Personnel Policies: An important management tool for towns
(from Maine Townsman, April 2001)
by Antoinette Mancusi, Technical Advisor, Legal Services, MMA
Personnel policies can serve municipal employers in several important ways. First, personnel policies communicate—provide notice of—the employer's expectations and standards of performance to both new and existing employees. Because municipal employers must promote "due process" in many aspects of employment, and "notice" is one of the most essential elements of due process, properly drafted, updated and distributed policies can serve municipal employers in notifying employees, or putting employees on notice of the employer's exigencies. As a result, such well-drafted policies mitigate the potential for misunderstandings due to unclear or unstated expectations.
Personnel policies also provide for consistent, orderly and efficient administration of potentially difficult personnel issues. This is especially important in an environment beset by constantly changing administrations and town management. Consistent application of internal protocols by an employer is imperative in the event the employer must defend a claim based on discriminatory application of conditions of employment (or policies).
Furthermore, in the absence of written policies, the employer's past conduct (past practice) may become the "unwritten" policy of the employer, especially if litigation ensues. However, these unwritten policies are not conducive to promoting equity among employees because unwritten policies do not lend themselves to consistent application—especially in an environment where there may be constant turnover of board or council members. In addition, unwritten policies can also frustrate management and fuel related problems associated with abuse of discretion. Needless to say, such an environment becomes a fertile breeding ground for both discrimination and employment contract lawsuits against an employer.
A word of caution, however—in order for such policies (or compilations of policies—i.e., employee handbooks) to "serve" as opposed to "hinder" municipalities, a few important principles must be followed:
o Policies should be kept up-to-date and consistent with legal changes;
o The language used to write policies should be clear and concise;
o Avoid making unintended contractual guarantees or using language which may suggest such guarantees (see section below: "Avoid Creating Employment Contracts");
o If examples are used as illustrations, be certain to establish that the list(s) of examples is not exhaustive e.g., in a prohibited conduct policy which lists examples of prohibited conduct, clearly state that the list is not all-inclusive;
o If a policy exists, USE IT CONSISTENTLY! Failure to do so can be used in litigation as negative evidence against the employer, especially in disparate treatment discrimination law suits;
o Do not forget to distribute policies! Employees should be asked to sign an acknowledgment form stating they have received and read the policy(s) and that they understand them. The signed acknowledgment form should be kept in the employee's personnel file. (See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); and
o Train employees (especially management) regarding policies' content and use. Require managers to promote policy initiatives. Policies are useless if they are not being implemented. (See Equal Employment Opportunity Commission v. Wal-Mart Stores Inc., 187 F.3d 1241, (10th Cir., August 23, 1999).
Generally speaking, if your municipality cannot adhere to these basic principles, it should avoid adopting policies or personnel handbooks. Faulty policies, faulty application of policies or failure to distribute policies can be more detrimental to employers than the lack of policies, since evidence of such can be used against an employer during the course of litigation.
Which personnel policies are required? The good news is that with only two exceptions, neither federal nor state laws require municipalities to have written personnel policies. State law only requires that municipal employers have the following policies:
- a "smoking in places of employment" policy (22 M.R.S.A. § 1580-A).
- a "sexual harassment" notice (which is usually set out in a policy) that must be distributed to each employee yearly. The notice or policy must include at a minimum: the illegality of sexual harassment; the definition of sexual harassment under state law; a description of sexual harassment, utilizing examples; the internal complaint process available to the employee in addition to other items (26 M.R.S.A. § 807).
(Two caveats exist to this "two required policy" rule. There are workplace safety provisions that require the adoption of "plans" in order to comport with Maine Department of Labor, Bureau of Labor Standards' workplace safety mandates e.g., Bloodborne Pathogens. Also, employers must comply with various "notice" or "poster" requirements. Many of these posters or notices appear as policies e.g., Sexual Harassment notice, FMLA poster. Technically, these "plans" or "posters" are not policies but many employers treat them as such. For information on complying with either of these two other elements, please call us or visit MMA's HR Toolkit subject areas.)
