WISCONSIN LEGISLATIVE COUNCIL Terry C. Anderson, Director TO: SENATOR JON B. ERPENBACH FROM: Margit S. Kelley, Senior Staff Attorney RE: Description of 2015 Senate Bill 285, Relating to the State Civil Service DATE: October 2, 2015 This memorandum describes specific provisions of current law, as relevant to 2015 Senate Bill 285, relating to the state civil service, and describes how the bill changes current law. The state civil service is administered by the Division of Personnel Management (DPM) in the Department of Administration (DOA). The state civil service system is divided into the classified service and unclassified service. In general, the civil service system applies to employees in the classified service, but not to employees in the unclassified service. [s. 230.08 (1), Stats.] Policies and practices for hiring, retention, and discipline of state civil service employees are contained in statutes, administrative rules, the Wisconsin Human Resources Handbook, the 2015-17 Compensation Plan, collective bargaining agreements, and individual agency policies. This memorandum describes those provisions that are contained in the Wisconsin Statutes, as they relate to the bill. HIRING Application and Examination Under current law, a person must submit an application for a position in the classified service, and then, in most cases, must complete a competitive examination. Competitive examinations must be free and open to all applicants who meet the preliminary requirements stated in the examination announcement, and must be held at such times and places that most closely meet the convenience of the applicants and the needs of the service. All examinations must be job-related and in compliance with appropriate validation standards, and rating the One East Main Street, Suite 401 P.O. Box 2536 Madison, WI 53701-2536 (608) 266-1304 Fax: (608) 266-3830 Email: leg.council@legis.wisconsin.gov http://www.legis.wisconsin.gov/lc
- 2 - results must done with appropriate scientific techniques and procedures. If an oral examination is given, DPM may appoint a board of two or more persons for the purpose of conducting the oral examination. [s. 230.16 (1) to (6), Stats.] The bill revises the application and examination process to instead require a person to submit an application and resume for a position in the classified service. The bill specifies that competitive procedures replace the examination process, but maintains the requirements for the procedures to be free and open to all applicants in the same manner as for examinations. Likewise, the bill specifies that all selection criteria, rather than an examination, must be jobrelated. Thus, under this structure, competitive procedures that may be akin to a testing procedure may be used in some cases, but, in all cases, an application and resume must be submitted. [SECS. 29, 30, 32, 34 to 36, and 40 to 42.] If an oral evaluation is used in the application process, the bill specifies that when DPM appoints at least two evaluators, one must be selected by DPM and the other must be a representative of the agency that has the vacant position. [SEC. 33.] Certification Under current law, DPM is required to provide a certification list of eligible applicants for a vacant permanent position within 45 days of an agency giving notice to DPM of the vacancy. The certification list must include the names at the head of the list of eligible applicants, in any number that is determined using statistical methods and personnel management principles. [ss. 230.05 (7) and 230.25 (1), Stats.] The bill revises the time period for DPM to provide a certification list from 45 days to 30 days. [SEC. 17.] Conviction Record Under current law, an employer may not generally discriminate in employment based on arrest or conviction record. It is employment discrimination to ask a person who is applying for a position to supply information regarding an arrest record, except for information regarding a pending charge or for an arrest record that affects the bondability of the applicant when bondability is required for the position. An employer may, however, request information in an application regarding a conviction record. [ss. 111.321 and 111.335 (1) (a) and (c), Stats.]
- 3 - The bill specifies that DPM may not ask a person who is applying for a position to supply information regarding a conviction record. DPM also may not consider the conviction record of an applicant before the applicant has been certified for a position. However, information regarding a conviction record may be requested in applications for positions in which a particular conviction record would disqualify an applicant. [SEC. 31.] Current Civil Service Employee Under current law, if applicants best able to meet the requirements of a vacant position are available from within the classified service and from former employees with a right of restoration from a layoff, the certification list may be limited to those persons. This preference also applies when filling a career executive position. [ss. 230.19 (2) and (3) and 230.24 (2), Stats.] The bill removes the preference to fill a vacant position, or career executive position, from within the classified service and from former employees with a right of restoration from a layoff. [SECS. 47, 48, and 54.] Additionally, the bill specifies that, if an applicant currently holds a position, an agency must review the person s personnel file before it may make an offer of employment to the person. [SEC. 28.] Veteran s Preference System Under current law, a veteran or spouse of a veteran who has passed an examination must be awarded between 10 and 20 additional points to the examination score, depending on the person s particular veteran or spousal status. For example: 10 points are awarded for a veteran, or for an unremarried spouse of a veteran who was killed in action; 15 points are awarded for a disabled veteran; and 20 points are awarded for a veteran who has at least a 30% disability. [s. 230.16 (7) (a), Stats.] County and city civil service systems also must utilize the veterans preference points in their examination scoring. [ss. 62.13 (4) and 63.08 (1) (f) 3., Stats.] In addition, DPM is required to accept a late application from a veteran, and to allow the veteran to take an examination, if the pool of applicants was established within the 60 days before the veteran s honorable discharge from service, the application was submitted within 45 days after the veteran s discharge, and the examination is of the written type that is scored by a machine. [s. 230.16 (7m), Stats.]
