Will bad legal precedent remain in effect as a result of administration change?
When the Personnel Board awarded Transportation Cabinet employee Mike Duncan his job back, it was with good reason that the cabinet appealed the decision.
This was a horrible decision. It basically stated that probationary merit system employees have the same rights as merit employees "with status," meaning they have fulfilled the terms of their probationary periods and are qualified for merit system protections against discipline or dismissal.
Duncan claimed he was fired, before his probationary period ended, for political reasons. In reinstating him, the Personnel Board ignored testimony from Transportation Secretary Bill Nighbert that should have given anyone pause before they hired Duncan.
Nighbert had encountered Duncan before, when Nighbert was mayor of Williamsburg and Duncan was an investigator with the attorney general's office. Based on those encounters, Nighbert had real concerns about Duncan's abilities and professionalism. Nighbert was also concerned that Duncan had engaged in an extramarital affair with a co-worker in a previous position.
With the change in adminisrations comes the very real possibility that the state will drop its appeal of the Duncan decision. If this happens, it will allow an absolutely terrible legal precedent to stand. The end result will be that it will be even harder than it already is for the state to get rid of a bad employee. It's almost easier to walk from Los Angeles to Honolulu than it is to fire a state merit worker. Usually in the first six months of an employee's tenure, it becomes obvious if he or she can do the job or not. Most state positions require a six-month probationary period; some require a full year. At any rate, if it now becomes much more burdensome to fire a probationary employee, many mid-level managers will probably decide it's not worth the hassle and will allow the new hire to meld into the merit system.
We fully expect the new administration to quietly drop the Duncan appeal, especially since incoming Secretary Joe Prather has indicated he will keep Inspector General David Ray, who was Duncan's most vocal proponent. If this happens, it will be an awful decision and definitely not in the best interests of the state.
From everything we've heard about Duncan, he needs to be dismissed. But this isn't about Duncan. It's about a bad Personnel Board decision that sets an even worse precedent.