The third meeting of the Interim Joint Committee on State Government was held on Wednesday, October 22, 2008, at 1:00 PM, in Room 154 of the Capitol Annex. Representative Mike Cherry, Co-Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Damon Thayer, Co-Chair; Representative Mike Cherry, Co-Chair; Senators Julian Carroll, Ernie Harris, Dan Kelly, Elizabeth Tori, and Johnny Ray Turner; Representatives Eddie Ballard, Johnny Bell, Dwight Butler, Larry Clark, Tim Couch, Will Coursey, Tim Firkins, Danny Ford, Jim Glenn, Derrick Graham, Mike Harmon, Melvin Henley, Jimmy Higdon, Charlie Hoffman, Jimmie Lee, Mary Lou Marzian, Lonnie Napier, Sannie Overly, Darryl Owens, Tanya Pullin, Tom Riner, Carl Rollins II, Sal Santoro, John Will Stacy, Greg Stumbo, Tommy Thompson, John Tilley, Alecia Webb-Edgington, and Brent Yonts.
Guests: House Speaker Jody Richards; Greg Haskamp, Finance and Administration Cabinet; Lee Tompkins, “Kentucky.gov”; Mark Sipek, Andy Crocker, and Tina Goodmann – Personnel Board; Robinil Jameson, Tony Smith, and Carmen Bishop - Kentucky Society of Certified Public Managers (KSCPM); and Crystal Pryor, Personnel Cabinet.
LRC Staff: Joyce Crofts, Brad Gross, Alisha Miller, Karen Powell, Greg Woosley, and Peggy Sciantarelli.
The Committee honored Joyce Crofts, Committee Staff Administrator, upon the occasion of her impending retirement at the end of October. She was given a bouquet of roses, after which Representative Cherry read, and presented her with, a resolution commending her for her service to the General Assembly. Senator Thayer presented her with a certificate naming her an “Admiral in the Great Fleet of the Commonwealth.” The ceremony concluded with a group photo of committee and staff. The Committee also wished Representative Coursey a happy 30th birthday.
Representative Cherry announced that the Personnel Cabinet has invited the Committee to an open house at its new offices in the State Office Building immediately following the meeting. He encouraged all members to attend and noted that van transportation to the open house would be available. Representative Napier said that some of his constituents have advised him that elevators in the renovated State Office Building have not been working properly. Later in the meeting Crystal Pryor, Legislative Affairs and Media Relations Liaison for the Personnel Cabinet, personally extended the invitation to the Committee. Representative Cherry asked her to look into the complaints about the elevators.
The minutes of the August 27 and September 24 meetings were approved without objection (motion by Representative Owens).
The first topic on the agenda was a status report by the Governor’s E-Transparency Task Force. Guest speakers were Greg Haskamp, Special Assistant to Finance and Administration Cabinet Secretary Jonathan Miller; and Lee Tompkins, General Manager of “Kentucky.gov.” They provided the following handouts to the Committee: E-Transparency Disclosure Policy; Executive Order 2008-508, issued by the Governor in June 2008 to create the Task Force; and test pages from e-transparency web site, “Open Door – Kentucky’s Portal to eTransparency.”
Mr. Haskamp said that the primary purpose of the Task Force is to provide a “one-stop shop” whereby citizens can access information about nonconfidential monetary transactions of the Commonwealth. He explained that the E-Transparency disclosure policy directs all executive branch agencies, at a minimum, to make available for the Governor’s E-Transparency web site financial data from the statewide accounting system, subject to disclosure under existing agency policy, consistent with the Open Records Act and all relevant court opinions and Attorney General opinions. Using a slide presentation, Mr. Haskamp then reviewed elements of the test pages for “Kentucky’s Open Door,” the full-service, user-friendly web site that is scheduled to be launched January 1, 2009.
Mr. Tompkins said that “Kentucky.gov” is a public/private partnership that was created in 2003 to help the Commonwealth fulfill e-government initiatives by building online services and web sites. He said “Kentucky.gov” is the technology provider for development of the E-Transparency web site on behalf of the Commonwealth.
Senator Carroll asked whether there are any plans to make the web site a one-stop site for online services for the Finance and Administration Cabinet. Mr. Haskamp said he is not aware of any and that the site is primarily informational and educational.
Senator Carroll asked about the private segment of the “Kentucky.gov” partnership. Mr. Tompkins said that the Commonwealth contracts with a private company, Kentucky Interactive, LLC, which is the organization that employs him. He said it is a for-profit company that is funded through processing and convenience fees that are added to some transactions for certain online service applications that the Company developed. He added that 90 percent of what Kentucky Interactive does is for free and that the Company is “taking some up-front risks now” by not charging for its part in the E-Transparency web site. He said it is possible that some online service applications might be added in the future that would include a transaction fee. Discussion concluded, and Representative Cherry thanked the speakers.
