BOISE — When state Tax Commissioner Elliot Werk was placed on paid administrative leave for a month due to a personnel matter, then returned to work without any explanation, Idahoans around the state wondered what was going on.
An Idaho Press investigation into the use of paid administrative leave in Idaho’s state government shows that such leave is far more common than many realize.
From July 1, 2018, to May 31, 2019, 2,938 state employees received paid administrative leave, in amounts ranging from less than an hour up to weeks or months. And four state employees, at four different agencies, were on paid administrative leave for more than five months — and were on that paid leave from the time new Gov. Brad Little took office on Jan. 7 all the way through May 31.
“I’m not a fan of administrative leave,” Little told the Idaho Press. “But as a result of your question, I’ve learned a lot more about it.”
Little wasn’t involved in any of those four leave decisions, though he’s now reviewing the state’s use of administrative leave.
Ninety state employees had more than four weeks of paid administrative leave during the 11-month period the Idaho Press examined. Seventy-three of those had more than five weeks. On May 31, 30 state employees were on administrative leave. Overall, the state has about 25,000 employees.
The totals have increased slightly in recent years; in fiscal year 2013, according to state records, 2,657 state employees received 74,577 hours of paid administrative leave, compared to the 2,938 employees and 82,335 hours in the most recent data five years later.
Based on the state’s average classified salary of $22.97 per hour, a conservative estimate of the cost of the administrative leave over those 11 months is $2 million.
“The most common reason for paid administrative leave is when there are allegations against someone that makes it difficult or divisive for them to still be at work — or if you want them away so you can investigate their materials,” said Peter Cappelli, professor of management and director of the Center for Human Resources at the Wharton School at the University of Pennsylvania. That’s true in both the public and private sectors, he said. “It isn’t clear that they have done anything wrong, so you don’t want to punish them by withholding their pay."
“If there seems to be a lot of paid leave going on, then it would appear that there are a lot of investigations going on,” Cappelli said. “If someone is on paid administrative leave for a long time, I’d wonder, if it is an investigation, why it is taking so long.”
ON LEAVE FOR THE WHOLE YEAR
The Idaho Press' review of state employee administrative leave over the past year showed that one employee at the University of Idaho, according to data provided by the state controller’s office, was on paid leave for the entire last fiscal year and remains on paid leave. Though the university won’t identify the employee due to the confidentiality of personnel matters, it appears to be former Athletic Director Rob Spear, whom the state Board of Education publicly announced it was firing on Aug. 16, 2018, after an investigation into the handling of sexual assault and harassment complaints involving UI athletes.
UI spokeswoman Jodi Walker said it’s an accounting quirk.
“Although it is categorized as administrative leave, for lack of a more accurate accounting bucket, these payments are contract obligations, and the employee has already been terminated from employment,” she said in an email.
However, Idaho state Controller Brandon Woolf’s Transparent Idaho state payroll records show Spear as a current full-time state employee in Latah County, the location of the UI, earning $94,848 a year with the title Director of Athletics.
When the state board announced it was firing Spear, he had been on paid administrative leave for more than four months while the university’s independent investigators looked into the abuse and harassment allegations against athletes. The board said the termination was “for convenience” and “in the university’s and the students’ best interest,” and that Spear would continue to “receive compensation” through the end of his contract. His contract doesn’t run out until Feb. 17, 2020.
'COMPLEX PERSONNEL INVESTIGATION'
It’s difficult for the state to track the use of administrative leave at its many state agencies, but the tracking is improving and is expected to improve more as the state’s computer systems are upgraded through the multiyear Luma project that’s now under way.
In 2006, Idaho’s state rule governing administrative leave was just one sentence long, allowing it at the discretion of the appointing authority “when such leave is in the best interest of the department.”
Since then, Idaho’s rules and statutes governing paid administrative leave have been revised several times, and there are now specific reasons such leave is allowed, including employee investigations and due process procedures; closure or inaccessibility of a state office or facility; and other reasons if approved in advance by the state’s Division of Human Resources director, Susan Buxton. A rule also has been added requiring that the director be notified if an employee’s administrative leave exceeds 30 days. That rule doesn’t always apply, however.
“We need a system that’s more capable of analysis,” Buxton said. “But in my opinion, we’re doing a lot better with having a handle on administrative leave.”
Some large state agencies, including state universities, don’t fall directly under Buxton’s purview, and instead handle their own personnel matters.
After Spear’s total — which came to 1,864 hours of paid administrative leave between July 1, 2018, and May 31, 2019 — the highest amounts of paid leave granted to state employees during the time period examined included three who were on paid leave for more than five months, all in the latter half of the fiscal year and all due to complex personnel investigations. One was an employee of the Idaho Transportation Department; one was at Boise State University; and the third was at Lewis-Clark State College.
Buxton, who was involved in both the ITD and LCSC matters, said each involved a particularly complex personnel investigation. The ITD investigation is continuing, and the employee still is on paid leave; the LCSC employee is no longer employed, she said.
