For many months, Public Employees for Environmental Responsibility (PEER) has been receiving distressing reports from public servants about a big business anti-environmental agenda being promoted at the highest levels of Florida state government. This report briefly summarizes the real world experiences and concerns of public employees in Florida related to one of the most critical components of this agenda--the move to take away Career Service protection from Florida’s environmental stewards.

Governor Jeb Bush and the Florida House of Representatives appear to be attempting to weaken environmental enforcement using stealth tactics. No longer simply gutting environmental legislation and under-funding environmental programs, the legislature is now attempting to severely weaken protection of state workers.

Floridians are not in favor of weakened environmental protection. In fact, Floridians overwhelmingly believe that developers and corporate polluters already hold too much influence over the day-to-day decisions in the state. On the other hand, state employees can be, and are, routinely demonized by big business interests and their friends in the Florida Legislature.

Applying the label "bureaucrat" to demonize state employees has been a growing trend over the last twenty years. Unfortunately, those "bureaucrats" are not simply convenient political targets--they are crucial protectors of Florida's natural heritage from those whose only interest in the land is for exploitation and profit. They also protect public resources such as drinking water from bacteriological contamination and toxic chemicals like arsenic.

In December of last year, the influential Florida Council of 100 proposed to place Florida’s Career Service workforce in "at will" status. This would mean that Florida's public employees could be fired at the discretion of the Governor and his political appointees. In other words, every state employee would ultimately be a political appointee.

Governor Bush's Other State Workforce Plans

Undoubtedly, the Florida Council of 100's proposal has received the strong support of Governor Jeb Bush. Hence, it should be placed into its gubernatorial context. This proposal dovetails with other ideas of Governor Bush and his top political appointees, including Department of Environmental Protection (DEP) Secretary David Struhs.

Governor Bush already has a two-fold campaign of his own to (1) cut the state work force by 25% over the next five years, and to (2) farm out state functions to private business contractors, who are typically major political contributors.

Leaving the name-calling to others, the Governor and Secretary Struhs are careful to refer to state workers as their "colleagues" and "partners." Unlike former Florida Republican Governor Martinez, Governor Bush has not publicly referred to state workers as "lard bricks." However, the implication is clear--to Governor Bush, a large portion of the current environmental work force is expendable.

This campaign, laden with new economy lingo, comes under the rubric of creating greater "efficiency" in state government. At DEP, the Governor's campaign is supported by a new catchy slogan: "Achieving more protection with less process."

It is useful to note some examples of increased "efficiency" that have thus far been developed at DEP. One example is DEP’s plan to stop sending out quarterly performance reports in lieu of posting them on the Internet. While this is seemingly laudable, it obviously does not begin to justify even a single year's proposed 5% budget cut in a state agency that has never kept pace with inflation, and that is near the bottom in state employee to population ratio. Similarly, in DEP district offices, office assistants have been required to formulate detailed records on the amount of clerical effort that goes into supporting every single task accomplished by their sections, even though secretaries already are serving in some cases ten or more professional employees. This is certainly not an efficient process.

The truth is, "Achieving more protection with less process" is just the latest buzz phrase to hit DEP. The beleaguered state employee bogeys do not need to read tea leaves to get the picture. Wrote one DEP district manager on January 3, 2001, desperate to get her employees "with the program":

By using email, the manager hopes to make a dent in her district’s $40,000 yearly postage costs and $20,000 yearly paper and copying costs. Again, this is a good goal, but hardly likely to generate the type of savings that the Governor’s budget slashing will force.

But then again, this 25% process is facially and intentionally arbitrary. One would not expect that Governor Bush would seriously contend that state government actually will become 25% more "efficient" in the protection of the environment as a result of minor management changes such as emailing permits, posting reports on the Internet, and giving already stressed out clerical staff additional heartburn.

Further, the Governor’s definition of "efficiency" may not mean much to citizens who want better protection from the state’s worst corporate environmental polluters. The major effects of the campaign so far on the state’s environmental workers have been to:

• destroy employee morale (which initially had slightly improved under Governor Bush);

• accentuate sycophancy;

• encourage under-regulation of powerful polluters; and

• distract workers from their true jobs of protecting Florida’s environment.

At the very least, DEP employees at all levels, from secretaries to division directors, are frantically generating bean counts so that their "efficiency" can thereby be demonstrated, if not maximized.

As if the threatened 25% percent staff reductions and massive privatization are not enough to satisfy Florida’s big business interests or their associates in Florida government, they have devised an endgame that will effectively replace career environmental professionals with industry-beholden regulators. The end game is to make Career Service in any meaningful sense a thing of the past.

