Civil Service - Who Are These People ET Are Firing? - Part II

INTRO:  Part I is here.  

If you find this topic dry and hard to get your head around, then you are half way there.  Because some of the most important things to know about government are dry and hard to get one's head around.  And that makes it easy for politicians to bamboozle voters with falsehoods and misinformation.  

So if you want to understand why ET's firing of civil servants (most of government employees) is a violation of law and various regulations, you'll have to buck up and read carefully.  Even take notes.  

This content is based on testimony I gave in a local discrimination case.  So I had to pare it down to as simple an explanation as possible so that I didn't lose the jury.  The attorney was nervous that his expert would talk over their heads, but when I was done he was relieved that I'd made it very easy to understand.  And the jury said the local government was guilty.

So good luck.   [I explained ET in the Intro to Part I, but it's not critical.]

From a February 19, 2018 post: 

Graham v MOA #9: Exams 2 - Can You Explain These Terms: Merit Principles, Validity, And Reliability?

The Municipality of Anchorage (MOA) Charter [the city's constitution] at Section 5.06(c) mandates the Anchorage Assembly to adopt

“Personnel policy and rules preserving the merit principle of employment.”   AMC 3.30.041 and 3.30.044 explain examination types, content, and procedures consistent with these merit principles.  

Âs defined in the Anchorage Municipal Code Personnel Policies and Rules,

“Examination means objective evaluation of skills, experience, education and other characteristics demonstrating the ability of a person to perform the duties required of a class or position.” (AMC 3.30.005)

[OK, before I lose most of my readers, let me just say, this is important stuff to know to understand why the next posts will look so closely at the engineer test that Jeff Graham did not pass.  But it's also important to understand one of the fundamental principles underlying government in the United States (and other nations.)  And I'd add that the concepts behind merit principles are applied in most large private organizations to some extent, though they may have different names. 

Jeff Graham's attorney made me boil this down to the most basic points to increase the likelihood I wouldn't put the jury to sleep.  So bear with me and keep reading. 

And, you can see an annotated index of all the posts at the Graham v MOA tab above or just link here.]  

Basic Parts of Government In The United States

Governments can be broken down into several parts.

• The elected politicians who pass the laws and set the broad policy directions (legislature)
• The elected executive who carries out the laws.
• The administration is led by the elected executive - the president, the governor at the state level, and the mayor at the city level.
• Civil Service refers to the career government workers who actually carry out the policies.  There are also appointed officials at the highest levels who are exempt from some or all of the civil service rules.

Merit principles are the guidelines for how the career civil servants are governed.  

So What Are Merit Principles?

Probably the most basic, as related to this case, are:

• Employees are chosen solely based on their skills, knowledge, and abilities (SKAs) that are directly related to their performance of the job. 
• The purpose of this is to make government as as effective and efficient as possible by hiring people based on their job related qualities and nothing else.  
• That also means other factors - political affiliation, race, color, nationality, marital status, age, and disability should not be considered in hiring or promotion.  It also means that arbitrary actions and personal favoritism should not be involved. 
• Selection and promotion criteria should be as objective as possible.   

So Steve, what you're saying, this sounds obvious.  What else could there be?

Before the merit system was the Spoils System.  Before merit principles were imposed on government organizations, jobs (the spoils) were given to the victors (winning politicians and their supporters)   The intent of the Merit System is to hire the most qualified candidates.

In 1881, President Garfield was assassinated by a disgruntled job seeker, which spurred Congress to set up the first version of the federal civil service system - The Pendleton Act.

Only a small number of federal positions were covered by this new civil service act, but over the years more and more positions were covered and the procedures improved with improvements in the technology of testing.  The merit system, like any system can be abused, but it's far better than the spoils system.  Objective testing is a big part of applying merit principles.

What does 'objective criteria' mean? 

Objectivity has a couple common and overlapping meanings:

• Grounded on facts.  Grounding your understanding or belief on something concrete, tangible.  Something measurable that different people could 'see' and agree on.
• Unbiased.  A second, implied meaning from the first, is that you make decisions neutrally, as free as you can be from bias, preconceived ideas.  That’s not easy for most people to do, but there are ways to do it better. 

What Ways Can Make  Tests More Objective And Free Of Bias?

I think of objectivity as being on one end of a continuum and subjectivity being on the other end.  No decision is completely objective or subjective, nor should it be.  But generally, the more towards the objective side, the harder it is to introduce personal biases.* 

objective ...............................................................................................subjective

First Let's Define "Test"

In selection and promotion, we have tests. Test is defined as any thing used to weed out candidates, or rank candidates from poor to good.  So even an application form can be a test if it would lead to someone being cut out of the candidate pool.  Say candidates are required to have a college degree and someone doesn’t list one on an application.  They would be eliminated already.  

Again,  how do you make tests more objective?

There are two key terms we need to know:  validity and reliability.

What’s Validity?

Validity means that if a person scores higher on a test, we can expect that person to perform better on the specific job.  

Or saying it another way, the test has to truly test for what is necessary for the job.  So, if candidates without a college degree can do the job as well as candidates with a degree, then using college degree to screen out candidates is NOT valid.  

And what is reliability?

Reliability means that if  a person takes the same test at different times or different places, or with different graders, the person should get a very similar result.  Each test situation needs to have the same conditions, whether you take the test on Monday or on Wednesday, in LA or Anchorage, with Mr. X or Miss Y administering and/or grading the test.  

How Validity and Reliability Relate To Each Other

To be valid, the selection or promotion test must be a good predictor of success on the job. People who score high on the exam, should perform the job better than those who score low.  And people who score low should perform worse on the job than people who score high. 

BUT, even if the test is intrinsically valid, the way it is administered could invalidate it.  If the test is not also reliable (testing and grading is consistent enough that different test takers will get a very similar score regardless of when or where they take the test and regardless of who scores the test) the test will no longer be valid.  This is because the scores will no longer be good predictors of who will do well on the job. 

How do you go about testing for validity and reliability?

