3/20/2017Rutan Hiring ReformJoe Hartzler, Special CounselAlan Chen, InternRutan Hiring ReformCurrent Policy on Rutan‐Exempt PositionsUpdate on Rutan‐Exempt PositionsGovernor’s Proposed Alternative ApproachNext StepsInterim PolicyCurrent Policy on Rutan‐Exempt PositionsWhat are Rutan‐Exempt Positions?Positions for which the employer may takeinto account political considerationsDo not improperly hire, promote, or transfer anyoneinto a Rutan‐exempt position that has job protection.1

3/20/2017Current Policy on Rutan‐Exempt PositionsShakman StandardBranti StandardExempt positions are those for which:“[employer] can demonstrate that partyaffiliation is an appropriate requirementfor the effective performance of thepublic office involved”“Exempt positions are those for which anemployer may take into account politicalconsiderations when deciding whom to hire,promote, or transfer to fill those positions.”1Branti v. Finkel, 445 U.S. 507, 5071Shakman v. Democratic Org. of Cook Cty. 69 CS125 (doc.#4798) (citing Branti v. Finkel, 445 U.S. 507, 518 (1980), andRutan v. Republican Party of Illinois, 497 U.S. 62, 78 (1990))Challenge #1: Determining which Positions are ExemptIn Riley v. Blagojevich, AssistantWardens sued then‐GovernorBlagojevich after they were fired.The Court ruled against thembecause their positions wereRutan‐exempt.425 F.3d 357, 357 (7th Cir. 2005)However, the Court noted that:“Identifying those jobs [that areexempt] is no mean feat.”‐‐ and –“[D]rawing a line [between exemptand non‐exempt] is inescapablyarbitrary.”Challenge #2: Reconciliation with the Personnel CodeIllinois Reform Commission (2009)Rutan‐exempt jobs are notsimilarly “exempt” from thePersonnel Code’stermination provisions.Employees can be hired forpolitical reasons but cannotbe similarly terminated.Illogical impediment toeffective governanceThe Commission says that these parallel tracks should be reconciled.2

3/20/2017Current Policy on Rutan‐Exempt PositionsShakman StandardPersonnel Code“Exempt positions are those forwhich an employer may take intoaccount political considerationswhen deciding whom to hire,promote, or transfer to fill thosepositions.”Positions exempt from job protection (i.e.,“at will”) are those that involve either (1)principal administrative responsibility forthe determination of policy, or (2) principaladministrative responsibility for the waypolicies are carried out. 20 ILCS 415/4d(3).1Shakman v. Democratic Org. of Cook Cty. 69 CS125 (doc.#4798) (citing Branti v. Finkel, 445 U.S. 507, 518 (1980), andRutan v. Republican Party of Illinois, 497 U.S. 62, 78 (1990)Rutan Hiring ReformCurrent Policy on Rutan‐Exempt PositionsUpdate on Rutan‐Exempt PositionsGovernor’s Proposed Alternative ApproachNext StepsInterim PolicyUpdate on Rutan‐Exempt PositionsHistorically, Rutan‐exempt positions were available for internalpromotions and external hires without posting or conductingstructured interviews, even if those positions had job protection.This enabled the placement of political patrons into such positions andprevented subsequent administrations from demoting or discharging them.3

3/20/2017Update on Rutan‐Exempt PositionsPrior administrations so abused that process, especially at theIllinois Department of Transportation (IDOT), that a federal judgein the Shakman case appointed a Special Master to:Review allCompile anRutan‐exempt positions“exempt list” for IDOTInclude not only IDOTbut all Rutan‐exemptpositions under theGovernor’s authorityRutan Hiring ReformCurrent Policy on Rutan‐Exempt PositionsUpdate on Rutan‐Exempt PositionsGovernor’s Proposed Alternative ApproachNext StepsReminder of Interim PolicyGovernor’s Proposed Alternative ApproachThe Governor’s proposed alternative approach prohibits any positionfrom being designated Rutan‐exempt unless the employee in thatposition serves at the will of the Governor.This alternative is consistent with the Governor’s pledge to:1. Clean up hiring abuse, and2. Reduce the number of patronage positions in State governmentNote: A variety of exemptions from the Personnel Code determine which positions in State government are “at will.”4

