Association NewsAlert page 1 of 10 March 6, 2007

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1 Association NewsAlert page 1 of 10 Subject: HB 187 Civil Service Law Impact on County Boards Signed on December 28, 2006, House Bill 187 ( HB187 ) will take effect on July 1, This bill makes several revisions to the existing civil service laws and related statutes. As employers of classified civil servants, county boards of MR/DD ( County Boards ) must understand these recent statutory changes. The substantive changes are summarized and discussed below in regard to each statute revised by HB187 that affects County Boards. Minor changes to these statutes, such as grammatical clarifications and the addition of gender-neutral language, are not addressed. R.C New law, new definitions R.C currently establishes definitions for terms used throughout the civil service laws. HB187 adds a new definition that is used throughout: service of the state or civil service of the state. R.C (K). 1 This term is defined as all offices and position of trust or employment with the government of the state, but it specifically excludes such positions in counties, among other areas. Id. Thus, County Board employees are not considered employees in the service of the state or in the civil service of the state for the purposes of the new laws. However, County Board employees are still included when the general terms civil service, state service, and classified service are used. Id. at (A) (C). For example, the term civil service is defined as all offices and positions of trust or employment in the service of the state and in the service of the counties, as well as cities, city and general health districts, and city school districts. Id. at (A). The term state service is defined as offices and positions in the service of the state and the counties and general health districts, but HB187 makes it clear that this term does not refer to cities, city health districts, and city school districts. Id. at (B). The term classified service means the competitive classified civil service of the state, the several counties, cities, city health districts, general health districts, and city school districts of the state, and civil service townships. Id. at (C). Obviously, references to service of the state, civil service of the state, and state service can lead to some confusion as state service is different than service of the state and civil service of the state. Therefore, when reviewing the statutes with respect to County Board employees, one must focus on the term state service, which includes County Board employees. Any reference to employees in the service of the state or the civil service of the state is not applicable to County Board employees. R.C State Personnel Board of Review retains jurisdiction to determine unclassified status 1 In this memorandum, one should view the reference to a statute in the context of the sentence to determine whether it is the current version of the statute or the version revised by HB187.

2 Association NewsAlert page 2 of 10 R.C currently sets forth the powers of the State Personnel Board of Review ( SPBR ), one of which is to hear appeals of employees in the classified state service on decisions by appointing authorities or the Director of the Department of Administrative Services ( DAS ). HB187 clarifies that, in regard to decisions about whether an employee is in the classified or unclassified civil service, the failure of an appointing authority to file a statement indicating that the employee is in the unclassified civil service (or the failure to file such a statement in a timely manner) will not preclude the SPBR from finding that the employee is actually in the unclassified civil service. 2 In the course of reviewing an employee s status in this regard, HB187 specifies that the SPBR shall consider the inherent nature of the duties in the employee s classification during the two (2) year period immediately preceding the appointing authority s appealable action relating to the employee. R.C (A)(1). R.C Written information to be provided to employee on unclassified status and job duties HB187 completely revises R.C Under this new section, an appointing authority must notify DAS when it appoints an employee to an unclassified position in the service of the state within ninety (90) days of the appointment; again, the definition of the service of the state excludes County Board employees. R.C (A). More relevant to County Boards, an appointing authority must provide an employee appointed to a position in the state service (which includes individuals employed by a County Board) with (1) written information on unclassified civil service employment (which DAS must provide to appointing authorities) on the date of appointment and (2) written information describing the duties of the position within thirty (30) days after the appointment, though the failure to do either does not give the appointed employee any additional rights. Id. at (B), (C). R.C Payments to State employees for miscellaneous items R.C discusses pay ranges and step increases for various employees. Under the current section, whenever lodging, meals, laundry, or other personal services are furnished to public employees, such employees have to pay for the actual costs or fair market value of those services as determined by the Director of DAS and approved by the Director of Budget and Management, and the values of those services is not to be considered part of the employee s compensation. R.C (D). HB187 changes this provision so that it only applies to employees in the service of the state, not all public employees. Further, the same change has been made to the next provision in R.C (D), which states that appointing authorities may establish payments to employees for uniforms, tools, equipment, and other requirements of the department; as of July 1, 2007, that provision will only apply to employees in the service of the state. Id. R.C No more personnel action forms to DAS HB187 offers a major change to R.C Currently, County Boards must submit personnel action forms to DAS whenever an employee is hired, when a disciplinary action 2 This references one type of unclassified appointment, which requires an elected official to file such notice within 90 days of taking office. See R.C (A), as modified by HB 187.