At BSU, which handles its own personnel issues, Associate Vice President of Human Resources Shawn Miller said, “It was a complex personnel matter.” After the investigation concluded, the employee was moved to a “different role” and is back at work.
Brian Foisy, vice president of finance and administration at the University of Idaho, said more than half of UI’s employees are on contracts, including all faculty, who are on 12-month contracts. He said there are three main reasons the university might put an employee on paid leave: to remove them from the workplace during an investigation; when an employee might step away for the “public good,” like the university’s emergency manager who also is a volunteer firefighter; and when the university decides in April not to renew an employee’s 12-month contract for the next year on July 1.
In cases of investigations, he said, “There is no presumption of wrongdoing.” That’s why the employee continues to receive full pay and accrue vacation and other benefits.
“It really is a time-out,” Foisy said. “In virtually any case where there’s been a serious accusation of wrongdoing, and there is any concern at all that the presence of that employee might impair the progress or the independence of an investigation, the university will almost always determine that the employee and the university are better off to give a time-out while we check it out.”
The “public good” reason is rarely invoked and usually for just small amounts of time, he said.
The contract non-renewal situation is fairly common, however, and is among the reasons that Idaho universities are among the state’s biggest payers of administrative leave. In those situations, Foisy said, some employees can continue to work through the end of their contract; but others might pose security or other risks, particularly in situations where they might become disgruntled at being let go and might have access to sensitive information.
Foisy said he doesn’t mind answering questions about the university’s use of administrative leave. “We’re talking about student tuition funds and state taxpayer dollars that primarily fund the institution,” he said. “And if the institution makes a determination to use what would be tens of thousands of dollars to pay someone and they’re not on the job, I think there is a fair question to be asked what is the rationale.”
Foisy was surprised to hear of the administrative leave hours that apparently were attributable to Spear’s case. “It surprises me that we’ve had somebody that long,” he said.
When employees are put on leave due to contract non-renewal, he said, they’re first required to use up all annual leave, comp time and other leave they’ve earned. That saves the state having to write a check for accumulated earned leave when the employee’s contract ends.
'INNOCENT UNTIL PROVEN GUILTY'
Idaho’s other biggest users of paid administrative leave in the time period examined were the Department of Correction, with 13 employees on leave for four weeks or more; the Idaho State Police, with 11 on leave for five weeks or more; and the Department of Health & Welfare, with 11 at five weeks or more and two more with more than four weeks but less than five.
Buxton said in law enforcement, “when there’s a criminal element, that does take longer. Oftentimes, there’ll be an investigation for a criminal matter that doesn’t get charged for months.”
At Corrections, spokesman Jeff Ray said 12 employees were on paid leave for 200 hours or more due to policy violations or allegations against them; seven resigned, three were fired, and two received other sanctions. One additional Corrections employee who accumulated more than 400 hours of paid leave was "terminated due to a policy violation," Ray said. "The length of leave was a result of the time necessary to gather the facts of the situation and the timeline for due process."
If an employee is charged criminally, the paid leave ends, Buxton said. But if the employee then is exonerated, they’re reinstated and receive back pay for the time after the paid leave ends. “I haven’t seen very many of those,” she said. If they’re convicted, they serve their sentence and don’t come back to work.
“Remember, these are allegations,” she said. “When you get an allegation, especially for law enforcement, you have an obligation to determine whether those are founded or unfounded. … Two months is not uncommon when you’re doing detailed investigations.”
Matthew Burr, owner of a human resources consulting firm in New York and a professor of business administration at Elmira College, said in the private sector, paid leave is generally used for personnel investigations when the employee involved holds a salaried, exempt position, rather than a lower-level hourly one. But, he said, “Investigations rarely take one to two months in the private sector. … Employees want answers quicker than that.”
Josh Tewalt, Idaho corrections director, said, "When investigating staff, we're not willing to sacrifice getting it right for getting it right now."
“A person is innocent until proven guilty,” Buxton said. Those investigations are “as confidential as possible,” she said. “It’s unusual that it would become public.” That generally only happens if it results in litigation in court, she said.
Buxton said the Little administration has “been really cautious about it — they’ve been very cognizant about the best use of public funds. … I haven’t seen abuses.”
Tewalt said his agency uses paid leave "as judiciously as possible."
"When someone brings forward an allegation of potential wrongdoing, we have a responsibility to investigate fully to get to the truth," he said. "This is important to not only foster a culture where issues can be brought forward and investigated, but it's equally important to exonerate the wrongfully accused."
Buxton said one common use of administrative leave in state government is when an employee doesn’t pass their initial six-month probation period. Those employees are given 15 days' notice that they won’t be hired permanently, and typically are then put on paid leave for those 15 days “so that they can make arrangements for things like insurance,” she said.
Burr said he's not seen that kind of use of paid leave in the private sector. "If an employee doesn't make it through probationary work, they usually leave the day you make the decision," he said. "If an employee resigns, organizations will commonly pay two weeks of leave if a person gives notice and you do not want them on-site."
