Issue: Qualification, Performance/Arbitrary/Capricious; Ruling Date July 27, 2001; Ruling #2001-014; Agency: Department of State Police; Outcome: Not Qualified

In the matter of the Department of State Police/ No.2001-014
July 27, 2001

The grievant has requested a ruling on whether his October 26, 2000 grievance with the Department of State Police qualifies for a hearing. The grievance states that the grievant’s 2000 Performance Evaluation was arbitrary or capricious because the underlying Performance Plan allegedly had no set standards or expectations (e.g., in terms of quality, quantity, or timeliness) upon which performance levels could be judged and differentiated. Additionally, the grievant claims that management failed to enforce its gift-giving policy, in that management allegedly allowed evaluating supervisors to accept gratuities from employees under their supervision. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant is employed with the State Police (agency) as a Special Agent. On September 26, 2000, he received his 2000 Performance Evaluation with an overall rating of Exceeds Expectations.

During the management resolution step phase of the grievance process, the grievant clarified that he was satisfied with his overall rating, as well as the ratings received in each individual job element, and that his grievance was intended to challenge his current performance evaluation plan, not his actual performance evaluation. The grievant asserts that he does not believe that the expectations described in his current performance plan job elements, as drafted, can serve as effective, accurate measures of the individual work performed by Special Agents--in other words, the elements are "generic," that is, so vague and lacking in measurable expectations that they are valueless.¹

The grievant has essentially alleged that the agency has misapplied or unfairly applied the performance planning policy and the gift and gratuity policy. For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

1. Performance Plan

The grievance statute and procedure reserve to management the exclusive right to establish performance expectations and to rate employee performance against those expectations.² In support of the grievant’s position that his performance plan was improper, the grievant alleges on his Grievance Form A that the agency (1) does not set forth performance expectations that include quality, quantity, or timeliness standards; (2) does not set standards for employees to determine whether they meet, exceed, or excel the expectations; (3) rated employees similarly without regard to actual job performance; (4) did not hold supervisors accountable for performance evaluations; and (5) has allowed gratuity and gift-giving to influence performance evaluation ratings. In sum, the grievance claims that the agency misapplied or unfairly applied the performance planning and evaluation policy by not including measurable benchmarks in the grievant’s performance plan.

In support of his claim, the grievant points to the Performance Evaluation Handbook for Supervisors (Handbook), which states that the "attainment of each expectation will be measurable" and each expectation "clear and specific as to quality, quantity, and timeliness, where appropriate."³ The Handbook also recognizes, however, that "some job elements do not lend themselves to specific numerical measures of quality, quantity, and timeliness" and that "expectations also may be expressed in terms of objectives."⁴ Indeed, the agency maintains that it is "impossible" to affix numerical measures to the job elements of a Special Agent (not just "inappropriate"). The agency contends that while the grievant’s performance expectations may not have been absolutely defined, they nevertheless provided a reasonable degree of specificity. Upon review of the performance plan, this Department concludes that the grievant has presented no evidence to the contrary. Accordingly, this issue is not qualified for hearing.

2. Violation of the Gift and Gratuity Policy/Accountability of Supervisors

The grievant asserts that supervisors have violated agency policy by accepting gifts, which have favorably impacted the performance evaluations of the gift-givers.⁵ The agency maintains that as soon as alleged gift-giving was brought to their attention, an investigation ensued, which ultimately determined that the allegations were unfounded. Apart from his claim, the grievant has presented no facts that raise a sufficient question as to whether the agency allowed a supervisor to violate a mandatory provision in its gift and gratuity policy.

The grievant also claims that the agency does not hold supervisors accountable for the evaluations they issue. The agency counters that supervisors are held accountable because on their own evaluations, supervisors are rated on how well they handle the performance evaluation of their subordinates. The grievant has not presented any information to indicate that the agency may have violated any policy relating to supervisory accountability. Accordingly, these issues are not qualified for hearing.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he should notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant