Fixing Civil Service in Massachusetts

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John P. O’Leary

Former Chairman, Massachusetts Civil Service Commission

The Problem

The only thing more destructive than a line item budget system is a personnel system built around civil service. —David Osborne and Ted Gaebler, Reinventing Government

The civil service system in Massachusetts is in crisis. Created in the 19th century to solve 19th-century problems, civil service laws were an attempt to end the corruption, patronage, and cronyism that dominated American government in the late 1800s. These laws worked admirably for quite some time, but today they are in desperate need of a major overhaul. As they currently stand, the civil service laws represent a significant barrier to efficient government operation in both state and local government.

Civil service laws were designed to serve two main functions. First, they establish a set of exams that test the merit of both new hires and promotional candidates. Second, they protect public employees from arbitrary dismissal, discipline, and provide layoff seniority for public employees.

There are two major problems with the civil service system today.

First, for non-public safety employees, the hiring and testing systems are totally defunct, yet the laws are still written as if tests are being given on a regular basis. The result is that 14,000 of some 30,000 state civil service positions are filled by “provisional” employees, that is, employees who have never taken an exam and are working in violation of the civil service laws. There is a similarly large provisional population at the local level. This enormous population of provisional employees, which exists in a bizarre legal vacuum, makes managing personnel extremely difficult, especially in times of reorganization or downsizing. Also, in the absence of tests, there are virtually no checks and balances in place to ensure that patronage-based hiring is not common practice.
Second, for public safety employees, where tests are regularly given, the concept of merit has been supplanted by a system of political preferences. The result is that for new hires, the test score has little or no bearing on where his or her name will appear on the hiring list. On a recent civil service exam for the Boston Police, 492 applicants scored 95 or above. Incredibly, only one of these 492 top scorers landed in the first 75 positions on the hiring list. (For promotional exams within public safety, civil service testing works tolerably well, for reasons discussed below.)

The Scope of the Provisional Problem

No one knows precisely how many employees are covered by civil service law. In part, this is because there is no centralized database for municipal positions. No one outside of Chicopee, for instance, knows whether the cafeteria worker in the Chicopee schools holds a permanent civil service position, a provisional civil service appointment, or an exempt or seasonal position.

A 1996 legislative commission estimated that there were 70,000 “permanent” municipal civil service employees and an additional 30,000 “provisional” municipal employees. The 1996 Commission also estimated that there were 12,000 “permanent” state civil service employees and 16,500 “provisional” state civil service employees.¹ All told, that comes to an estimated 46,500 provisionals out of a total civil service population of 128,500 employees, or 36 percent provisionals.

In 2004, the state Human Resources Division (HRD), which oversees the administration of both state and local civil service testing and hiring, estimates that there are 30,000 civil service positions in the executive branch of state government, of which 16,000 are held by “permanent” employees and 14,000 by “provisional” hires. Thus, HRD currently estimates that among the state workforce, some 46 percent of employees in civil service positions did not take a test for their position, and many haven’t taken an exam for any position. (The picture is muddied further in that an individual may test into a position as an Administrative Assistant I, and then be “provisionally” promoted to Administrative Assistant II. Such an employee is both a provisional and “owns” the lower civil service title.)

By law, a provisional appointee is only allowed to serve in that position for one year. This law is universally ignored, mostly out of necessity. The fact is, the state HRD has stopped testing for non-public safety positions entirely.

In 2003, the state Human Resources Division gave exactly one non-public safety exam, an exam for municipal custodians. So anyone looking to hire or promote an accountant, an administrative assistant, a database programmer, a soil chemist, a barber, or any one of thousands of other job titles had to do so provisionally.

Why won’t HRD give these exams? Two reasons. First, the budget and staffing of HRD in this area has been dramatically reduced. In 1996, there were approximately 38 full-time staff dedicated to testing and maintaining certification lists. In 2004, there are twelve. The second reason is not specific to Massachusetts. The testing system simply can’t keep pace with the reality of the modern professional work environment. With hundreds of job titles and rapidly shifting job responsibilities, the very notion of testing is rather silly. Three states—Florida, Georgia, and Texas—have recently done away with civil service testing altogether for non-public safety positions, and more are looking into it.