Idaho also uses paid administrative leave when an office suddenly has to close due to weather, mechanical breakdowns, roofs caving in under snow loads, power outages and the like. Buxton instigated changes to the state’s rules governing leave so that’s specifically listed as a permissible use. In those cases, she said, employees can’t work, but it’s not their fault. Paid leave has also been used when state agencies move from their previous office locations out to the new state government center at the former HP campus in West Boise, which typically forces offices to close and systems to be taken down for a day or two.
Barr said it's a "mixed bag" on that practice in the private sector, with some businesses using paid leave in those situations and others offering unpaid leave or requiring employees to take vacation days. "I have worked for organizations that do both," he said.
Monica Young, human resources manager for the Idaho Department of Health and Welfare — which, at 2,850 employees, is the state’s single largest state agency — said it’s not surprising to her that the agency had 11 employees who were out for five weeks or more on paid leave in 11 months.
“It’s what I would expect,” she said. “It’s commonly used by the department when there is an allegation of misconduct against an employee.” The leave lasts “while the department is determining the validity of the complaint.”
“Some investigations are just very complex,” Young said.
Health & Welfare notifies Buxton whenever a leave exceeds 30 days, Young said; and if it extends beyond another 30 days, notifies her again.
“I have done that,” she said.
In the time period examined by the Idaho Press:
- The Idaho Transportation Department had three employees on leave for five weeks or more, all for complex personnel investigations;
- The state treasurer’s office had one, who accumulated 401 hours of paid leave, more than 10 weeks;
- The Department of Labor had three with four weeks or more;
- The Department of Lands had one with 232 hours, or nearly six weeks;
- The Division of Veterans Services had four with four or more weeks;
- And the Department of Parks & Recreation had one with 432 hours, nearly 11 weeks. All were for personnel investigations.
Debbie Hoopes, human resources officer for the parks department, said, “That was pending an investigation into allegations of sexual harassment. We issued a notice of contemplated action, which means we believe something occurred, so we were going through that process, and he resigned.”
She added, “Typically they don’t take that long. It was just a remote park, so there were a lot of moving parts to it.” The issue arose at the end of the summer season and required investigators to contact seasonal workers who no longer were employed.
Hoopes said such leaves are “not very common” at the parks department. “We don’t do them very often,” she said. “It has to be a situation where we’re looking at potentially dismissing somebody, or it’s egregious enough that we need to do an investigation, and talk to employees without that employee being in the workplace.”
Hoopes said the Idaho attorney general’s office assists when the department needs to do such investigations.
Marv Hagedorn, director of the Idaho Division of Veterans Services, said his agency, which operates nursing homes that care for Idaho veterans, must observe very strict federal rules in addition to state laws and rules when employees are accused of misconduct, and those complaints could come from a resident or even a resident’s family member.
“The federal requirements are so strict that if we don’t follow those, we’re subject to civil penalties in the millions of dollars,” he said. “It’s all very confidential, as well.”
Buxton said her office typically handles three to four personnel investigations a month.
'NOT LIKE A PRIVATE BUSINESS'
After the Idaho Press made inquiries to Little, he looked into administrative leave use at state agencies and noted “a big spike in hours out at DEQ.”
It turned out, he said, “They had the power out for two days.”
Little said he's learned over his long career in the political arena that "government by nature is not like private business," in part because there are fewer purely "at-will" employees.
“It’s hard to fire people, and that’s part of the issue,” the governor said, “because we give people a lot of due process, and we should.”
“From a control standpoint, ideally you have good administrators and they’re all doing the right thing — and I believe they are,” he said. “If there’s something that looks awry, we ought to be able to figure out what it is.” Currently, though, “It’s difficult,” he said.
Based on his review, Little said, “Relative to industry, relative to other government, this is not abnormal. But that doesn’t mean we shouldn’t know about it.”
Even with the changes to Idaho’s rules and laws on paid leave that have occurred over the past decade, he said, “There’s probably more to do, and that’s what we’re trying to get our arms around.”
He noted that he has access to more information about agencies that fall directly under the state Division of Human Resources than about those that are delegated to handle their own personnel matters. One large state agency, the Department of Labor, used to be delegated but lost that status in August 2017.
The state recently settled a whistleblower lawsuit with a former Department of Labor employee who tried to complain anonymously about personnel abuses, only to have the department invoke its subpoena power — which is supposed to be for investigations into unemployment cases — to find out the source of the anonymous tips, and fire him. James Cryer’s case was settled for $545,000 plus legal fees.
“There was a real problem over there,” said Little, who was serving as lieutenant governor at the time. “Somebody said, ‘We’re gonna get sued,’ and I said, ‘We SHOULD get sued.”
“A lot of it is doing your HR stuff right all the time,” he said.
Little said he understands that the secrecy surrounding personnel investigations can be frustrating to taxpayers who are worried about how public funds are being spent.
“It’s because you’re protecting the due process of whoever the parties are involved,” he said. “Every company has a process. … In any big organization, you’ve got to protect the rights of the employee, and that’s just the way things are.”
But unlike at private companies, he noted, government payroll records are open — enabling reviews like the Idaho Press’ investigation.
“Transparency can be painful, but it’s all right,” he said. “I can take a little pain.”