DEP Secretary Struhs began laying the groundwork for this endgame in an August 27, 2000 letter to his "Colleagues", the staff of DEP:

The Council of 100, Governor Bush, and Secretary Struhs could not have found stronger allies than in the Florida House of Representatives. Republican State Representative Mario Diaz-Balart of Miami proposed legislation in February that would reclassify all career service employees as "at will employees" effective January 1, 2002.

Now, as a result of public outcry, this legislation has been modified. However, the modified House Bill 369, which passed on a near party line vote on March 22, merely provides greater camouflage for the anti-environmental agenda behind the legislation. That is, this stealth anti-environmental legislation only has become stealthier.

Other places such as the website for the American Federation of State, County, and Municipal Employees (afscme.org/florida) provide excellent information on the current proposal and its overall anticipated effects. The two provisions that this paper focuses on are:

1. the transfer of hundreds of supervisory and managerial positions in state environmental positions (including at DEP and the Florida Fish and Wildlife Conservation Commission [FWCC]) from the Career Service to the Selected Exempt Status, which is an "at-will" class; and
2. the burden of proof provided in the bill for those who will remain in Career Service (that the employee must establish by a preponderance of the evidence that the agency head abused his or her discretion and that no reasonable cause existed for the alleged adverse action), which eliminates the burden of proof on the employer to prove "just cause."

?The bill would make hundreds of Florida’s most experienced environmental stewards "fire-able at will." These include not the "mighty" but the "low." The mighty are already classified as senior management and therefore already subject to "at will" termination because of their nature as political appointees.

If this bill becomes law, lower managerial positions (with effected position count in parentheses) that will in effect become political appointees will include: Environmental Administrator (19); Environmental Manager (228); Biological Administrator I (42); Biological Administrator II (47); Biological Administrator III (21); Chemist Administrator (33); Professional Geologist Administrator (6); Research Administrator I-Florida Marine Research Institute (12); Research Administrator II-Florida Marine Research Institute (5); Resident Assistant Park Manager (64); Resident Park Manager I (22); Resident Park Manager II (39); Resident Park Manager III (10); and Resident Park Manager IV (9).

Similarly, if this bill becomes law, all of the remaining supervisors of the state civilian environmental workforce will also be fire-able at will, including: Environmental Supervisor I (67); Environmental Supervisor II (73); Biological Scientist Supervisor (15); Professional Geologist Supervisor (3); Marine Services Supervisor (3); Marine Captain I (1); and Park Wildlife Care Supervisor (1).

?DEP’s actual recent experience with an earlier divesting of career service protection from 120 employees is not comforting. The Report of the Special Grand Jury on Air and Water Quality for Escambia County, July 1999, analyzes this experience:

?What is particularly compelling about this experience is that public servants were forced to make decisions that were not based on "their own professional judgment." This works contrary to not only the public servants’ own professionalism and the scientific method, it also works against the public’s needs for vigorous enforcement of health and safety laws.

?For example, under the current proposal, biologists and other professionals supervising the protection of Florida’s surface and ground water resources, air resources, and endangered species, including the manatee, will be fire-able at will. Unfortunately, keeping one’s job will depend less on doing one’s job well and more on avoiding angering the powerful interests one is supposed to be regulating. Career service protection is currently the last line of defense public servants have from losing their jobs in retaliation for simply doing their jobs. The end of Career Service protection means that scientific and professional decisions will now be based largely on politics.

In addition to the above-noted grand jury report, one might also note that for the past several months, a 26-year employee of DEP in its Northwest District, with an unblemished record of public service, has been twisting in the wind at DEP as the subject of an internal investigation and non-specific alleged "firing" offense. This harassment was in retaliation for doing his job in relation to a frequent major corporate environmental violator--a violator that is, by the way, a major political contributor with an alleged history of intrigue in Florida’s Legislative and Executive Branches.

?A very recent example of job-related retaliation against a public servant without Career Service protection was the forced resignation in December 2000 of Bay County’s highly regarded, long time Planning Manager under an alleged vendetta by well-connected developers and their supporters in Bay County government. For the past two months, Governor Bush has been sitting on a legal petition filed by PEER for a written direction to the Florida Department of Law Enforcement to investigate this and other alleged misconduct in Bay County relating to local regulation of land development and related processes.

?Therefore, one can only conclude that Governor Bush knows full well what he and his legislative comrades are doing. He must know that when he takes Career Service protection from Florida’s environmental stewards, they will be subject to similar harassment with little or no recourse, perhaps sometimes even by political friends of the Governor himself.