Despite the fact that only two policies are "required," many municipalities have chosen to adopt written policies to aid with different facets of personnel administration. The number of policies adopted by a municipality will vary greatly depending on size of the workforce, local preference and individual town circumstances. Most such policies outline employee rights, responsibilities, and conduct in addition to setting up grievance and disciplinary procedures. The following list (not all-inclusive) consists of policies most often found in municipal personnel policy collections and are ones which municipalities should consider implementing:
|Equal Opportunity Employer||Substance Abuse Policy|
|Classification of Employees—e.g., Full-Time, Regular Part-Time, Temporary Employees||Conflict of Interest|
|Public and Employee Relations—e.g., Receipt of Gifts, Business Activities and Solicitations, Confidentiality||Injuries in the Line of Duty|
|Work Week—e.g., Overtime, Comp-Time, Attendance, Time Sheets||Outside Employment|
|Sick Leave||Grievance Procedures|
|Benefits—e.g., Health Insurance||Municipal Property/Equipment (including Computer, Internet and E-mail Use)|
|Leaves of Absence—e.g., Bereavement Leave, Military Leave, Leave Without Pay, Jury Duty, FMLA Leave|| Political Activity
For municipalities commencing a personnel policy adoption or review project, it is generally advisable to take small, manageable steps—reviewing one policy at a time is a good idea. Remember, this is an area where "quality versus quantity" is the goal. Drafting policies so that they are written in well-defined, clear terms (avoiding legalese) that meet the individual employer's needs is neither an easy nor quick process.
Municipalities should start off on the right foot by performing the necessary research on the issue to be addressed, and by obtaining sample policies on point from other municipalities. But remember, these initial steps are solely preparation—a means to an end—but not the end by any means. In order to draft policies that are truly worthwhile, the employer must evaluate its individual needs and circumstances. There is no such thing as a "one size fits all" policy, and as a result any sample used in developing an individual municipality's policy must remain just that—a sample to modify or build upon.
Who is Covered? A key question to be answered in adopting a personnel policy is "who will be covered?" Generally, employees under the supervision of the board of selectmen would be covered under the personnel policies adopted by the board. If a personnel policy is adopted as an ordinance by the municipality's legislative body it could (perhaps even should in some cases) include elected officials, such as a town clerk or road commissioner in addition to employees. In municipalities that have adopted the "town manager plan" form of government, town managers should be actively engaged in the personnel policy process. Since most of the personnel administration including appointment, supervision and removal is vested in the town manager, it is very important to involve the town manager or even provide him or her with 'cart blanche' authority to devise policies necessary for the orderly administration of the municipality's workforce.
Except for wages, benefits and conditions of employment, union employees could (perhaps even should in some cases) also be covered by the personnel policy. Meshing a municipality's personnel policy with its collective bargaining agreements is an important part of the personnel policy process in municipalities with unions. It is important to keep in mind however that, from a legal standpoint a contractual provision (including union contracts and individual employee contracts) would generally prevail over conflicting general personnel policies.
As previously suggested, covering elected officials who have administrative responsibilities, such as town clerks, tax collectors, treasurers, road commissioners, etc., may be a good idea but one which is difficult to implement. The board of selectpersons does not have direct supervisory authority over these elected officials. Only the town's legislative body, town meeting, can set conditions of employment for them.
As a result, in municipalities with boards wishing to undertake personnel policy initiatives that will involve these elected officials, the selectpersons must often seek authority from town. A warrant article would have to be carefully drafted to specifically address the policy issue the legislative body is allowing the board to regulate, or the town meeting would have to directly adopt the policy.
An integrated workforce with appointed, elected and union employees all abiding by the same set of policies, rules and procedures would provide less opportunity for controversy in the town office, but the reality of Maine local government generally makes it difficult to implement personnel policies. A municipality that is having difficulty integrating its different types of employees under one personnel policy has a few options.
o A concise, general policy could be adopted. Town meeting for elected officials, unions for their employees, and the board of selectmen for appointed employees would all have to agree to such a policy.
o The municipality could have three separate policies. One for each group—appointed employees, elected employees and union employees. In such a case, the goal would be to keep the language in these separate policies as similar as possible.
o A general overall policy could be adopted and specific provisions, where necessary, could be developed for the different types of employees. It is not unusual for certain types of municipal employees, police and fire in particular, to have a set of operating procedures or standards of conduct that applies specifically and solely to them. But again, as much as possible keep the language in these separate provisions as similar as possible.
