Volume 7, Number 1 Spring 2001

© Journal of the American Society of Legislative Clerks and Secretaries

Congress has often been referred to as the "last plantation," where employees have no rights and employers can act as if they were slave owners. While that may or may not be the case on Capitol Hill, it certainly is not the case in state legislatures.

Although some legislative agencies may not have formally adopted personnel policies, it is the nature of our times that the employment relationship has changed. Whether it’s low unemployment, the need for strong information technology (IT) skills, or dealing with the differing employer/employee concepts of Generation X and Generation Y staffers, we are all facing difficult times in recruiting and retaining top-level staff. The certainty that is provided by establishing and enforcing comprehensive personnel policies can be one tool for agency directors to use to retain and recruit staff.

A 1997 survey conducted by NCSL demonstrates the level of importance that legislative agencies are placing on personnel matters. The report indicates that 25 state legislatures employ personnel officers, 80 percent of whom work in independent human resource departments.1

The study goes on to show that 31 states use formal, written compensation plans; common benefits include paid sick leave, paid vacation, paid holidays, health insurance and unemployment compensation; 36 agencies conduct formal performance appraisals; and 22 states have formal dismissal procedures and 23 have grievance procedures.2

The Oregon Process
The process of developing new personnel policies for the Oregon legislative branch was cumbersome, but it was necessary. It was necessary to ensure that at the end of the process, we would have buy-in from all concerned parties, replacing policies that were badly outdated and inconsistent from agency to agency.

The Oregon legislative branch includes the Legislative Assembly and four support agencies: Legislative Administration, Legislative Counsel, Legislative Fiscal, and Legislative Revenue. It was important to the legislative leadership that each agency approve the same rules, thereby eliminating differences in policies among the agencies and treating all legislative branch employees equally in personnel matters.

At the time of the review, the policies in existence had been adopted by each agency in December 1988. The same policies were adopted by the four separate support agencies at that time. In the intervening years, however, the degree and extent of changes varied tremendously among the agencies.

Because Legislative Administration had the advantage of employing full-time human resources staff, its policies tended to reflect recent statutory and case law changes. The other agencies, lacking in full-time human resources (HR) staff, were not as current, although each had made some changes.

This contributed to basic discrepancies among the agencies. For instance, prior to the rewrite of the policies, employees in differing agencies were allowed to accumulate differing amounts of vacation and compensatory leave. Legislative leadership wanted to eliminate those differences, as well as ensure that the new policies gave consistency to staff, while preserving flexibility for managers to manage individual personnel problems.

At Will Employment
Perhaps the greatest discrepancy was in the interpretation of whether or not legislative branch employees were employed as "at will" employees. It had long been accepted that Assembly employees (personal staff, leadership offices, and the desk staff) served at the pleasure of their respective appointing authorities and could be dismissed without cause. Among employees of the support agencies, such status was not as clear.

For example, the Legislative Administration Committee had specifically adopted strong at will language for its employees. Legislative Counsel, Legislative Fiscal, and Legislative Revenue did not have such language. However, a strict interpretation of their rules showed that they had some "for cause" and arbitration language that could give employees of these agencies more employment "rights" than a true "at will" work relationship, as desired by legislative leadership.

Legislative leadership at this time was made up largely of people experienced in operating their own businesses. It was clearly their intent that all employees serve in an at will status, as the employees of the leaders’ private businesses had. The task of the group drafting the new rules was to ensure that the rules retained as much flexibility for management as possible. As noted in an HR industry trade publication:

"…courts have increasingly come to recognize that properly drafted employee handbooks, containing appropriate disclaimers or ‘clarifications’ of the employers intent, can actually help to preserve management’s discretion in discipline and discharge cases. For example, in Perkins v. District Govt. Employees Fed. Credit Union, 653 A.2d 842 (D.C. 1995), the D.C. Court of Appeals held that, through appropriate handbook language, management had reserved its right to invoke any or none of specified procedures for termination."3

The key for our group was to make clear to staff the at will status of all legislative branch employees, while at the same time preserving the good relationship that existing staff enjoyed with the members of the Assembly.

To alleviate employee concerns over at will status, a progressive discipline policy was incorporated into the new rules. That policy provides as follows:

"Legislative Branch Rule 500.010: Corrective Action
It is the policy of the Legislative Branch to provide employees the opportunity to correct identified conduct (performance or behavior) which may interfere with the accomplishment of the goals and objectives of the workplace. The manner of addressing conduct is within the discretion of the appointing authority or designee. As part of corrective action there shall be specific notification to the employee that identifies the conduct (behavior or performance) that is of concern."

The progressive discipline policy appears to be working. Under the policy, any employee experiencing behavior or performance problems is informed in writing of the problem. They are then given a specific amount of time to correct the behavior or improve the performance (typically a minimum of 90 days), and specific measurements are established to determine if the problem has been corrected (for example, no customer service complaints during the review period). This entire process is called a work-plan.

To date under the new policies, only a few employees have been placed on work-plans, and most of those have successfully completed the work-plan and are performing work to expectations. Further, no employees have been terminated, and only three have voluntarily resigned while working under work-plans for failing to meet expectations.