Further, this heightened potential for harassment would be likely to send a chilling effect throughout the affected agencies. Employees at all levels would be less likely to be willing to make powerful enemies through strictly enforcing the law. Therefore, they may avoid trouble, but perhaps only by neglecting of their duties.

Under the proposed legislation, the burden of proof will be on those who will remain in Career Service to establish by a preponderance of the evidence that the agency head abused his or her discretion and that no reasonable cause existed for the alleged adverse action. No longer will the employer bear the burden of proving that its termination of a public servant is for "just cause." The reality is that this will make it almost impossible for a harassed public employee to keep his or her job unless the agency itself admits that it has no legitimate basis for the adverse action.

Forcing the accused to bear the burden of proof is clearly contrary to the principal of due process, and is not a tolerable way to deal with the public’s environmental experts. To further this abuse by turning the standard into a vacuous "discretion" test would make the supposed job protection of Career Service nearly meaningless.

The reasonably anticipated impact that this change will be expected to have on civil and administrative environmental enforcement is significant and adverse. As it currently stands, environmental inspectors at least have the right to a credible hearing, with the accuser bearing a responsible burden of proof, if they are the subject of adverse personnel action precipitated by frustrating the desires of an environmental violator. Under these revisions, the remaining civilian work force at DEP, FWCC, and indeed at every state agency, will be subject to "virtual" at-will termination.

This agency-wide degrading effect of virtual at-will status will only be compounded by its coupling with the removal of any Career Service protection from every civilian supervisor and manager.

According to DEP Secretary Struhs in his August 27, 2000 letter, he recognizes that state employees involved with "enforcing the laws and regulations" are engaged in "highest and best use positions." This is part of Struhs’ assertion that, under his recreated DEP, "[W]e can be confident that our critical mission of conserving, protecting and managing Florida’s environmental quality will not be compromised …."

Interestingly, the House bill itself recognizes that legitimate law enforcement needs support that employees only be dismissed for just cause. Accordingly, the legislature clearly understands that at-will status will unduly inject politics and fear into professional decisions, and for this reason the bill expressly exempts law enforcement officers, as well as corrections officers and fire fighters.

PEER strongly supports maintaining the current law’s protections for these deserving public servants. However, it is bad policy to undervalue the responsibilities of other types of law enforcement professionals as well. And that is what this bill does.

The environmental public servants at DEP and FWCC clearly are involved in law enforcement, albeit often of a white collar, civil, and/or administrative variety. They directly perform inspections and otherwise assist in the preparation of criminal and non-criminal cases. They also hold within their care critical police power responsibilities, including protection of the public health, safety, and welfare from water and air pollution. Certainly the quality of water children and visitors will drink and swim in is important, to say the least. If this water is contaminated or poisoned by domestic, industrial, or hazardous waste, this is not only damaging to the potentially affected individuals, their families, and industries such as fishing, but also to Florida’s reputation as a prized place to live and visit. Similarly, when a manatee is killed or injured by a speeding boater because Florida regulators are pressured into inadequately protecting manatee habitat, this hurts not only the manatee but also all persons who enjoy manatees. Likewise, when a guardian of Florida’s sovereign submerged lands or coral reefs is subjected to harassment for doing his or her job, this violates the public trust to current and future Floridians. Further, if what DEP calls "the Real Florida," its state parks such as Ichetucknee Springs State Park, are not managed carefully to ward off harm from nearby polluters and developers, the results can be permanent and devastating.

Put simply, each and every program established by Florida law to protect Florida’s environment and natural resources is important. If it is not functioning properly, then the proper recourse is to modify the laws involved with the program. The proper response to developers and polluters seeking special favors in the form of lax enforcement of the laws protecting the environment is to "Just Say No." With the benefit of Career Service protection, Florida’s conscientious environmental regulators seek to apply this discipline every day.

PEER respectfully suggests that, ideally, Governor Bush and indeed all Florida politicians should begin to learn and follow similar discipline. The fact that they often do not do so itself demonstrates the power of money and politics to counter action in the public interest.

It clearly is not appropriate for Florida’s state biologists, chemists, and other resource experts to make political decisions when they are supposed to be applying the law consistent with their sound professional judgment. If Floridians are to be legitimately "confident" that their environmental stewards are "not compromising" the "critical mission of conserving, protecting and managing Florida’s environmental quality," Florida must maintain a vigorous system of Career Service protection.