PERSONNEL POLICIES: Written documents provide clearer guidance
(from Maine Townsman, November 1998)
By Michael L. Starn, Editor

Simply put, written personnel policies help to establish better communications and a mutual understanding of the relationship between employers and employees. In Maine municipalities, personnel policies exist, in written or unwritten form, when there is an employer/employee relationship.

Informal personnel policies – the unwritten ones – are generally based on a set of "past practices". Balancing the rights of employees and the prerogatives of management is someone’s interpretation of "the way it’s always been done".

Unwritten, informal personnel policies have several drawbacks. MMA’s Manager of Personnel Services/Labor Relations, David Barrett says that unwritten policies may be inequitably and inconsistently applied because neither party – employer or employee – knows for sure what those policies are. With turnover on boards of selectmen, informal policies may get modified or even eliminated, says Barrett. There is ongoing potential for employer/employee controversy over continuity, interpretation and consistency in the administration of unwritten personnel policies.

Developing A Policy

Varied approaches to the development of municipal personnel policies have been used in Maine. Often, a personnel policy is written by management (manager, selectmen, personnel director, or council) with the help of an attorney or personnel consultant; sometimes personnel matters, including the development of a policy, are delegated to an advisory board, such as a personnel review committee; or an ad hoc committee of employer/employee representatives might hash out the details of the personnel policy.

In the development of a personnel policy, it is important to have a starting point. The policies of other municipalities can be an excellent resource (see below).

A fundamental question that arises in the development of a personnel policy is whether or not it should be an ordinance.

"Personnel policies don’t carry the (legal) weight of an ordinance," says Lee Bragg, attorney with Bernstein, Shur, Sawyer & Nelson.

Ironically, this is a primary reason why most municipal personnel policies are not enacted as ordinances. Municipalities don’t want their hands tied when dealing with employees.

Bragg also points out, "A personnel policy is not a contract. It does not create a contractual right (on the part of employees)."

MMA Director of Legal Services Bill Livengood, however, cautions municipal officials in the development of personnel policies, which are not adopted as ordinances, to be careful about making financial promises that go beyond the current municipal fiscal year. Livengood says that only the legislative body of a municipality – town meeting or council – has the authority to commit the town’s financial resources.

A handbook, published by the Local Government Institute in Tacoma, Washington, suggests the following disclaimer for inclusion in a personnel policy adopted by the municipal officers:

"The city (or town) specifically reserves the right to repeal, modify or amend these policies at any time with or without notice. None of these provisions shall be deemed to create a vested contractual right in any employee nor to limit the power of the city (or town) manager or council (or board of selectmen) to repeal or modify these rules. The policies are not to be interpreted as promises of specific treatment."

This handbook, "Model Personnel Policies and Procedures for Local Government," goes on to state that changes in local, state or federal laws that would alter the personnel policy would take precedence whether or not those changes were incorporated into the policy.

A drawback to passing a personnel policy as an ordinance is that it becomes more cumbersome and time-consuming to amend. The Town of Wells, for example, can only amend its personnel policy ordinance at its annual town meeting. Non-ordinance policies adopted by boards of selectmen require only the vote of the board to change.

If you believe that your personnel policy will require frequent updating, then your municipal officers would probably be better off adopting it as a policy of the board. If you want to give your personnel policy some legal muscle and you don’t expect to have to update it frequently, then an ordinance would be the way to go.

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 town’s personnel policy adopted by the board. The personnel policy that is adopted as an ordinance could include elected officials, such as a town clerk or road commissioner, as well.

Except for wages, benefits and conditions of employment, union employees could also be covered by the personnel policy. Meshing a municipality’s personnel policy with its collective bargaining agreements is an important part of the process of developing or amending the personnel policy in municipalities with unions. From a legal standpoint, a contractual provision (including union contracts and individual employee contracts) would prevail over the personnel policy if there was a conflict between them.

Covering elected officials who have administrative responsibilities, such as town clerks, tax collectors, treasurers, road commissioners, etc., can be tricky. The board of selectmen do not have direct supervisory authority over these elected officials. Only the town meeting can set conditions of employment for them.

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 structure of Maine local government inhibits all-inclusive personnel policies. A municipality that is having difficulty integrating its different types of employees under one personnel policy has a few options.

• 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.

• The municipality could have separate policies for its appointed employees, elected employees and union employees.

• A general overall policy could be adopted and specific policies 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.

The Town of Mount Vernon dealt with the elected vis-a-vis appointed municipal employee issue in a slightly different way.

A little over two years ago, residents at a special town meeting voted to switch from an elected to an appointed town clerk/tax collector. But then, the next regular town meeting reversed that vote and decided to make the position elected again.

Prior to the switch to an appointed position, there was no job description, and the selectmen developed one for the short-time they had supervisory authority over the position. At this year’s regular town meeting, in addition to voting for the elected town clerk/tax collector, Mount Vernon residents voted on an article which delineated the job responsibilities of the position (taken from the job description that had been developed for the appointive position) and included other conditions of employment such as office hours, vacation, sick leave, etc., in the job description.

In a way, this approach is similar to a personnel policy between the town meeting and the elected official. Although not a personnel policy, the town meeting has put in writing what it expects from the town clerk/tax collector and people who may be interested in the position have a better understanding of what will be expected of them if they are elected.

The Basic Personnel Policy

Written personnel policies are frequently developed on an ad hoc basis in an effort to codify what has been the past practice in a municipality. Oftentimes, the development of a personnel policy or changes to existing policies is a reaction to personnel problems that have arisen in the municipality. Personnel policies should be viewed as preventative medicine for employer/employee conflicts, not as bandaids for personnel problems.

In terms of format, the policy should be codified using letters, numbers and/or Roman Numerals which will allow for easy indexing and referencing. More sections (or articles) and detailed subsections are preferable for quick referencing.

The personnel policy should start with a preamble or statement of purpose. This section should state the purpose, goals, and scope of the policy (what it is; what it is not; how it is changed; etc.).

The general information section can be as brief or as comprehensive as you want. Typically, municipalities put things like equal opportunity employment and affirmative action statements, and ADA policies in the general information section, along with other things that don’t fit anywhere else.

Definitions are an integral part of the personnel policy. Distinguishing between full time, part-time, and temporary employees gets you started into the employment sections – the ‘meat and potatoes’ of your personnel policy. A list of issues, while not inclusive, that should be covered in terms of employment include: probationary period, work week, overtime and compensatory time, holidays, vacation, jury or military duty, sick leave and other types of leave, and benefits.

Employee conduct is perhaps the most difficult and subjective part of a personnel policy. Typically found in municipal personnel policies are rules governing the acceptance of gifts, conflicts of interest, political activities, drug and/or alcohol abuse, and sexual harassment.

MMA’s David Barrett says that municipalities should concentrate more on what is done when an employee’s conduct is improper than trying to be all inclusive in the listing of types of conduct that are not permitted. "There are a range of behaviors that employers will take action on, whether or not they are listed. The important part is that management and the employee know what the process is for dealing with improper conduct."

Barrett says that personnel policies should be explicit in how management will address violations of employee conduct. "Supervisors need to follow due process for disciplining and termination," says Barrett.

"The vast majority of cases that I deal with where the town’s discipline is set aside," says Barrett, "get overturned because the town did not follow their existing procedures, not because the discipline was unwarranted."

Volumes of state and federal laws and regulations deal with employer/employee relations. While it is not necessary to have these reprinted in the municipal personnel policy, it is important that the personnel policy be consistent with state and federal law and it would be prudent to reference these laws and regulations in the municipal policy. Some of the key ones are the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and sexual harassment laws.

Resources

MMA’s Personnel Services division has a generic personnel policy that municipalities can use in developing their own policy. Additionally, the Personnel Services division has copies of other municipal personnel policies that are available.

Maine Municipal Association's web site, www.memun.org, has a collection of municipal personnel policies that can be accessed. They are in the password-protected area of the web site, so you will need to register to gain access. There is no charge for this service.

MMA’s Personnel Services division also offers fee-based consulting services for such things as personnel policy review and development.

For more information, contact MMA Personnel Services, 1-800-452-8786.