- 4 - When certifying applicants from a promotional list, after the initial certification list is established, the name of the highest-ranked disabled veteran who has at least a 70% disability must be added to the certification list. [s. 230.25 (1g), Stats.] Also, when certifying applicants, after the initial certification list is established, the names of any veterans whose examination score and preference points equal at least the lowest examination score of applicants in the initial certification list must be added to the list. [s. 230.25 (1m), Stats.] The bill removes the preference points system for veterans who are applying for state civil service positions and the automatic inclusion of the highest-ranked disabled veteran in a certification list. The bill does not affect the county and city civil service systems use of veterans preference points in their examination scoring. [SECS. 37, 56, and 57.] Instead of a point system, the bill specifies that if a certification list includes a veteran, the veteran must be offered an interview. Likewise, if a certification list includes the unremarried spouse of a veteran who was killed in action or died of a service-connected disability, or includes a spouse of a disabled veteran who has at least a 70% disability, the spouse must be offered an interview. [SEC. 60.] In addition, the bill maintains the requirement under current law that DPM must accept a late application from a veteran, so long as the agency has not begun offering interviews at the time the application is received. [SECS. 38 and 39.] In making a hiring determination, the bill specifies that if qualifications and skills are equal between the veteran and other applicants who are being interviewed for the position, preference must be given to a veteran. If a veteran was eligible for a position, but ultimately was not hired, the agency must file a written report with DPM within 30 days of making the appointment that gives the reasons for the decision. [SEC. 60.] Making an Appointment Under current law, an agency must appoint an applicant to a vacant position within 60 days after the date of certification, unless an exception is made by DPM. [s. 230.25 (2) (b), Stats.] The bill revises the time period for an agency to make an appointment after receiving a certification list from 60 days to 30 days. [SEC. 61.] The bill also requires each agency to submit an annual report to DPM on the number of days between receiving a certification list and making an offer for a vacant position. [SEC. 27.]
- 5 - DURING EMPLOYMENT Probation Under current law, a person who is appointed to a general permanent, sessional, or seasonal position must serve a six-month probationary period, during which dismissal may be made at any time. A person who is appointed to a supervisor or manager position must serve a one-year probationary period. A person who is appointed to an administrative, technical, or professional position may be required to serve a probationary period up to two years. [s. 230.28 (1), Stats.] The bill specifies that all employees must serve a two-year probationary period, during which dismissal may be made at any time. If the agency requests a shorter probationary period, DPM may waive any portion of the second year of the probationary period. [SECS. 65 to 69.] Performance Reviews Under current law, DPM is required to establish a performance evaluation program to provide a continuing record of employee development, but a schedule for conducting performance reviews is not specified. [s. 230.37 (1), Stats.] The bill specifies that performance reviews must be made annually. [SEC. 79.] Discretionary Merit Compensation Under current law, discretionary merit compensation awards are determined under the Compensation Plan by each agency, within the agency s budget, subject to approval by DPM. [SEC. J, 2015-17 Comp. Plan.] The bill provides that DPM must establish a discretionary merit compensation award program, for the purpose of providing monetary awards to classified employees whose performance has exceeded agency expectations. Application for the awards must be submitted by each agency to DPM in a time and manner to be prescribed by DPM. An award granted to an employee does not increase the employee s base pay. The bill appropriates $6 million from
- 6 - general program revenue in the 2016-17 fiscal year for the discretionary merit compensation award program. [SECS. 1 to 3 and 16.] Discipline Under current law, a permanent employee may be removed, suspended without pay, discharged, reduced in base pay, or demoted only for just cause. The law also specifies that if an employee fails to report to work or make any contact for a minimum of five consecutive working days, the agency may discipline the employee or treat the employee as having resigned the position. [s. 230.34 (1), Stats.] The bill maintains the general requirement that actions for removal, suspension, discharge, reduction in pay, or demotion may be made only for just cause, and specifies that such actions for work performance or personal conduct that is inadequate, unsuitable, or inferior may be made only after imposing progressive disciplinary actions. The bill provides that DPM must establish a general standard for progressive discipline plans, which is to be adopted and utilized by each agency. [SECS. 14, 18, and 73.] The bill identifies certain conduct that constitutes just cause and is not subject to progressive disciplinary actions. [SEC. 74.] Those include: While on duty, harassing a person. While on duty, intentionally inflicting physical harm on another person. While on duty, being intoxicated or under the influence of a controlled substance. While on duty, being in possession of a controlled substance without a prescription. Falsifying records of the agency. Committing various actions of theft or other intentional or negligent conduct that causes substantial damage to agency property. Being convicted of a crime or being subject to a civil forfeiture that makes it impossible for the employee to perform the duties of the position. Committing misuse or abuse of agency property, including intentional use of agency equipment to view or distribute pornographic material. Committing a serious violation of the code of ethics for public employees, as determined by DPM.