To ensure that all new employees understand the at will nature, a new employee offer letter and acknowledgement acceptance form is used. That acknowledgement states, in part:

"Employment relationship: Employees join Legislative Administration voluntarily and are free to resign at any time. Similarly, Legislative Administration retains the discretion to end an employment relationship when it is in the best interest of legislative administration. While we hope our relationship will be long and mutually beneficial, by accepting a position with Legislative Administration neither you nor we have entered into any expressed or implied contract of employment that would alter your ‘at will’ employment status."

Each new employee is required to sign the acknowledgement form, which becomes a part of the employee’s permanent personnel file.

Other Policy Changes
In addition to the discrepancies among agencies, the existing policies were specific to the point of ridiculousness. The 1988 policies, as revised, included 14 types of leave (not including sick leave, vacation leave, family and medical leave, and leave without pay, which were separate policies).

Specified leaves included:
1. Personal Leave
2. Military Leave
3. Retirement Counseling Leave
4. Leave for Inclement Weather
5. Leave for Death in Family
6. Leave for Athletic Competition
7. Leave for Jury Service
8. Leave for Witness
9. Search and Rescue
10. Leave for Job Interviews
11. Leave for Religious Service
12. Educational Leave
13. Administrative Leave
14. Leave for Legislative Business

The new rules include only one type of leave outside of the regular accruals of sick leave, vacation leave, family and medical leave, and leave without pay: administrative leave. Under the new policies, agency heads have the authority to grant administrative leave to cover any of the areas previously specified for leave. This greatly increases the flexibility for agency heads to address employee needs.

Another example of a rule in need of revision was the policy relating to compensation. The compensation section included eight separate policies relating to compensation. This made it difficult to locate specific information in a short period of time. In the new policies, that number was cut in half to four policies with one containing the information that is pertinent to all but the information systems (IS) positions.

Plan Adoption
The final product was adopted by each of the four governing committees over the support agencies. Much of the final product was incorporated into the Rules of the House of Representatives, and it serves as the guideline for personnel decisions in the State Senate. (The policies also apply to the Commission on Indian Services, a small office within the Legislative Branch budget.)

Final adoption came only after 18 months of drafting, reviewing, and editing by a group representing each of those separate agencies/offices. Participants included:

the chiefs of staff to the presiding officers and majority and minority caucus leaders
the Secretary of the Senate and the Chief Clerk of the House
the Legislative Administrator
the Legislative Counsel
the Legislative Fiscal Officer
the Legislative Revenue Officer
the Committee Services Manager of Legislative Administration
the Employee Services Manager of Legislative Administration.

Participants in the process represented a variety of viewpoints. Members of legislative leadership who had operated private businesses leaned toward a minimalist approach toward policies. The fewer the number of rules, the greater the flexibility managers would have to deal with issues that arose. Other members, concerned with the need to retain continuing professional and technical staff, wanted to ensure the greatest level of protection of employee rights. Ultimately, all participants felt the final product achieved much of both goals, protecting employee rights, and, at the same time, granting enough flexibility to managers to manage without constantly consulting a policy handbook.

The group was aided in this process by input solicited from labor law specialists at the Oregon Department of Justice. Even though those attorneys work in and represent another branch of government, their expertise on specifics of labor law helped the group construct policies that would withstand any challenges that could result.

The group also utilized the copy-editing talents of the Legislative Counsel staff. Each policy was reviewed and edited by that staff to reflect a consistent style and format, making all of the policies easier to read and understand.

Revision Process
The policies were formally adopted by the Legislative Administration Committee (LAC) and were adopted by reference by the committees with oversight authority for the other support agencies. Thus, any changes adopted by LAC are automatically in effect for the other agencies, as well.

To ensure that rules are approved by all agencies, Legislative Administration is required by the rules to take any proposed change to each agency prior to consideration of the change by the committee. Each agency has 30 days to review the proposed change and raise any questions or objections. Ultimately, each oversight committee retains the right to reject any change adopted by LAC.

Since adoption of the new policies, only one set of revisions has been proposed. Seven rule changes or clarifications were proposed, all of which were of a housekeeping nature. All parties approved each of these changes, which were formally adopted in November 2000. One new rule, which stated that any branch employee could take personnel issues directly to the Employee Services unit of Legislative Administration, was proposed. It was withdrawn after concerns about its impact were raised by the directors of the other legislative agencies.

Conclusion
The final product was clearly an improvement over existing rules. Policies were simplified, clarified, and eliminated. The number of policies was reduced from 38 to 26, and the volume of the policies was reduced from 92 pages to 50 pages.

Management retained the ability to manage effectively and efficiently, and employee rights were protected while providing consistency for the legislative branch as a whole.

Finally, the legislative branch demonstrated the ability to bring together parties with differing interests and craft new policies acceptable to all. The result was a win-win for all parties.

Endnotes
1 State Legislative Report: Legislative Staff Salaries and Personnel Policies: 1996-1997, National Conference of State Legislatures, August 1997, Vol. 22, No.6.
2 Ibid.
3 "Is It Time To Revise Your Employee Handbook?" Maurice Baskin, Society for Human Resource Management, Summer 1998, Reviewed June 2000.