No matter which option is chosen, because of the difficulty involved in devising policies that apply to both appointed and elected officials (in addition to union and non-union employees), municipalities should have such policies reviewed by legal counsel. Despite the difficulty involved, the result is well worth the effort as such well drafted comprehensive policies can aid in the more difficult areas of personnel administration.
Avoid creating employment contracts. Municipalities in Maine do not always have the luxury, as do most private employers in this state, of working in an environment of "at-will" employment relationships. Municipal officers and town managers carry out their personnel responsibilities under a system that often creates a property interest in many appointed offices and public employment positions. Once a property interest is created (this can occur by statute, charter, ordinance, policy or even written or verbal contract) an official or employee must be provided a right to "due process," including notice and hearing, prior to being deprived of the property interest.
Non-probationary employees with such property interests in employment, hired and supervised by the municipal officers or town managers, are protected from termination unless due process is provided and "just cause" is established. The precepts of due process and just cause also apply to lesser forms of discipline than termination. It is also important to note that these protections do not depend on the amount of compensation received by the employee. Conversely, an employee or appointee who has no property interest in his/her position is not entitled to due process because of a property interest but may be entitled to due process because of a "liberty interest."
Both of these doctrines (due process and just cause) are contained in Maine statute (30-A M.R.S.A. § § 2601, 2636) and embedded in case law. In addition to these property interests created by statute and case law, municipal employers must also be wary of creating unintended employment promises or contracts. Employers can create other property interests through contractual obligations e.g., through provisions in personnel policies. It is for this reason that when drafting personnel policies or handbooks employers must exercise extreme caution regarding the wording used. One common example of a word to avoid in both policies and job descriptions is the word "permanent" when describing a position's classification. What is usually intended is the term "full-time" but inadvertently, employers describe the position as permanent, which can give rise to claims based on guarantees of continued employment.
Although employers can elect to create binding contracts through the use of personnel policies, generally the opposite is true. Employers generally avoid creating employment contracts by specifically including disclaimers in their personnel policies or handbooks. Such disclaimers should clearly state that nothing contained in the policy(s) constitutes an employment contract either for the duration of employment or conditions of employment therein contained.
It is strongly suggested that any employer promulgating policies include such a disclaimer. Note however, that although disclaimers are a very good idea, they are not complete guarantees that the employer will be able to ward off all contractual liability. Nonetheless, language to be included in such disclaimers may look something like this:
"The municipality specifically reserves the right to repeal, modify or amend these policies as necessary. These policies are intended as informational guidance and the municipality reserves the right to interpret any provision and to change policies with reasonable notice to employees. These policies are not to be interpreted as promises of specific treatment or as creating contractual rights in any employee. In addition, conflicting changes in local, state or federal laws take precedence over the contents of personnel policies, whether or not those changes were incorporated into the policy."
A note of caution, just because an employer places language in the disclaimer that allows them to change the contents of policies at their discretion, this does not mean that employers can change policies in order to undermine practices established in policies. In way of illustration, in a relatively recent case, Trombley v. Southwestern Vermont Medical Center, Vt., 97-320 (7-16-99), an employee sued her employer on several grounds—one of which was that the employer did not terminate her in the "manner and means" of the employer's established discharge procedure. The plaintiff's supervisor used procedures from a 1981 handbook, despite the existence of a 1992 handbook with revised procedures. The court opined that an ambiguity was created relative to the actual terms of employment because of the existence of two handbooks. The court then turned the issue over to the jury i.e., which handbook prevailed. The employer in this case had a disclaimer in their policy, allowing it to modify its policies. The jury sided with the employee, awarding $125,000 in damages because they concluded that the handbook (despite the disclaimer) constituted a contract and the employer did not follow its disciplinary procedures.
