After walking away from compromise reforms to turn around Illinois’ economy, Democrats appear to now be blocking compromise reforms that will fix illegal political hiring in state government.
After Senator McConnaughay filed reform legislation last month, the Governor’s Office met regularly and frequently with leadership staff from each of the four legislative caucuses. As detailed below, the legislation has been significantly revised to provide a clearer, more tailored framework.
The Governor’s Office and the legislative caucuses also met with representatives of AFSCME, Teamsters, and Laborers. While there is general agreement that reforms are needed, labor organizations will not agree to reforms that impact positions already in the bargaining unit. Unfortunately, as evidenced in the conflict between the two pending lawsuits, the State must resolve the status of current employees too. Nonetheless, the legislation has been narrowed to minimize the adverse impact on labor organizations.
An amendment to the original bill has now been filed, which represents compromises that were negotiated. Despite this, Democrats are now refusing to support the reform bill.
1. Definitional Changes
Original Proposal: The original proposal (SB 981, Amendment 1) provided that Rutan-exempt positions would be “managerial employees” under the Public Labor Relations Act and therefore excluded from any bargaining unit. This exclusion is critical to addressing the Special Master’s concern about the “inherent conflict between Rutan-exempt status and union status.” The original proposal also excluded a number of other positions that are not appropriate for bargaining unit membership, including positions for the very employees who should have been responsible for preventing the hiring abuses.
The original proposal also made changes to the definitions of “professional employee” and “supervisory employee” under the Public Labor Relations Act. These changes would not have prevented employees from joining bargaining units, but were intended to ensure appropriate separation between supervisors and subordinates and between professional and non-professional employees. The conflicts of interest and lack of adequate supervision and reporting contributed to the problems at IDOT.
Revised Proposal: The revised proposal (SB 981, Amendment 2) makes changes to the definition of “public employee,” rather than “managerial employee,” under the Public Labor Relations Act. The proposal also excludes a limited number of other positions, including: confidential employees who assist Rutan-exempt persons, many of whom are themselves Rutan-exempt; labor relations managers who have hiring authority, who make Rutan-determinations, or who discipline other employees; internal auditors and inspectors general; and attorneys, almost all of whom are already Rutan-exempt.
To allay concerns raised by labor organizations, the revised proposal reduces significantly the number of definitional changes. In particular, the proposed revisions to the definitions of professional employee and supervisory employee were omitted. The remaining definitions were more carefully and precisely tailored in response to feedback from the Democratic caucuses.
2. Reconciling the Public Labor Relations Act and the Personnel Code
Original Proposal: Current law provides that the Public Labor Relations Act and any collective bargaining agreement take precedence over all other law. This provision (Section 15 of the Public Labor Relations Act) directly creates the conflict in the two lawsuits: while the Shakman case demonstrates that employees were unlawfully hired into positions under the Personnel Code, the collective bargaining agreement is permitted to immunize those employees from the unlawful hiring. The original proposal provided that the Public Labor Relations Act should be read consistently with all other law, and where a conflict exists, the Personnel Code should prevail.
Revised Proposal: In response to opposition from labor organizations, the revised proposal creates a narrow exception under the Public Labor Relations Act for the Personnel Code.
This proposal would permit the State to resolve the litigation and protect employees’ jobs. As described below, the State will take remedial action to move employees into new, properly-classified positions. Some of those positions – but not all – will be in bargaining units. Without a change to Section 15 of the Public Labor Relations Act, the State would not be able to take these steps, and the court would not be assured that future violations of the Personnel Code would not be remediable.
3. Remedial Actions
Original Proposal: The original proposal provided a broad framework for reviewing and re-classifying Rutan-exempt positions. The original proposal also gave the Governor and other Constitutional Officers latitude to determine what to do with employees in those positions based on the outcome of an ongoing agency-by-agency audit.
Revised Proposal: The revised proposal provides a clear path to resolving the litigation and preserving employee jobs.
Section 26 of the Personnel Code would direct the Department of Central Management Services (CMS) and IDOT to review and prepare revised position descriptions to ensure that position descriptions accurately describe the work being performed. That provision would also require IDOT to submit position descriptions to CMS for Rutan review.
There are approximately 175 employees in Rutan-exempt, bargaining unit positions at IDOT. As the positions are reviewed, one of two outcomes is possible:
· For those positions that remain Rutan-exempt, the position would be excluded from the bargaining unit going forward. Because the position remains Rutan-exempt, the employee would be permitted to keep his or her job and would retain any applicable job protection under the Personnel Code.
· For those positions that are determined to be Rutan-covered, the position could remain in the bargaining unit. The legislation would also allow the employee to retain his or her job as long as IDOT determines that the employee meets the qualifications for the position and was not hired because of improper consideration of political affiliation.
The plaintiffs in the Shakman litigation have asserted that the second group of employees should be terminated and should compete for the Rutan-covered positions in a competitive process. The legislation provides a path-forward by exempting the remedial process from the other provisions of the Personnel Code, the Public Labor Relations Act, and any collective bargaining agreement.