Civil Service Reform: The Case of Georgia

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Review of Public Personnel Administration

2002; 22; 94 Review of Public Personnel AdministrationCharles W. Gossett

Civil Service Reform: The Case of Georgia

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REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / Summer 2002Gossett / CIVIL SERVICE REFORM IN GEORGIA

Civil Service ReformThe Case of Georgia

CHARLES W. GOSSETTGeorgia Southern University

In 1996, the State of Georgia passed the Merit System Reform Act, which madedramatic changes to the traditional civil service system in the state. These reformsincluded placing all newly hired civil servants in positions that were “at will” andgreatly decentralized responsibility for recruitment and classification to individ-ual operating agencies. The role of the central personnel office changed from thatof a regulating agency ensuring that merit principles were followed to a consult-ing service organization designed to encourage best practices. This article exam-ines these changes as manifestations of a “managerialist” ideology more con-cerned with empowering managers for the sake of greater efficiency than withprotecting individual employee rights.

The need for change is well established. Although the [merit] system is out ofdate . . . the concept of merit is not. It is necessary to clearly draw the linebetween the baggage of merit and the essentially sound principles that the sys-tem should support government wide. The need for a public managementsystem that is fair and equitable, that addresses issues of recruiting, reward-ing, and managing a committed and qualified workforce, and that serves thepublic and elected officials productively and effectively remains central togood government.

—Ingraham (1995, p. 141)

Beginning in the late 1800s, “merit systems” for selecting and managingpublic employees at the national, state, and local levels of American govern-ment were adopted with differing expectations on the parts of supportersand opponents of civil service reform. Advocates of reform argued thatselecting candidates for government positions based on job-related criteriarather than on patronage considerations would lead to a more technicallycompetent and efficient government administration. Opponents arguedthat a merit system based on testing would be elitist and antidemocratic

94

Author’s Note: The author would like to thank Pama Caraway and Donna Scott forresearch assistance on this article.

Review of Public Personnel Administration, Vol. 22, No. 2 Summer 2002 94-113© 2002 Sage Publications



(Maranto & Schultz, 1991). The advocates of reform won that battle andfor approximately the next century, American national, state, and local gov-ernments tended to focus on ways to limit the interference of political con-siderations in the management of public personnel.

By 1978, President Jimmy Carter, who had been elected in part on hisclaims of having reformed the state bureaucracy while serving as governorof Georgia from 1971-1975, succeeded in getting the Civil Service ReformAct of 1978 (CSRA) passed. He and his team successfully created a coali-tion of forces who had become disenchanted with or frustrated by one ormore aspects of the federal merit system as it had evolved, with Carterclaiming, notably, that there was “not enough merit in the merit system”(quoted in Shafritz, Riccucci, Rosenbloom, & Hyde, 1992). Although thisled to some major structural realignments in the architecture of federal per-sonnel management and to a number of changes in how senior-levelemployees were utilized and compensated, the success of the reform hasbeen limited (Kettl, Ingraham, Sanders, & Horner, 1996).

Over the past decade or so, a number of observers have noted what theyconsider to be a radical change in the nature of public administration ingeneral and in public personnel administration in particular (Kearney &Hays, 1998; Maor, 1999; Pollitt, 1993). Nearly a century of public person-nel management, guided by the desire to create a system of neutral compe-tence and political responsiveness accomplished through selection on thebasis of merit and protection of employees from improper political pres-sure, now seems to many a quaint but definitely outdated approach to staff-ing government (Howard, 1994; Osborne & Gaebler, 1992). In place of themerit systems of the past, today’s reformers are calling for public personnelmanagement systems based on selected principles derived from business,which emphasize the ability of senior-level managers to direct and controlthe activities of subordinates (Pollitt, 1993), often giving those same man-agers greater freedom from political control and oversight and the opportu-nity to be entrepreneurial (Terry, 1998). This approach has been labeled“managerialism.” Although the term has broader applicability than justpersonnel management, it is a particularly useful term when summarizingthe philosophy (or in Pollitt’s [1993] term, “ideology”) behind the changesthat have taken place in, or that have been proposed for, the way the publicservices of U.S. federal, state, and local governments are managed.

