Byrne: I Don't Want to Play Games; Board Debate - Is it Fair?

MONTGOMERY, Ala., Aug. 8, 2007 -- One of the characters in a work of fiction by 18th century English writer Samuel Johnson says, "Nothing will ever be attempted, if all possible objections must first be overcome."

Two-year college Chancellor Bradley Byrne has not waited until all objections have been overcome in his attempt at pulling the two-year college system out of its quagmire and in so doing has ignited the passions of those both for and against his proposals.

On Monday, Byrne outlined a revised flex schedule policy to the State Board of Education,  that, if adopted, would require employees of the two-year system, including legislators, to get  unpaid personal leave approved by the chancellor, per a Board policy already in existence.

Byrne told the Board he would only approve that leave under "extraordinary circumstances," and gave every indication he was not leaning towards granting that personal unpaid leave.  Byrne says the decision, according to that previously adopted Board policy, is "up to me, but I don't want to play games."

Byrne last week told the WSFA Editorial Board, "I've got plenty of real fights.  I don't need symbolic fights.  You know what I'm dealing with. I've got plenty of major, big time things that I've got to do that I don't need to be going off doing symbolic things. "

The chancellor says people need to remember the policy on unpaid leave "doesn't just apply to legislators.  Sometimes we get lost in that.  I can give personal unpaid leave for somebody who wants to go off and form their own business or somebody who wants to moonlight as a nurse, it could apply to dozens and dozens of different categories of employees."

"But," says Byrne, "If I started granting it for one group, I'm going to have every group in the system saying well what about us and you know what - that's when the exception eats up the rule and I'm not going to let that happen.  This really needs to be extraordinary (circumstances)."

Byrne told the Board he revised the policy previously presented to them, "after listening to a lot of people and trying to think through things. I think it solves all the meritorious concerns that I heard from people and solves them in a way that's in keeping with our policies and state laws."

Byrne told the Board that when a previous version of the policy was sent to the Board last week, and a previous press conference was held, "one of the issues that came up was -'Should the chancellor or anybody be policing' what people do on their vacation?"

"I have a strong feeling that people ought to take vacation for vacation.  But, in light of a lot of the comments we've heard about that, it seems to me that the better thing to do is to leave that still up to the employees.  I'm not going to police that," says the chancellor.

The chancellor added, "But we're going to make it clear that if you are working on something for which you're being paid (by state funds) for somebody else away from the department that you have to use whatever unpaid leave or paid leave that's available to you."

He went on to say that the thought behind the previous version of the flextime proposal, which included limiting unpaid leave to 10 working days and limiting what all employees could use their personal leave for, was "to make it clear that you couldn't use a flexible work schedule in essence to have unlimited paid or unpaid leave.  There would have to be some discipline within our system about that."

The revision to the policy was so new, Byrne didn't even know at first whether or not he had a copy of the policy available for the Board to review.

Unless an employee wants leave to work on something else for which he is compensated in some form by state funds, that employee's leave would fall under the first sentence of the latest policy version which simply says:  "All Alabama College System employees engaged in outside employment or activities during their normal work hours must request personal, annual, or unpaid leave in accordance with State Board policy."

Postsecondary vice chancellor and legal counsel Joan Davis, responding to a question during the Board's work session, said that employees who's other employment falls outside their normal work hours could still do that work without taking leave. I double checked with Ms. Davis, who explained the provision related to drawing two checks from the state only applied in situations where the time of the work being done "overlaps"

Ethics Commissioner Jim Sumner told me that is "correct."  Sumner says it's fine to work from 8-5 on one job and then work 6-11 on a second job paid with state funds.  He says that policy "applies to all public employees" and working two jobs is okay "as long as they don't conflict."

Byrne went on to tell the Board there was already a policy on unpaid leave and that policy "gives the chancellor the power of discretion to grant that but it grants it only under four specific categories - one is maternity leave, I think that's self explanatory; another is professional leave, that's like sabbaticals and that sort of thing; and another is the Family and Medical Leave Act, which we have to comply with; the fourth category is personal leave."

"Personal leave, unpaid personal leave,  would be an extraordinary thing that should be rarely granted.  It's in the present policy and I think the better way to deal with the unpaid leave situation for the vast majority of our employees is to leave it there," says Byrne.

Byrne then got to how the issue would impact employees like legislators.

"In the policy that we've passed out however we've made it clear, because our review of the ethics law leads us to the conclusion that you can't take paid leave for working on something with state funds, because then you would be being paid twice,  and that's prohibited by the Ethics Commission."