The Personnel Board Annual Report for Fiscal Year 2008 was next on the agenda. Present from the Board were Mark Sipek, Executive Director; Andy Crocker, General Counsel; and Tina Goodmann, the new Board chair.
Mr. Sipek reviewed highlights of the report. He said that 418 appeals were filed during FY 2008, and 398 final orders were sent out. He went on to say that 246 cases were pending as of the end of the fiscal year. Based on prior experience, that is a manageable workload for the Board. Of the 398 appeals that were resolved, 149 were withdrawn. Appeals are sometimes withdrawn because they are settled. Probably of most significance is that 78 appeals resulted in agreed order settlements. With state agencies and employees working together toward resolution, the number of agreed orders has been increasing over the last several years. This has been helpful to the Board in handling its workload and ensuring that cases that go to hearing are heard in a timely fashion. The Personnel Cabinet’s free voluntary Kentucky Employees Mediation Program has been a key factor in promoting increased cooperation and resolving disputes before they reach the appeal stage. Agency actions were upheld in 127 appeals, and employees were upheld in 44 appeals.
Mr. Sipek said that investigative activities are included in the annual report for the first time. He explained that, although the Board has authority to conduct investigations, few were requested for a period of about 10-12 years. This has changed in the last couple of years, and the Board has been involved in a number of investigations. Four were carried forward from the prior fiscal year, one investigation was opened during FY 2008, and one investigation was completed.
In conclusion, Mr. Sipek said that the Board submitted amendments to administrative regulation 101 KAR 1:325, which establishes the length of probationary periods. The amendments were approved, effective June 6, 2008. He said that this regulation changes on a fairly regular basis in response to information from the Personnel Cabinet and other agencies regarding the need to shorten or lengthen probationary periods for certain positions.
Ms. Goodmann said that she is a 20-year veteran with the Personnel Cabinet and was involved in development of the Cabinet’s mediation program. She said she looks forward to serving on the Board, working to help increase the number of settlements, and also helping to educate and train state workers and managers so that fewer appeals will need to be filed.
Representative Cherry asked whether it can be assumed that the 149 employees who withdrew may have had their interests upheld. Mr. Sipek said it would be hard to generalize regarding withdrawals. He went on to say that people withdraw appeals for a number of reasons. In the 78 cases that were settled, however, it is safe to say that the employee received something of value. If those 78 cases are added to the 44 in which employee appeals were sustained, the total compares favorably—about a 50/50 ratio—to the 127 agency actions that were upheld.
Responding to questions from Representative Yonts, Mr. Sipek said that the number of agency actions upheld relates solely to final orders rather than hearing officers’ recommendations. He went on to say that the number of appeals from the Board to Franklin Circuit Court was not calculated for FY 2008 but that approximately two or three cases are appealed to circuit court every month—or about 24 to 36 cases annually. The Circuit Court upholds the vast majority of those appeals. Mr. Sipek said that of the 127 agency actions upheld, he did not know how many reversed the hearing officer’s recommendation. He said there have been instances where the Board has reversed the hearing officer but that the Board upholds the hearing officer’s recommendation the vast majority of the time. When Board action differs from the hearing officer’s, it is most likely to reduce or increase a recommended penalty.
Representative Yonts said he is interested in knowing the number of cases in which the Board reversed the recommendation of the hearing officer when he sided with the employee. Mr. Sipek said he will get that information for Representative Yonts. He added that the Personnel Board’s goal is to protect and support the merit system, and the Board sits as a true neutral. It does not have any interest in the outcome of individual cases and, in his experience, when the Board reverses the hearing officer it is because they believe he has made a wrong decision. Representative Yonts asked whether it might be a better procedure for state agency appeals to be heard by a body of administrative law judges, with appeals from their decisions going directly to circuit court and bypassing the governing board of the agency. Mr. Sipek said that might be better for other state agencies but probably would not be an improvement for the Personnel Board. He said Personnel Board review, which upholds the hearing officer the vast majority of the time, serves an important function—to get a certain amount of continuity and similarity in decisions. When independent hearing officers are used, sometimes the results are inconsistent, and the Board review, as one last step in the process, helps ensure that similar cases have similar results.
Representative Clark asked about the subject matter of the 418 appeals filed in FY 2008. Mr. Sipek said that that information is not included in the report. He went on to say that it is common to have a large number of appeals from disciplinary actions and that a fair number of appeals come from employees who have been denied a promotion. Appeals from applicants for employment registers probably account for a fair number of the 418, although the number of applicant appeals has been greatly reduced due to new procedures implemented by the Personnel Cabinet.
