Public employees at all levels of government affect our lives in many ways. They work to ensure that the food in supermarkets is healthy, that our roads are safe, that we have effective employment services when we need a job, or that someone will handle the problem if we find a moose in our backyard. To meet these and many other daily needs, we need people who know what they are doing, who are skilled and have experience doing their jobs.
To ensure a high level of skill and efficiency, civil service laws were passed for the federal government in the late nineteenth century (federal Civil Service Act of 1883). They provided that most government employees were chosen through competitive processes that had nothing to do with their party affiliation. Firing could be only “for cause,” which was guaranteed through an independent grievance process. This was a huge improvement on the “spoils system,” in which the winning party in elections fired the employees of the previous administration and rewarded their supporters with government jobs. This greater job security created continuity and expertise in the administration of laws and insulation from pressure for political favors and retaliation for politically disfavored recommendations. The workforce hired with these protections are referred to as “merit-system” employees or, in Utah, “career-service” employees. Those not in the career service may be removed “at the pleasure of the appointing officers without regard to tenure”[1]–commonly known as “at-will” employment.
Creating a career service system was a hard-won accomplishment in Utah. According to longtime political reporter Rod Decker’s political history, until the late 1930s, many state workers were hired or fired, depending on which party won the election, and workers were expected to make financial contributions and provide other support for the party in power.[2] The federal government’s threat to withhold grant money led to the creation of the first career-service jobs in Utah state government, but only in the three departments administering federal funds for health, unemployment, and welfare. Not until the mid-1960s under Republican Governor Clyde and Democratic Governor Rampton were merit principles extended by executive order. Only in 1979 did protective career-service procedures for most state workers get written into law.[3]
Not every government employee has such protection, nor arguably should. If elections are to have meaning, then winners of elections should be able to direct public policy toward goals on which they campaigned. Consistent with this assumption, high-level executive branch employees are typically appointed by each new administration. “Agency heads,” “employees who make statewide policy,” temporary and “unskilled” employees, and a few other categories were exempt from the career service in Utah by 1997.[4] In the current Utah Code the policy-related exemption has broadened to include all those who determine policy or the way in which it is carried out.[5]
Besides reflecting the results of the last election, other reasons to limit career service positions are beliefs that government should “run like a business,” employees are best motivated by fear of losing their jobs, and poorly performing employees should be easy to terminate.[6] Making public employment at-will is a popular idea nationally on the American right.[7]
On the other hand, advocates of career-service employment posit that such employees coordinate decisions coming from the three branches of government and thus help preserve the balance of power among them.[8] Long-serving employees also bring technical expertise, provide institutional memory, and sustain internal and external relationships that facilitate getting the public’s business done. Considerable research also finds that greater job security is associated with high employee satisfaction and performance.[9]
Nevertheless, since the 1990s interest in cutting back merit protections has grown in Utah. In 2010 the Utah Legislature requested an audit of the career-service system because of “concerns regarding the difficulty in dismissing poor-performing employees.”[10] The Legislature also asked the Legislative Auditor’s Office to compare Utah’s personnel system to those of other states and to potential systems. The audit noted that HB 140, passed just that year to streamline the grievance process, was too new to be evaluated. The report concluded that many difficulties in terminating career-service employees were due to the lack of training most state managers received. The recommendations were much more explicit about improving training in performance management than about changing the career-service system.
In 2021, the Legislature requested a new audit to report on the impact of HB140, update the comparison to other states’ systems, and review the status of its 2010 recommendations.[11] The resulting audit reported that HB 140 significantly reduced the time needed for grievances with hearings, doubled the percentage resolved at the department level without hearings, and raised the percent of career service employees dismissed for cause to almost the same percentage as at-will employees. The report found that still “only 30 percent of state managers have had any type of management training from DHRM”[12] and repeated its 2010 recommendation that management training be required of all managers.[13] In neither report did the auditors recommend moving to at-will employment.
In 2022, HB 104 finally mandated training for state managers but also moved to at-will employment all new supervisors, current ones who had not completed their probationary periods, and all current supervisors who would give up their career-service status in exchange for a five percent raise. As amended to add a weak provision that allows an agency to provide for review within the agency of a recommendation for suspension, promotion, or dismissal,[14] HB 104 became law. Current career-service supervisors had until June 30, 2023, to opt for the raise and give up their career-service status. 79.4 percent of 2,960 affected employees converted, and 20.7 percent did not.[15]
In 2023, HB 412, which ultimately failed, would have extended at-will employment to all new non-supervisory employees in the executive branch and given existing career-service employees until March 30, 2024, to choose to convert in exchange for a financial incentive determined by the Division of Human Resources. Some Republicans as well as Democrats expressed concern about recruiting employees if low salaries were not offset by greater job security, not having time to evaluate the impact of the prior year’s change, creating conflicts among employees, and subjecting employees to political influence.[16]
Despite these concerns, Governor Cox’s FY 2025 budget recommendations include a similar change. They drop the idea of financial inducements and take a more gradual approach of converting all vacant positions and all new positions to at-will, but leaving current career-service employees in that status unless they move to another position.[17] Presumably, a bill will appear during the 2024 legislative session that pursues the Governor’s recommendation.