Managerialism, as described by Pollitt (1993, pp. 2-3), is an ideologywith two key components: (a) The goals of government can best beachieved by “continuing increases in economically defined productivity”;and (b) managers are critical to improving productivity and, therefore,

Gossett / CIVIL SERVICE REFORM IN GEORGIA 95



must be given the “right to manage.” In this context, managers at the low-est levels should focus on and have authority over performance manage-ment, productivity improvement, cost reduction, and development of a“customer-focused” workforce. With such authority comes an ability toachieve specific goals and to hold managers accountable. Some authorshave argued that the CSRA is based on this managerialist ideology (Pollitt,1993; Thayer, 1984), but a close examination of merit system principleslisted in the CSRA reveals a series of requirements more focused on control-ling and limiting the scope of action managers can take with respect to indi-vidual employees. Thayer (1984), for example, pointed out the contradic-tion between various elements of the act designed to increase managerialdiscretion and those designed to strengthen the merit system. In the legisla-tive process leading to the CSRA, one can note the tension between retain-ing at least some semblance of the principles of the merit system whileintroducing elements of the managerialist ideology focused on increasedproductivity (e.g., revised performance appraisal systems and merit pay)and increased management rights over employees (e.g., the senior executiveservice and changes in the scope of collective bargaining favorable to man-agement) (Ingraham & Ban, 1984).

Whereas many authors have written about the role managerialist ideol-ogy has played in shaping civil service reform efforts, most have focused onnational-level bureaucracies. Managerialism has informed state-level civil ser-vice reform efforts as well, as can be seen in a number of case studies (Ban &Riccucci, 1994; Wechsler, 1994). None of these states, however, has gone asfar as the State of Georgia in reforming (some might say abolishing) its statemerit system (Barrett & Green, 1999, p. 39; Walters, 1997).

What follows is a case study of the adoption of a program of civil servicereform in Georgia. Implementation of these reforms is discussed in moredetail by Condrey (2002 [this issue]). The extent to which the managerialistideology guided reform will become apparent. Additionally, however, theunwillingness of policy makers to give up certain types of control over pub-lic servants that had emerged during the preceding decades under the meritsystem will also become apparent. Emerging will be a picture of a manage-ment ideology that might be called “managerialism plus” in the sense that itnot only seeks to remove various civil service limitations on managementflexibility, but also because it retains existing restrictions on public employ-ees that go beyond the types of control that are legally available to privatesector employers. In particular, the state’s refusal to collectively bargain withemployee organizations and legal prohibitions on the ability of employeesto strike, which the state justifies because of its unique position as a sover-

96 REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / Summer 2002



eign entity, demonstrate an unwillingness to give up those elements of statepower against which, in part, civil service protections were originallyadopted.

BACKGROUND AND THE LAW

Georgia’s State Merit System of Personnel Administration was estab-lished by the Georgia General Assembly in 1943. Adoption was largely theresult of federal pressure to establish merit systems whenever states wererequired to administer federal programs or use federal grant monies. Themerit system law was rewritten and employee protections and the scope ofcoverage under the system were expanded by the General Assembly in the1970s.

In words that echo former President (and former Georgia governor)Jimmy Carter, Governor Zell Miller (1996a) used his annual State of theState address to call for merit system reform:

I will also bring you [the General Assembly] legislation to revise the StateMerit System which was established more than 50 years ago to create a pro-fessional workforce that was free of political cronyism. And at that time, thatwas a valid and important goal. But too often in government, we pass laws tofix particular problems of the moment, and then we allow half a century toroll by without ever following up to see what the long term consequenceshave been. Folks, the truth of the matter is that a solution in 1943 is a prob-lem in 1996. The problem is governmental paralysis, because despite itsname, our present Merit System is not about merit. It offers no reward togood workers. It only provides cover for bad workers.

The governor went on to list additional complaints about the meritsystem—takes too long to hire and fire people, hurts morale, discouragesmanagers from disciplining employees, and “makes it difficult in manycases to hire qualified minorities.” All of these complaints were justifiedanecdotally rather than on the basis of rigorous analysis. Responding tocritics who feared proposed changes could allow the revival of politicalinfluences dominating employee hiring, the governor stated that the “gainsare worth the risks” (“Job Rules Targeted,” 1995). A few months later, theGeneral Assembly passed (by votes of 40-8 in the Senate and 141-35 in theHouse of Representatives) the Merit System Reform Act, which made sig-nificant changes in Georgia’s personnel system. According to the legisla-tion, which became effective July 1, 1996,




It is the purpose of this article to establish in the state a system of personneladministration which will attract, select, and retain the best employees basedon merit, free from coercive political influences, with incentives in the formof equal opportunities for all; which will provide technically competent andloyal personnel to render impartial service to the public at all times and torender such service according to the dictates of ethics and morality; andwhich will eliminate unnecessary and inefficient employees. (Official Codeof Georgia Acts [OCGA], 1998)