Representative Clark asked whether the agreed order settlements are monetary. Mr. Sipek said it would be hard to categorize them as mostly monetary. He explained that often in disciplinary cases there might be a reduction in penalty. The only limit on settlements is the imagination of the parties, and methods of settlement have become more and more creative. A large majority of the settlements do not involve exchange of a lot of money.
Representative Owens asked whether there is a process to look for trends in matters appealed in order to reveal problems that may need to be addressed. Mr. Sipek said that the Board has that capacity and has not seen any trends that account for a large number of cases. He said that about five years ago the Board noticed that agencies were losing a lot of cases involving promotions. The Board then conducted a training session for agencies and subsequently saw fewer appeals on promotions and more favorable results for the agencies. He said the goal of the training was not to enable agencies to win appeals but to encourage agencies and employees to follow the law. The Board continues to be alert to possible trends and is available to provide any training that would be helpful.
Representative Stacy asked Mr. Sipek his opinion about sending appeals from Board action to circuit courts in the counties where the complaint originated instead of Franklin Circuit Court. Mr. Sipek said the Board has not taken a position on that issue but that his personal opinion is that, from the Board’s standpoint, there are advantages in going to Franklin Circuit Court. He said the judges there are familiar with administrative appeals, and board hearings are required by statute and regulation to take place in Frankfort. He said he thinks the appeals system would work either way but added that there are not any complaints about the current system.
Representative Graham said he believes it is important to keep the appeals in Franklin County because it is the seat of state government, the judiciary is well qualified in regulatory law, and it would be less costly to the state. Representative Graham also thanked everyone for their prayers, cards, and visits after his recent automobile accident.
Discussion concluded, and Representative Cherry thanked the speakers. The final agenda item was a presentation by the Kentucky Society of Certified Public Managers. Representing the organization were Robinil Jameson, past president; Tony Smith, president; and Carmen Bishop, treasurer.
Ms. Jameson gave an overview of the Society, accompanied by a slide presentation. In summary, she said the organization strongly believes that participation in and completion of the certified public manager program is a significant milestone and should be recognized by the Commonwealth and its policy leaders. The enhanced knowledge and skills that individuals acquire from CPM (certified public manager) training make them more valuable employees. The CPM program was started 32 years ago by forward-thinking individuals in the state of Georgia. It was modeled after the certified public accounting structure and is active in 28 jurisdictions from coast to coast. Additional states are in the process of establishing programs. The program is based in large part on recognition that public service is a profession and has raised the bar for those in public service who believe in establishing high standards for performance, skills, and ethics. Participation in the program helps to enhance the public trust. Kentucky established its CPM program in 1985, and it was accredited by the national CPM consortium in 1989. The graduates of the Kentucky CPM program established the Kentucky Society of Certified Public Managers and became chartered by the AACPM (American Academy of Certified Public Managers) in 1992. Since joining the Academy, Kentucky CPM representatives have played leadership roles in development of the CPM program and the American Academy. Larry Totten of the Department of Parks served as president of the Academy in 2003, and to date Larry has established the record of continuous service to the Academy at the national board level. He also received the 2004 Henning award, the highest honor the American Academy bestows on a member for career accomplishment, community service, and contributions to state and national public manager organizations. The 2008 KSCPM president Tony Smith, who recently retired from the Transportation Cabinet, currently co-chairs the Academy’s Ways and Means Committee and last month at the national conference in Ohio was elected to serve on the newly-formed educational foundation board. KSCPM Treasurer Carmen Bishop has served as a member of the Academy’s finance committee since 2007 and served as the 2006 AACPM conference treasurer. Each year the American Academy awards two Wilkerson scholarships to members who have pursued professional development while following a career in public management. In 2007, Patrick Brown of the Department of Criminal Justice was Kentucky’s first scholarship recipient; in 2008, Rebecca Collins of the Office of Financial Institutions, was a scholarship recipient.
Concluding her remarks, Ms. Jameson said that KSCPM continues to offer additional training opportunities to maintain and upgrade the management skills of CPMs throughout their careers and continue the networking and training opportunities they have started with the CPM program. The Society’s goals are to be an accepted management resource for Kentucky state government, to advertise the value of the CPM program and the Society to agency heads, and to promote the utilization of the Society as a valuable enhancement to agencies. Several members of the Society who were present in the audience were then recognized individually.
Representative Cherry asked whether any elected officials are CPM members. Ms. Jameson said that in the state of Kentucky they are not but that any legislators interested in certification should contact the Personnel Cabinet’s Governmental Services Center.
Senator Carroll commended the Kentucky CPM program. He suggested that members of the Committee encourage their local managers involved in state government operations to become CPMs. Representative Graham also commended the organization and its representatives.
Business concluded, and Representative Cherry thanked Ms. Jameson, Ms. Bishop, and Mr. Smith. The meeting was adjourned at 2:15 p.m.