3 Association NewsAlert page 3 of 10 appealable under the civil service laws is taken, or when an employee is terminated for any reason. HB187 limits this section significantly so that only appointing authorities with officers or employees in the civil service of the state must submit such personnel information to DAS. R.C (A). Thus, HB187 completely eliminates the requirement that County Boards submit personnel action information to DAS after July 1, R.C Tests may include interviews, assessment centers, work simulations, examinations of knowledge, skills, and abilities, and other methods R.C currently provides that civil service examinations may include an evaluation of such factors as education, training, capacity, knowledge, manual dexterity, and physical or psychological fitness. Civil service examinations shall consist of one or more tests in any combination. Tests may be written, oral, physical, demonstration of skill, or an evaluation of training and experiences and shall be designed to fairly test the relative capacity of the persons examined to discharge the particular duties of the position for which appointment is sought. HB 187 amends R.C to provide, among other things, that tests, as part of a competitive examination, may include structured interviews, assessment centers, work simulations, examinations of knowledge, skills, and abilities and any other acceptable testing methods. Pursuant to F.C (A)(19), superintendents and management employees are in the unclassified service, and not subject to examination. Pursuant to R.C , County Boards may hire professional employees and registered service employees in the classified service on the basis of the candidates' qualifications rather than on the basis of the results of an examination. Therefore, the changes to this statute may have limited applicability to County Boards. R.C Elimination of reference to provisional employees R.C discusses eligible lists and provisional employees. The current statute allows a provisional employee who passed an examination for the relevant department and class or grade to be appointed as a certified employee in the relevant position before an eligible list can be prepared. HB187 eliminates the reference to provisional employees. This statutory change may have limited applicability to County Boards since few, if any, utilize eligibility lists and/or fill vacancies by provisional appointment. R.C Provisional appointment no longer counts toward probationary period R.C discusses appointments and probationary periods for them. Under the current statute, all employees have to serve a probationary period, but time spent as a provisional employee can be used toward fulfillment of the probationary period. R.C (C). HB187 changes this section to eliminate this exception; as of July 1, 2007, time as a provisional employee may no longer count toward the completion of the probationary period. Given that County Boards rarely use provisional appointments, this will likely have little effect.

4 Association NewsAlert page 4 of 10 R.C Provisional Status in Classified Service Becomes Permanent R.C currently provides that a provisionally appointed employee, who remains in provisional status in the same classification or classification series for a period of two (2) years of continuous service, during which period no competitive examination is held, becomes a permanent appointee in the classified service at the conclusion of such twoyear period. HB187 amends the requirements for such an employee appointed to a position under R.C to become permanent appointees. Under the new section, an appointed employee may become a permanent employee in the classified civil service if he demonstrates merit and fitness by successfully completing the probationary period for the position or remains in the position for six (6) months of continuous service, whichever is longer. R.C R.C Provisional appointment deleted and temporary appointment extended to 120 days R.C currently allows appointing authorities to fill vacancies in the classified civil service through a noncompetitive examination if there are urgent reasons to do so, and allows individuals passing that examination to be nominated and serve as provisional employees. HB187 still allows for the filling of vacancies through noncompetitive examinations, but completely eliminates the provisional employee status. R.C (A)(1). Thus, vacant positions may still be filled by noncompetitive examination, but the nomenclature provisional employee is deleted. Further, HB187 changes the definition of temporary appointments, 3 and allows them to continue up to one hundred twenty (120) days, instead of thirty (30) days, though such period may be longer if a regular employee has a sickness, disability, or other approved leave of absence that necessitates the extension of an appointment. Id. Finally, the restrictions on interim appointments that allow them only to be used to fill a temporary vacancy of a normal employee and not to fill a vacancy that results because an employee received an interim appointment has been removed. Id. at (B). R.C Approval of DAS no longer needed for transfer, and reinstatement from disability separation reduced to 2 years R.C (A) currently provides that, with the consent of the Director of DAS, a classified civil servant may be transferred to a similar position in another office, department, or institution having the same pay and similar duties; but no transfer shall be made from an office or position in one class to an office or position in another class. 4 A 3 The current definition of a temporary appointment in R.C (A)(3) is removed under HB There are two types of transfers: inter-transfer and intra-transfer. An "inter-transfer" means the act of changing an employee from one position to another, from one department to another department with a different over-all appointing authority which may be accompanied by promotion, demotion, or lateral classification change. An "intra-transfer" means the act of changing an employee from one position to another within the same department or over-all appointing authority, requiring a change in headquarters county which may be accompanied by promotion, demotion, or lateral classification change. OAC 123:1-