3/20/2017Governor’s Proposed Alternative Approach1. Identifies categories of positions now Rutan–exempt but not “at will.”2. Re‐designates them as non‐exempt [after we overcome variousobstacles].3. Avoids a case‐by‐case evaluation of each exempt position.Parties are currently in agreement that positions that enjoy job protection under either thePersonnel Code or a collective bargaining agreement should not be Rutan‐exempt.Instead, Rutan‐exempt employees should only be in positions that serve at the pleasure ofthe Governor and meet applicable legal standards.Governor’s Proposed Alternative ApproachLarge number of currentlyRutan‐exempt positions that arealso subject to job protectionunder either the Personnel Codeor a collective bargainingagreement should beRutan‐coveredRe‐categorized[wholly apart from the specificduties of those positions]To the extent that these positions can be classified as Rutan‐covered positions, it may not be necessaryfor the Special Master to review the exempt status of those positions on a case‐by‐case basis.Identify positions that properly should be Rutan‐exempt by reference to specific provisions of thePersonnel Code that eliminate job protection.Under this part of the proposal, the “exempt lists” will consist of jobs that are truly “at will.”Governor’s Proposed Alternative ApproachCurrent & Future States:Future StateCurrent StateAt‐Will (such as 4d3‐exempt) OK to consider political affiliation1.Rutan‐Exempt/non‐Code/BU‐exempt OK to consider political BU Structured interview not required OK to consider political affiliation3.Rutan‐Exempt/BU Civil service & union protections.Category would no longer exist.Ru‐Covered/Code‐protected/non‐BU: Structured interview process. No political affiliation may be considered.Civil Service: Same.Ru‐Covered/BU: Structured interview process. No political affiliation may be considered.Bargaining Unit: Same.4.5.Executive Service Selection process to be modeled on federal system. No political affiliation may be considered.5

3/20/2017Governor’s Proposed Alternative ApproachOutcome of Reform in the Case of Rutan‐exempt Positions at the Dept. of Natural Resources (DNR)Total Exempt PositionsBargaining UnitCode ProtectedAt WillNowThen127323206303232Rutan Hiring Reform UpdateCurrent Policy on Rutan‐Exempt PositionsUpdate on Rutan‐Exempt PositionsGovernor’s Proposed Alternative ApproachNext StepsInterim PolicyNext Steps Shakman plaintiffs have not yet agreed to our plan‐ but they have agreed to consider it. We expect the judge will wait to issue an implementation order so the parties can work ona mutually acceptable alternative to expanding the Special Master’s review.We will try to reach an agreement as soon as possible.In the meantime, we must avoid taking any employment actionthat is inconsistent with our proposed reform.6

3/20/2017Rutan Hiring ReformCurrent Policy on Rutan‐Exempt PositionsUpdate on Rutan‐Exempt PositionsGovernor’s Proposed Alternative ApproachNext StepsReminder of Interim PolicyInterim Policy StepsWhen hiring, promoting, or transferring people into positionscurrently designated as Rutan‐exempt but which have job protection:Treat the position as if it is Rutan‐covered; post it and fill it in accordance withthe Rutan‐certified structured interview process;orDraft your own, verifiably non‐political selection process and submit it to yourliaison in the Governor’s Office‐ who will in turn provide it to the Special Masterand the Office of the Executive Inspector General to review and object.Interim Policy StepsGoing forth State hiring only in the event of dire operational need Prevent opening the floodgates to State hiring.Dire operational need employee is needed to: adequately serve the public; or maintain federal funding.1. [Safest & Fastest Option:] Post and fill the position as you would a Rutan‐non‐exempt position.2. Check references and vet! But ensure that any vetting is strictly non‐political. (Forhigh‐level positions, we’ll set up a non‐political system to ensure you’re not hiringsomeone with adverse ethics findings or job action.)7