The huge provisional population wreaks havoc in a system geared around a testingbased regime. The Civil Service Commission receives hundreds of appeals each year, which are based, ultimately, in the fact that absent these tests managers still need to promote, reorganize, layoff, and otherwise manage their workforce. Efforts are constantly made to “make permanent” those provisional employees who have been performing for years in a given position.

Scope of the Merit Problem

There is a long tradition of calling for the elimination of seniority and veterans’ preference in civil service. And those efforts at civil service reform have a long tradition of complete failure. —Jonathan Walters, Fixing Civil Service in Massachusetts

Everyone agrees that merit, rather than political favoritism, should govern how individuals get government jobs. The idea behind civil service was to give an exam and then hire based on the exam results. Since tests were imperfect assessment devices, managers would be given some discretion according to the “2n+1 rule.” If a manager were hiring for 5 positions, he could choose among the top 11 candidates on the civil service hiring list, provided he gave a reasonable justification for any candidates that were bypassed.

Not a bad theory, not a bad approach. But something happened over the past 120 years of civil service: the legislature has taken merit and replaced it with a system of absolute statutory preferences. Today, in most communities, the likelihood of getting hired has almost nothing to do with the applicant’s score on the civil service exam.

Here are some stunning examples of just how little impact an applicant’s test result has on where he or she lands on the hiring list.

On a recent Boston Firefighter exam, 29 candidates scored 100 percent (or better, with some bonus points for experience and education) on the test. None of these 29 top scorers were listed among the top 200 names on the hiring list.
On a recent Springfield Police exam, 296 candidates passed the exam. The top three candidates on the hiring list had placed 172nd, 284th, and 241st on the exam. The top scorer? Number 146 on the hiring list.
One-third of all hires to the Worcester Police force and the Boston Police force aren’t hired off the civil service exam lists—they enter through Cadet Programs, though once past the probationary period they get civil service status.

As one can imagine, this is a huge problem when attempting to hire a capable public safety workforce. The main reason for the disconnection between merit (as demonstrated on the civil service exam) and placement on the hiring list is the legislatively mandated system of “absolute” preferences. An absolute preference means that if you manage a passing score, you go to the very top of the hiring list. Below is a typical listing of absolute preferences used in creating a civil service hiring list:

minority applicants (in consent decree communities only)
resident children of police officers or firefighters killed in the line of duty
non-resident children of police officers or firefighters killed in the line of duty
resident disabled veteran applicant
resident children of police officers or firefighters injured in the line of duty
non-resident children of police officers or firefighters injured in the line of duty
resident veterans
resident widow or widowed mother of veterans killed in the line of duty or died from a service-connected disability incurred in wartime service
resident non-veterans
non-resident disabled veterans
non-resident veterans
non-resident widow or widowed mother of veterans killed in the line of duty or died from a service-connected disability incurred in wartime service

After all this come the non-resident, non-veteran applicants who score the best on the test.

Massachusetts is one of only a handful of states that grants such absolute preferences. Most states will give veterans a boost to their test scores of between 2 and 10 points. There needs to be a balance between giving a leg up to those who have served in the military and a need to recruit a high-quality public safety workforce. Massachusetts has lost that balance. Merit has been largely removed from a civil service system that was originally supposed to be all about merit. Communities are not allowed to hire the best possible public safety professionals.

Chapter 31 of the Massachusetts General Laws states that the Civil Service is based on the Basic Merit Principle, defined in the law as the “selecting and advancing of employees on the basis of their relative ability, knowledge and skills, including an open consideration of qualified applicants for initial appointing.” This is a noble principle. Unfortunately, like many noble principles, it is largely being ignored.

The Solutions

Limit Civil Service to Public Safety

Eliminate civil service testing for non-public safety employees and eliminate civil service protections for all non-public safety employees covered by a collective bargaining agreement.

This proposal simply acknowledges that testing is not being done in non-public safety positions. Non-public safety testing has been dwindling for years and is now virtually nonexistent. Acknowledging reality would enable the Personnel Administrator to develop alternative hiring and promotional approaches that encourage merit-based hiring and promotion.

With respect to employee protections, much of civil service protections duplicate protections that exist under collective bargaining agreements.

Restore Merit to Public Safety Hiring

Within public safety, maintain civil service testing and protections, but replace absolute preferences with a system of points added to test scores.

