SCS/SB 1007 - This act modifies and repeals several provisions relating to the State Personnel Law (SPL), commonly referred to as the merit system.
AT-WILL EMPLOYMENT OF STATE EMPLOYEES (Section 36.025)
This act provides that all employees of the state not subject to the SPL shall be considered at-will employees, serving at the pleasure of their respective appointing authorities.
APPLICABILITY OF STATE PERSONNEL LAW
(Sections 36.030, 207.085, 621.075, and 630.167)
Under current law, with the exception of attorneys, all offices, positions, and employees within numerous state departments and agencies are subject to the SPL. This act modifies that so that the SPL only applies to employees in eleemosynary or penal institutions and employees in agencies that are required to maintain merit standards by federal law or regulations for grant-in-aid programs.
LIMITED APPLICABILITY OF SPL (Section 36.031)
Current law provides that provisions of the SPL relating to classification plans shall apply to certain executive branch departments and agencies. This act extends this requirement to include provisions relating to pay plans and determination of eligibility for examinations for appointments to positions as well. The act further explicitly exempts the Department of Higher Education and the Department of Elementary and Secondary Education from these requirements.
POWERS AND RESPONSIBILITIES OF THE DIRECTOR OF PERSONNEL AND THE PERSONNEL ADVISORY BOARD (Sections 36.040 through 36.090)
Current law requires the Personnel Advisory Board (PAB) to make annual reports to the Governor and General Assembly regarding personnel administration, which reports are required to evaluate the effectiveness of the Personnel Division and each appointing authority. This act permits, rather than requires, the report to contain the evaluation of effectiveness. (Section 36.060)
The act only permits the PAB to promulgate rules that are consistent with this act for the procedures for merit selection, uniform classification and pay, and covered appeals. (Section 36.070)
The act permits the sitting Director of the Division of Personnel (Director) to assist the PAB with the search process for a new director. Furthermore, resources of the Division of Personnel may be used in the course of the search process.
Currently, the Director may be removed by the PAB only for just cause after being given a notice setting forth in substantial detail the charges before the board. This act modifies that so that the Director may be removed by the PAB for any reason. (Section 36.080)
Current law imposes a number of duties and requirements on the Director relating to establishing training programs, recruiting programs, performance appraisals, maintaining rosters of all merit employees and officers, appointing experts and assistants to execute this act, among other things. This act makes these duties discretionary. (Sections 36.090 and 36.510)
CLASSIFICATION OF POSITIONS (Sections 36.100 to 36.130)
Current law allows the Director to group management positions with similar levels of responsibility or expertise into broad classification bands. This act modifies that provision to permit grouping of all positions with similar levels of responsibility into broad classification bands.
Current law requires the Director to require an initial and ongoing review of the number of classifications in each division of service. This act repeals that requirement. (Section 36.100)
Under current law, an employee who has been reallocated to a different class of employees may be required by the Director to achieve a satisfactory grade on a noncompetitive test of fitness for the class to which they have been reallocated. This act repeals that provision. (Section 36.120)
These provisions relating to classification shall apply to merit-based positions as well as positions in the non-exempt executive branch departments and agencies.
PAY PLANS (Sections 36.140)
The act requires suitable notice to be given prior to a public hearing in which the Director recommends to the PAB a pay plan for all classes of employees. The act further requires that the pay plan provide for the use of open, or stepless, pay ranges.
This provision applies to merit-based positions as well as positions in the non-exempt executive branch departments and agencies.
SELECTION OF EMPLOYEES (Sections 36.150 to 36.200)
The act provides that no selection, appointment, or promotion to a merit-based position shall be made on the basis of unlawful discrimination proscribed under law. Current law provides that any regulations promulgated shall provide a remedy that is required by federal merit system standards for grant-in-aid programs. This act repeals that provision. (Section 36.150)
Several current procedures for evaluating qualifications and examinations of applicants for merit-based positions are repealed. In their stead, the act stipulates that the standards of education or experience expected for merit-based positions shall be established on the basis of specified knowledge, skills, and abilities. The Director or the respective appointing authority may conduct examinations to determine eligibility for positions. All examinations conducted under these provisions shall be accessible to persons with disabilities.
The act requires appropriate public notice be given sufficiently in advance for each open class or position to give a reasonable opportunity for qualified persons to apply. Furthermore, the methods for evaluating the qualifications for each applicant for a merit-based position will be determined by the appointing authority of the respective officer or agency making the appointment to the position.
PREFERENCES (Sections 36.220 and 36.225)
The act requires preference in appointments to merit-based positions be given to veterans, the surviving spouses of veterans, disabled veterans, and the spouses of disabled veterans.
A preference in appointments is also given to persons who were previously employed by the state but terminated such employment to care for young children.
VACANCIES IN MERIT-BASED POSITIONS (Section 36.240)
The act modifies the process for filling vacancies in merit-based positions. The act permits appointing authorities to fill one or more vacancies in merit-based positions by submitting to the Director a requisition for a certification of eligible persons for such positions. Upon receiving a request for certification, the Director shall certify for selection of available names. If the position is temporary then the Director may certify any eligible who will accept employment. Eligibles who do not respond within a reasonable period to a notice of certification may be dropped from the eligible register for future employment opportunities.