The language sounds a lot like the language used in preambles to lawsdefining merit systems in other states (although the use of the words loyaltyand morality perhaps reflect particular concerns of Georgia legislators), butthe approach the act takes to achieving these goals differs substantially fromwhat the term merit system probably suggests to most students of civil ser-vice reform. Some indication of the difference can be foretold by looking atthe language that was stricken from the statement of purpose in the previ-ous act:

It is the purpose of this article to establish in the state a system of personneladministration based on merit principles and scientific methods governingthe classification of positions and the employment, conduct movement, andseparation of public officers and employees. It is also the purpose of this arti-cle to build a career service in government which will attract, select, andretain the best employees based on merit. (S. 635, 1996)

Georgia, like most governmental jurisdictions, has in recent years hadtwo basic categories of employees: classified, which included those peoplewho competed for jobs and filled what one often calls the career service, andunclassified, which included political appointees, confidential assistants,lawyers, and so on. A number of agencies had been increasing the numberof unclassified positions in the past few years, but the previous process forunclassifying positions was cumbersome and required providing independ-ent justification for changing each position’s status. That process is all butgone now. The Merit System Reform Act prospectively eliminates the clas-sified service by making all employees hired after July 1, 1996, unclassified.Any new positions created after that date become unclassified. Classifiedemployees already in the Georgia state civil service before July 1 retain theirstatus and positions. Those positions that were classified before July 1 alsowill remain as such. This means an employee with classified status can keephis or her status by remaining in the current position or by taking a newposition that still retains classified status. If a classified employee moves to anewly created position (i.e., unclassified), he or she becomes an unclassified




employee. If a new employee occupies a position that has classified status,he or she does not become a classified employee. Once a classified employeeaccepts an unclassified position, he or she can never regain classified status;likewise, once a position is occupied by an unclassified employee, it cannever be returned to the classified service.

The obvious question becomes “What does it mean to be an unclassifiedemployee?” The State Merit System of Personnel Administration madeclear what the change meant:

As you know, the Merit System Reform Act changes the employment condi-tions for all new employees hired on and after July 1, 1996. While state andfederal laws provide that hiring must be conducted free of unlawful discrim-ination, new hires will be hired on the basis of “at will” employment. One ofthe meanings of “at will” employment is that employees will no longer beemployed on “working test”[i.e., probationary period] or gain a “propertyinterest” in their jobs. (Georgia State Merit System of Personnel Administra-tion, 1996a)

The language of the act itself and an executive order from the governor(the chief sponsor of the act) emphasize that agencies are to “assure fairtreatment of applicants and employees in all aspects of personnel adminis-tration without regard to race, color, national origin, sex, age, disability,religious creed, or political affiliations.” (Miller, 1996b, p.1) There are alsostatements that selections are to be based on competency, although the fol-lowing specific language was deleted from the original law as part of thereform:

Impartial selection of the best qualified person for government service bymeans of competitive tests which are fair, objective, practical, and predictiveof or significantly correlated with important elements of work behaviorwhich comprise or are relevant to the position or positions for which suchpersons are being evaluated.

Impartial selection of the best qualified person for government service bymeans of competitive tests which are fair, objective, practical, and predic-tive of or significantly correlated with important elements of work behaviorwhich compose or are relevant to the position or positions for which suchpersons are being evaluated.

Furthermore, the act states that training should be provided, employeesshould receive “equitable and adequate compensation based on merit andperformance” (S.35, 1996, § 1[b][3]) and an employee whose performanceis inadequate should be fired. A statement that employees should be pro-




tected from political coercion and should not use their offices to affect elec-tion outcomes is also included. Dropped from the language of the previouslaw was the following statement requiring the merit system to maintain“proper balance in employer-employee relations to achieve a well-trained,productive, and happy working force” (S.35, 1996, § 1[b]). There is author-ity granted to the state merit system to “audit agencies’ processes and reportfindings as appropriate” (S. 635, 1996, § 1 [c][9]), however, there are nei-ther standards on which to base the audits nor mechanisms for enforcingany of the provisions included in the law.

THE LEGISLATIVE PROCESS

Reform of the merit system in Georgia was a priority in the 1996 legisla-tive agenda of Governor Zell Miller. The mood of the times was that gov-ernment needed to be shaken up. The Democratic administration in Wash-ington was busy reinventing everything, including the federal personnelsystem. The Olympics were coming to Atlanta. Governor Miller was enter-ing the last 3 years of his term-limited time in office and was attempting toleave several substantial marks on the way state government operated, mostnotably a major effort at privatizing a number of government services.Efforts to reform the state civil service system, in his view, were entirely con-sistent with his overall direction (Levin & Gebo, 1997).