The Utah Citizens’ Counsel consensus is that the values of expertise, continuity, and employee motivation support limits on the value of political responsiveness. The process to fire poorly performing employees has been streamlined. Moreover, at-will employment makes government employees less able to give bad news or controversial recommendations to their administrative superiors. Evidence suggests that a state employee, the one who discovered that the company seeking to dredge Utah Lake and build housing on artificial islands did not have the EPA loan it had claimed, departed the state agency under pressure a few months later.[18] Even if retaliatory action happens rarely, at-will employment provides no protection against it in the cases where it may be most important.
Utahns should oppose any further expansion of the “at will” state government workforce. It is ill-advised and counterproductive policy.
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[1] Utah Code 63A-17-301(2)(a)(ii). https://le.utah.gov/xcode/Title63A/Chapter17/63A-17-S301.html
[2] Rod Decker, Utah Politics: The Elephant in the Room (Signature Books: 2019), pp. 270-75.
[3] Ibid.
[4] Utah Code 67-19-15 (1997). Atypically, professionals in the Department of Community and Economic Development were also singled out as exempt from the career service. This allowed newly elected Governor Jon Huntsman in 2005 to “abruptly fire[d] forty top employees in the Divisions of Minority Affairs and Business and Economic Development.” R. Green, et al., “The Attraction to At-Will Employment in Utah Governments,” International Journal of Public Administration, 2008, vol. 31, p. 536. https://www.tandfonline.com/doi/abs/10.1080/01900690701624162 .
[5] Utah Code 63A-17-301(1)(l). (url is at endnote 1)
[6] The anti-merit system rhetoric of a “deep state,” prevalent at the national level, has not been used publicly by Utah officials promoting greater at-will employment in Utah.
[7] America First Policy Institute, Civil Service Reform. Center for American Freedom, Research Report, J. Sherk and J. Sagert, “Making the Utah Career Service At-Will Would Improve Utah State Government,” Sept. 13, 2022, https://americafirstpolicy.com/issues/20220913-making-the-utah-career-service-at-will-would-improve-state-government. Supporters of a second term for President Trump are preparing to revive an executive order cutting the federal merit system that he signed late in his administration and which was then revoked by President Biden. Axios, “How Trump could reimpose “Schedule F” in 2025,” July 23, 2022, https://www.axios.com/2022/07/22/trump-presidency-schedule-f-federal-employees .
[8] R. Green, et al., “On the Ethics of At-Will Employment in the Public Sector,” Public Integrity, Fall 2006, vol. 8, no. 4, pp. 314-15. https://www.tandfonline.com/doi/abs/10.2753/PIN1099-9922080401 .
[9] Ibid., p. 322, n.7. A recent systematic review of 96 data-based and peer-reviewed articles related to merit systems and government performance in state and national governments concluded that “impartiality and professionalism [of meritocratic systems] are consistently related to positive performance outcomes, higher public trust and confidence, and lower levels of corruption.” Eloy Oliveira, et al., “What does the evidence tell us about merit principles and government performance?” Public Administration, May 2023, p. 14: https://onlinelibrary.wiley.com/doi/full/10.1111/padm.12945.
[10] Office of the Legislative Auditor General (OLAG), “A Limited Review of the State’s Career Service System,” July 2010, No. 2010-08, p. 1. https://le.utah.gov/audit/10_08rpt.pdf
[11] OLAG, “An In-Depth Follow-Up of the State’s Career Service System,” November 2021, No. 2021-15. https://le.utah.gov/interim/2021/pdf/00004067.pdf
[12] Ibid., p. 28.
[13] Ibid., p. 35.
[14] Utah Code 63A-17-301(6)(e). (url is at endnote 1) It is unclear how many agencies have done so by January 2024.
[15] Data presented in the slides of John Barrand, Director, Division of Human Resource Management at the September 18, 2023 meeting of the Government Operations Interim Committee: https://le.utah.gov/interim/2023/pdf/00003918.pdf .
[16] House Floor Debate, February 24 and February 27, 2023: https://le.utah.gov/~2023/bills/static/HB0412.html.
[17] Gov. Spencer J. Cox, Fiscal Year 2025 Budget Recommendations, p. 43. https://gopb.utah.gov/wp-content/uploads/2023/12/Gov.-Cox-FY25-Budget-Recommendations.pdf.
[18] Leia Larsen, “State nearly announced Utah Lake island plan had won an EPA loan. Trouble is, it wasn’t true.” Salt Lake Tribune, October 31, 2023, https://www.sltrib.com/news/environment/2023/10/31/state-nearly-announced-utah-lake/ ; Brian Moench, Opinion: “Utah is sabotaging efforts to save Great Salt Lake,” Salt Lake Tribune, December 1, 2023, https://www.sltrib.com/opinion/commentary/2023/12/01/opinion-utah-is-sabotaging-efforts/.