5 Association NewsAlert page 5 of 10 person may not be transferred to an office or position for original entrance to which an examination involving essential tests or qualifications is required or which carries a salary different from or higher than those required for the original entrance position held by the employee. HB 187 removes the need for consent of the Director of DAS. R.C (B) currently provides that any classified civil servant who has been separated without delinquency or misconduct on the person s part may, with the consent of the Director of DAS, be reinstated within one (1) year from the date of such separation to a vacancy in the same or similar office or position in the same department. If such separation is due to injury or physical disability, such person shall be reinstated to the same office or similar position held at the time of separation, within thirty (30) days after written application for reinstatement and after passing a physical examination, provided the application for reinstatement is filed within three (3) years from the date of separation. Thus, for reinstatements to a County Board position, approval from DAS would be required. In the case where the employee has been disability separated, he/she has three (3) years from the date of separation to seek reinstatement. HB187 eliminates the need for approval from the Director of DAS prior to a transfer except for those persons in the classified service of the state. In our experience, actual transfers in the context of County Boards are infrequent. Few County Boards use this process. So the changes rendered by HB 187 will likely have a minimal effect. With respect to disability separations, HB187 reduces the reinstatement period to two (2) years from the date of separation. R.C Loss of grant equals lack of funds, lack of work no longer has a time limit, and County Board does not have to file statement of rationale for abolishment R.C deals with layoffs for various reasons. First, HB187 creates a presumption that, for positions assigned to and employees who work under a grant or similar mechanism, a lack of funds is presumed if the funding is reduced or withdrawn. Second, HB187 offers a slight alteration to the definition of one such reason, lack of work. Under the current definition, lack of work means that an appointing authority has a current or projected temporary decrease in the workload, expected to last less than one year, that requires a reduction in force. Under the new definition, lack of work simply means a current or projected decrease in the workload. R.C (C)(2). Thus, under the new provision, employees may be laid off for lack of work because of a projected decrease in the workload, regardless of how long that decrease is expected to last. Id. Further, HB187 amends the requirements for layoffs based upon abolishment, so that only state employers (not all public employers) must file notices of abolishment of positions and statements of rationale for those situations. Id. at (D)(2)(a)(ii), (D)(2)(b)(3). Thus, with respect to abolishments, a County Board will not have to file a statement of rationale with DAS (A)(44) and (45).

6 Association NewsAlert page 6 of 10 Additionally, HB 187 will allow a county appointing authority to establish a paper lay-off process under which employees who are to be laid off or displaced may be required, before the date of their paper layoff, to pre-select their options for displacing other employees. Despite the changes, DAS still retains authority to adopt administrative rules regarding layoffs. Such rules shall address determination of lack of work within an appointing authority, the abolishment of positions by an appointing authority, and for implementation of R.C itself. R.C Order of layoff simplified R.C establishes the order of layoffs. HB187 simplifies the order and eliminates the references to seasonal and other appointment categories. Thus, under the new language, part-time probationary employees are to be laid off first, followed by part-time permanent employees, full-time probationary employees, and full-time permanent employees. R.C R.C Modification to displacement rights of laid-off employees HB187 also modifies the right of displacement for laid off employees in R.C Currently, such employees can only displace employees with the fewest retention points in classifications from which the employee is laid off or in lower or equivalent classifications. In the revised statute, such employees may displace employees with the fewest retention points in the following order: (1) Within the classification from which the employee was laid off, (2) Within the classification series from which the employee was laid off, and (3) Within the classification the employee held immediately prior to holding the classification from which he or she was laid off, except that he or she cannot displace employees in a classification if he or she does not meet the minimum qualifications of the classification or if the employee last held the classification more than three (3) years before the date he or she was laid off. R.C (A)(1) (3). Additionally, HB187 eliminates the references to provisional employees in R.C (B), as it has otherwise eliminated reference to such positions. R.C Retention points for efficiency in service eliminated R.C discusses the accrual of retention points to be used in the event of a layoff. Although this provision currently allows for retention points based on efficiency in service, HB187 completely eliminates the use of this factor in the accrual of such points. R.C Clarification of reinstatement rights

