Showdown at the Personnel Board corral

One of the biggest problems with state government is that it's nearly impossible to fire a bad employee.

The merit system is a mixed blessing. While it prevents employees from being fired for political reasons, it puts far too many hurdles in the way of managers who want to get rid of employees who don't do their jobs, or do their jobs poorly.

An employee almost has to be proven to be guilty of wrongdoing before he or she can be dismissed. And even when a supervisor takes that step, far too often the Personnel Board reverses the management decision and reinstates the employee. Even disciplinary actions are often lessened -- a 30-day suspension being reduced to a five-day suspension, and so on.

The net result is a workforce whose members have no fear and know that they can get by with doing little or nothing, or even screwing up far more frequently than would be tolerated in the private sector, and they take full advantage of that. This isn't meant to cast apsersions on all state employees, because many are good, dedicated and competent individuals who are willing to trade the higher salaries they might earn in the private sector for the benefits state jobs offer and the opportunity to provide a public service. But given the prevalence of Democrat patronage over the years, please forgive us if we view the state workforce in large part through jaded lenses.

One would hope that during the six-month probationary period that new merit system employees must serve before they become protected from firing without cause, managers would be able to observe these new hires and make judgments as to whether or not they can satisfactorily do their jobs.

However, if the state Personnel Board upholds the hearing officer's recommendation that fired probationary Transportation employee Mike Duncan be reinstated, a dangerous precedent is set.

Currently, when an employee is on probation, he or she can be fired or any reason, or for no reason at all. Upholding this order would basically extend merit system protections to all state employees from the date of their hiring and would render the probationary period meaningless.

Duncan is the probationary employee in the Transportation Cabinet's Office of Inspector General who appealed his dismissal before his probationary period was over. He claimed that he was let go because he was a strong supporter of failed 2003 Democrat gubernatorial candidate Ben Chandler. However, during the hearing proceedings, Transportation Secretary Bill Nighbert outlined a number of reasons why Duncan was terminated before falling under merit system protections.

The hearing officer's order now goes to the state Personnel Board for approval. If the board accepts the recommendation, Duncan is back on the payroll. If the board rejects it, Duncan remains fired. Either side can appeal the decision to Franklin Circuit Court.

This is a pivotal time. The Personnel Board MUST reject the recommendation and not give Duncan his job back. And if the board accepts the recommendation and reinstates Duncan, the Transportation Cabinet MUST appeal that ruling to court.

Why? Well, not only does this set a precedent for protecting probationary employees, it totally obliterates the concept of personal traits or characteristics or performance in prior jobs having anything to do with future employment.

One of the reasons that Duncan was fired was because Nighbert had, in the past, had contact with him when Nighbert was mayor of Williamsburg and Duncan was an investigator in Chandler's attorney general's office. Based on that prior experience, Nighbert felt Duncan had performed poorly in that previous assignment and the secretary had no confidence in the new Transportation investigator. (Remember that Duncan was hired while Clay Bailey was still Transportation secretary and Nighbert took over as acting secretary after Bailey transferred during Duncan's probationary period.)

Nighbert outlined several reasons why Duncan was fired during the hearings, none of which had to do with politics and all of which had to do with concerns over Duncan's past performance and his ability to carry out his new assignment.

Let's stretch this scenario. You accept a job as a branch manager in state government and find yourself supervising a probationary employee with whom you are acquainted. You have personal knowledge that the new employee's performance in a prior job was lacking and based on your knowledge that your predecessor must not have had, you would never had hired this employee. Under this precedent, you would not be able to terminate the unsatisfactory employee and you would be stuck with someone whose job performance you could not trust.

There's a political undercurrent to this, as well, that should be in the back of everyone's mind. Mike Duncan is a highly partisan Democrat. It's been documented that about 75 percent of the Transportation Cabinet employees are registered Democrats and it's no secret that most of them were hired through political patronage, especially in the district offices and county garages. One of Duncan's duties would have been to investigate allegations of waste, theft, fraud or abuse among those employees. Does anyone reliably have any confidence that Duncan would have conducted a thorough and proper investigation of fellow partisans, especially in a highly-charged political atmosphere such as exists in Transportation?

This is a serious matter, and the Transportation Cabinet should be willing to go to the mat on this one if the Personnel Board doesn't do the right thing. The integrity of the merit system is at stake. For if Duncan wins in the end, the already-difficult task of getting rid of unsuitable employees will become nearly impossible. It will take the proverbial "dead girl or live boy" to get a bad state employee off the payroll.

(This recommendation is the opinion of one hearing officer. Personnel Board hearing officers are generally attorneys contracted by the state. The hearing officer in this case was John Ryan. We will attempt to research Ryan's political and professional background to see if any obvious conflicts are present, since we are sure the mainstream Fletcher-hating media won't).