Merit testing for hiring and promotion within public safety does make sense. A point system would provide a leg up for those individuals, such as veterans or the offspring of public safety employees killed or injured in the line of duty, whose service or sacrifice deserve some consideration. But by limiting the benefits to a maximum of 10 points, a desire to provide an opportunity is balanced with the public’s interest in fielding the best possible law enforcement and public safety employees.

Costs and Benefits

It is difficult to assess the costs of current practice accurately. The civil service workforce comprises approximately 28,000 public safety workers and perhaps 75,000 other state and local workers. Having managers operate in a system in which employees have not only civil service but also collective bargaining protections makes managing difficult and expensive.

If the Chicopee school department disciplines a custodian for one day for sleeping in the broom closet one afternoon, supervisors better plan on taking a two-hour ride into Boston for a pre-hearing conference at the Civil Service Commission, followed by another trip in for a full hearing. They’ll need to bring in witnesses, pay a lawyer to try the case and write briefs, and may have to deal with other legal appeals, such as those brought to the MCAD or appeals to Superior Court of the Civil Service Commission decision. Even if the Commission upholds the suspension, it will certainly cost the town many times over the custodian’s day’s pay. All this protection is for an employee who is already protected from unreasonable discipline by a union and an arbitration grievance process.

Gains in administrative and management flexibility would be significant were the system reformed. Significant reform to civil service laws could generate millions from enhanced efficiency. Abandoning the current “provisional” hiring approach in nonpublic safety and moving to an alternative, non-test-based merit system for hiring would enhance the protections against patronage and cronyism, another clear public benefit.

Obstacles

Many if not all of the changes contemplated in this proposal would require legislative changes to MGL Chapter 31. There has been historical reluctance to alter this law regardless of how dysfunctional its application. This may be a unique opportunity to do so. The legislature has shown reluctance to fund the HRD and the Civil Service Commission at the level that would be needed to carry out what Chapter 31 demands. For about a decade, there has been a gradual defunding of the civil service system in Massachusetts, a defunding that may simply have been a more politically palatable way of achieving the aim of reform. The chaos and confusion that mark the current situation strongly argue that now is the time to change the system. Moreover, Governor Romney has shown in his House 1 proposals over the last two years that he wants serious reform in civil service.

Until the state legislature takes the hard steps to change our outdated system, we will be handcuffed in our ability to build a public safety workforce of the best and the brightest. The Commonwealth deserves no less.

Replication

Florida, Georgia, and Texas have all eliminated civil service. The IBM Center for the Business of Government sponsored a report by Jonathan Walters called “Life After Civil Service Reform: The Texas, Georgia and Florida Experiences.” This report chronicled the generally positive results of the significant reforms in these states, citing benefits such as quicker hires, improved satisfaction with personnel administration, and betterqualified applicants.

The reforms in these states were significant. In Georgia, every state employee hired since 1996 has been an “at-will” hire. In Florida, civil service seniority has been totally eliminated. Other states, including Washington, Colorado, and Hawaii are actively engaged in rethinking civil service.

The desire for civil service reform extends to the federal level. The recently established Department of Homeland Security will encompass roughly 170,000 federal employees into a personnel system as unencumbered by civil service regulations as possible. Kay Cole James, the Director of the Office of Personnel Management, captured the growing consensus regarding civil service reform when she said, “First, that the current system is indeed broken—it does not and cannot serve the modern workforce. Second, that now is the time to fix it…”

About the Author

John O’Leary was appointed to the Civil Service Commission in July 2003 by Governor Mitt Romney and served as Chairman from September 2003 to May 2004. An expert in operational efficiency, Mr. O’Leary has been a Vice President at Scudder Kemper Investments and the Director of Business Process Reengineering at Lycos. As a consulting manager with KPMG Peat Marwick, he has advised governments on public sector reinvention. His writings on public policy have appeared in the Wall Street Journal, the San Diego Union-Tribune, and the Washington Times. In 1996, Mr. O’Leary testified before Congress on public sector efficiency. He is a 1984 graduate of MIT and holds a Master of Science degree from the University of Massachusetts at Amherst.

Endnotes

The Report of the 1996 Legislative Task Force on Civil Service Reform.