At-Will Employment in the Career Service Would Improve Florida State Government

September 13, 2022

By James Sherk and Jacob Sagert

TOPLINE POINTS

  • Employees in Florida state government’s career service can appeal dismissals through a process that can take 6 months. However, the legislature made state managers and supervisors “at-will” employees in 2001.
  • Florida HR directors report these reforms improved state operations.
  • Other states that made their workforces at-will found doing so made them operate more efficiently. Florida could improve its state government by making all state employees at-will.


Florida’s civil service laws protect state government employees from removal. Most state employees can only be dismissed “for cause.” They can appeal their removal administratively and then in the courts if fired. These removal protections make removing incompetent or intransigent state employees more difficult. Florida partially addressed these problems with the 2001 “Service First” reforms. That legislation made managers and supervisors in state government at-will employees.[1] State Human Resources (HR) directors reported that these reforms improved state government operations. However, union opposition dissuaded Florida from making non-managerial state employees at-will. Other states that have made their entire workforces at-will found it made state government operations more efficient. Florida could make state government work better for Floridians by extending at-will status to all state employees.

Removal Restrictions in Florida State Government

Employees in the Florida state government’s “Career Service” (CS) enjoy for-cause removal protections. Once they pass a one-year probationary period, CS employees may be dismissed only for a “cause” (Fla. Stat. §110.227(1)).[2] If a supervisor believes a CS employee has committed an offense that warrants dismissal, the supervisor must generally provide at least 10 days formal notice.[3] The notice must state specifically what the employee did wrong and the rule or standard violated (Department of Management Services, 2006). The agency must also give the employee an opportunity to respond orally and in writing before dismissing them. Dismissed employees have three weeks after receiving notice to appeal to the Florida Public Employees Relations Commission (PERC) (Fla. Stat. §110.227(5)(a)).[4] 

If the employee appeals, PERC appoints a hearing officer who will schedule a hearing within 60 days. Within 30 days of the hearing, the officer submits the case and a recommended outcome to PERC. Either party can file exceptions to the recommendation within 15 days. PERC then reviews the record and may schedule oral arguments. PERC will issue a decision within 45 days of exceptions being filed or oral arguments (Fla. Stat. §110.227(6)).  Administrative appeals can thus take 6 months to process (Fla. Stat. §110.227(6)).[5] During appeals, the burden of proof rests solely upon management (Department of Management Services, 2006).[6] If the agency does not meet its burden of proof, PERC can order CS employees reinstated with back pay. If the employee loses before PERC, they can appeal to state courts (Fla. Stat. §110.227(6)(e)). [7] 

Service First Ended Supervisors’ Removal Protections

These removal restrictions are a modern innovation. Florida enacted its civil service system in 1967 (Bowman, West & Gertz, 2006, p. 147). In the ensuing decades, governors, legislators, and state commissions repeatedly concluded that the system was making the state government less effective. A 2000 report from the Florida Council of 100, a nonpartisan council of business leaders, documented these shortcomings (2000 Appendix Exhibit 3). They concluded that “[c]urrent restrictions and protections in CS hurt government’s ability to perform … firing underperforming workers takes an inordinate amount of time and paperwork” (2000, p. 9).

The Florida legislature partially addressed these problems two decades ago. The Florida Council of 100’s report proposed systematically overhauling the state workforce, including making all state government employees at-will (2000, p. 22). At-will employees can be fired for any non-discriminatory reason and cannot appeal dismissals. Then-governor Jeb Bush endorsed the Council’s proposal, and the legislature passed what became known as the Service First reforms in 2001. However, strenuous opposition from organized labor prevented Governor Bush from making all state employees at-will (Walters, 2002, p. 32). Instead, Service First moved state managers and supervisors into the at-will Select Exempt Service (SES). The bill streamlined but did not eliminate removal protections for the non-managerial employees who remained in CS (Walters, 2002, p. 34).[8] In total, Service First made about 15 percent of state executive branch employees at-will (Walters, 2002, p. 31).[9]  [10]

Service First Successful

Service First succeeded; state HR managers reported that the reforms made state government more flexible. A study a year after Service First passed concluded that “[v]irtually every agency personnel director interviewed expressed the strong opinion that there was life after civil service reform and that it was considerably better” (Walters, 2002, p. 39).[11] Personnel directors reported Service First made taking personnel actions considerably easier (Walters, 2002, p. 35). Interviews with senior HR managers in the Florida Departments of Transportation, Environmental Protection, and Children and Families also reported generally positive evaluations (Bowman & West, 2006, p. 129-30, 134-35, 138).

By contrast, interviews with the supervisors made at-will showed considerably less enthusiasm. A 2003 survey of affected supervisors reported generally low morale (Bowman et al., 2003, pp. 294-295). Subsequent studies found morale improved as supervisors realized the state was not politicizing the newly at-will career positions (Bowman & West, 2006, pp. 130-133). However, these interviews continued to show many managers saw little benefit to being made at-will. As one told an interviewer, “Someone might as well work for business for more money as there is no security in government” (Bowman & West, 2006, pp. 136).

Job security is a benefit to employees, so it is unsurprising state supervisors would prefer to retain employment protections. However, the HR personnel who manage the managers concluded Service First succeeded. A reporter for Governing Magazine summarized their views:

ChartDescription automatically generated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

While it's not hard to find critics of Service First in every corner of state government, there is one notable group of long-time Tallahassee denizens who couldn't be more pleased with the new law: department personnel directors who for years have been laboring under the strictures of what they view as an onerous set of rules that have far outlived their usefulness. David Ferguson, head of personnel for the Department of Transportation for the past 30 years, says unequivocally that Service First is the best thing that's ever happened in Florida with regard to personnel administration (Harney, 2010).

Florida has had at-will managers and supervisors for over two decades. During this period, the state government has operated quite effectively. For example, the state rapidly deployed the COVID-19 vaccine to vulnerable populations as it became available.

Expanding at-will Employment to All State Employees Would Improve State Operations

Florida could build on Service First’s success by making the entire CS at-will. The original Service First proposal called for making all state employees at-will, and the version that passed the Florida House of Representatives did so. However, state employee union lobbying persuaded the Florida Senate to limit at-will status to managers and supervisors—employees not eligible for collective bargaining (Harney, 2010). Several other states, including Texas and Georgia, have made their state workforces entirely at-will. Their experience suggests bringing this policy to the Florida government would improve state operations.

Texas, often called the “grandfather of civil-service-free states,” abolished the Texas Merit Council and thus its civil service system in 1985 (Walters, 2002, p. 16). Every employee in the Texas state government currently serves at-will. A survey of Texas HR directors found that they widely believe at-will employment makes employees more responsive to the goals and priorities of agency administrators, provides essential managerial flexibility, helps remove poor performers, and is an essential component of modern government management. Texas state HR directors also report that nearly all separations occur for good cause, and patronage appointments are virtually nonexistent (Coggburn, 2006, pp. 163-69).

Another study of Texas state HR directors reports they “highly value the discretion they receive as a product of the state’s decentralized approach. In fact, there was widespread agreement—even among those respondents lacking in HR expertise—that HR flexibility was key to state agencies’ effectiveness.” Texas HR managers also report “virtually no pressure on them to make personnel decisions based on someone’s political loyalty or lack thereof” (Walters, 2002, pp. 19-21).

Georgia enacted legislation in 1996 that made all newly hired state employees at-will. Almost all Georgia employees serve at-will. State reporting finds managerial abuses of the new system are almost nonexistent.[12]