
themselves. The result is that the Merit System is transforming itself into a
“fee for service” agency charging agencies for assistance it provides in the
traditional core personnel functions (Georgia Merit System, n.d.b).
Agencies are free to seek such services from the private sector if they choose.
Thus, to keep itself in business, the Merit System may be reluctant to be
overly critical of agency performance for fear of hurting its chances when it
bids to provide services to that same agency at a future date. Perhaps this is
why in a recent presentation to a conference audience, the commissioner of
the Merit System did not even mention the audit function when describing
the mission and role of the agency (Russell, 1998).
Labor Relations
The State of Georgia has never entered into any type of formal collective
bargaining with its employees or employee organizations. As a right-towork state, that is not surprising. During the debate over the reform act, no
legislator pursued a strategy of extending the model of private sector management to amending state laws or policies that strengthen the hand of
managers in state agencies vis-à-vis employees. In particular, no one suggested that the state should adopt a private sector model of labor relations
by repealing the section of the code prohibiting strikes by state employees.
In fact, in 1998 that section of the code was amended to change the word
state to public when it preceded the word employee thus broadening the prohibition’s coverage (Ga. Code 45-19-1, OCGA, 1998). Nor did anyone
suggest authorizing these newly empowered managers to enter into collective bargaining agreements with their employees by statutorily overturning
a 1962 decision by the Georgia Supreme Court. In it, the court ruled that
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state agencies do not have authority to “enter into any agreement with any
third party (i.e., union or labor organization) fixing the terms and conditions of employment” (International Longshoremen’s Association v. Georgia
Ports Authority, 1962).
Whereas it is probably safe to say that many public sector employees are
unsympathetic to the idea of a formal union, the presence of civil service
rules offered many of the protections that negotiated contracts offer unionized employees. One should not expect any significant change in the next
few years, however, because most employees continue to be covered by the
old merit system protections. There is little likelihood of legislative support
that would make it easier for unions to have access to state employees, nor is
it likely that the executive branch will voluntarily sit down with unions to
discuss working conditions. What may occur is increased organizing activity on behalf of employees by nonunion professional and employee organizations. If management cooperation with such organizations is forthcoming, unionization and attendant labor actions are likely to be forestalled; if
cooperation does not occur, pressure will increase on state legislators and
wildcat labor actions may occur, despite penalties stated in law. Another
possibility is increased privatization of state functions through contracting
out (Gill & Rainey, 1998). This will place those positions where working
conditions and low salaries create the most sympathy for unionization into
the private sector where workers’ rights are protected by federal laws and
management rights are more narrowly drawn than are those of sovereign
state governments.
CONCLUSION
The 1996 Merit System Reform Act in Georgia represents a thoroughgoing application of managerialist ideology to the personnel management
system under which state employees operate. Four years after passage, nearly
50% of Georgia state employees served under at-will employment standards that provide them no recourse to appeals of adverse actions beyond the
agency that took the action in the first place (Elmore, 2000). Key personnel
duties—classifying positions, setting employee compensation, recruiting,
selecting, promoting, evaluating performance, training, and disciplining—
have all been delegated to agency heads with minimal or no oversight from
any outside executive branch agency and only occasional oversight by the
part-time legislature. Managers, consistent with the managerialist ideology,
have certainly been given the right to manage in this instance. At the same
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time the governor and legislators touted their approach as making government more businesslike, the state retained certain prerogatives because it
represented the sovereign authority of the people. These are powers not
held by private sector employers and effectively limit the ability of employees to protect themselves through collective action against abusive state
authority. The result is that, in Georgia, there is even less of a check on management authority in the public sector (over new employees) than there is in
the private sector. The theory behind managerialism is that such increased
management authority will enable the government bureaucracy to become
more productive and better serve the public. That is a hypothesis waiting to
be tested.
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