- 7 - The bill revises the provision in current law for an employee who may be disciplined or deemed to have resigned for failing to report to work or contact the agency, from five consecutive absences to three absences in a calendar year. [SEC. 75.] The bill also provides that any disciplinary records must be permanently maintained in a personnel file, and cannot be removed except in circumstances such as under a settlement agreement, under a court order, or as needed during a grievance process. [SEC. 19.] Grievance Under current law, an employee may file an appeal from an employment action with the Wisconsin Employment Relations Commission (WERC), or, if the matter involves a complaint of discrimination or retaliatory disciplinary action, an employee may file a complaint with the Division of Equal Rights in the Department of Workforce Development. [ss. 230.44 and 230.45, Stats.] If an appeal is filed with WERC, the commission must issue a decision on the action within 90 days after the hearing on the matter is completed. [s. 230.44 (4) (f), Stats.] The bill gives a specific procedure, with timelines, for an employee to contest an adverse employment decision. [SEC. 90.] That procedure is outlined as follows: The employee must file a complaint with the agency within 14 days of when the employee became aware of, or when the employee should have become aware of, the decision. The agency must review the complaint, meet with the employee, and issue a written decision within 14 days. If the agency decision is not in the employee s favor, the employee may appeal the decision to DPM within 14 days of the agency s decision. DPM must review the complaint and the agency s decision, and issue a written decision within 30 days. If DPM s decision is not in the employee s favor, the employee may appeal the decision to WERC within 14 days after receiving DPM s decision. Within 10 days of receiving the appeal, WERC must determine whether all procedural requirements were completed properly and in a timely manner. If not, the appeal must be dismissed. Within 120 days of receiving the appeal, WERC must issue its decision. Specific deadlines are given within that time frame for completion of a pre-hearing conference,
- 8 - discovery, and motions. Also, within that time frame, the bill provides that a scheduled hearing may be given a continuance only in extraordinary circumstance. SEPARATION FROM EMPLOYMENT Layoffs Under current law, if employees are laid off due to a stoppage or lack of work or funds, or due to material changes in duties or organization, a certain order is specified for the layoffs. First, limited term and probationary employees must be laid off. Then, the order of layoffs may be determined by seniority or performance, or a combination of those factors. [s. 230.34 (2) (intro.) and (a), Stats.] After determining the positions to be laid off, a senior employee has the right to displace (or bump ) a more junior employee from a comparable or lower class position that is not subject to the layoff. [s. 230.34 (2) (b), Stats.] The bill revises the determination for the order of layoffs after limited term and probationary employees have been laid off, to specify that the order of layoffs must be primarily based on performance, and then based on disciplinary records, seniority, and ability, in accordance with DPM rules. Within that revision that is based primarily on performance, seniority displacement (or bumping ) rights are eliminated. [SECS. 76 and 77.] Reinstatement and Restoration Under current law, a person who has separated from service without any delinquency or misconduct on the person s part is eligible for certain reinstatement and restoration actions as follows: In a reinstatement action, a person who has separated from service for any reason is eligible, for five years, for any position within the civil service, for which the person is qualified, that is at a comparable or lower pay range. [s. 230.31 (1) (a), Stats.] In a restoration action, a person who was separated from service due to a layoff must be placed on a restoration register for vacant positions within the former employing unit and within the former employing agency, for a period of three years, in inverse order of layoff. [s. 230.31 (1) (b), Stats.] The law specifies that DPM may also provide reinstatement eligibility for former seasonal, sessional, or probationary employees. [s. 230.31 (2), Stats.]
