Kentucky Gov. Ernie Fletcher is under indictment and two more governors are facing scrutiny for hiring practices that test the legal limits of the historic "spoils system" in state government.
After a year-long investigation, Fletcher (R) was indicted May 11 by a grand jury on misdemeanor charges that he created and directed an effort to hire political allies and fire, demote or transfer partisan foes.
In Maryland, a special committee of the General Assembly is probing accusations from fired state workers that Gov. Robert Ehrlich's (R) administration purged Democrats from the ranks of state agencies. And in Illinois, the Federal Bureau of Investigation is investigating complaints that members of Democratic Gov. Rod Blagojevich's administration rigged the state hiring system for politically connected applicants.
Fletcher and Ehrlich have blamed the fuss on Democrats who hope to win back the governor's seat in both states. Fletcher, whose first term ends in December 2007, and Ehrlich, who is up for re-election this year, are the first Republican governors of their states in more than three decades. Blagojevich — also running for re-election this year — is the first Democratic governor elected in his state since 1973.
Political and legal experts say past governors of both parties have long used partisan patronage to reward allies and ensure loyalty among rank-and-file state workers, but this trio of governors may be under fire as much for their methods as their alleged abuses. The practice of rewarding job after winning high office has been known as the spoils system since President Andrew Jackson's administration in 1828.
The core question in all three cases is whether the governors violated state employee protections granted through a merit or civil service system, which prohibits political favoritism and often includes a rigid screening process and exam to be hired and a lengthy review and grievance process for dismissal.
The percentage of state government employees under each state's merit system ranges from 32 percent in Georgia to nearly 100 percent in North Carolina, according to data from the nonprofit Government Performance Project (GPP), which studied surveys of government operations in 42 states. The GPP and Stateline.org are both funded by The Pew Charitable Trusts.
In Illinois, 92 percent of state workers are covered by the merit system, 86 percent of Kentucky's state workers are under the merit system, according to GPP. In Maryland, 86 percent of state employees are under the merit system, not including workers in the Department of Transporation or the University System of Maryland.
In the mid 1990s, many states launched efforts to make government more efficient and began scaling back the number of state workers covered by merit systems, said Sally Selden, a professor of public administration at Lynchburg College in Virginia.
State workers not under the merit system are considered "at will" employees and can be hired and fired for nearly any reason, similar to many workers in the private sector.
But even without the protections of the merit system, the U.S. Supreme Court has ruled in three separate cases that most state workers cannot be hired or fired for their partisan affiliations, Selden said.
In a 1990 ruling, Justice William J. Brennan wrote for the majority in the case of Rutan v. Republican Party of Illinois : "The First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved."
Political patronage still is allowed and even expected for some top-level policy-making positions or jobs that require knowledge of confidential political information under a 1976 high court decision in Elrod v. Burns .
Al Cross, director of the Institute for Rural Journalism and Community Issues at the University of Kentucky, said his state's merit system hasn't stopped decades of Democratic governors in power before Fletcher from giving away low-level jobs, such as positions at Kentucky's highway maintenance garages.
Because of that longstanding practice, there was a pent-up demand for Republican patronage when Fletcher became the first GOP governor in 32 years, Cross said. "The governor was elected on a reform platform, but he had a base that said 'Merit-schmerit, we want jobs,'" said Cross, a former political writer for The Courier-Journal newspaper of Louisville, Ky.
Kentucky's Democratic Attorney General Greg Stumbo has charged Fletcher on three misdemeanor counts of conspiracy, official misconduct and political discrimination. The attorney general alleges that Fletcher created a special advisory committee, the Governors Personnel Initiative, to weed out political foes as potential employees.
Fletcher has said his initiative was meant to improve the state's merit system process. But the attorney general alleges that group members exchanged information on how to vet employees' political ties and identify positions for Fletcher supporters.
The governor preemptively pardoned more than a dozen of his employees in August and says that Stumbo is trying to boost his chances for a 2007gubernatorial bid. Stumbo has responded that he will not run for governor against Fletcher but has not ruled out running if Fletcher decides not to seek re-election next year.
Cross said Fletcher's actions might not have gotten any attention, except that he created a formal process to circumvent the state's merit system and documented that process in e-mails and other communications.
In Maryland, a legislative inquiry into the firing of more than 300 state workers — many of them mid- and lower-level employees — involves a former Ehrlichaide who said the governor nicknamed him the "Prince of Darkness." The aide, Joseph F. Steffen Jr., admitted to The Sun, of Baltimore,that he was sent to several state agencies to assist with firings .
Ehrlich has denied that Steffen's job included that mandate, and Steffen has said his recommendations were not based on the employees' partisanship.
But several details of Steffen's activities and those of other administration staff have gained notoriety. A deputy appointments secretary had T-shirts made that said "Ehrlich-Steele. History is Here" on the front, referring also to Lt. Gov. Michael Steele (R), and "Trench-coat man" on the back - in response to rumors that news of firings were being delivered by men in trench coats.
Steffen was fired by the governor eight months before the General Assembly began its hearings into the Ehrlich administration but after The Washington Post reported thatSteffen had spread rumors about Democratic gubernatorial candidate Martin O'Malley in Internet postings.
Ehrlich — the first Republican governor of Maryland since Spiro Agnew left that post in 1969 — has called the inquiry a witch-hunt and said the Democratic-controlled General Assembly is only out to damage his re-election hopes this year.
Political scientist Thomas Schaller, at the University of Maryland, Baltimore County, said Ehrlich's administration has done plenty to help the Democrats on this issue.
"There's no question that investigations into Ehrlich's hiring and firing practices are a result of divided partisan government. But the way Ehrlich handled [the situation] gave his Democratic opponents ammo they otherwise would not have had if the administration were more subtle about it and didn't put rogues like Joe Steffen in charge," Schaller said.
The administration of Illinois Gov. Rod Blagojevich (D) is under federal investigation for possible employment violations. Two former administration employees have been questioned by the Federal Bureau of Investigation about giving preference for state jobs to applicants with political connections, according to the Chicago Sun-Times.
The Blagojevich administration has blamed the two employees for manipulating the state's grading system for 28 job applicants and has hired two former federal prosecutors to conduct a separate inquiry.
May 17, The Sun-Times revealed the existence of a "clout list" of hundreds of applicants recommended by lobbyists, lawmakers and major fund-raisers for state jobs.
And The Associated Press reported June 1 that top administration officials approved the hiring of some 1,200 new employees, many of them in the state's civil-service system.
Chris Mooney, professor of political studies at the University of Illinois Springfield, said that there's nothing illegal about keeping a list and that Illinoisans are used to the state's history of political patronage. But he said the stories bear an uncomfortable similarity to a favors list kept by former Gov. George Ryan (R), who was convicted in April on 18 counts of corruption for steering state contracts to political cronies and misusing state resources for political gain.