PREAMBLE: This 2600-word opus is the longest yet, so we are sending it out on a public holiday. If you are at home or in a place of relaxation, please print it out and read it at your convenience, perhaps on the train going to or from work (if you get a seat). If you receive this Tuesday morning at the office, print it out at once and hold on to it for later. If you read this at your desk, you may be engaging in the conduct we deplore in the article.

Some City Employees
Take It Easy At Work
And Get Away With It

February 16, 2004
Henry J. Stern

One complaint frequently heard about city government is that some of its employees are far from industrious. There are numerous anecdotes of people loafing on the job, standing around the office, chatting with each other, reading newspapers, doing crossword puzzles, using the telephone to commune with friends and relatives, conducting personal business, and engaging in other time-consuming activities of no discernible public benefit.
 
Although many allegations of misconduct are exaggerated, there is a substantial problem with people on the city payroll who do far less work than they should, and sometimes show a negative attitude toward the people they are paid to serve. This is not unique to New York City or the United States; around the world one can put a clerk behind a desk and watch him become an autocrat. It may well be human nature for this to happen, but that does not mean it should be tolerated in public service.
 
Clearly, city employees vary widely in ability and diligence. There are many fine and devoted people who work for the City of New York, but, sadly, there are also a substantial number who are bitter, lazy, or simply unable to do the job for which they have been hired. Some have mental health problems that make them less employable in the private sector, where hostile and aberrant attitude and appearance are less tolerated. As city employees, however, they are insulated from responsibility for their conduct by four separate levels of protection.
 
One is the civil service law itself, which requires strict standards of documentary evidence for action against a public employee. We had cases at Parks in which, goaded beyond endurance by repeated incidents, a supervisor tried to initiate disciplinary action against an employee. Assuming that the employee is finally held at fault, the issue of punishment arises: The union or its lawyers say, "This employee has had a spotless record of twenty years of excellent service. How can he be punished severely for a single infraction?"
 
Of course, that is not the situation.  It is rare for anyone to be brought up on charges unless repeated, multiple infractions have in fact occurred. However, if the employee has not previously been written up or formally charged, the prior violations are deemed not to have existed. When the supervisor responds to that situation by writing up the employee for various failures, the clever but attitudinally-challenged "worker" has several options.
 
The employee can write a complaint about the agency or its key staff, even without providing evidence or specific information, and then call himself a whistle-blower. Once he has done this, he can allege that any future disciplinary actions taken against him are retaliation for whistle-blowing. In the alternative, he can claim racial, religious, sex, age, orientation, or any other kind of discrimination against him, in which case any action that may be taken against him for subsequent offenses is clearly retaliatory, even if the agency position on his original complaint is upheld. This has occurred in a number of cases.
 
The employee also has the opportunity to make counter-charges against the official who is trying to get him to work, thus putting the manager to defend his own integrity and fairness. In behaving in this way, he will have access to his union, organizations that provide legal assistance, and a full panoply of federal, state and city agencies, all created to see that employees, to whom a presumption of merit applies, are not degraded or victimized by corrupt, malicious or bigoted supervisors, who in this mindset are presumed to abound in public service.
 
Another area of abuse is the use of performance evaluations. Many employees receive favorable evaluations from their immediate supervisor, who is often a member of the same union. Others receive good ratings because no one wants to tangle with them over an unfavorable report. The machinery of protest can be employed if an evaluation is challenged by an employee. It is far easier, and more common, to avoid controversy by giving a favorable rating. Later, when disciplinary action is brought against the employee, he relies on the rating to show how highly regarded he is for his work. Consequently, some agencies avoid rating employees, or do so in a perfunctory manner.
 
Serious action against an employee may first go to the Office of Administrative Trials and Hearings (OATH), an agency created under Mayor Koch in 1979 to see to it that employees are not judged by managers in their own agency. If an employee is dissatisfied with an OATH decision, the Civil Service Commission is available to hear appeals. The next step after that is an appeal to the courts. It may be years before a case is resolved, and if the City loses, the employee may be awarded back pay for all the years he did not work.  
 
In the 1960’s culture that prevails today in large elements of the public sector, a manager would have to be a masochist to bring charges against an employee. We do not even include the common situation where the supervisor and employee are members of the same union. In such cases the manager is subject to peer pressure, after which union officials intervene to "resolve the situation," usually by quashing the case. The supervisor may be subjected to threats or intimidation, and warned, politely or not, that in a year or so, when the shifting sands of politics require a change of top officials in the agency, the injured parties will still be employed there, and will see that justice is done.
 
I am aware that the situation in all the agencies is not always anarchic. Some city departments are more functional than others, where strong commissioners are able to choose competent managers and stand behind them. It is possible for the good side to prevail on the merits, and it does happen. But for every agency managed with accountability and responsibility, there are a number of units, either agencies or divisions, that are not. Clearly the Staten Island ferry operation is near the bottom in this regard. And that clubhouse of malingerers only came to light because the ferry was so horribly run that eleven people were killed without any member of the crew making an effective effort to prevent the impending disaster.
 
In some agencies, the job is defined by a physical task (subway monitoring or conducting). The internal situations in other agencies, particularly those where a large amount of clerical or routine work is supposed to be done, is so deficient that there is a lower level of operational effectiveness, and higher cost per unit in doing the work than should be the case. There is a continuing dilemma in how to deal with redundant, nonproductive, or impaired employees. This is a problem that no administration has really pursued, because one situation in which public employees act with alacrity is endorsing candidates, if they maintain addresses in the city.
 
The second level of protection that public employees enjoy is their union, which provides lawyers and other professionals to defend them. Interestingly, this is considered an obligation on the part of the union, a service for which the employees have paid union dues. Even when the union leaders know perfectly well that the employee is guilty of the charges, they function like a legal aid society to provide representation. In many cases, the union lawyers use their considerable skill and specialized experience to help their members escape justice.
 
This does not mean that guilty workers should not be represented, we believe in the right to counsel. But when union lawyers find technicalities for the employee to hide behind, staff, the public interest may not be served by the result. As you know, a lawsuit is not a search for truth, but a contest between gladiators.
 
The third level of defense is political influence, which may have been the reason that the employee was hired in the first place, or retained after previous difficulties.  Not all employees are innocent wonks, chosen because of their high standing on competitive examinations. Many are selected, or recommended, because of connections, whether political, social or ethnic. Some jobholders were sent to agencies by City Hall, or people acting in the name of City Hall, in the current or prior administrations. Nobody really knows for sure just how high their influence reaches, nor do most managers want to find out. Some employees who in fact have no rabbi are protected by the illusion that they do. The result is a version of diplomatic immunity for particular malingering employees.
 
In the hiring process, people can be the first to be tipped off to job openings by their friends on the inside. Clusters of family members, neighbors and acquaintances tend to work in particular agencies or divisions. When an employee appears to be threatened, whether rightly or wrongly, these personal networks can be brought into play by clan members who have some connection, close or remote, with the accused. The disciplinary case becomes a test of their own influence, can they protect their friend. They also know that if one wrongdoer is punished, other slackers may be vulnerable to work-related charges.
 
The fourth level consists of the multiple human rights agencies that have been established at the Federal, State and City levels to secure fairness. They look for any allegation of unfair treatment on the basis of race, religion, age, gender, disability, family status, sexual orientation, or any other possible cause of discrimination. They can seek and find statistical information to show a pattern of disciplinary actions against members of a particular group, so that even if the specific allegation is justified by the facts of the case, it can be evaluated as part of a larger pattern, which they may conclude has a disparate impact on different groups of employees. They will look at the counter-charges against the supervisor which may have been made in the case, the matter eventually coming to resemble a matrimonial action in which each side accuses the other of various forms of misconduct, and the judge tries to distance himself from the squabble.
 
Since these agencies are established legislatively with the purpose of fighting all forms of discrimination, their orientation is to reach that goal. They may go beyond the facts of a case to pursue goals of diversity or affirmative action in the entire agency. In fact, my experience as a commissioner was that most of these agencies are fair and just, examining cases on the merits, and their determinations are reasonable. One problem is that many people whose work is unsatisfactory or who have personal differences with their supervisors often believe that they are victims of discrimination. The civil rights agencies have substantial workloads, and most complaints to them are dismissed as unsubstantiated. But their extensive use by employees as an additional battleground in workforce discipline cases is another complicating factor in management's effort to maintain standards and productivity in city government.
 
The disciplinary situation is particularly troublesome with regard to miscreant or ineffective teachers. The power of the United Federation of Teachers, the most influential of city unions, the complexity of the rules, and an addiction to adjournments lead to protracted proceedings, during which teachers are fully paid for doing next to nothing. On the other hand, the Police Department is more effective than many others in maintaining discipline, perhaps because it is a paramilitary organization. But police decisions, including the psychological soundness of applicants for the force, are subject to appeal and judicial review. The courts may, however, be more sympathetic to rulings based on concern for public safety.
 
You can see from all this why the prevailing attitude on employee behavior in large portions of city government is "live and let live." The prison rule: "You don't bother me, and I won't bother you" is too often the principle of municipal labor relations. Despite all these obstacles, a great many self-motivated people work hard and many do remarkable jobs in public service. They deserve our praise and appreciation. They should also receive tangible rewards.
 
Unhappily, in most cases the salary of the diligent worker is exactly the same as the malcontent at the next desk, who may spend much of his time solving puzzles, doodling, or gabbing. City employees basically perform at their own level of functioning, high or low, and the effort to enforce standards on recalcitrant or poorly performing employees is very difficult.
 
While one cannot say that the inmates are in charge of the asylum, they are relatively immune to sanctions by the authorities. Unfortunately, when office behavior and productivity are at the lowest common denominator, many decent employees are corrupted by the absence of standards and end up doing less and less themselves.

It is widely said that the Devil is in the details. Some say that it is God that is in the details. (Google, the arbiter of our time, has 41,100 references to the Devil and 7,500 to God in that capacity.) The relevance of those maxims to employee relations is that rules were originally designed to provide reasonable balance between the right of the public to competent service, and the right of employees not to be treated arbitrarily.

This unfortunate situation is not inevitable in public employment. There are reasonable laws on the books that could be enforced by people who know how to use the rules to get things done. The first step, however, is for the people at the top of the food chain to understand that the problem exists, and that it is not irremediable. When senior public officials proclaim that there is negligible waste in city government, it is unlikely that a climate of reform can be created in which action will be taken to make city agencies serve the people as effectively as they should. Technology alone, powerful as it is, will not energize the sloth or cure the attention deficit disorder that prompts the eye and mind to wander from the task at hand. Nor will it change the attitude of those who righteously but wrongfully believe that the world owes them a living. 
 
Over the years, through court decisions, union pressure, weak administrators, and the simple and reasonable desire to avoid trouble, a situation has arisen where incompetents and worse have immunity from effective discipline. As a result, the productivity of many decent, reasonably hardworking employees declines, because they (and the spouses or friends to whom they complain at night) know that there are few sanctions for misconduct, and scarcely any rewards for good performance.  One result of this decline in productivity is worse service to the public. Another is more resistance to taxation, which reflects public resentment of city employees who are not subject to the ordinary work standards that taxpayers are required to meet daily in their own jobs.  
 
All of this can be changed; it is not immutable. One begins the effort by becoming aware of the problem. The public understands this more clearly than the authorities.