To: Heads of State Agencies and Human Resource Directors

Subject: Potential Amendments And Additions To Article X

Issue Date: February 19, 1996

At its meeting on March 6, 1996, the Civil Service Commission will discuss several possible changes to Article X of the Louisiana Constitution. The public hearing will begin at 9:00 a.m. in the Commission Hearing Room at the Department of State Civil Service, Second Floor, DOTD Annex Building, 1201 Capitol Access Road, Baton Rouge, Louisiana. A brief explanation of the proposed changes follows.

At the present time, state classified employees are given the right to appeal any disciplinary action to the State Civil Service Commission which, in turn, may appoint a referee to hear and decide the case. The final decision of the Commission is then subject to judicial review. Under the proposed amendments, the right to appeal dismissal and discrimination would remain unchanged.

In regard to other personnel matters, the proposed amendments would require each commission to establish an exclusive process by which aggrieved employees could appeal. The proposed amendments would further specifically deny the right of judicial review of the results of that process. We plan, by rule, to limit disciplinary actions to suspensions of no more than three days and reductions in pay equal to no more than the value of three days pay. Further, we plan, by rule, to establish a peer review hearing panel to hear and decide these cases. The panel members would not be employed by the appointing authority who took the action. The decision of the panel would then be subject to review by the Commission, but only on the issue of whether the hearing provided due process.

These changes reflect a recognition that discipline should not be an end in itself, but should be a means of correcting behavior. To this end, a limited suspension, or suspensions, would give an employee notice that he must improve, or be terminated. Prior to a suspension, of course, formal counselling could be effected. The denial of the right of judicial review for these lesser disciplinary actions reflects the desire to cause such actions to be heard and resolved quickly such that their impact, and import, is immediate. The practical affect of the lengthy process of judicial review is, in itself, detrimental to state service in that the relationship between the manager and the subordinate remains undefined for as long a year or more.

At the present time, the constitution requires there to be "cause" to support a disciplinary action against a permanent employee. Originally, the word "cause" was selected as an antonym for political firings. However, over the past 50 years, "cause" has become interpreted as far more onerous than was the original intent. Therefore, the proposed amendments would impose a lesser standard: a rational basis for the action that is related to a governmental interest. Additionally, under the current case law, the penalty selected by the agency must be reviewed to determine if it is commensurate with the offense. This standard invites and results in substitution of judgement at all levels. To prevent this substitution of judgement, the proposed amendments would supply a different standard: that the penalty can be modified only if it is grossly disproportionate to the offense.

Again in regard to other personnel matters, under the proposed amendments, the Commission, as it does now, will grant rights of appeal under terms and conditions as it deems proper. The significant difference in the proposed amendments is that there is no right of judicial review of these decisions with one exception. In the proposed amendments, a right of judicial review is given of a decision of the Commission in which the appeal attacked the action of a department or director of civil service. Additionally, the commissions are specifically given in our proposed amendments "all of the power necessary for the exercise in its jurisdiction including the power to administer oaths, to subpoena persons and papers within the state, and to punish persons for contempt." This, principally, is aimed at insuring that the commissions can mandate the appearance of unclassified employees and of civilians under pain of contempt. This is a problem from time to time, and there is some question as to whether we have the authority to punish civilians. There is no question now that we do not have the authority to punish unclassified employees. The maximum fine allowed in the proposed amendments for an unclassified employee or a civilian is the fine that is authorized by Section 11 of Article X, i.e. $500.00.

Under our amendments, civil service referees who hear dismissals or discrimination cases must be licensed to practice law for at least three years prior to appointment.

Lastly, our proposed amendments give the State Civil Service Commission the obligation to establish pay plans for identified unclassified officers. Those proposed amendments are listed below.

New Article X, Section 10:

Rules; Investigation, Wages and Hours.

(A) Rules. (1) Powers . . .

(4) Pay Plan for Unclassified Officers. The State Civil Service Commission shall establish pay plans and pay rules for the following appointed officers in the unclassified service: the secretary, deputy secretary, undersecretary and assistant secretaries and their equivalents within each executive department and the appointed officers within the Division of Administration.

(5) Effect. Rules adopted pursuant hereto shall have the effect of law and shall be published and made available to the public.

(B) Investigations. Each commission may investigate and punish any person who is found to be in violation of this Part or any rule adopted or order issued pursuant hereto. If the violator is in the classified service, the commission may impose such penalties as it deems appropriate; if the violator is not in the classified service, the commission may impose the fine authorized by Section 11 of this Part.

(C) Wages and Hours - remains the same

New Article X, Section 8(A):

Disciplinary Actions. No disciplinary action shall be taken against a person who has gained permanent status in the classified state or city service that is not for a rational basis expressed in writing related to a governmental interest, or that is grossly disproportionate to the reason for the action. A permanent classified employee subjected to dismissal from employment as a disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the employer. A permanent classified employee subjected to any other disciplinary action shall have an exclusive right of appeal pursuant to a process established by the appropriate commission. Notwithstanding any other provision of this constitution, there shall be no right of judicial review of the final decision of such process except as provided in this Part. A permanent classified employee may waive the appeal rights granted herein in order to participate in any alternative dispute resolution process established by the appropriate commission.

Article X, Section 8(B): (remains as now written)

Discrimination No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the employee.

New Article X, Section 8(C):
Other Personnel Matters. Each commission may establish a right of appeal of any other personnel matter, and shall establish an exclusive process to hear such appeals. There shall be no right of judicial review of the final decision of such process, except when the action appealed is that of a department of civil service or its director. In such cases, review may be had in accordance with Section 12 of this Part.

New Article X, Section 12:

The State Civil Service Commission and each city commission established by Part I of this Article shall have the exclusive authority to hear and decide all dismissal cases and shall possess all of the power necessary for the exercise of its jurisdiction including the power to administer oaths, to subpoena persons and papers within the state, and to punish persons for contempt. Each commission may appoint a referee with the same powers as the commission to hear and decide cases. The final decision of a referee on a dismissal or a discrimination case is subject to review by the commission on any question of law or fact upon the filing of an application for review with the commission within fifteen calendar days after the decision of the referee is rendered. If an application for review is not timely filed with the commission, the decision of the referee becomes the final decision of the commission as of the date the decision was rendered. If an application for review is timely filed with the commission, and after a review of the application by the commission, the application is denied, the decision of the referee becomes the final decision of the commission as of the date the application is denied. The final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final. Any referee appointed by the commission to hear and decide a dismissal or discrimination case shall have been admitted to the practice of law in this state for at least three years prior to his appointment.

Article X, Section 12(B): (would be omitted)

Persons interested in making comments relative to these proposals may do so at the public hearing or by writing to the Director of State Civil Service at Post Office Box 94111, Baton Rouge, Louisiana 70804-9111.

If any accommodations are needed, please notify us prior to this meeting.

Sincerely,

Herbert L. Sumrall
Director