The staff of the Merit System learned of the governor’s plans via thenewspapers in late 1995, when the governor announced that no employee“should have a job for life” and that he wanted to make substantial changesto the existing merit system. The point man for the governor on this issuewas Joe Tanner, director of the Governor’s Commission on Privatization.Tanner was a former commissioner of the Department of NaturalResources (DNR) in two gubernatorial administrations and the electedstate labor commissioner for 6 years. In his incarnation as DNR commis-sioner under Governor Miller, he succeeded in abolishing the merit systemin his own agency by obtaining the right to hire almost all employees intounclassified positions (“Governor Miller Seeks,” 1995). At the same time,the DNR had a reputation as a well-run agency and even senior staffers atthe Merit System offices agree that Tanner was a professional and fairadministrator who did not allow abuses of personnel practices for politicalor personal reasons (F. Daley, personal interview, June 30, 1997; S. Pope,personal interview, June 30, 1997). Nevertheless, Tanner stated his positionwhile supporting the governor in the following terms:




What we’ve got is a rigid inflexible system. It’s antiquated. And it needs to bechanged. . . . We don’t believe that public employees should have any protec-tion that the private employees don’t have. Why should government be anydifferent? (“Merit in Personnel Reform,” 1995)

Following the governor’s announcement, an interagency committee,consisting of personnel officers from several state agencies and two seniorofficials from the Merit System, was tasked with developing a specific legis-lative proposal to accomplish the governor’s objective. Although there wassome discussion of scrapping the merit system altogether for both currentand future employees, the original draft of the bill produced by the commit-tee provided that employees who stayed in their current positions couldretain their existing merit system protections (D. Russell, personal inter-view, June 30, 1997).

Opponents, particularly the Georgia State Employees Union, fought thebill. The union was successful in clarifying that classified employees couldmove from their current position to another classified position (i.e., onethat had been established in the classified system prior to July 1, 1996) (A.Freeman, telephone interview, June 26, 1997). However, on the floor of theSenate, an amendment seeking to provide a right to appeal adverse actionswas proposed but soundly defeated by a 3-to-1 margin (S. 635, 1996). TheSenate then went on—5 minutes later—to pass the bill overwhelmingly,picking up three of the senators who had supported the losing effort to addan appeals amendment. In only about 1 hour of debate, the Senate voted toabolish the merit system for new employees (Wooten, 1996). With respectto the final vote, 20% of Democrats and 5% of Republicans opposed thereforms; looking at the vote another way, 50% of Black senators and 6% ofWhite senators opposed the reforms.

In the House of Representatives, the story was similar. An amendmentwas introduced on the floor that would have specified that dismissals couldonly be for “cause,” including a list of specific justifications that could beemployed, and which guaranteed employees a right of appeal for anyadverse action. Again, this amendment met resounding defeat and the billwent on to passage by a 4-to-1 margin (Georgia House of Representatives,1996). In analyzing the vote, a couple of interesting patterns appear thatreflect the same trends as in the Senate: 26% of all Democratic representa-tives and 9% of Republicans opposed the reforms as did 64% of Black legis-lators and 10% of White legislators.




REFLECTIONS ON THE MANAGERIALIST IDEOLOGY

Clearly, the removal of all employee rights to challenge managerialactions to discipline or remove them from their positions is an extremeexample of the application of managerialist ideology to the civil service inGeorgia. However, the act went even further and decentralized almost everybasic personnel function from the central offices of the merit system to theindividual agencies. This strengthening of the ability of agency heads tocontrol classification and compensation, hiring, affirmative action, andemployee grievances is consistent with managerialist ideology.

Classification and Compensation

The Merit System is still tasked with developing position descriptionsfor certain common job functions such as secretaries and other clerical posi-tions, but agencies are free to identify any of their positions as unique andassume responsibility for classifying the position themselves. The centralMerit System office is still responsible for “establish[ing] and maintain[ing]a statewide system of pay ranges for all classes,” but they have no authorityto determine what classification should be given to any particular job inanother agency.