Ethics Commissioner Jim Sumner said on Tuesday that Byrne is going "beyond the scope of the ethics law, but it's clearly within their authority to do that.  Some opponents are trying to use the ethics law to trump what the chancellor is doing but the ethics law only covers you so far.  You can't really use the ethics law to try and trump what their trying to do.  It's within their purview, just like it's within the Department of Transportation's purview to adopt stronger regulations, rules far stricter than the ethics law.  You just can't make the policies weaker than the ethics law. "

Sumner says people should look at the state ethics law "as a floor, what the chancellor and the governor are doing is providing a ceiling.   They're setting a higher standard and as I've said many times before that's clearly within their authority."

As far as the debate about whether or not legislators can use paid or unpaid leave "again that's beyond the scope, it's up to them(the department) to decide."

For individuals who accumulate leave, Sumner says, "As long as it falls within one of the categories outlined by the opinion - annual leave, personal leave or leave without pay," that's all that matters. "We don't get into it beyond that."

For salaried employees who do not accumulate leave, Ethics Commission Advisory Opinion No. 2002-28 says "a salaried public employee, who does not accumulate leave time, or whose job responsibilities allow them to be performed at flexible hours, who is subsequently elected to public office, may continue to draw his or her salary and make up the hours missed through a flexible work schedule; provided, the flex time is approved by and is part of a written employment agreement or policy adopted by the public institution and applicable to all employees of the institution."

Byrne read from the flextime policy to the board, "It says, 'Only unpaid leave is available for outside employment or activities which result in compensation and/or the reimbursement of expenses from state funds.  So that sentence would only apply to someone who's working in the system and then tries to use unpaid leave to work on something using state funds.  So that still would be prohibited.'"

Byrne reiterated while taking questions from Board members that the unpaid leave request brought by individuals to him "should be for something extraordinary" and the request "cannot hamper" the normal routine operation of their office.

Byrne says an employee wanting to "just take off two or three weeks because they want to moonlight" is "going to have a difficult time showing me that doesn't hamper the operation."

He told Board members in his travels around the system in the last few weeks he's talked to the many good employees in the system "some of whom work well beyond eight hours a day" and has been "heartened by the comments that I've gotten...how appreciative they are of the fact that there's now going to be some discipline on this, because I think there have been some circumstances around this system where some employees have had to carry the load for somebody else while they were off doing other things and that's unfair to those employees."

One of the most interesting exchanges of the work session and debate on the policies took place between Board member Ms. Ella Bell and Governor Bob Riley.

Bell does not think it's fair that postsecondary employees might have to choose between being legislators and working at their job in the postsecondary system.  She was particularly concerned about state Senator Larry Dixon and compared Sen. Dixon with Sen. Quinton Ross.  Ross works for the two-year college system at Trenholm Tech.

Ms. Bell told the governor and the Board, "I'm going to tell you straight up I'm not going to support anything that is different for us than it is for anybody else, because I just don't think that's fair."

"If Larry Dixon can be a state employee and be a senator then Quinton Ross can be an employee and be a senator.  That's just my position.  And we ought to be able to do something to fix it, " says Bell.

Dixon is the executive director for the Alabama Board of Medical Examiners.  While the Board is established under the Code of Alabama and its Web site calls it a "state agency," Dixon says:

"We're self-generating.  If you get no state tax dollars, if you are not paid with state dollars, it's not double dipping, even if you are a state licensing agency."

Governor Riley said following the work session if Ms. Bell really wanted there to be no difference between Senators Dixon and Ross.  "What I need her to do is go and support a policy, that I proposed to the legislature last year and that was almost laughed at, that we take all agencies and make them consistent.  Pass a law that says you can't serve on a state agency and be in the Legislature.  Then it covers everyone - Republicans and Democrats."

Bell told the Board she was concerned that if "the two-year college people can't represent us, then the four-year college people can't represent us. ..If state employees can't do it, then no other government employees are going to be able to do it..."  She asked the governor, "Who rules?"

Bell said to WSFA's Eileen Jones following the Board's meeting:

"I can't tell you anything but I grew up in Montgomery.  I know what it's like to be discriminated against.  I know that most of our folks our educators, so when you tell me that educators can't serve then I know you hit into our representative base real hard."

Chancellor Byrne told the Board:

"Educators can choose to run for the Legislature.  They can retire and run for the Legislature.  They can take a couple of years off and run for the Legislature.  They can decide that they're going to go into a different realm of education.  They can go into some private businesses that provide educational services.  You don't quit being an educator just because you don't work at a 'public school.'  There are many educators who do very important education work in other areas.  So an educator can be a legislator.  They just can't be working for us in the two-year college system and be a legislator at the same time."

AEA Exec Mary Bruce Ogles says AEA certainly doesn't "want the rights of any educator to be violated.  We want them to be able to run for public office and be able to serve.  We don't think that any occupation should be discriminated against.  We were very concerned about the policies that said you could not use your personal leave or your annual leave, those are earned benefits.  When you work you earn that and you should be able to use those any way you see fit."

