Matthew P. Dolan, attorney, Public Agency Training Council
In any workplace, there are individuals who are problem employees. Local government is no exception. At best, these individuals are in need of remedial training and progressive discipline in order for the agency to receive acceptable work performance. At worst, these individuals are toxic employees who have no regard for the mission of the agency, are solely concerned with self-preservation, and refuse to accept responsibility for mistakes in their work performance.
The question is how many problem employees with performance problems that are widely known within the organization also have a consistent record of positive performance evaluations in their personnel record? Unfortunately, poor performing employees with positive performance records are the rule rather than the exception.
Diligently documenting employee performance is possibly the single most effective way a supervisor can ensure that decisions related to promotions, discipline and termination are legally defensible.
When a municipality faces a legal challenge by present or former employees alleging the organization has engaged in discriminatory practices, the goal should be to have a record demonstrating that consideration of performance inadequacies (rather than race, age, religion, etc.) was the real reason for a negative employment action. This documentation can minimize legal liability and organizational stress.
On the other hand, a failure to accurately document employee performance inadequacies can often make it next to impossible for a supervisor to take negative employment actions (i.e., termination) without incurring the costs of litigation.
If an individual has years of positive performance evaluations, regardless of how the evaluations reflect the reality of his performance, supervisors face substantial challenges in taking negative employment actions against that employee without exposure to legal liability.
Courts are skeptical of agencies claiming that a negative employment action was taken due to poor performance, a legitimate and nondiscriminatory rationale, when the agency's own performance appraisals indicate that the individual in question has met or exceeded expectations for years.
To describe this challenge simply, positive performance evaluations followed by a negative employment action often lead to the appearance of discriminatory or arbitrary decision making. This could put the local government in a position of being unable to promote individuals who deserve it, discipline those who need it and terminate those individuals whose continued employment jeopardizes the entity's mission, without exposing it to costly litigation. Litigation is costly not only financially but also in terms of organizational stress and employee morale.
In many cases, supervisors know who the poor performers are, but having that personal knowledge and putting it on paper are two very different things. One of the most important differences is that personal knowledge rarely minimizes legal liability, whereas putting that knowledge on paper often does.
In addition to these legal considerations, effective performance appraisals allow supervisors to accurately identify performance problems so that they can be corrected. These corrections-through coaching, counseling and discipline-can actually save careers.
Through training and informed policy development in this area, local governments can spend more time on serving the public and less time defending personnel lawsuits.
Dolan will present a daylong training session "Public Safety: Supervision, Leadership, Discipline and Termination: Without Being Sued" on November 20 for members of the SC Municipal Insurance Trust and SC Municipal Insurance and Risk Financing Fund, the Association's Risk Management Programs. SCMIT provides self-funded workers" compensation protection for employees of its member municipalities. SCMIRF provides all lines of property and casualty coverage including tort liability for its member municipalities.