For years, politicians have justified lower than market rate salaries forpublic sector employees on the grounds that their benefit packages and,most important, substantial job security more than compensated for thedisparity between public and private sector salaries. The goal and effect ofthe reform act, however, was to specifically eliminate the “job security”advantage of civil service workers. Obviously, the salary and benefit pack-ages necessary to “attract, select, and retain the best employees,” in thewords of the law, will need to be more competitive with the private sector.Unintentionally, the reform act originally made state employment evenmore unattractive because there were no provisions for annual, sick, or per-sonal leave for unclassified employees. Rather than afford individual agencyheads or managers complete discretion over leave for such employees, thegovernor issued an executive order requiring that all unclassified employeesreceive the same leave benefits as classified employees (Miller, 1996c).

In a practice consistent with managerialism, Georgia introduced a meritpay plan for employees shortly before the reform act was adopted. This pay-for-performance plan, called GeorgiaGain (Georgia Merit System, 1999),gave agencies the ability to set differential pay increases (a choice of four




rates, 0%, 4%, 5.5%, or 7%) for employees based on their overall perfor-mance evaluation. However, consistent with problems noted in other pub-lic sector pay plans, the lack of adequate funding for merit pay resulted ineither an overall reduction in the size of the awards so more people couldreceive them or the imposition of a quota on the number of employees whocould receive a particular rating so that the funds would support the fullincreases allowed. Different agencies adopting different approachesresulted in differential treatment of employees who exhibited the same levelof performance (Kellough & Selden, 1997; “Any Questions?”, 1998).GeorgiaGain has now been replaced with a new system calledPerformancePLUS that provides all employees performing at a satisfactorylevel or above with the same percentage increase to base pay and, for thoseperforming above the satisfactory level, a one-time lump sum bonus (“StateEmployees Move,” 2001).

Job insecurity among government employees could have a number ofconsequences based on historical experience with at-will governmentemployment systems. If a pattern is established that a change in politicalleadership leads to dismissal of public servants, one should anticipate thatemployees will use their government positions as opportunities to positionthemselves for their next job. Although such an attitude can be healthy andadmirable, it must be recognized that there is a significant differencebetween grooming oneself for a position in a career system (such as a merit-based civil service system) and getting ready to move to another organiza-tion. Organizational loyalty, attention to the unique features of the organi-zation, and efforts to ensure effective cooperation among organizationalunits are not characteristics that one should expect to see in ambitiousemployees of an at-will employment system with a history of periodic staff-ing changes. And although there are disloyal, disinterested, and uncoopera-tive employees in any merit system, “ambitious” employees who expect acareer with the organization are more inclined to be loyal because of confi-dence that they will be retained based on their performance and not be sub-ject to employment based on election results. Of course, if the traditiondevelops that political party change in the elected executive offices does notsignificantly affect public employees, the advantages of a merit-based careerservice may be secured. A number of private companies, prior to the era ofdownsizing, essentially guaranteed lifetime employment for people meet-ing job expectations, although they, like governmental entities, alwaysreserved the right to dismiss nonperformers, albeit with fewer proceduralhurdles to taking adverse actions.




Hiring

The central office of the Georgia Merit System is to serve as a point ofcontact for anyone looking for a job with the state, even though there is norequirement that agencies list their job openings with the Merit Systemoffices. The most that the Merit System is able to do is insist that any agencythat does not want to list jobs with them at least provide the name of a con-tact person to whom they can refer inquiries (Georgia Merit System, 1997d).

Agencies are free to choose a selection method for hiring into any of theirpositions. Written tests may or may not be used. The law’s only require-ments are that competition for the position be open and that there be com-pliance with “all state and federal equal employment opportunity and non-discrimination laws” (S. 635, 1996). As Merit System officials made clear inone of their implementing instructions to agency personnel directors,

Agency managers will have a great deal of flexibility and autonomy underthe new provisions; however, agency managers should continue to hire the“best” qualified candidate, whether that person is from outside state govern-ment or is a current classified employee. . . . For example, it is clearly not con-sistent with legislative intent for managers to abolish a classified positionand recreate it as a new unclassified position solely to prevent classifiedemployees from remaining in the classified service upon accepting a promo-tion. (Georgia State Merit System of Personnel Administration, 1996a)

The concern here was that agency managers would discriminate againstcurrent employees whenever they had a vacancy in a classified positionbecause if they filled the position with a new hire, they could remove theposition from the roll of classified positions. What is implied in the lan-guage reminding managers that they should continue to select the best can-didate is that they might decide to make selections on some other basis,such as political or personal connections.