7 Association NewsAlert page 7 of 10 R.C discusses layoff lists and reinstatement and reemployment rights. One subsection of this statute states that employees who decline reinstatement to a lower classification are thereafter only entitled to reinstatement in higher classifications. R.C (G). HB187 adds a caveat to this section, noting that it does not apply when an individual who was a full-time employee at the time of the layoff declines reinstatement in a part-time position. Id. R.C Temporary transfers can apply to County Board employees Distinct from R.C , R.C describes the manner in which employees in the classified civil service of the state may be temporarily transferred. Currently, only classified civil service employees in the service of the state can be temporarily transferred. As of July 1, 2007, HB187 allows any classified civil service employee to be temporarily transferred, without any approval required, other than that of the appointing authority. For state employees, the Director of DAS must approve the transfer if the employee is transferred more than once in a six-month period. For city employees, the civil service commission must approve if the employee is transferred more than once in a six-month period. No such limitation exists for county employees. Similarly, an appointing authority will be able to transfer public employees permanently (in excess of 30 days unless the employee and employer agree to a longer period not to exceed 90 days). For state employees, approval from DAS is required, and for city employees, the appropriate civil service commission must approve the permanent transfer. Id. Again, transfers in the context of County Boards are infrequent. So the changes rendered by HB 187 to this statute will likely have a minimal effect. R.C New method of discipline based upon overtime-exempt status and recognition of last chance agreements R.C currently details the way in which classified civil service employees may be disciplined. HB187 expands the types of discipline available to employers, so, in the future, employees could have their longevity reduced or eliminated. R.C (A). It also adds a new justification for discipline: the violation of any policy or work rule of the officer s or employee s appointing authority. Id. Further, it adds a disclaimer that the denial of a one-time pay supplement or bonus is not considered a reduction in pay, which has been another form of discipline available under this section. Id. HB187 also makes changes to the procedure for imposing discipline under this section. Currently, Orders must be given to employees for reductions, suspensions of more than three working days, a fine in excess of three days pay, or removal. Pursuant to HB187, R.C (B) now differentiates between employees exempt and non-exempt under the Fair Labor Standards Act for purposes of discipline and appeal. Thus, for exempt employees, the requirement to provide a Order and the ability to appeal such order apply to reductions, a suspension of 40 or more work hours, a fine of 40 or more hours pay, or removal. For non-exempt employees, a Order must be given and appeal allowed in the cases of reduction, a suspension of 24 or more work hours, a fine of 24 or more hours pay, or removal.

8 Association NewsAlert page 8 of 10 HB187 also limits the appeal rights of certain employees. HB 187 recognizes the use of last chance agreements, and provides that, when an employee appeals a removal order based on the violation of a last chance agreement, the reviewing body may only determine if the employee violated the last chance agreement. Id. HB187 also defines the term last chance agreement as an agreement signed by both an appointing authority and an officer or employee of the appointing authority that describes the type of behavior or circumstances that, if it occurs, will automatically lead to removal of the officer or employee without the right of appeal to the state personnel board of review or the appropriate commission. Finally, HB187 changes the venues able to hear appeals for removals and reductions in pay to the court of common pleas of the county where the appointing authority is located, instead of the court of common pleas where the employee resides. Id. R.C Whistleblower protection for County Board employees R.C currently sets forth a policy allowing all state employees to report wrongdoing (such as the violation of state or federal statutes, misuse of public resources, etc.) to their supervisors and, in certain situations, to outside individuals, and insulating them from any retaliation for doing so. This provision does not currently protect County Board employees. However, HB187 expands it to cover all employees in the classified or unclassified civil service, not just state employees. R.C Thus, after July 1, County Board employees will be protected from retaliation for reporting wrongdoing under this statute. R.C Authorization to adopt alternative schedules of sick leave R.C establishes the sick leave accrual schedule for various civil service employees. HB187 offers a minor clarification to the final provision of this statute, which currently allows appointing authorities to establish alternative schedules of sick leave so long as they are not inconsistent with the provisions of a collective bargaining agreement covering other employees of the applicable appointing authority. Under the new language, such alternative schedules may be established so long as they are not inconsistent with at least one collective bargaining agreement applicable to other employees of the appointing authority, if such an agreement exists. R.C (C). If no such agreement exists, HB187 states that an appointing authority may, upon notifying the board of county commissioners, establish an alternative schedule of sick leave for its employees that does not offer less benefits than those in the statute. Id. R.C New basis for administrative leave R.C allows appointing authorities to place employees on administrative leave with pay. Currently, employees may be placed on such leave whenever the health or safety of an employee or any person or property entrusted to the employee s care could be adversely affected. R.C (A). The length of the leave is left to the appointing

9 Association NewsAlert page 9 of 10 authority s 5 discretion, but it is not to exceed the length of the situation for which the leave was granted. Id. Employees may also be placed on such leave for two (2) days or less if they are moved in accordance with R.C Id. HB187 adds a new section to this provision, allowing appointing authorities to place an employee on administrative leave without pay for up to two (2) months if the employee has been charged with a felony. Id. at (B). However, if the employee subsequently fails to plead guilty to or is found not guilty of either the charged felony or another felony, the appointing authority is required to pay the employee his or her base rate of pay plus interest for the period the employee was on unpaid leave. Id. Interestingly, this new language uses the term plead guilty, which means that an employee who pleads no contest to a felony would be entitled to his back pay in this regard, even though he or she would still have a felony conviction. R.C Authorization for alternative schedule of vacation leave Much like R.C , HB187 amends R.C , which deals with vacation and holiday leave. The new language allows appointing authorities to establish the same type of alternative schedules of vacation and holiday leave that are either consistent with a collective bargaining agreement for other employees or do not diminish the leave benefits in that section. R.C (F). R.C Restrictions on right of counsel for witnesses R.C grants a statutory right to legal counsel for any person appearing as a witness before any public official, department, board, bureau, commission, agency, or representative thereof, in any administrative or executive proceeding or investigation, public or private, if he so requests. The attorney s participation is limited to the protection of the rights of the witness, and the attorney may not examine or cross-examine witnesses. The person/witness must be advised of his right to counsel before he is interrogated. As we have discussed previously, the Supreme Court of Ohio s decision in In re Civ. Serv. Charges & Specs. Against Piper (2000), 88 Ohio St.3d 308, would lead to the conclusion that a right to counsel exists during a formal investigatory interview. We did not conclude that such protection extended to a pre-disciplinary hearing, however, based upon the United States Supreme Court s decision in Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 545. A pre-disciplinary hearing need not be a formal process, but must merely give the employee the right to notice of the charges against him, an explanation of the employer s evidence, and an opportunity to present his/her side of the story. HB 187 modifies R.C to provide that the right to counsel does not apply to an employee of an appointing authority, as defined in Section of the Revised Code, who appears only as a witness in an employment interview, investigation, or proceeding conducted by or for the appointing authority. The superintendent of a County Board 5 According to the Ohio Attorney General, the appointing authority for a County Board is its superintendent. See 2003 Ohio Op. Atty Gen. No. 13.

10 Association NewsAlert page 10 of 10 meets the definition of appointing authority in R.C , and is the appointing authority for employees of a County Board. Thus, this modification eliminates the right to counsel of an employee who is merely appearing as a witness. Presumably, when the employee is the subject of the investigation, the right to counsel remains in accordance with R.C CONCLUSION These changes will have varying impacts on County Boards, and thus should be understood by all individuals dealing with civil service employees. While these requirements will become clearer after they are refined through various rules and court decisions, County Boards should endeavor to understand and follow them as currently written beginning on July 1, Should you have any questions regarding specific provisions, we are happy to offer a more detailed and issue-specific analysis at that time. # # #