"We disagree with the way they're interpreting the Ethics Commission ruling because when an employee works and they earn personal leave or annual leave that's something they've already worked for.   They're not being paid for that particular day.  They've already earned that time to take off and take off as they see fit.   So we interpret the Ethics Commission ruling differently than the chancellor and the governor interpret it."

During the board meeting, Governor Riley told Ms. Bell that he's tried to get the policy applied more broadly through legislation.

"It's not because we haven't tried.  We introduced legislation last year that would have taken care of any double dipping.  I think it was characterized as getting through Hades in a pair of gasoline soaked shorts before it ever got up there.  So we may have to do it individually.  I wish we could have passed that last year because it would have solved the various questions that you have."

Bell told the governor she could "feel where you're coming from."  However, Ms. Bell was still not satisfied.  "I'm not going to be absolutely difficult about this, but I can only tell you I come from the spirit of one  who in my lifetime have seen people of my color not being able to vote, let alone serve.  And it disheartens me that I am being asked to even participate in a decision that could have the impact of hindering them from doing both.  That's exactly where I am."

The governor then said people were involved in demagoguery:

"Ms. Bell, I don't disagree with that and I don't think this is anything that any of us are entering into lightly.  But some of the demagoguery that is going on, that was in the paper yesterday, comparing this to denying a female or someone of a different race their ability to serve, that's beyond the pale."

Board member Betty Peters told the Board of an e-mail she received and was concerned about the perceptions people around the state had about what the proposed policies would do.  Peters told the Board the e-mail from the Alabama Education Retirees Association read in part:

"These policies would deny any and all employees of a two-year college from serving on county commissions, city councils, public utilities or ever getting reimbursed for mileage or for or going to a district Boy Scout meeting, helping the United Way, taking children to a church youth camp retreat, if they go more than 10 times in one year.  Two-year college employees who helped in a disaster like Katrina and was given food or reimbursed any expenses they would be in violation of this policy."

Chancellor Byrne responded to the charges with respect to volunteer efforts, "No version  of this policy would ever affect somebody like that.  I've seen that talking point that simply isn't true.  NO."  With respect to serving on public boards, "Before I ran for the State Board of Education, I was on the Planning Commission for Mobile.  I didn't get paid for that.  It was pure public service.  Let me assure you, if you've ever seen a planning commission meeting, it was pure public service.  We don't keep people from rendering that type of uncompensated public service.  There are many examples of that in our system, where people are doing that."

However, Peters wanted to know about "if they are reimbursed."

Byrne responded that then it is a "compensated position, but they're not paid with state funds so they can use their personal time and they can get unpaid leave time so long as it fits with this policy.  If they are in any position to get state funds they can't use personal paid leave.  they have to fall under this and you've heard me say what I consider to be the standards are the existing Board policy."  Byrne then wanted to repeat, "Let me say this, no version of the policy would have ever prohibited somebody from volunteering or serving.  I will make sure that I respond to them and I'll make sure they know this would not effect any retirees."

Ms. Ella Bell told the Board the problems she's encountered throughout her life help her to  "know how this can adversely affect people."

But Board member Randy McKinney says Bell's comments actually support the policy she is opposing:

"I just heard there in your answer the conflict of interest that's occurred.  I would use it as an example to say if everyone of us on this Board worked for the Department of Postsecondary and we served on this Board, every time we made decisions, there'd be coworkers and fellow coworkers that would be concerned about the decisions we make, who'd also be concerned about us being treated differently because we're on the Board so other people would feel they have to be nice to us in order to get things done."

Board Member David Byers told the governor he also had concerns that the two-year system could end up at a disadvantage if the same policy was not applied to higher ed and K-12.

"I think we need to do what we believe is right on this kind of policy.  But I think it would be naive to suggest that this doesn't have the potential to be financially damaging to the programs that we all believe tremendously benefits the lives of Alabamians."  Byers says he believes that by doing "what we believe is the right thing" the system could be "damaged substantially because other boards don't do the same thing."

But Governor Riley says someone has to lead:

"I think this group can all of a sudden become the defining point in saying we'll no longer accept that and then I think some of the opponents of this policy may become our best advocates because when you see the two-year system and I hope the K-12 system not having legislators on their payroll, the same people who are opposing now will become our advocates to make sure the four-year policy also includes them."

From the Mississippi Supreme Court opinion Frazier vs the State of Mississippi (1987):

"A legislator-faculty member at a state supported college might well provoke the inquiry. Who's the boss?"

Interesting question.

Reported by:  Helen Hammons