Although written and performance tests were no longer required, manyagencies were expected to continue to use them, particularly when they hadto hire a large number of employees at a number of different locations acrossthe state. The Merit System office continues to test employees for such posi-tions but in the past sent only a restricted listing of the highest scorers toagencies seeking to fill a particular vacancy. Now, however, because there isno “appointable range,” as the Georgia equivalent of the “rule-of-three” wascalled, the Merit System simply sends the list of everyone who took the testin descending order based on their scores. Agencies are free to hire anyonefrom anywhere on the list, although, of course, they may be called to defend




their selection at some point, not by the Merit System central office but by apassed over applicant with a higher score who seeks redress in court (Geor-gia State Merit System of Personnel Administration, 1996b).

A special class of hiring is promotions. In a typical career service, mobil-ity within the government, with the exception of appointment to policy-making positions, does not entail a change in status with respect to one’srights as an employee. Under the changes adopted by the Georgia legisla-ture, however, many possible career moves that would have been viewed byan employee as overwhelmingly positive now have an element of risk notpresent previously. Again, it is too early to tell whether this will emerge as asignificant problem for agencies, but some speculation about its conse-quences may be appropriate. For newer, and younger, employees, there willprobably be little hesitation to take promotions and career-enhancingtransfers regardless of the consequences with respect to merit systemprotections. Older employees, on the other hand, may become much morereluctant to accept such changes given that the loss of civil service rightscould expose them to arbitrary job termination just before pension eligibil-ity, though federal age discrimination laws might provide some protection(Ruegger, 1989).

Georgia, like most southern states in recent years, has seen the emer-gence of a competitive two-party system replacing a long-dominant Demo-cratic Party that controlled all elective statewide offices and legislative bod-ies until the last decade. In the last few elections, however, Republicans havewon several statewide offices—insurance commissioner (1994, 1998), statesuperintendent of education (1994, 1998), attorney general (1994), and amajority of the public service commission—and have become a substantialminority in both legislative chambers. Though the most recent gubernato-rial election resulted in the election of another Democrat as governor (onewho voted for the reform act as a state representative), one can anticipatethat as the state’s elected executive branch offices change hands, there willbe pressure not only to make changes in policy-making positions, a practiceaccepted in even some of the strictest state merit systems, but to reward sup-porters with jobs at lower levels—jobs that were traditionally covered bycivil service protections. The ability to resist requests from supporters,assuming the elected official was inclined to resist such pressure, will bemore difficult inasmuch as he or she lacks the ability to refer to the “rules”that prevent an unqualified or less qualified supporter from beingappointed or promoted. Several federal cases have limited the ability of gov-ernments to make personnel firing and hiring decisions on explicitly politi-cal grounds (e.g., Elrod v. Burns, 1976; Rutan v. Republican Party of Illinois,




1990), but those cases were decided by narrow margins with multiple con-curring and dissenting opinions. The dissenters in the Rutan case—ChiefJustice Rehnquist and Justices Scalia, Kennedy, and O’Connor—are argu-ably in a more influential position today should a new case arise. The gen-eral trend in recent Supreme Court decisions to support states’ rights andlimit rights of individuals to sue states in federal courts (Weissert & Schram,2000) suggests that aggrieved state government employees who feel they arethe victim of political hiring and firing should not have much confidence infinding protection under the U.S. Constitution.

Affirmative Action

Given the greater discretion by state managers to make selections andpromotions, it is reasonable to ask whether this power to achieve greaterdiversity in the state government workforce will hinder or help. Because testscores are no longer the required principal selection tool, managers havegreater flexibility to select employees from traditionally underrepresentedgroups. The governor, in his State of the State address announcing his meritsystem reform proposal, claimed that an increased ability to achieve minor-ity hiring would ensue from the proposed changes (Miller, 1996a). TheDNR claimed that its early experiments with hiring most employees asexcepted service personnel allowed it to obtain greater diversity among itsemployees (“Governor Miller Seeks,” 1995). For some time now, advocatesof increased minority employment in government jobs have criticized theuse of testing procedures as having an adverse impact on potential hiring ofminority applicants. Although this may not have been a specific complaintagainst testing procedures used by the State of Georgia, clearly the elimina-tion of a requirement to hire only from among those with the highest scoreswill render this concern less relevant.

