What is the “civil service” and can it protect my job?

Most government employees who are not covered by a union contract are classified as “civil service” workers entitled to protections given to protect a public employee’s contractually protected property interest in continued employment in the public sector. Employees in the private sector generally do not get these protections unless they negotiate individual employment contracts or work under a collective bargaining agreement negotiated on their behalf by their union.

The “civil service” encompasses a broad range of employees of federal, state, county, city, and township government entities. In Ohio, the “civil service” also usually includes employees of colleges and universities operated by the state.

Not all government workers are protected under “civil service” laws. The law recognizes election winners must have some discretion when filling certain high-level and policy-making positions in government. When it comes to such appointments, “civil service” laws generally exempt management from the obligation to provide the same merit selection guarantees and job security extended to middle management personnel and rank-and-file workers.

Are there special considerations for public employees covered by union contracts?

Generally, yes. Public employees working under a union contract typically enjoy job security benefits only through the terms of the contract negotiated on their behalf by their union leaders. However, some municipalities in Ohio allow their unionized workforce the option of electing to pursue grievances against management under the terms of their union contract or under the city’s civil service laws, but not both. Consult with an experienced “civil service” attorney for more details.

Public sector employees under union contracts have one additional benefit that no other public sector or private sector employee enjoys … the right to tell his or her union that its help in prosecuting or administering a grievance or arbitration process is not required because the employee will go it alone or with the help of his or her own employee rights attorney. Section 4117.03(A)(5) of the Ohio Revised Code extends this right to any such employee, but only if he or she make exercises such right in a timely fashion and does not act to exclude the union in the process of adjusting the employee’s grievance. In other words, Ohio law recognizes that the property interest in continued employment in the public sector is so valuable, an employee should not be saddled with having to accept the advocacy services of a union that the employee believes is ill-equipped to represent his or her interests effectively, or has lost interest in the case, or does not have the funding or other resources to take on the case all the way through arbitration, if necessary, or has assigned a representative to prosecute the grievance that the employee does not trust or who may have a personal ax to grind with the employee (e.g., the employee actively opposed the union president at the last union leadership election).

How does employment in the “civil service” benefit me?

If you are a “civil service” worker, you are protected against unfair or unreasonable adverse job actions by management. A “civil service” worker cannot be fired or suspended for more than three days, for example, except for “just cause.” In Ohio, a review of the circumstances allegedly supporting management’s claim of “just cause” focuses not only whether there was good reason to conclude that the employee violated some rule, policy, procedure, or lawful instruction, but also on whether the decision to terminate or suspend the employee was justified by considerations of the severity of the offense, the way other similarly situated employees have been disciplined under similar circumstances, the number of times the employee has committed workplace infractions, and the extent to which the employee’s offense was prompted by a lack of training or a failure of management to make clear what it expected of the employee.

“Civil service” laws replace patronage with a merit-based system of selection, management, and discipline of employees. Gone are the days, therefore, where staff employees can expect to lose their jobs merely because their boss has lost his or her bid for re-election. Workers in the “civil service” are preventing the winner of an election from harassing individuals on his or her predecessor’s staff or firing any workers just so the politician can give jobs to his or her own friends or supporters.

“Civil service” laws also are in place to assure that the job application, testing, and promotion processes are fair, are designed to identify the best qualified candidates, and are uniformly administered.

What is my recourse as a “civil service” employee against management?

Workers in the “civil service” of the State of Ohio are protected by Chapter 124 of the Ohio Revised Code and regulations found in Part 124 of the Ohio Administrative Code. Local and county workers in Ohio are protected either by other state laws and regulations or by local rules adopted by the legislative authority responsible for the government entity for which the “civil service” employee works. An employee rights attorney experienced in “civil service” claims and appeals can guide you in the process.

Am I guaranteed any extra protections before disciplinary action is taken?

Yes! Because the right to continued employment in the public sector is considered a property right entitled to protection under the Due Process Clause of the United States Constitution, a public employer cannot take an adverse job action against a “civil service” employee unless management first outlines the claims or charges against the employee I writing and with enough detail so that the employee can understand them. The employer then must give the employee notice of a meeting specifically designed to give the employee a chance to explain his or her actions or to challenge the validity of the claims or charges asserted by management. Any evidence or arguments advanced by the employee during this meeting must be taken into account by management before rendering a final decision in writing, and management also must make sure its final decision gets into the hands of the employee or his or her attorney before the time for appealing such decision can begin to run.

The pre-disciplinary hearing or meeting is called a “Loudermill hearing.” This name stems from a case, Cleveland Board of Education v. Loudermill, decided by the United States Supreme Court confirming the nature of a “civil service” employee’s property interest in continued employment in the public sector and declaring that before such interest can be threatened or taken away, the employee is entitled to a “Due Process” hearing where he or she has the opportunity to address management’s contentions.