3/20/2017Hiring State EmployeesDivision of Hiring and Employment Monitoring (HEM)Erin K. Bonales, HEM DirectorMarch 28, 2017EIG Duties“[R]eview hiring and employment files of each State agency withinthe Executive Inspector General’s jurisdiction to ensure compliancewith Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), andwith all applicable employment laws.” 5 ILCS 430/20-20(9).23HEM Background Compliance-baseddivision Proactive Consultative Identifypitfalls to avoid inferences of manipulation orintentional wrongdoing Separatefrom OEIG Investigations248

3/20/2017HEM Background, cont. AssessAgency hiring systems, processes, decisionsagainst governing framework PersonnelCode and RulesInterview and Selection Criteria and TechniquesManual Executive/Administrative Orders Collective Bargaining Agreements Agency Policies CMS25OEIG Investigations Investigations of Hiring or Employment Matters, FY16 –Present: 41 Investigations Opened 13 Founded Reports 20 Unfounded Reports 8 Closed without Report26Executive Order 16-4, §VI OEIG Authority to Review Hiring and Employment Files: “Each State Agency and every State Employee shall cooperate with, andprovide assistance to, [the HEM] division of the OEIG in theperformance of any hiring and/or employment review . OEIG staffmay also monitor the interview and/or selection processes utilized by orwithin each State Agency.”279

3/20/2017HEM STAFF Director SupervisingAnalyst 3Analysts 1 Attorney28HEM Activities InterviewMonitoring File Reviews Work on Hiring Reforms29Interview Monitoring In-person, on-site monitoring of interviews 25 sequences, including 300 interviewsConsistent and standardized Manner in which questions are asked Information elicited or considered Evidence of bias3010

3/20/2017Interview Monitoring, cont. Interviewers Interactions with one anotherStation Within Agency With regard to interview positionDocumentation Review Pre-, mid- and post- interview sequence31Interview Monitoring, cont. Pre-Interview DocumentationPosting, position description, applicationsScreening tool(s) application Position duties versus interview criteria and questions Interview panel members Relationship disclosures – conflictsCertification32Interview Monitoring, cont. Mid-InterviewDocumentation Interview notes Scores Composites/Rankings Draft evaluations3311

3/20/2017Interview Monitoring, cont. Post-Interview DocumentationSelected candidate(s) In keeping with panel recommendation Changes to documentation, e.g., scores, CEFs Propriety of selection Qualifications Non-merit based factors Post-interview checks Salary recommendation(s) 34File Reviews On-Site Review of Random Hiring Files File Retention Separate from personnel files Appropriately labeled and ordered 3 years or per Agency retention schedules, whicheveris longer35File Reviews, cont. Paperwork Incomplete or missing documentation Applications for each candidate interviewed Questionnaires from each panel member Candidate Evaluation Forms (CEFs)3612

3/20/2017File Reviews, cont. Insufficient or Conflicting Substantive InformationDiffering questionnaire notesCEF notations differ from or are not supported by notes (orapplications) Scores – inaccurately calculated or transcribed Employment decision forms lacking: Candidate comparisonJustifications regarding job-relatedness or candidate rankings37Work on Hiring Reforms Special Master’s Office IDOTStatewide Review of Exempt PositionsGovernor’s Office and State AgenciesExempt determination process(es)Hiring into exempt positions with job protections Reviewing proposed methods of selection 38Work on Hiring Reforms, cont. Review of Proposed Methods of Selection Assess: Necessity Allowance for consideration of (non)merit-based factors Accordance with Shakman decree and oversight, among otherauthorities3913