FROM THE OFFICE OF LEGISLATIVE RESEARCH

 

 

 

 

The scope of the governor's authority to order state employee layoffs.

SUMMARY

The governor has fairly broad power to order state employee layoffs, but this power is limited by an array of constitutional, legal, practical, and political barriers.

For example, Governor Rowland ordered layoffs for approximately 2,800 state workers in 2003. Some did not take place because the higher education constituent units boards of trustees negotiated a wage freeze in exchange for no layoffs (state law gives them the autonomy to do so). Later, arbitrators ruled some of these layoffs were improper under union contracts. Even with these developments, the vast majority of the layoffs took place.

The major limitations to gubernatorial power include:

● separation of powers among different branches of state government,

● union contract specifics that address when and how layoffs can take place,

● arbitration decisions, and

● consent decrees and court decisions (such as Juan F. decree governing the Department of Children and Families (DCF)).

SEPARATION OF POWERS

Article Second of the Connecticut Constitution provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate majesty, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. ”

The separation of powers provision serves the dual function of limiting the exercise of power within each branch, yet ensuring independent exercise of that power (Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995)).

Under the separation of powers doctrine each of the three branches of government (executive, legislative, and judicial) have independent authority, and it is legally unlikely that a governor can successfully order layoffs in either the legislative or judicial branches. (According to the Judicial Department, the governor cannot directly order layoffs there. But in 2003, Chief Justice Sullivan agreed to order judicial layoffs after conferring with Office of Policy and Management Secretary Marc Ryan. )

This doctrine, however, cannot be rigidly applied always to render mutually exclusive the role of each branch of government (Massameno, supra). The powers granted to departments of government necessarily overlap to some extent and the concept of separation of powers is not one that is capable of precise legal definition yielding clear solutions to intergovernmental disputes (Stolberg v. Caldwell, 175 Conn. 586 (1978)).

In deciding separation of powers questions, courts consider if the actions constitute (1) an assumption of power that lies exclusively under the control of another branch or (2) a significant interference with the orderly conduct of the essential functions of another branch (Massameno, supra, at 552-53).

Governor's Constitutional Authority

The Connecticut constitution vests specific powers in the governor. Among other things, she is the supreme executive power in the state (Article Fourth, § 5) and must make sure that state laws are faithfully executed (Article Fourth, §12). She can also make recommendations to the legislature on the state of government, adjourn the General Assembly when the two chambers disagree on adjournment, and veto bills that must be presented to her for her signature (Article Fourth, §§ 10, 11, 15, and 16).

Although no Connecticut court has determined the scope of the governor's power as supreme executive, courts in other jurisdictions with similar provisions in their state constitutions have. “A constitutional grant of the supreme executive power to a governor implies such power as will secure an efficient execution of the laws…to be accomplished, however, in the manner, by the methods, and within the limitations prescribed by the constitution and statutes of the state…. [H]e may not exercise any legislative function except that granted to him expressly by the terms of the constitution” (38 Am. Jur. 2d Governor § 4). The state Supreme Court cited this body of cases when deciding that the governor's statutory power to supervise the execution of the budget did not authorize him to modify budgetary allotments to towns (Bridgeport v. Agostinelli, 163 Conn. 537 (1972)).

For more on the separation of powers see OLR report 2005-R-0579 (http: //www. cga. ct. gov/2005/rpt/2005-R-0579. htm).

UNION CONTRACTS AND LAYOFF PROVISIONS

Since about 90% of state employees are unionized, the union contracts governing their employment must be followed in order to properly implement a layoff. There are 13 contracts negotiated for the Executive Branch by OPM's Office of Labor Relations. Plus the various higher education boards of trustees negotiate contracts for constituent unit employees, and the Judicial Department negotiates contracts for employees under its purview.

Standard language in all contracts addresses management rights and layoff orders. A layoff can be ordered if it falls properly under management rights and abides by the steps under the layoff provision.

Management Rights

Typical language regarding management rights states in part:

Except as otherwise limited by an express provision of this Agreement, the State reserves and retains, whether exercised or not, all the lawful and customary rights, powers and prerogatives of public management. Such rights include but are not limited to . . . determining the mission of an agency and the methods and means necessary to fulfill that mission, including the . . . discontinuation of services, positions, or programs in whole or in part; . . . the relief from duty of its employees because of lack of work or for other legitimate reasons … . (contract sources: State Police Bargaining Unit, Administrative & Residual Employees Union, Professional Health Care Employees Unit, and Maintenance & Service Unit).

The management rights also specify the state's right to contract with third parties (privatize) to provide services, but union contracts do not all have the same language addressing layoffs related to such contracts. For example, the state police contract reserves the right of the union to bargain over the impact of layoffs due to contracting out or reorganization. This suggests such layoffs could take effect but the state may have to give up something else in negotiations. The social and human service professional bargaining unit contract (which includes employees from DCF, Department Social Services, and other agencies) explicitly prohibits layoffs due to privatization.