There may also be a substantial impact on the debate over affirmativeaction in state government employment practices. Critics of affirmativeaction have frequently pointed to cases where minority or female job appli-cants with lower scores on written tests or interview ratings were selectedover nonminority or male applicants (Urofsky, 1997). Now, in Georgia, it isclearly established that written tests are not necessarily required for any joband, even in cases where written tests are used, they do not necessarily limitthe employing agency’s ability to hire any candidate they wish from the list.Although opportunities for increasing workforce diversity may beenhanced, employing agencies that are reluctant to diversify have also lost




the ability to use the absence of minority candidates’ scoring high on writ-ten tests or interview ratings as a justification for a predominantly maleand/or nonminority workforce. As one of the first sets of guidelines pro-mulgated, the Georgia Merit System advised agencies of the importance ofdoing careful job analyses and ensuring that job qualifications were set in amanner consistent with the Equal Employment Opportunity Commis-sion’s (EEOC’s) Uniform Guidelines on Employee Selection Procedures (Geor-gia Merit System, 1997b). A second set of Georgia Merit System guidelinesconcerned recruitment and job posting, again with strict cautions aboutfollowing EEOC guidelines (Georgia Merit System, 1997d). Although aset of guidelines specifically for selection has not been issued, one can imag-ine that it will give at least as much emphasis to nondiscriminatory practicesand federal requirements as the already-issued guidelines. Managers mayfeel as constrained as they allegedly felt in the past about selecting candi-dates for positions, although there is no longer a central personnel agencyreviewing their hiring practices. Individual job applicants who feelaggrieved by the agency’s hiring decision will have to appeal to the courts forresolution of their claims, although their chances of success are not promis-ing given the U.S. Supreme Court’s recent decision in Alexander v. Sandoval(2001), Board of Trustees v. Garrett (2001), and Kimel v. Florida Board ofRegents (2000), which protect state governments from lawsuits under TitleVI of the 1964 Civil Rights Act, the Americans with Disabilities Act of1990, and the Age Discrimination in Employment Act, respectively.

Grievances

An important argument used to convince wavering supporters of thereform bill was that there were already numerous state and federal laws andprecedential court decisions that would prevent arbitrary dismissals (“ToDownsize,” 1996; “1996 Georgia Legislative Session,” 1996; Hamilton,1999). Principally, reform advocates were referring to federal civil rightslaws, a rather weak state fair employment law, and several U.S. SupremeCourt decisions that found public employees may have a property interestin their jobs and that public employees cannot be dismissed for appropri-ately exercising their free speech rights as citizens. The effectiveness of suchlaws as substitutes for merit system protections is likely to be tested in thecoming years, although as noted in previous sections, the outlook under thecurrent Supreme Court does not seem promising for protecting employees.Governor Miller issued an executive order requiring all agencies to have




internal grievance procedures, but there is no provision for external over-sight of an agency’s action unless the employee resorts to the court system.The executive order that was issued merely requires that the agency headpersonally sign off on any decision to “separate, demote, or suspend with-out pay” any unclassified employee (Miller, 1996b).

Auditing

The Georgia Merit System is charged with “auditing” the personnelpractices of agencies, but there are no standards specified in the law againstwhich the agency actions can be evaluated at the present time. The MeritSystem has developed some model standards (not laws or regulations) in theareas of classification, compensation, and recruitment (Georgia Merit Sys-tem, 1997a, 1997b, 1997c, 1997d). The tone of the standards make veryclear that they are guidelines and not requirements, although there is clearlyan effort being made to alert agencies to the legal dangers they may face ifthey ignore the advice. With respect to audits themselves, Merit Systemofficials have prepared some unofficial internal documents that outlinehow they see this function being performed and raise some question abouthow critical they might be. A “junkyard dog” approach to auditing wrong-doing has clearly been ruled out. Rather, the outline suggests that audits ofeach agency will only occur every 3 to 5 years. The description of the auditfunction was developed by merit system officials in consultation with thegovernor-appointed Personnel Administration Advisory Council, made upof the heads of the major executive branch agencies that are to be audited(Miller, 1996b). The document listed the following “guiding principles ofthe audit function”:

1. The role of the MS [Merit System] audit function is to improve state humanresource practices rather than identify past deficiencies;

2. The desired outcome of an audit is development of an improvement planrather than “findings” of deficiencies;

3. Audits are conducted jointly, in partnership with the customer agency;4. Audits are seen as an opportunity to discuss agency processes and activities

in light of model processes and best practices; and5. Audit resources are focused initially on those agencies that may have diffi-

culty transitioning to their new role due to a lack of adequate internalresources or skills. (Georgia Merit System, n.d.a)

This statement is consistent with language in the governor’s ExecutiveOrder (Miller, 1996b), which states that




in performing audits, the State Merit System shall comply with professionalauditing standards and methods, with the State Merit System offeringadvice and guidance, and working cooperatively to address any exceptions,prior to [italics added] issuing its report to the appropriate legislative andexecutive members.

The independence of the audit function may be in doubt as a result of asignificant change in how the Georgia Merit System will be funded. In thepast, each agency was assessed a fee based on the number of classified posi-tions it had. Now that the number of classified positions is declining, withthe goal of eliminating all of them eventually, this funding mechanism is nolonger appropriate. Also, the number of functions performed by the MeritSystem will decline as agencies assume more of the personnel functionsthemselves. The result is that the Merit System is transforming itself into a“fee for service” agency charging agencies for assistance it provides in thetraditional core personnel functions (Georgia Merit System, n.d.b).Agencies are free to seek such services from the private sector if they choose.Thus, to keep itself in business, the Merit System may be reluctant to beoverly critical of agency performance for fear of hurting its chances when itbids to provide services to that same agency at a future date. Perhaps this iswhy in a recent presentation to a conference audience, the commissioner ofthe Merit System did not even mention the audit function when describingthe mission and role of the agency (Russell, 1998).

Labor Relations

The State of Georgia has never entered into any type of formal collectivebargaining with its employees or employee organizations. As a right-to-work state, that is not surprising. During the debate over the reform act, nolegislator pursued a strategy of extending the model of private sector man-agement to amending state laws or policies that strengthen the hand ofmanagers in state agencies vis-à-vis employees. In particular, no one sug-gested that the state should adopt a private sector model of labor relationsby repealing the section of the code prohibiting strikes by state employees.In fact, in 1998 that section of the code was amended to change the wordstate to public when it preceded the word employee thus broadening the pro-hibition’s coverage (Ga. Code 45-19-1, OCGA, 1998). Nor did anyonesuggest authorizing these newly empowered managers to enter into collec-tive bargaining agreements with their employees by statutorily overturninga 1962 decision by the Georgia Supreme Court. In it, the court ruled that




state agencies do not have authority to “enter into any agreement with anythird party (i.e., union or labor organization) fixing the terms and condi-tions of employment” (International Longshoremen’s Association v. GeorgiaPorts Authority, 1962).

Whereas it is probably safe to say that many public sector employees areunsympathetic to the idea of a formal union, the presence of civil servicerules offered many of the protections that negotiated contracts offer union-ized employees. One should not expect any significant change in the nextfew years, however, because most employees continue to be covered by theold merit system protections. There is little likelihood of legislative supportthat would make it easier for unions to have access to state employees, nor isit likely that the executive branch will voluntarily sit down with unions todiscuss working conditions. What may occur is increased organizing activ-ity on behalf of employees by nonunion professional and employee organi-zations. If management cooperation with such organizations is forthcom-ing, unionization and attendant labor actions are likely to be forestalled; ifcooperation does not occur, pressure will increase on state legislators andwildcat labor actions may occur, despite penalties stated in law. Anotherpossibility is increased privatization of state functions through contractingout (Gill & Rainey, 1998). This will place those positions where workingconditions and low salaries create the most sympathy for unionization intothe private sector where workers’ rights are protected by federal laws andmanagement rights are more narrowly drawn than are those of sovereignstate governments.

CONCLUSION

The 1996 Merit System Reform Act in Georgia represents a thorough-going application of managerialist ideology to the personnel managementsystem under which state employees operate. Four years after passage, nearly50% of Georgia state employees served under at-will employment stan-dards that provide them no recourse to appeals of adverse actions beyond theagency that took the action in the first place (Elmore, 2000). Key personnelduties—classifying positions, setting employee compensation, recruiting,selecting, promoting, evaluating performance, training, and disciplining—have all been delegated to agency heads with minimal or no oversight fromany outside executive branch agency and only occasional oversight by thepart-time legislature. Managers, consistent with the managerialist ideology,have certainly been given the right to manage in this instance. At the same




time the governor and legislators touted their approach as making govern-ment more businesslike, the state retained certain prerogatives because itrepresented the sovereign authority of the people. These are powers notheld by private sector employers and effectively limit the ability of employ-ees to protect themselves through collective action against abusive stateauthority. The result is that, in Georgia, there is even less of a check on man-agement authority in the public sector (over new employees) than there is inthe private sector. The theory behind managerialism is that such increasedmanagement authority will enable the government bureaucracy to becomemore productive and better serve the public. That is a hypothesis waiting tobe tested.

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Civil Service Reform: The Case of Georgia

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