Employers using waivers must, however, be aware of the fact that language considered "illusory" i.e., an employer reserving the right to change the contents of an employee handbook, can very well render a personnel handbook non-binding. In a recent Maine case, Snow v. BE & K Construction Co. (Docket No. 00-CV-90-B, 1-3-01), because a disclaimer reserved the employer's right to "modify or discontinue" an arbitration program, the Court held that the employment booklet was not a contract. So, if you are one of those employers that actually want to create a binding contract out of personnel policies or handbooks, make sure illusory language is excluded from disclaimers. The differing results in the Trombley and Snow decisions illustrate the difficulty in ensuring that a disclaimer's purpose is actually going to prevail. These cases also illustrate the importance of getting local counsel involved in drafting solid language.
Regardless of the specific wording used in these disclaimers, a few rules must be followed in order for a disclaimer to serve its purpose. First, as with the policies themselves, make certain that the language used is clear and in plain English—avoid legalese. Second, make the disclaimer stand out—place it at the very beginning of the policy or handbook and use a bold or otherwise emphasized font—avoid using "fine print." Third, expressly state that the policy or handbook is not intended as a contract and reserve the right to change the contents.
Ordinances, regulations, policies—which? The municipal officers have the authority to adopt a personnel policy, absent language in a charter or ordinance to the contrary. However, if the policy is not adopted as an ordinance by the legislative body, certain provisions may not be included. For example, a provision authorizing a board of appeals to hear personnel appeals must be adopted as an ordinance by the legislative body (30-A M.R.S.A. § 2691).
Other items that can not be adopted in way of a board policy, as previously mentioned under the section above, "Who is Covered?," are policies interfering with the legislative body's authority to regulate, supervise certain elected officials. Another very important exclusion to remember concerns policies that will commit the municipality financially beyond the current year, such as retirement benefits. Again, it is only the legislative body of a municipality—town meeting or council—that has the authority to commit the town's financial resources.
A "policy" adopted by the municipal officers is something different from an ordinance or regulation. In the broad sense a "policy" is the municipal officers' statement of general goals and practices, but has no specific force. "Policy" in the specific sense (such as personnel policies) refers to a written or unwritten procedure for dealing with a particular situation. And let's not forget, in the event a municipality has not written down its policy, unwritten policies or practices may very well become the town's policy in the event of litigation.
Bottom line—these types of policies can be very instrumental in regulating internal administrative matters. Although policies do not carry the legal weight of an ordinance, in the absence of an ordinance, they are next in command. Furthermore, another very attractive feature is that a board policy can be amended or revised without town meeting approval and as a result is much more amenable to change.
A word of caution on changing policies—be careful not to deny or revoke a benefit, such as vacation or comp-time, which has already been vested in the employee. Vested benefits are considered part of an employee's compensation or salary and can not be taken away by a change in policy. This does not mean however that employers can not change their benefit policies—they can. They just have to do it in a manner that works prospectively.
Generally, if the subject matter of the policy will require frequent updating or, if the subject matter is that of an administrative issue, one the legislative body really does not need to be involved in (and perhaps should not), the material is probably better off in the form of a policy.
Introducing the "Municipal Human Resources Toolkit."
By now most of you are scratching your heads trying to come up with positive reasons for committing to a policy adoption project. Admittedly, the task seems daunting. However, in an effort to assist our members with the overwhelming duties associated with personnel administration, MMA has a new informational product located on the MMA website, called the "MMA Municipal Human Resources Toolkit." This Toolkit has been especially designed to assist municipalities in Maine with the tasks associated with personnel administration.
Because the information necessary to comply with the many mandates is overwhelming, and sample policies and tools required are not always easy to locate, the Toolkit consolidates the most important information on various topics concerning personnel administration in one convenient location. Each subject area includes an article summarizing the subject in addition to the following:
o sample policies;
o tools, e.g., forms, posters, checklists); and
o resources, e.g. Internet links
It is important to note that some subjects will be included in the Toolkit not because they are associated with a "legal mandate" but because they make sound administrative sense, or because they are issues salient to municipal employers. New topics will be added monthly. For the time being, or until the time the necessary subjects are amassed, we plan on adding at least one or two new topics per month depending on the complexity of the subject matter. We hope municipal officials will visit the Toolkit and make proactive choices concerning personnel policy matters. At the very least, we hope to assist municipalities that have not already complied with the various personnel mandates—compliance may now be only a few clicks of the mouse away!