PROBATIONARY PERIODS (Section 36.250)
Current law stipulates that no employee shall be paid for work performed after the expiration of the employee's probationary period unless the appointing authority has notified the Director and the employee that the employee will be given a regular appointment or, if applicable, the probationary period has been extended. This act repeals that provision.
The act further repeals a provision limiting the number of employees that can be removed successively from the same position during probationary period. Furthermore, a provision is repealed permitting an employee removed from a position during a probationary period to be restored to the register from which he or she was certified.
TRANSFER, PROMOTION, AND DEMOTION OF EMPLOYEES (Section 36.280)
Currently, transfer of employees because of layoff, or shortage of work or funds which might require a layoff, is governed by the regulations. This act repeals that requirement.
The act stipulates that transfer of an employee from a position in one division to a position in the same class in another division may be made with the approval of the appointing authority, rather than both the Director and the appointing authority. Written notice is required to be given to the Director upon making a transfer, however.
The act repeals a provision requiring the promotion of an employee from one position to another position of a higher rank to be done through the certification process as stipulated in the SPL.
The act repeals a provision entitling employees who have been demoted to a right of appeal to the Administrative Hearing Commission.
PROMOTIONAL REGISTER (Section 36.320)
The Director is permitted, rather than required, to maintain promotional registers of eligibles for the various locations or divisions of service with merit-based positions. The act repeals a provision requiring registers to rank eligibles in the order of their ratings.
Under current law, the time period during which a register shall remain in force varies between 1 and 3 years. This act gives discretion to the Director to determine the length of time that best meets the needs of the service. Furthermore, the method for establishing, replenishing, and cancelling such a register is permitted, rather than required, to be determined by regulation.
SERVICE REPORTS (Section 36.340)
This act makes the establishment of a system of service reports optional, rather than mandatory, on the part of the joint effort of the Director and the appointing authorities.
DISMISSAL OF EMPLOYEES AND SUBSEQUENT APPEALS
(Sections 36.380 and 36.390)
The act permits an appointing authority to dismiss for cause any regular employee serving in a position in an agency that is required to maintain personnel standards on a merit basis by federal law or regulations for grant-in-aid programs. Such dismissal shall only be made when it is determined that it is in the interests of efficient administration and that the good of the service will be served thereby. The act repeals a provision permitting the Director to approve re-employment of an employee if it is determined that the statement of reasons for the dismissal given by the appointing authority shows that such dismissal does not reflect discredit on the character or conduct of the employee.
Current law requires results of examinations and notifications of decisions on employment to be sent via mail to applicants. This act permits such notices to be sent by any means to applicants for merit-based positions only.
The act limits the right of appeal for a dismissal, involuntary demotion, or suspension to regular employees employed in a position in an agency that is required to maintain personnel standards on a merit basis by federal law or regulations for grant-in-aid programs.
COMMISSIONER OF ADMINISTRATION (Section 37.010)
Current law provides that the Director and the Division of Personnel shall perform all duties as directed by the Commissioner of Administration with regard to personnel work in state departments and agencies not covered by the SPL. This act modifies that so that it applies to all personnel work in state departments and agencies, regardless of whether the employees are covered by the SPL.
WHISTLEBLOWER PROTECTION - STATE EMPLOYEES (Section 105.055)
Under current law, state employees are permitted to disclose information which relates to the violation of law, mismanagement, or waste of funds within a state agency without fear of disciplinary action being taken for such disclosure. This act modifies that provision to apply to all public employees and broadens the scope of entities that a public employee can discuss information with to include prosecuting and circuit attorneys, law enforcement agencies, news media, and the public.
The act further expands the scope of information that can be disclosed by employees to include any violation of policy, waste of public resources, alteration of technical findings or communication of scientific opinion, and breaches of professional ethical canons. Furthermore, no public employee can be prevented from testifying before a court, administrative body, or legislative body regarding any such disclosure.
Current law provides that any administrative appeal filed by a state employee alleging that disciplinary action was taken against them in violation of this act must be filed within 30 days of the disciplinary action. Furthermore, such employees may currently bring a civil action in court within 90 days of the alleged violation. This act extends both of those time limits to one year and further allows any person commencing such an action to demand a jury trial.
Currently, the standard for determining whether a state employee was unlawfully disciplined under the state whistleblower protection law is whether the disciplinary action was "unreasonable". This act repeals the term "unreasonable" and instead requires the disciplinary action to have been taken for any reason that violates the state employee whistleblower law.
In a civil action brought under this act, the public employer shall bear the burden of demonstrating that the disciplinary action taken against the employee was not the result of the employee reporting alleged misconduct.
If the misconduct alleged by a public employee involves the receipt and expenditure of public funds, the employee may request an investigation by the State Auditor.
Any person who obtains a claim or final judgment for a payment to be made out of the state legal expense fund shall not be offered or required to sign any confidentiality agreement stating that he or she will not discuss his or her claim or final judgment or stating that if he or she does discuss such claim or final judgment, he or she will waive any right to moneys from the state legal expense fund.
These provisions are identical to the perfected SB 786 (2018) and substantially similar to HB 1515 (2018).
The act repeals provisions allowing for provisional and emergency appointments to merit-based positions as well as layoffs. It also repeals a provision stipulating how vacancies in a merit-based positions should be filled. Moreover, a provision entitling merit-based employees to a service letter upon being discharged or voluntarily quitting such position is repealed.
The act repeals obsolete provisions relating to the Personnel Advisory Board and Director of Division of Personnel of OA.