It's Not Over 'Til...: Making Sense of the Districts New Central Office Firings Law
Yesterday, I described the bill on DC central office terminations passed by the City Council on December 18. It has one more session, now scheduled for January, where it is likely to be voted into law.
A "Content Analysis" Perspective. If you read the press releases issued by the city on the school system, you will note that some come from the Mayor; some from the Chancellor; some from the Mayor, the Vice Mayor and the Chancellor; some from the facilities czar and the Chancellor; some from the "state" Superintendent; some from the Superintendent and the Mayor; etc. etc. There's now a semi-independent Ombudsman for the school system, so expect releases from there as well. I thought the idea of reorganization was to hold someone accountable for the system. OK, that's the Mayor, but he's done a pretty good job of spreading the blame and complicating the question of who is in charge of public schooling day-to-day.
The City Council seems to agree. In the original bill, the Mayor was explicitly given the authority to delegate his hiring/firing powers to the Chancellor. The new bill is silent on this. Reading the tea leaves, I'd say that's some indication of the Council's intent to make clear that the Mayor will be held personally responsible for its implementation - and maybe a hint that the Chancellor does not have their full confidence.
The RIF Rule. The new law separates the process of reduction in force due to budgetary shortfalls or functional consolidation from the mass termination expected after the bill is passed. It makes clear that employees let go by RIF will have "no blemish" on their record - implying that those in the larger set of firing will be let go for poor performance. It requires the Mayor to let go of staff only after reviewing the possibility of job sharing and part time positions, to give some kind of protections to veterans and DC residents, and some kind of preference to riffed staff.
How this might interact with the mass firing process I've yet to work out in principle, but in practice it seems likely to cause a lot of problems.
Splitting the Difference. The new version of the law strikes me as an awkward attempt to split the difference between the pure "at will" employment status the Mayor and and Chancellor want for the Central Office staff, and the constitutional entitlement they have to their jobs today. (Is that another way of saying it combines northern charm with southern efficiency?) What the entitlement means is that that the federal Constitution protects them from arbitrary dismissal. They can be dismissed for cause after a hearing and right to reply in front of some neutral fact-finder.
I'm no constitutional scholar but City Councilperson Mary Che is (she taught me way back when at George Washington University Law School). So perhaps she or one of the other lawyers who read edbizbuzz can explain to me how current central employees can lose their entitlement. I thought government can’t do indirectly what it it is prohibited from doing directly and what it wants to do here is fire without cause. I can see giving future employees no expectation of job entitlement, but I can only see a taking of current employees entitlement. Why wouldn't this law open DC to a constitutional case?
Looking at the new language in this context, we see the City Council trying to retain the process – prohibiting termination unless the employee has had an "evaluation" in the last six months, but - with the phrase no expectation of future "job tenure," modifying the employees' right to a government job. (Trying to have its cake and eat it too?)
This looks like an invitation to litigation.
First, I am told that many central employees have not had evaluations.
Second, what is an "evaluation"? Just a piece of paper from a supervisor? From the Chancellor? the Mayor? Does it also involve some kind of meeting where the employee has a chance to respond? Is there some way the employee can correct the record, or defend him or herself against untrue statements? Is there a neutral fact finder?
Third, the Mayor will have to see that those the Chancellor wants to fire actually get this evaluation and then wait thirty days from that event to let them go.
Fourth, now that the City Council has rejected the phrase "at-will" and substituted "without job tenure", what exactly is the status of these employees? The meaning of "at-will" is clear in the law, and because the council chose to substitute “without job tenure” it suggests the new phrase doesn't mean exactly the same thing. Although it denied a fired employee the right to an appeal, the City Council also added in the requirement for an "evaluation" - something absent from the Mayor's version, and again suggesting an intent that employee's status be something different from pure "at-will."
Consider this Scenario: A central office employee is removed like an at-will employee; given an evaluation and - regardless of what it says or the employee's response - is terminated thirty days later. The employee goes into court arguing that the Council did not end their dues process rights entirely with the new law, that the process was seen by the law as performance-related - hence the importance of creating the separate RIF process and noting the unblemished status of riffed employees - and that he or she was denied effective due process. Courts don’t like to read government procedures like the "evaluation" as completely meaningless shams, or to assume that’s what legislatures like the City Council intend. Might they infer a relationship between the evaluation, the decision to terminate and the implication of the bill that the mass terminations would in fact be performance-based? If they agree that the City Council's decisions not to call the new status “at-will” and to maintain an employee review process meant that it did not intend to deprive the employees of a meaningful termination process, aren’t we just back to the status quo ante, i.e., where the Chancellor and Mayor say they are today? And isn't this a plausible course of events? And if the termination process does involves a hearing with an reasonable opportunity to respond and correct the record, what's different from today?
In the Interest of Legal Clarity. I know that this bill has just one more vote on January 8, and everyone seems to think it’s a done deal. But the bill looks incredibly tortured to me, and ought to be reconsidered.
If the City Council wants to make the central office at-will employees – in effect political appointees of every Mayor from now on – it should be clear about it. If it doesn’t want to do it, it should vote the law down. This middle course doesn’t steer the ship of state between Scylla and Charybdis, it's helping the city follow the wreck of the Hesperus.
Back to Public Policy. As I've suggested, the public policy question here is whether the school system's central office staff should consist of political appointees, because that’s the effect of the Mayor's initial proposal. If it should, why not do the same for the central administration of the public works, fire and police departments – and every other agency reporting to the Mayor? If the schools should be run like a business, why not these others?
If this particular school system is such a standout mess from the rest of the city that it has to be run exactly like a business, why not just put management of DC Schools out to bid? It's been done before - Public Strategies Group in Minneapolis, Alvarez and Marsal in St. Louis and New Orleans. Those contracts had their shortcomings but at least District decision makers will have unambiguous choice to eliminate the central office and necessarily replace it with \at-will employees, a clear separation of those responsible for school outcomes from those responsible for ongoing school accountability. We’d have an arms-length relationship between the city and school system that would insulate the new central office management from the spoils of electoral politics, and we could contract for much greater transparency in school system policymaking.
If the problem is really something like 100 known central office administrators who can't or won't do their jobs and were never evaluated, why not pick up the local ACLU's proposal to temporarily expand the infrastructure supporting due process around termination of central office staff. Beef up the legal staff responsible for bringing the cases and add temporary administrative officers to preside over the hearings. I suspect this option would turn out to be no more onerous that the bill before the City Council, and a heck of a lot easier politically. There's no doubt in my mind that it's a more prudent public policy, and more likely to work than the strange animal the Mayor and City Council have been creating since reorganization began.