An employee has the right to engage a “civil service” lawyer to assist in this meeting.

Should I seek the help of a “civil service” attorney … and can I afford it?

Your future income stream as a “civil service” employee is a very valuable asset. It deserves the sort of attention that you would give to the protection of your most precious assets.

If you make $37,500 a year in the “civil service” and can expect to continue working in the public sector of your next 20 years before retiring, the decisions you make in protecting your job are worth $750,000, even assuming you do not get a single penny’s raise over those 20 years ($37,500 x 20 = $750,000).

When you add the value of the benefits of public sector employment (steady hours, good healthcare benefits, exceptional retirement plans, etc.), the real question is whether you can afford not to hire an attorney when you feel your “civil service” rights or privileges may be at risk.

The fees you incur in retaining a lawyer can be seen as necessary to protect that future income stream and therefore whatever you spend in safeguarding your rights effectively can be “amortized” over the duration of your future income stream. Thus, a fee of, say, $8,400 to go engage an attorney to help you through a Civil Service Commission hearing process can be seen as costing you $420 a year, or just $35 a month, over the course of the 20 years you have remaining in your career before retirement.

Are there deadlines for enforcing my “civil service” rights?

Yes! Generally, the time frame can be as short as just ten (10) days to file a formal notice of appeal to contest management’s action in violation of your “civil service” rights. Failure to file a “civil service” appeal in the proper manner and with all appropriate agencies will result in losing the right to appeal. And since these limitation periods are measured from the date of the final decision that affected those rights, you should not wait long to engage the services of an employee advocate with “civil service” experience.

What is the “civil service” appeal process and are there deadlines for filing?

If a non-union civil service worker thinks his or her rights have been violated, resulting in removal, demotion, or a suspension of more than three days, recourse is available before administrative agencies and in the courts.

Non-union state employees, including employees of state colleges and universities, must take their appeals from most adverse job actions to the State Personnel Board of Review in Columbus.

Non-union employees of counties, townships, and municipalities not organized under the charter form of government may pursue their appeals either before the State Personnel Board of Review in Columbus or before their local civil service commissions or other local administrative agencies specifically set up to handle such actions.

As in life, timing is critical. If you do not file on time, neither the State Personnel Board of Review nor any local civil service commission or other local administrative agency will have the “jurisdiction,” or authority, to hear you out and you therefore would have no recourse whatsoever.

An appeal generally must be brought to the State Personnel Board of Review or (if applicable) your local civil service commission or other local administrative agency having jurisdiction within ten (10) days of the date the order prescribing discipline has been served on you. (Career professional service employees of the Ohio Department of Transportation are governed by a slightly different rule.)

If you do not like the results of your appeal, you have the right to appeal that decision to the common pleas court of the county in which your appointing authority is located. There is a 15-day deadline under state law for seeking such judicial review.

What all of this means, of course, is that it is vital that you act promptly to preserve your rights, as any delay risks foreclosure of your access to the appeal process. An experienced “civil service” employee can guide you through this time-sensitive process, but only if you approach him or her at the earliest possible time.

How are “civil service” appeals conducted?

A “civil service” appeal should be treated as if it were a lawsuit, as the parties must present evidence through witnesses, can be required to prepare briefs and other written materials in support of their positions, can subpoena witnesses and documents, and can frequently engage in pre-hearing motion practice as well as discovery in the form of depositions and written discovery requests. The agency responsible for handling the appeal will consider only the evidence actually presented in the record of the proceedings and will not make a decision based on extraneous evidence. In fact, case law makes it clear that you generally will not get a “second bite at the apple” if you fail to include in the record certain evidence that you later wish you would have presented.

While a “civil service” employee can handle his or her own appeal, it is generally a good idea to consult an experienced attorney who practices regularly in this area of the law.

If the “civil service” employee does not like management’s decision, Ohio law allows just 30 days to take an appeal of that final decision to the Court of Common Pleas having jurisdiction over the “civil service” appeal. This process is fairly technical, and failure to perfect the appeal in the manner specifically provided by statutes and court decisions will result in the dismissal.

In reviewing a “civil service” appeal, a court will consider only the evidence record in the “civil service” proceedings and will overturn the decision only if the agency improperly interpreted or applied the law, acted arbitrarily in rendering its decision, violated the rights of one of the parties in conducting the appeal proceedings, or failed to base its decision on “substantial, reliable, and probative evidence” actually appearing in the record.

Only in rare instances will a court allow the employee to present new evidence in the appeal when such evidence could have been presented to the administrative agency in the first instance.