Officials at the Department of Economic Security didn’t always follow agency policy or state law requiring human resources staffers to review all firings of government workers.
The lapse in “best practices” by human resources officials embedded in DES has left Gov. Doug Ducey’s administration concerned that good employees were fired in error, and perhaps in violation of federal employment laws.
Adopted after the passage of personnel laws in 2012 that made most state workers at-will employees, DES policy dictated that human resources officials must review certain disciplinary actions agency supervisors sought to take against employees who no longer had job protections. The policy even required approval by Arizona’s Department of Administration before DES officials could fire, demote or suspend at-will employees for two weeks or more.
Megan Rose, a spokeswoman for ADOA, said that policy was not followed because it went beyond what’s required of ADOA in state law. Before an at-will government worker can be fired, statute requires a “review by the director of dismissals, suspensions for more than eighty working hours or involuntary demotions before administering the action.” However, statute does not grant ADOA the authority to make final decisions on how to discipline employees.
In practice, ADOA directors designate human resources representatives embedded in state agencies with the authority to conduct the legally-required review, according to Rose. The chief human resources officer at DES was designated with that authority.
Rose acknowledged an appropriate review did not always occur at DES, where nearly 500 state workers were fired by former Director Tim Jeffries.
“In most cases, the DES/ADOA appointed (chief human resources officer) did review the action prior to its implementation, but we acknowledge that the HR procedures administered at DES led to cases in which a thorough HR ‘best practice’ review did not happen prior to the action taking place,” Rose wrote in an email. “As you recall, management changes were made at DES to address this issue.”
In addition to forcing out Jeffries, the governor fired several of Jeffries’ top staff, including Morris Greenidge, the agency’s chief human resources officer. Greenidge, who reported directly to ADOA, would have been responsible for reviewing disciplinary actions, according to Rose.
New review process
In light of reports that at least 1,700 state workers have been fired since Ducey took office, the governor’s staff is implementing a new review process necessary to fire government employees. The policy requires human resources officers — ADOA employees who are embedded in the state’s largest agencies, such as DES — to review employees’ cases before they’re fired.
The Ducey administration also set up a hotline for fired state workers to protest their dismissal. At least 220 ex-employees’ grievances are being investigated by ADOA. Any state worker who’s been let go since Ducey took office has until December 9 to file a complaint through the hotline.
Former employees will learn of the outcome of those investigations, and perhaps if they’ll get their jobs back, by the end of the year, according to Ducey spokesman Daniel Ruiz.
Ducey’s new policy would align with the intent of the laws adopted with personnel reform, according to Kathy Peckardt, who served as the state’s director of human resources in 2012. Peckardt said ADOA policies at the time were adopted in accordance with statute.
“The intent of the statute and policies that were put in place at ADOA was to ensure that no one was fired for unlawful reasons,” Peckardt said.
This new policy is less stringent than the one adopted more than four years ago at DES. For example, if a human resources representative can’t come to an agreement with agency officials about whether or not to fire an employee, the case would be forwarded to ADOA, but the director of the agency where the case comes from would have the final say over what disciplinary action to take, according to Ducey spokesman Daniel Scarpinato.
The agency director could ultimately disagree with ADOA and fire the employee over human resources’ objections, Scarpinato said. However, “if state HR has a valid grievance with the action, then I can’t imagine we would do a separation,” he added.
The old DES policy gave ADOA the ultimate say not just over firings, but suspension and demotions.
Rose said that policy was adopted in error. Some agencies in 2012 “incorrectly assumed it gave ADOA decision-making capabilities,” she said. The Department of Administration’s role is for a review only, and other agency policies, such as the one in place at DES for the past four years, can’t supersede ADOA rules or statute, Rose said.
“Unfortunately, the agency policy wasn’t corrected back in 2012,” she wrote in an email.
Though ignored, the old policy was technically in effect from Sept. 29, 2012, until Nov. 26, when it was rescinded under interim-DES Director Henry Darwin.
Avoiding red flags
Will Humble, who served as Brewer’s director of the Department of Health Services both before and after the adoption of personnel reform in 2012, said he would often consult with ADOA, or even the Attorney General’s Office, before firing employees to make sure there were “no red flags.”
Not all agencies required a compulsory check with the Department of Administration for firings, Humble said. His own did not.
Other former officials say it was not the intent of the law that human resources staffers at ADOA be involved in every firing decision, but that the agency be aware of what’s going on to prevent good employees from being fired, or employees being fired for the wrong reasons.
That’s the intent of Ducey’s new review procedures, according to Scarpinato, who added that Darwin is working with the governor’s staff to develop a new written procedure to ensure a human resources officer’s involvement.
“What this process is designed to do is to ensure that an HR professional, who understands employment law, who understands personnel rules and [who] also understands basic employment practices is able to ask the tough questions and fully vet these issues,” Scarpinato said.
“We don’t want a situation where someone who is valuable to state government would be let go for the wrong reason,” he added.
The new policy is not applicable to agencies overseen by statewide elected officials, such as the Attorney General’s Office and the Department of Education.
Darwin has acknowledged that not all agency directors are fond of the governor’s new policy.
Susan Gerard, who served as director of health services under former Gov. Janet Napolitano, said the process could prove cumbersome for both ADOA and agency directors who might view the review as a second-guessing of their decisions.
A governor should have faith in his or her agency heads, Gerard added.
“If you don’t have the trust in your agency director to do the right thing, they shouldn’t be there,” she said.
Humble disagreed: “I don’t see that as intrusive. I see that as good practice to make sure that you’re doing the right thing,” he said.
Scarpinato, too, said the review process will provide some cover for agency directors by making sure all management-level state officials are following the law, thanks to the assistance from human resource officers from the Department of Administration.
“If you’re a good agency director, this actually protects you because you have someone who actually understands the law and understands these issues, having their eyes on it before something moves forward,” Scarpinato said.
Jeremy Duda contributed to this report.