Subversion of popular rule raises anti-democratic worries

A troublesome development concerning Louisiana’s State Civil Service Commission points to the potential for future mischief and subversion of democracy, perhaps requiring constitutional amending to mend.

Yesterday, the SCSC considered the layoff plan for the Southeast Louisiana Hospital, which has been deemed by the state as too inefficient to continue under direct state operation. With local governing authorities, it has worked out a deal to reopen the space to be closed (some continues to stay open under a previous contracting agreement from a couple of years ago) with a bed count of about half its recent size contracted to a private operator. This deal better fits market demands, costs taxpayers less, and promises continued quality care. However, it means that all current state employees must be discharged, and probably less than half would be rehired under the new arrangement.

Part of the Commission’s constitutional duties is to promulgate rules related to layoff, found in Chapter 17 of its rules. Essentially, the Commission must study each proposed layoff plan to see that it comports to procedure, where the plan must show it carries savings and that all necessary information and procedural steps were followed. This is to demonstrate that the action is not one where layoffs are being used to coerce employees into supporting electorally a particular political faction.

So when these rules, put in place to prevent politicization of the civil service, themselves are used in a political fashion, this is cause for great concern. Apparently that’s what happened when three members of the Commission, Curtis Fremin, Kenneth Polite, and Sidney Tobias, voted against the SELH layoff plan necessary to allow the contracting to go forward. According to news reports, they indicated that they disagreed with the policy direction of the plan, which demonstrated why the layoffs were needed, that cost savings would occur, and otherwise followed the rules to the letter. Polite rather impolitely and ironically pontificated that closure has “only been efficient in the way a dictatorship is more effective than a democratic state.”

Fortunately, the other four members of the Commission stuck to their constitutional duties and confined their analysis to the legal side of matters, as best put by Scott Hughes: “Most of the objections people have is a policy question. We are not a policy board ... If they meet that standard of review, there is little we can do.” He was joined by Chairman David Duplantier, Vice Chairman John McLure, and Lee Griffin in approving the plan.

The problem is, if a majority of the Commission disregards their constitutional role, it might be tough to weed that out of the decision-making process. The Constitution mandates appointment for staggered, six-year fixed terms, with removal only for “cause.” However, if one decides subversively to turn the job into one that vets policy aspects of executive branch decision-making, it might be difficult to prove that to the satisfaction of public opinion, leading to hesitancy of governors to pull the trigger in those cases.

Further, the governor does not directly appoint members, but selects from nominees from the heads of the state’s private colleges. Thus, mischievous education chief executives may be able to rig selections so all of their nominees carry this activist attitude, meaning even if the governor can remove disingenuous members the problem could continue.

Flexing muscle politically rather than procedurally is of considerable concern, as the Commission’s rules are given the status of law and their decisions from them not appealable to any authority. This means a state body with no direct accountability to the public, in this instance, can veto decisions made by those voted into office to represent the people not because these violate procedure, but because they disagree with the policy choices behind them. That never was intended as its purpose.

To forestall this becoming a possibility, either the people will have to hope the elect governors with guts, or amend the Constitution in some fashion to reduce the chances of this happening. Otherwise, popular rule by law become a bit more debased.