This can get complicated, especially for  factors that are not easy to measure.  I didn't go into this during the trial.  I wanted to point out some pages in a national Fire Safety Instructor Training Manual used by the Municipality of Anchorage, but I was not allowed to mention it.  It talks about different levels of validity and how to test for them.  It also says that for 'high stakes' tests, like promotion tests, experts should be hired to validate the test.  The jury didn't get to hear about this. But it's relevant because as I wrote in an earlier post, the people in charge of testing, and specifically in charge of the engineer exam, only had Level I certification, which allows them to administer training and testing designed by someone with Level II certification.  It's at Level II that validity and reliability are covered.  

There really wasn't need to get detailed in the trial, because the oral exam was so egregiously invalid and unreliable that you could just look at it and see the problems.  And we'll do that in the next posts. 

That should be enough but for people who want to know more about this, I'll give a bit more below.

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Extra Credit

*"the harder it is to introduce bias"  There are always ways that bias can be introduced, from unconscious bias to intentionally thwarting the system.   When civil service was introduced in the United States, there was 'common understanding' that women were not qualified for most jobs.  That was a form of bias.  Blacks were also assumed to be unqualified for most jobs.  Over the years many of these sorts of cultural barriers have been taken down.  But people have found other ways to surreptitiously obstruct barriers.  

Merit Principles

If you want to know more about merit principles I'd refer you to the Merit System Protection Board that was set up as part of the Merit System Reform Act of 1978.  

A little more about reliability problems (because these are important to understand about the engineer promotion exam)

In the main part of this post I wrote that all the important (could affect the score) conditions of the test need to be the same no matter where or when or with whom a candidate takes the test.  Here are some more details

• Location - If one location is less comfortable - temperature, noise, furniture, lighting, whatever - it could skew the scores of test takers there.
• Time -  could be a problem in different ways.  
• All candidates must have the same amount of time to take the test.  
• Instructions - all instructions have to be identical
• Security of the test questions - if some applicants know the questions in advance and others do not, the test is not reliable.

The scoring, too, has to be consistent from grader to grader for each applicant. 

And there are numerous ways that scoring a test can go wrong.

• Grader bias  - conscious and unconscious.   Raters who know the candidates may rate them differently than people who don’t know them at all. 
• The Halo effect means if you have a positive view of the candidate, you’re likely to give him or her more slack.  You think, 'I know they know this.' 
• The Horn or Devil Effect is the opposite - If you already have a negative opinion about a candidate, you consciously or unconsciously give that a candidate less credit.  These are well documented biases.
• Testing order bias affects graders and candidates.  
• After three poor candidates, a mediocre candidate may look good to graders.  

• Grading Standards - Is the grading scale clear and of a kind that the graders are familiar with?
• Are the expected answers and how to score them clear to the graders?
• Do the graders have enough time to calculate the scores consistently?
• Grader Training -
•  If they aren't well trained, it could take a while to figure out how to use their scoring techniques, so they score different at the end from the beginning. 

How Do You Overcome the Biases In More Subjective Tests Like Essays, Interviews, and Oral Exams?

Despite the popularity of job interviews, experts agree that they are among the most biased and result in the least accurate predictions of candidate job performane.  Or see this link.

You have to construct standardized, objective rubrics and grading scales - this is critical, particularly for essay and oral exams.

On November 9, 2016 when the electoral college vote totals were tallied, everyone saw the same facts, the same results.  But half the country thought the numbers were good and half thought they were bad. When evaluating the facts of a job or promotion candidate, the organization has to agree, before hand, what ‘good’ facts look like and what ‘bad’ facts look like. Good ones are valid ones - they are accurate predictors of who is more likely to be successful in the position.   Good and bad are determined by the test maker, not by the graders.  The graders merely test whether the performance matches the pre-determined standard of a good performance.

What’s a rubric?

It’s where you describe in as much detail as possible what a good answer looks like.  If you’re looking at content, you identify the key ideas in the answer, and possibly how many points a candidate should get if they mention each of those ideas.  It has to be as objective as possible. The Fire Safety Instructor Training Manual has some examples, but even those aren't as strong as they could be. 

Good rubrics take a lot of thought - but it's thought that helps you clarify and communicate what a good answer means so that different graders give the same answer the same score.

Here are some examples: 
UC Berkeley Graduate Student Instructors Training
Society For Human Resource Management - This example doesn't explicitly tell graders what the scores (1,2, 3, 4, 5) look like, as the previous one does.
BARS - Behaviorally Anchored Rating Scales - This is an article on using BARS to grade Structured Interviews.  Look particularly at Appendices A & B. 
How Olympic Ice Skating is Scored - I couldn't find an actual scoring sheet, but this gives an overall explanation of the process.

My experience is that good rubrics force graders to ground their scores on something concrete, but they can also miss interesting and unexpected things.  It's useful for graders to score each candidate independently, and then discuss why they gave the scores they did - particularly those whose scores vary from most of the scores.  Individual graders may know more about the topic which gives their scores more value.  Or may not have paid close attention.   Ultimately, it comes down to an individual making a judgment.  Otherwise we could just let machines grade.  But the more precise the scoring rubric, the easier it is to detect bias in the graders. 


Accountability

Q:  What if a candidate thinks she got the answer right on a question, but it was scored wrong?

Everything in the test has to be documented.  Candidates should be able to see what questions they missed and how they were scored.  If the test key had an error, they should be able to challenge it. 

Q:  Are you saying everything needs to be documented?

If there is going to be any accountability each candidate’s test and each grader’s score sheets must be maintained so that if there are questions about whether a test was graded correctly and consistently from candidate to candidate, it can be checked. 

In the case of an oral exam or interview, at least an audio (if not video) record should be kept so that reviewers can see what was actually said at the time by the candidate and the graders. 

Q:  Have you strayed a bit from the Merit Principles?

Not at all. This all goes back to the key Merit Principle - selecting and promoting the most qualified candidates for the job.  There won’t be 100% accuracy. But in general, if the test is valid,  a high score will correlate with a high job performance.  But unless the test is also reliable, it won’t be valid. The more reliable the test, the more consistent the scores will be under different conditions and graders.  The best way to make tests more reliable is to make them as objective as possible.