- 9 - Additionally, specific rights of restoration are given for employees after a military leave and after a leave of absence to serve in an unclassified position. [ss. 230.32 and 230.33, Stats.] Reinstatement eligibility is also given for an employee who separated from service to fill an elective position. [s. 230.40 (3), Stats.] The bill eliminates the general reinstatement and restoration actions described above, for an employee who separates from service after the bill becoming law. For an employee who separates from service after the bill becoming law, the bill instead provides for a revised reinstatement action. Under that provision, a person who has separated from service due to a layoff is eligible, for three years, for reinstatement to any position within the civil service, for which the person is qualified, that is at a comparable or lower pay range. [SEC. 72.] An employee who has separated from service prior to the bill becoming law remains eligible for the general reinstatement and restoration actions described above. [SEC. 70.] The bill removes the authority for DPM to provide reinstatement eligibility for former seasonal, sessional, or probationary employees. [SEC. 71.] The bill also removes the reinstatement eligibility for a person who separated from service to fill an elective position. [SEC. 80.] The bill does not affect the specific rights of restoration that are given for employees after a military leave, or after a leave of absence to serve in an unclassified position. ADMINISTRATION Statement of Policy Current law includes a statement that the purpose of the civil service statutes is to provide state agencies with competent personnel who will serve citizens as fairly, efficiently, and effectively as possible. The statement includes a number of other affirmative declarations, such as the policy to fill positions applying a merit principle, to provide for equal opportunity employment opportunity, and to ensure satisfying careers and fair treatment for employees. [s. 230.01, Stats.] The bill adds two statements to the affirmative declarations. First, that it is the policy to recruit, select, and promote employees based on relative skills, abilities, competences, and knowledge, including using open processes to consider qualified applicants for initial employment. Second, that it is the policy to retain employees based on performance, to correct inadequate performance when possible and appropriate, and to separate employees from state
- 10 - service whose performance and personal conduct is inadequate, unsuitable, or inferior. [SECS. 12 and 13.] Compensation Plan Current law provides that the State Compensation Plan may include provisions relating to pay, benefits, and working conditions that supersede the civil service statutes and administrative rules. [s. 230.12 (1) (h), Stats.] The bill retains the allowance for the State Compensation Plan to supersede provisions in administrative rules relating to pay, benefits, and working conditions, but removes the allowance for the compensation plan to supersede such provisions that are given in the statutes. [SEC. 21.] Consolidation of Human Resources Under current law, each agency is largely responsible for its own human resources and financial services, with support from DOA and DPM. 2015 Wisconsin Act 55, the Biennial Budget Act, specifies that DOA must consult with certain specified agencies and develop a plan for assuming responsibility for those agencies functions related to human resources, payroll, finance, budgeting, procurement, and information technology. The developed plan must be submitted to the Joint Committee on Finance by March 1, 2016, for implementation beginning July 1, 2016. [2015 Wis. Act 55, SEC. 9101 (5n).] The bill specifies that DOA must consult with each agency and develop a plan for assuming human resources functions for all state agencies within the executive branch, other than the Board of Regents of the University of Wisconsin System. The bill maintains the requirement for DOA to consult and develop plans for assuming payroll, finance, budgeting, procurement, and information technology functions for only the certain specified agencies. The bill specifies that the consultations must occur by January 1, 2017. [SECS. 92 and 93.] Review of Current Policies and Recommendations for Revisions The bill requires DPM and its Bureau of Merit Recruitment and Selection to jointly review and submit findings to the Legislature by January 1, 2017, on the following topics: The classifications for all positions in the classified service. The Wisconsin Human Resources Handbook.
- 11 - The Compensation Plan. The feasibility of requiring all state agencies to use electronic personnel files. The feasibility of requiring all state agencies to use a uniform personnel evaluation system. [SEC. 94.] If you have any questions, please feel free to contact me directly at the Legislative Council staff offices. MSK:ksm