Layoffs

Some contracts define the term “layoffs” and some do not. Some of the definitions narrow the situations when layoffs can take place. For example, the Administrative & Residual Employees Contract defines layoff as “the involuntary, non-disciplinary separation of an employee from state service because of lack of work or economic necessity. ” On the other hand, the state police contract says, “A layoff is defined as the separation of an employee from state service at the direction of the employer for reasons unrelated to discipline or fitness. ” The state police contract does not limit the reasons to lack of work or economic necessity.

All contracts require advance notification and other steps, including measures to avoid layoffs, before the layoffs may take place.

Notification must be given either four or six weeks in advance, depending upon the contract. Some contracts require the state and the union to meet sometime between when the layoff notice is given and the actual layoff date to discuss alternatives to the layoffs or ways to mitigate the layoffs' impact on employees. Others require the state to consider alternatives to layoffs before they take place. As part of this effort, the state must meet with the union in “face to face meetings in which there is an exchange of proposals and ideas” (state police contract).

All contracts provide for laid off employees to “bump” other employees in the same bargaining unit who have less seniority. This means an employee with more seniority keeps a job, but it may be at a lower pay scale as he or she replaces or “bumps” the person with less seniority out of that job.

FEDERAL LAWSUIT OVER THE 2003 LAYOFFS

The state employee unions filed a federal lawsuit against then-governor Rowland over the 2003 layoffs. The suit alleges the union employees were unfairly singled out for layoffs due to their political activity and that this was a violation of their first amendment rights. As evidence of this, they pointed out that no managers were laid off (managers are non-union). The unions argue Rowland laid off unionized employees to punish them for opposing him politically (they had endorsed his opponents in previous races for governor).

The Rowland administration argued the layoffs were necessary because (1) of the state's financial crisis and (2) the unions would not negotiate contract concessions. Furthermore, the administration said all state managers were forced to give up an annual raise, so savings were extracted from them.

After years of delays, the lawsuit is still pending in federal court and is not likely to be decided soon. The two parties are in the discovery phase.

HIGHER EDUCATION CONCESSIONS

Since the UConn Board of Trustees, the CSU Board of Trustees, and the Congress of Connecticut Community Colleges all have the legal autonomy to negotiate with their faculty and other staff, sometime after the initial 2003 layoff order they each reached agreement with their faculty and staff for a one-year wage freeze in exchange for no layoffs.

ARBITRATION DECISIONS

A few unions filed grievances over the 2003 layoffs charging some type of impropriety under their contract. The arbitrators decided in favor of the unions, finding that the state did not follow proper procedures or did not have sufficient reason for the layoffs. These decisions demonstrate that while the governor's power to layoff employees is considerable, contractual obligations limit that power.

New England Health Care Employees Union, District 1199, asserted that the state should have first laid off non-permanent employees before laying off permanent District 1199 employees at the Department of Mental Health and Addiction Services (DMHAS). The arbitrator, Susan R. Meredith, ruled the state violated the union contract by refusing to lay off temporary or durational employees before laying off permanent workers. The arbitrator ordered the employees restored to their jobs with back pay for the time they missed. The same arbitrator also ruled the state violated the contract by refusing to allow more-senior rehabilitation therapists at the then Department of Mental Retardation (now the Department of Developmental Services) to bump less-senior rehabilitation therapist assistants.

In another decision, arbitrator Jeffrey M. Selchick ordered the reinstatement and 13 months of back pay and benefits for laid off examiners at the Insurance Department. The Rowland administration said the Insurance Department layoffs, like the others, were due to the state's financial crisis. The union argued that since the department is funded through assessments on insurers the layoffs provided no savings. The arbitrator agreed with this argument saying the state did not show any significant basis to conclude that grievants' layoffs were justified by economic necessity.

DCF CONSENT DECREE

Consent decrees are another example of a legal obligation that can limit layoffs. DCF is operating under the Juan F. consent decree, which resulted from a class action lawsuit that broadly challenged the department's management, policies, practices, funding, and protocols concerning abused and neglected children in its custody and those who might come into its custody.

The decree, among other things, establishes staffing ratios that DCF must follow. It also authorized the court to appoint a monitor to review DCF's performance and ensure compliance with the decree.

The initial decree agreement was reached in 1991 (and since modified several times) and DCF is now close to successfully completing all 22 court-ordered measures that would allow it to operate without the monitor's oversight.

While the governor could lay off DCF employees, doing so could jeopardize the department's standing and progress under the decree. (For more on the decree see OLR Report 2004-R-0352, http: //www. cga. ct. gov/2004/rpt/2004-R-0352. htm. )

JM: dw