Governor, Commissioners And Legislative/Administration Pay Raise Process Badly Flawed

Are the Alaska State Officers Compensation Commission pay raise recommendations for the governor, his commissioners, and the legislature reasonable?  My basic response is "No."  First round, the Commission only recommended raises for the administrative branch (governor and department commissioners), but not legislative branch.  The legislature rejected it.  All the members of the Commission then were either removed or resigned and governor appointed a whole new board which came up with new recommendations in a matter of days including a 67% increase for legislators.  

I'm going to take a look at this from human resources perspective.  While this isn't something I've spent my life on, I did teach human resources at the graduate level including compensation and I was involved in a major classification study at the Municipality of Anchorage - from helping write the RFP to working with the consultants - so I know a little more than the average person about how this should work.

Here are the basic issues for me: 

1. Compensation changes in large organizations are usually preceded by a study that gathers relevant data which becomes the basis and justification for the changes.  The final report also would discuss the fiscal implications of increases in compensation.  The report the Commission posted on its website in January is NOT a serious compensation study.
2. Traditionally, commissioners of state departments, like US cabinet officers, serve for a relatively brief time.  It's been considered an honor to serve one's state or country and good commissioners are respected for taking a break in the careers to serve the public.  Those coming from the private sector often take a cut in pay to serve.  Such servicet also makes someone more desirable for jobs after their service because they better understand how government works and they have personal connections that can be helpful.  So prestige and public service, but not a high salary, have been the traditional remuneration for these kinds of jobs.  No one seems to have discussed this. 
3. The Commission did not follow the steps listed in the statutes that establishes the Commission.
4. Given that the first Commission recommendation was no raise for the legislature, and the second Commission's recommendation was a huge raise, there's the appearance that the governor was really offering the legislature a bribe so that he could get his own salary and those of his commissioners raised.  This is obviously speculation.  But it's consistent with the governor's reelection campaign where he basically offered voters a higher Permanent Fund check if they reelected him.

That's the gist of this post.  If you want more details see below.  

[I'm trying to give you some headlines to act as guideposts, but separating out the issues so neatly also hides the interconnectivity of the issues.  I'm doing my best but also mindful if I wait to make this perfect, the issue will no longer be current.]

How to determine fair pay

There is no foolproof way to do this, but human resources experts have come up  two standard, general approaches to calculating salary:

• What is a job worth?  Classification and Pay studies try, in the simplest terms, to examine the duties of each job , the qualifications required  for each job, and the value that work contributes to the organization. You can see more details here.  It's an imperfect system at best as it tries to pin down and quantify many qualities that can't be quantified in a system that is constantly changing.  
• Market analysis looks at what specific jobs get paid in other organizations in order to determine what pay must be given to compete for workers.  This works best for common job types, but less so for more specialized positions.  This system tends to keep high wage jobs high and low wage jobs low.   You can learn more about this process here.

Large organizations often do a combination, trying balance both those strategies.  

Commission Doesn't Seem To Have Done That

The Alaska Compensation Commission proposed significant raises.  There is no evidence they did any serious data gathering or analysis to arrive at their recommendations.  The Compensation Report at the Commission's website basically says it was decided to increase legislative salaries by 2% a year to match inflation, but that hasn't been done.  So let's add up all those years and bingo, here's the number.  (OK, I'm being slightly facetious here.  You can see the study here.  Don't worry.  It's short. Two and a quarter pages, and that includes the cover page.)

This is NOT the serious report one would expect.  The posted one was dated January 24, 2023.  That's the one that didn't recommend any increases for legislators and was quickly voted down by those legislators.  

The new Commission, quickly created after the legislature turned down the original Commission's recommendations, doesn't have a study up on the website, presumably because there was no time to actually do one between their appointment and their recommendation a couple of days later.  

Basically, the January report  reads more like something written by a bunch a guys meeting to play poker one night, but they have to get this recommendation out before they play cards.  

"What do you think guys?  

"Is this fair?" 

"Yeah sure, that sounds good." 

"We're done.  Start dealing."

That is NOT how you run an efficient and effective organization.  This is a good old boys style of operating.   

Do we know what the cumulative costs of 60 legislators (40 house members and 20 Senators) would be?  No. 

What about the impact on the state employees' health system and retirement system?  

What do we compare ourselves to?

Was there any consideration of how much Alaskans get paid compared to other state legislators?  There is in a comment or two that observers made after the proposal went public, but was that part of their discussion?  The Juneau Empire writes very briefly about that:

"Alaska ranked 12th in legislative salaries in 2022, although it also is among 10 states that are classified as full-time legislatures whose members receive an average salary of $82,258, according to the National Conference of State Legislators. The raises would rank Alaska fourth among all states in 2022 (although other states’ salaries may have also changed since then), with California topping the list at $119,702 (plus roughly $210 in per diem)." (emphasis added)

Full time legislatures? 

Is that from discussion among Commission members or research the Juneau Empire did?  But even so, while the Alaska Legislature has exceeded its 90 day limit regularly in the last few years, calling it a full time legislature is something of stretch.  Certainly it's not a full time permanent legislature.  It meets for four or five months full time, then lots of members go back to their regular jobs.  Do we want to continue with part time, amateur legislators?  Do we want professional legislators?  More on this below.

Size of population, land mass?

And how do we compare based on populations of the states?  Alaska is the third smallest state (after Vermont and Wyoming)  How difficult is being an Alaskan legislature compared to legislatures of other states?  Ours is  the smallest legislature in the country. By a lot, compared to most states, though a few - Delaware, Nevada - are close to our size. One could argue that means more work per legislator, or one could argue it means far fewer people to deal with and negotiate with which should make it easier.

Alaskan is also the largest state geographically, with at least one house district larger than many states, yet with few roads.  On the other hand,  manyAnchorage legislators could walk across their districts in an afternoon.  It does seem reasonable evaluate pay of Alaska legislators based on how much it costs 

• to get to and from Juneau
• to meet with their constituents (though electronic meetings are much more common these days, the reliability of internet can be terrible in many remote villages)

Other considerations that were raised in media coverage

Alaska Public Media reports that Senate President Gary Stevens said,

“I think the younger folks that are entering the Legislature, they deserve to have a livable wage,”

Compensation Commission Member Larry LeDoux is  quoted in the Juneau Empire:

“I think if we’re really going to have a citizen legislature we need to have a salary that will allow citizens to maintain their households while they serve in the Legislature.”

  One could argue that a citizen legislature is a more amateur legislature and shouldn't get paid professional salaries.  

Professional or Amateur ("Citizen Legislator")

Do we have a citizen legislature or a professional legislature?  What does 'professional' legislator even mean?  One with many years of experience in the legislature?  Or one with educational training and work experience in a field relevant to understanding the issues facing the state?  

Surely we have a number of legislators who would qualify as 'professional' by those definitions.  But we also have people whose basic qualification is that they are residents of Alaska with a party brand that is in the majority of their districts.  And some sort of name recognition in that district helps.

Amateur suggests this is public service more than a career.  That they just need enough to get by for a term or two.  But people get addicted to the Juneau summer camp atmosphere and to the prestige that comes with being called Representative or Senator.  And after two terms as a Representative or just one term as a Senator - the next term vests them in the State retirement system.   But I appreciate the argument.  I'd note that I did spend a session in Juneau blogging the legislature on my own dime.  It's doable, but my kids were on their own by then.   

Former legislator Adam Wool from Fairbanks wrote in a March 29, 2023  letter to the editor in response    (sorry there's a pay wall) :

"But I feel compelled to counter the narrative I’ve been hearing lately that the current pay is not sufficient to entice legislators with young families to come to Juneau. As a legislator who had a young family, I find this untrue.

The salary of $50,000 per year, although not great is what a beginning teacher makes, and although it isn’t high, it isn’t low for a job that is only full-time for four months per year. The job also includes full medical benefits and a pension plan, another draw for a young family.

The tax-free per diem of $300 per day while in Juneau is much more than adequate. Many of us paid around $1,500 per month in rent; some even had roommates, which made it lower. A few rented bigger houses, some owned condos and one even lived on a boat he owned. Between restaurants, cooking at home, eating in the legislative lounge and the various dinners and receptions we attended, food totaled around another $1,500 per month. Altogether, that leaves about $6,000 per month of untaxed income to send home, making the salary closer to $80,000 per year."

Nat Herz, a reporter who covers the legislature, thinks they should get the salary raise, but cut out the per diem.  That's not an unreasonable suggestion - though it has tax consequences for the legislators.  

These are the kind of things a good compensation study would have looked at in detail instead of making broad generalization about pay and then suggesting a huge increase without any back-up data.

We also heard from the governor and a legislator that the State department commissioners' salaries were too low in an Anchorage Daily News article about the first recommendations that were voted down by the legislature:

"[Senator] Stevens said Dunleavy has told him that he has struggled to hire commissioners on their current $125,000-per-year salaries. Eagle River Rep. Dan Saddler, who worked at Division of Natural Resources between stints serving in the Legislature, said $125,000 may sound like a lot of money, but that it can be an impediment to hiring highly skilled administrators.

“There are more opportunities in the private sector for people with those administrative talents,” he said."

 

In it for the money or to do public service? 

 This, again, gets back to the issue of whether being a commissioner is a regular job that people apply for because of the pay, or a way for a seasoned professional to spend a few years taking a cut in pay to do public service.  

A Brookings Institute study in 2002 which looked at Federal appointee salaries (not just cabinet secretaries) did not put much emphasis on the public service motive, but did say this:

"People who accept top federal appointments derive non-monetary benefits from their service, of course, and these benefits help to explain why government service continues to attract outstanding candidates. Many public-spirited Americans are eager to serve in influential or high-profile positions, even if the financial rewards are far below those obtainable in a private-sector job. Experience in a senior government job allows workers to acquire skills, knowledge, and reputation that may have considerable value outside the government. Few appointees say they are forced to accept a big cut in earnings when they leave federal office. More than one-third of the appointees who served between 1984 and 1999 say they modestly or significantly increased their earning power as a result of holding a senior administration job (Light and Thomas, 2000, p. 35)." (emphasis added)

The Center for Presidential Transition, answering the question "I Was Offered a Political Appointment—How Much Will I Be Paid?" in 2020, writes: 

 "The government does not pay senior officials the kind of money typically found in the private sector. In the government, you may run a multi-billion-dollar program with thousands of employees and make less (sometimes much less) than $200,000 per year. You should also not be surprised if you receive a political appointment and have subordinates who make more than you. Career employee pay is much more controlled by statute and regulations, and is not connected to the pay of political appointees."(emphasis added)

So what's a reasonable pay level for Alaska state commissioners? Chron  lists the salaries of the top appointees in the US federal government:

"Level I Officials [highest Federal level]

Twenty-one federal officials have Level I jobs and earn $210,700 annually, as of 2018. These positions include all cabinet secretaries, such as secretary of state, secretary of defense and secretary of education, as well as the U.S. attorney general, U.S. trade representative, the director of the Office of Management of Budget, the commission of Social Security for the Social Security Administration, the director of the National Drug Control Policy in the Office of National Drug Control Policy, the chairman of the Federal Reserve and the director of national intelligence."

I doubt that any Alaska commissioners have more responsibility than the top people in the US President's staff.  So this is easily a ceiling figure, though one could also argue being a Commissioner in Alaska doesn't carry the prestige of being a Cabinet member in Washington DC.

The Commission's Process Doesn't Follow Statutes

The Alaska Statutes clearly spell out some procedures the Compensation Board is supposed to follow:

(c) The commission shall meet at the call of the chair. Notice of a meeting shall be mailed to each member at least 20 days before the date scheduled for the meeting.

(d) The commission shall meet to discuss its findings and recommendations at least twice before submitting its final report to the presiding officers of each house of the legislature and the governor.

They did not give 20 days notice.  They came up with their recommendations in about two days after being appointed.  

They do not seem to have met twice.  And if their "final report" is just the salary recommendations with no data to support those recommendations, they truly have no defensible basis for their recommendations.  

There is no evidence they met twice.  

What can the Legislature do now? 

I'm not 100% sure.  I can't find the statute that says what the legislature can do with the Commission's recommendation.  I'm not sure one exists.  

I did call Rep. Andy Josephson because he's a lawyer and until the last Redistricting Board changed the boundaries of his district, he has been my representative.  I asked how much leeway the legislature has to change the Commission's recommendation.  He thought they could vote for part but not all, but they couldn't change it.  He said there was a statute, but couldn't immediately find it.  He also said that since the legislature writes the statute, they could also change it.  But, I responded, that defeats the idea of having an independent commission, rather than the legislators themselves, setting the legislative compensation.  He agreed.  

Rep. Josephson also reinforced the idea that this was a pre-arranged deal.  That the Commission was set up to make this proposal.  And since the Governor appoints the members, I understood that this came from the Governor's office.  

Should the legislature approve the recommendations, could a member of the public sue because the Commission didn't follow its procedures?  Anyone can sue, but I'm not sure how the courts would respond.  

Last observation about the work the Commission should have done

Over the last few days, spending maybe 3-5 total hours on this, I'm offering you a lot more information about how to think about appropriate salaries than the State's Compensation Commission offered in their January report.  The second Commission hasn't even posted their report, and given they came up with salary recommendations in about two days, I'm guessing they have no report.  Though, what I've written is hardly a comprehensive salary survey and analysis that would normally be the basis of a professional report, it's way beyond how the Commission considered its recommendations.  

Conclusion

The jobs of governor, state department heads, and legislators are fairly specialized and unique.  Unlike organizations with hundreds of types of jobs, there are only a few types of jobs here and not that many comparables - the 50 states and the federal government.  This sort of study is probably much easier and could be done in less time than such a study for Conoco-Phillips or the Municipality of Anchorage.  It's not that hard, but the Commission didn't even make a symbolic effort to outline the issue and justify their recommendations.

The salary commissioners have let Alaska down. Their work is unprofessional and highly unworthy of the people of Alaska. They didn't even follow the statutory process.   Our legislators need a fair compensation package, not a wholesale giveaway to get them to approve salary increases for the governor and his cabinet officials.  

The legislature should reject these recommendations and ask the governor to commission a serious compensation study.  Or the legislature could commission its own study.  From what I can tell, they don't have the power (and shouldn't) to set their own salaries. Such a study would give them a basis for voting yes or no on the recommendations and/or could form a basis for the Compensation Commission to make new recommendations.  

That's how things should go, from a legal and rational perspective.  But this has become a very political (not partisan that I can tell) decision.  

56% Of the Alaska Redistricting Board Expenditures Were Legal Fees

Overview

This is a budget post.  Not for the faint of heart. One has to look at numbers and then answer these questions: Did the Board spend its money wisely? Did anything stand out as you looked at the budget?  What does it mean? In this and a second budget post I'm going to: Post the copy of the budget I got as of July 22, 2022  for those with more budget savvy and  as a precedent, so that future Redistricting Board budgets get published and reviewed publicly The Board's biggest single expense category was Legal Fees.  In this post I look a bit more closely at the section on Legal expenses and raise some issues to consider in the future  Raise some questions about the payments made to Board Members (in a later post).  The only conclusion I can make at this point is that saying the Board Members were volunteers, as many people did, is more than slightly misleading.

I feel a bit like a sculptor who has a slab of marble and is trying to release the statue that is hidden inside the stone.  I have a slab of data in the form of budget expenditures and I’m trying to figure out how to release the meaning of that data in a way that makes sense to the reader. And I’m also not completely sure what the meaning of all the data is myself.   

I’ve had a copy of the Alaska Redistricting Board’s budget as of July 22, 2022 since that date and I’ve been walking around it trying to figure out where to start chipping away.  I went through it and sent a bunch of questions to the Executive Director which he answered in detail.  

Budgets, on the surface, are lists of categories and numbers.  While they (should) list all the expenditures, one needs some experience and skill to tease out what's hidden between the lines.  I don't claim to be a fluent interpreter of budgets.  

The point of reviewing the budget is to keep the Board accountable in terms of the public monies it spent.  The underlying question one needs to answer is:

Did they use their money efficiently and effectively?

To make that determination, a budget analyst might ask: 

1. Did the Board stay within its budget?  
2. Are there any unusual expenditures?

1.  Did the Board stay within its budget?  

$3.5 million were allocated to the Board (Board Executive Director Peter Torkelson said this was based on what the 2010 Board spent), but the 2020 Board only spent $1.97 million by July 22, 2022 when the Board staff sent me the budget. 

Of course, staying within your budget assumes that the original budget was reasonable.  Comparing it to the 2010 Board is one benchmark.  A big savings this round, according to Board Executive Director Torkelson, was that in 2010 the trial was in Fairbanks so there were lots of travel expenses. But there was also more significant litigation AFTER the second Proclamation was approved in 2010.  That Board did NOT broadcast its regular Anchorage meetings across the state.  But I don't know that there is a better comparison organization.  And this Board spent considerably less, so far.  

Of that $1.97 million total,  $1,111,513.46 went to SCHWABE WILLIAMSON & WYATT, the company that won the contract to give legal advice and to represent the Board in court. (Link shows proposals for all firms that submitted them including Schwabe).   

That's the main thing that stood out for me.  I also have questions about how much money was spent on retirement funds and other things that suggested Board members were possibly treated as state employees rather than volunteer Board members.  But I'm awaiting more information and that will be another budget post.

Did The Board Spend The Money Wisely?

I would note that I believe that the Board staff was dedicated to serving the public interest. My belief is based on numerous conversations - in person, by phone, by email - that I had with staff, particularly the Executive Director Peter Torkelson.  He was always forthcoming with information and documents - including sending me this copy of the budget.  I also closely observed the Board in action from December 2020 through the last meeting held in May 2022. Torkelson put an unprecedented amount of information on the Board's website.  Well, "unprecedented" is not a high bar, considering what little past Boards did. The previous Board also did much more than past boards had.  Technology has moved quickly and Torkelson had the skills and public interest values to take advantage of it. 

 I hope future Boards can match the level of transparency of this Board.  Not only was there an enormous amount of documentation (maps, transcripts and video and audio of meetings, transcripts of public input, etc.) but it was also put up with minimum delay - sometimes immediately, often within a day, usually within a few days, rarely more than a week.   

I suspect this budget reflects a Board and staff that was pretty much playing by the rules when it comes to how money was spent.  Some Board members may have spent more on travel and hotels than others, but not enough to matter that much.  The Board probably could have saved a bit of money here or there, but this organization reincarnates once a decade with new players and it's reasonable to expect them to learn along the way.  And in many cases, there were extra expenses due to the Board being transparent in ways past Boards haven't been.  

The only large expenses that immediately stand out as avoidable are the legal costs for defending the second Proclamation Plan that continued the attempt to give Eagle River two Senate seats.  We don't know what the attorney advised in Executive Session, but we do know the three Republican majority members of the Board were more than eager to make that decision.

The Whole Budget:   

Alaska Redistricting Board Fy22 Spending as of July 22, 2022 by Steve on Scribd

Just Because the Grass Is Green, Doesn't Mean Someone Painted It Green

Just because 85-90% of the legal fees came after the original Proclamation Plan was approved, doesn't mean the attorneys advice caused that.  A key reason for the delay in posting this has been my concern that by raising the idea that an attorney might increase his income by insuring post Proclamation litigation, readers would conclude that happened.  Voters these days believe some of the most implausible accusations against candidates and parties.  In those cases it's mostly pure fiction, while in this case there are facts that show most of the legal fees were post Proclamation.   Can I even raise the issue without having some readers conclude this was intentional?  Probably not.  But while I can't rule it out 100%, I have NO evidence to suggest the timing was anything but the natural flow of the redistricting process and I will outline below why I think it's highly unlikely there was any intentional action by the Board's attorneys.  I raise this possibility only because I thought it could happen in the future and so legislators and Board members in 2030 and beyond should just be aware of it.  After writing this all out, I don't think this is an issue. Some may say I protest too much here, but 1) the budget begs for this issue to be raised and 2) once raised it should be quickly dismissed without reflecting poorly on the attorneys who represented the Board.

On the other hand, there were unnecessary legal expenses to defend the second Proclamation Plan, but that was due to the Board's Republican Majority's decision.  I'll mention briefly that below. 

The Legal Expenses - 85-90% were paid after the First Proclamation Plan was approved

The chart below shows the payments made to the attorneys' firm Schwabe, Williamson & Wyatt over time.  The first column shows key events in the timeline in relationship to the payments.  

9/01/2021 - 10/25/2021 ($55,904) The first payments were made while the attorneys attended Board meetings and gave advice to the Board to help the Board understand the parameters for their mapping decisions set by the Alaska and US Constitutions and past Supreme Court decisions as well as other Federal and State legislation.

11/22/21- 1/25/22 ($229,626) -  Proclamation Plan was approved 11/10/21.  After this date the plan was complete.  The attorneys' bill goes up sharply in response to the five lawsuits challenging the Board.  It was also after there was a sharp public rupture between the majority of three Republican Board members and the two members not identified by party.  That dispute only related to one of the five lawsuits - the two Eagle River Senate seats.  The other four would have been filed anyway and would have required a lot of attorney time.  

3/15/22 - 3/16/22 ($370,015) - Judge Matthews ruled on 2/15/22.  These bills clearly represent work done earlier, during the trial and then work appealing parts of his decision and responding to plaintiffs' appeals. 

3/29/22 ($175,797) - The Alaska Supreme Court ruled on 3/25/22.  

4/25/22 ($122,141) - The Board picks Option B for second Proclamation Plan (which still gave Eagle River two Senate seats) on 4/13/22.  

5/31/22 - 7/1/22 ($158,029) - The Superior Court and the Supreme Court ruled on May 17 and May 24 respectively.  Both essentially told the Board to join the Eagle River house districts into one Senate seat.  The Board quickly complied.  At this point, we await the longer Supreme Court decision which will explain its ruling in detail (setting precedents for future Boards) and decide whether the 2022 map will become the permanent map or have the Board make the final map.  I've written about the factors that likely will affect that determination here.

Events	Date of expenditure	Recipient		Category of Expense	Amount
	09/01/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	16,098.71
	09/01/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	3,403.53
	09/21/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	10,414.08
	10/25/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	25,988.16
11/10/21 Proclamation Plan approved	11/22/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	18,830.00
	12/27/2021	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	33,887.50
	01/25/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	176,908.45
2/16/22   Judge Matthews ruling	03/15/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	14,895.55
	03/15/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	32,623.90
	03/16/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	322,495.83
3/25  Supreme Court Rules	03/29/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	175,797.40
4/13  Board picks Option 3B	04/25/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	122,141.21
5/17/22 - Judge Matthews 2nd Ruling 5/24/22- Supreme Court Ruling	05/31/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	65,870.38
	07/12/2022	SCHWABE WILLIAMSON & WYATT PC		ATTORNEY FEES	92,158.76
					1,111,513.46

[This table combined information from the budget as provided to me by the Board's Executive Director plus dates I retrieved from blog posts on this site.]

What do the charts tell us about the legal representation?

1. We have to take these figures and the juxtapositioning with dates of payments and events with a grain of salt.  The timing of the bills and the State's actual expenditures doesn't necessarily neatly match when the work was done.  Rather, it reflects when the firm was able to calculate and submit the bills and the State issued payment. 
2. That said, the bulk of the attorney costs come after the initial Proclamation Plan was completed.  The bills are for litigation, only a tiny fraction for advice.  Peter Tolkerson told me via email that "Non attorney time and costs make up less than 10% of total legal spend. . . Non-attorney staff [para-legals] costs have run about 4% of total legal spend."
3. Did the Board get hit with excessive legal fees?  I'm guessing not.  There have always been challenges to Redistricting Board proclamations.  This time the Board's attorney had to fend off five challenges at once in a very short period.  Four of the challenges were for decisions the whole Board agreed on.  One (Eagle River Senate seat(s)) was for a decision the Board was  bitterly split on.  Did the attorney give advice that the majority's decision was defensible or did he advise against it?  We don't know.  It happened in Executive Session.  We do know that the two minority Board members argued publicly, loudly, and ultimately correctly, that the Eagle River decisions in both the first and second Proclamation plans were unconstitutional and they would lose in court.                                                  We also know that the original "legal subcommittee" was made up of the two attorneys on the Board - Budd Simpson and Nicole Borromeo.  But sometime later a new subcommittee formed that had only Simpson and John Binkley. Borromeo was cut out of the process.   So it's possible we will eventually hear about some of what happened behind closed doors at Executive Sessions, it's unlikely we'll hear anything about what happened after Borromeo was replaced on the legal subcommittee..  
4. More experienced and astute budget analysts might well be able to distill more information from the budget as presented to me.  I hope publishing it here will pique their interest and if I missed something important, someone else will raise it.
5. Below are some additional emailed comments about the legal portion of the budget in response to questions I had about how the Board was actually billed.  I'd noted in my question that the Schawbe bid for the contract had included a slightly discounted half day and full day rate instead of the hourly rate.  Again, from Peter Torkelson:

"The RFP response offered some discounts and then we negotiated further for additional savings.  The more meaningful savings have been the bulk discount we hammered out with the original contract.*  At the time we weren't sure we would need it, but in retrospect, that was naive. We were likely to rack up significant bills for any number of our unanimous decisions, as you noted (Valdez, Matsu, Skagway etc). *The negotiated bulk discount is 5%  Of Counsel and Paralegal fees (not partner attorney fees) from total firm billings of $100k - $500k and 7.5% from 500k to $1M and 10% over $1M per calendar year.  So far we have saved about $20k."      [I had to get clarification on "5% Of Counsel." Torkelson wrote back "'Of Counsel' is a common title for attorneys in a law firm who are not yet partners.]

Torkelson also noted that because the trials were in Anchorage this time (2010 trial was in Fairbanks), the Board saved money on travel and lodging compared to the previous Board.   

Is there credible evidence that the Board's attorney intentionally gave the Board advice that would increase the likelihood of Post Proclamation litigation?  [Spoiler Alert:  No!]

The only 'evidence' that there might have been bad advice with the intent to increase post Proclamation litigation is purely theoretical.  It's this: 

1.  Law firms are for profit businesses.  Their goal is to make as much money as they can.  If 90% of the income from representing the Alaska Redistricting Board comes from defending the Board from post-proclamation legal challenges, there’s an incentive there to make sure there are legal challenges.  

That's it. It's theoretical. No facts.

What then is my evidence that would suggest that just as grass grows green naturally, extensive litigation flows naturally from Redistricting Proclamation plans?

1.  There are other incentives for attorneys besides money.

I emailed the Board's attorney, Matt Singer, to find out what his motivations for bidding on the contract were.  

"I'm doing a post on the Redistricting Board Budget and the fact that about 56% of the budget went to legal fees and of the legal fees, about 90% were paid after the original Proclamation Plan was approved.  I'm trying to come up with a list of reasons why a law firm would seek such a contract in addition to money.  Could you send me the list of reasons you and your firm bid on this contract? 

His response was longer and a lot more thoughtful than I expected.  

"Regarding your question below, in outdoor pursuits, we use the phrase "Type II fun" to describe a task that is difficult at the time, but feels rewarding afterward, often because it challenges the practitioner to test their limits and grow. I'd call Redistricting a Type II kind of fun for a lawyer. The subject matter is fascinating and nuanced, the issues are important, the work is very demanding, and it is all done under immense time pressure and scrutiny (including by friendly bloggers like yourself). 

In addition, our "Hickel process" in Alaska redistricting is a deep dive into culture, history, geography, transportation, and a myriad of other interesting tidbits about how Alaskans live, work and play. Many of us who chose to make our professions here in Alaska did so out of a deep interest and admiration for this great state. Redistricting, at its core, is about understanding Alaska and its people. We were blessed with a board that collectively has covered just about every inch of this state, and so being a fly on the wall for their discussions and deliberations was a great privilege.

I suspect it is no coincidence that many of the lawyers who competed with us in response to the Board's RFP ended up being lawyers representing challengers in the redistricting process. For those of us interested in the subject matter, it would be hard not to get involved if given the opportunity. 

Lawyers are interested in working on redistricting for many of the same reasons that you have taken the time to follow and write about the subject. Are you doing it for the money, or are there other factors at play?"

I got to watch Singer extensively at Board meetings and Court hearings.  We even interacted a few times.  My gut says that this is a sincere response to my question and not carefully crafted argument to sway a friendly blogger.  There are more incentives than money involved.   

Another key incentives that come to mind is upholding one's reputation, and giving bad advice doesn't help that at all.  

2.  Litigation naturally flows from redistricting Proclamation Plans - The Statutes and Constitution even anticipate that

In a follow up email Singer wrote: 

". . .it sounded like you are musing about why the attorney’s fees are mostly incurred after the proclamation plan is adopted.  This is a bit like musing about why most of a book’s pages come after the prologue.  In Alaska redistricting, litigation has been a part of the process in every cycle since statehood, and the litigation follows the adoption of the proclamation.  In other words, the time consuming legal work comes after the proclamation.  As you saw this round, even parties with longshot claims will file lawsuits in a bid to influence the outcome.

Litigation in redistricting is such a certainty that our legislature defined the role of the Board’s lawyer as this: “defend the plan and board in all matters concerning redistricting until a final plan for redistricting and a proclamation of redistricting have been adopted and all challenges to them brought under art. VI, sec. 11, Constitution of the State of Alaska, have been resolved after final remand or affirmation.”  Alaska Statute 15.10.220." 

Let's also look at art. VI, sec 11 of the Alaska Constitution that he cites :

"Any qualified voter may apply to the superior court to compel the Redistricting Board, by mandamus or otherwise, to perform its duties under this article or to correct any error in redistricting. Application to compel the board to perform must be filed not later than thirty days following the expiration of the ninety-day period specified in this article. Application to compel correction of any error in redistricting must be filed within thirty days following the adoption of the final redistricting plan and proclamation by the board. Original jurisdiction in these matters is vested in the superior court. On appeal from the superior court, the cause shall be reviewed by the supreme court on the law and the facts. Notwithstanding section 15 of article IV, all dispositions by the superior court and the supreme court under this section shall be expedited and shall have priority over all other matters pending before the respective court. Upon a final judicial decision that a plan is invalid, the matter shall be returned to the board for correction and development of a new plan. If that new plan is declared invalid, the matter may be referred again to the board. [Amended 1998]" [emphasis added]

3.  Four of the six challenges to the board were on decisions the board had agreed to unanimously.  I say six challenges, though two were related to the same issue - the Eagle River Senate pairings.  One brought by one set of plaintiffs after the first Plan and another brought by different plaintiffs after the second plan.

4.  Redistricting law is complicated and ambiguous.  It is made up of the Federal and State Constitutions, (including the minutes of the Alaska State Constitutional Convention), Federal and State statutes, and what judges have interpreted in prior Redistricting court cases.  One has to sift through all that to guess what will be ruled legal or illegal.  For example, the Board unanimously agreed to pull Cantwell out of the Mat-su Borough and put it into a huge Interior district so that it was with other Ahtna villages.  This was despite clear past court rulings that Boroughs should not be broken if at all possible and it violated the Constitutional requirement for compactness.  The Board knew the law was against this decision.  But it was also a strong request by the Calista and Ahtna Native Corporations arguing the Cantwell was Socio-Economically Integrated with the other Ahtna villages.  It didn’t involve a lot of people - maybe 200, and fewer actual voters.  It was challenged by the Valdez plaintiffs and by Mat-Su.  The Superior Court judge let it be in his ruling.  But the Supreme Court said they couldn’t do it.  Putting Cantwell back into a Mat-Su district didn’t get either Valdez or Mat-Su the bigger changes they wanted.  The point here is that there are lots of ways an attorney can justify a decision and lots of ways one can challenge a decision.  And it’s also unclear whether the advice would result in a lawsuit or not, or which way the Court will rule.  I’d note that had Valdez been originally put in a district that went up the highway to Fairbanks, they probably wouldn’t have challenged the decision even if Cantwell had been part of that district.  Maybe Mat-Su wouldn’t have sued either.

5.  Redistricting happens every ten years and only a few attorneys get involved in Alaska.  So there are relatively few opportunities to practice redistricting law and to become an expert in this area.  Understanding it well comes from reading everything about it - nationally and locally - and being involved in the process.  Both paths together help bring a better understanding.  And both take a lot of time, more than most lawyers who aren’t involved have time for.  And because redistricting only happens once a decade, there may well not be a chance to use one's expertise in court again.

 6.  Redistricting is highly political and somebody will always believe they were the loser and the map should be changed to accommodate their grievance.  This is implied in my second point - there's always litigation.  Someone or several someones will be aggrieved enough to pay an attorney to challenge some part of the Board's final map.  It's happened in every round of Alaska redistricting.

Conclusion

My conclusion is that it makes no sense to misadvise the Board in hopes of increasing litigation.  An attorney can give the Board the best possible advice and there will still be litigation.  

I'm leaving out two other areas of exploration that might fit in this post.  

• An examination of the kinds of advice Singer did give the Board.  
• There were key areas where at times the advice seemed either overly broad and/or it changed.  This was particularly true in terms of the early mantra - everything within a Borough is Socio-Economically Integrated (SEI).  At one point this stretched to: Mat-Su and Anchorage have had overlapping districts so everything in Anchorage and Mat-Su is Socio-economically integrated.  And then at another point - since Mat-Su and Valdez have shared a district, they are SEI.  And since Mat-Su and Anchorage are SEI, all three are SEI. Ultimately the Eagle River Senate seats were overturned, at least in part, by a similar concept - communities of interest - which judges said were not the same in all Anchorage neighborhoods.
• Other concepts like contiguity and the role of public participation in redistricting offered challenges in this round of redistricting, but these are matters for the court to decide
• A look at the nature of the attorney-client relationship
• Alaska Legal Rules of Professional Conduct outlines what is expected of attorneys.  Eagle River plaintiffs' attorney Holly Wells raised the issue of different ways to think about this relationship when it comes to attorneys of public entities.  Is their duty to the whole Board, the Board majority, the public, and how do you balance these?  Matt Singer would rightly point back to the role of the attorney to the Board he cited above from the statutes.
• Directly related is what role public testimony should play in redistricting.  Superior Court Judge Matthews ruled that the Board didn't give it enough weight in both the Eagle River suit or the Skagway suit.  The Supreme Court disagreed in the Skagway case, and we haven't yet heard their thinking on this in the Eagle River case which they seemed to rule against the Board based on other issues.  
• Conflicts of interest also have to be explored - This came to light when Valdez attorney pointed out that the Board's attorney also represented Ahtna Corporation in two upcoming Supreme Court cases and claimed that he should have told the Board that when they were considering Ahtna's role in getting the Cantwell moved out of the Mat-Su district.  
• The attorney's role is to explain the law as best he can and predict the likelihood of winning in court.  The Board then weighs that advice and decides how much risk they are willing to take.  But in this case, the client (the Board) does not bear the financial cost of a bad decision, the public does.

This post, many would argue, is already too long.  The first additional point - how redistricting criteria were explained and used and clarification the Supreme Court ought to make - I've already discussed in detail in various previous posts.  Here's one that succinctly identifies key issues/terns I'd like the Court to clarify.

The second point - on the attorney-client relationship - I'd like to explore in a future post.  

To reiterate - I'm personally convinced there was no wrong-doing on the part the Board's attorney to increase the post Proclamation litigation.  There was no need since it happens anyway even with the very best advice.  

  

 (Yes, I've been toying with this way too long.  But this is more for the 2030 Board than for today.  The only deadline I've given myself is to post this before the Supreme Court publishes its full opinion to supplement its brief ruling back in May.  And I figure that won't happen at least until after the November 8 election.  So I'm closing in on that deadline.  People are probably focused on other things right now, but I need to get this up finally.)