Governing body waives its own policy

We're in the process of hiring a new Executive Director (read - we're a governmental entity, and the E.D. is considered a government official). The Board has decided to waive a pre-employment drug screen for the person they've offered the job to. The Board adopted the pre-employment drug screen just this past March, and we've tested at least ten new employees since the new policy was adopted. I was informed by the Acting E.D. that she'd been informed by the Chairman of the Board that the Executive Director is exempt from the Personnel Policy. However, to my knowledge, none of the E.D.s in the past 20 years has ever worked under contract - they apparently have a verbal agreement between the E.D. and the Board.

I'm livid to say the least. Not only is the Board breaking their own policy, but now they say their new E.D. isn't subject to ANY of the policy?! What are they gonna do when the person gets arrested for buying a controlled substance? There's no contract to terminate, and there's no progressive discipline to apply from a policy they're ignoring... I can't believe the precedence this is going to set for future hires.

What do I do? Do I go to the one sympathetic Board member that was the main proponent for drug testing and try to get him to sway the other members? That would help the initial drug-testing problem, yes. But what about getting the rest of policy applied to the E.D.? Or should I take my boss's advice and let it drop as a battle not worth fighting?


  • 11 Comments sorted by Votes Date Added
  • ATRIMBLE: I have lived for six years in my present company with the GM, Accounting Manager, and the Production Manager not members of this organization. We have not missssssed a beat; put your concerns aside and deal with it. It is, obviously, not a priority for the board and it will never be! You have more important things to worry about and you can deal with their issues when there is an event that will impact the rest of the organization. If you don't announce it to anyone no one within the organization will even miss
  • Atrimble, you post a rather difficult situation. The last time I ever heard of someone being exempt from a drug policy was the 1972 olympics when one participant was excused from the drug policy. That's because Princess Anne, entered in the equestrian events, was royalty.

    You must be honored to be working amongst royalty. Congratulations. That aside, atrimble, here is what I would do. First, talk to your boss and tell him/her that you wish to write a letter to the board stating your position and you would like his/her blessing in doing so. Then write a respectful, professional letter to the board stating your position and the consequences of the board's action. This isn't a battle so much as it is providing some persuasive awareness by you.
  • Having served in a governmental environment as an employee and as an elected official, I sympathize with what you are saying. Yet, the Executive Director is employed by the Board and serves at the pleasure of the Board. This should be a very true "at-will" position, unlike the others in your organization that have certain due process and procedural guarantees provided.

    Questions about this relationship: Is the ED's salary set by the Board and, therefore, outside of your normal salary scales? Is it a position that serves solely at the pleasure of the Board and it considered not covered by the letter of your employment policies? And, can the ED be terminated from employment by majority vote of the Board?

    If I were you, I would document clearly that the Board waived the policy for this position, thereby setting it outside the bounds of your policy. (They actually the power to do that, in most cases.) And, you should document your concern about this action and the fact that there is no written contract of employment, which typically is more of a severance agreement than anything else. If the worst case happens with the ED, then it is clearly documented that the Board made an exception to policy for this position, your concerns were made known, and the Board then assumes any potential liabilities. Yet, for all intents and purpose, the Board could actually terminate the ED at any time and for any reason, since these types of position are truly "at-will." That doesn't mean the ED can't sue, but it surely weakens the case for the ED. Actually, the ED should be clamoring for a written agreement on severance, but if that isn't done, then so be it.

    Just may thoughts from many years of local government service in Virginia.
  • >Questions about this relationship: Is the ED's
    >salary set by the Board and, therefore, outside
    >of your normal salary scales?
    The ED's salary IS set by the Board, but it's supposed to be within previously approved ranges that appear on our pay scale.

    >Is it a position
    >that serves solely at the pleasure of the Board
    >and it considered not covered by the letter of
    >your employment policies?
    Apparently, though I was not under that impression until yesterday.

    >And, can the ED be
    >terminated from employment by majority vote of
    >the Board?

    >If I were you, I would document clearly that the
    >Board waived the policy for this position,
    >thereby setting it outside the bounds of your
    >policy. And, you should document your
    >concern about this action and the fact that
    >there is no written contract of employment,
    >which typically is more of a severance agreement
    >than anything else.
    Both good ideas. I think I'll do it.

  • Slow down, deep breath. Are you sure the acting ED meant exepmt from the entire policy or just the drug testing portion of it? Be 100%, and before writing letters. would want to confirm that is the case with someone on the board.

    If it is true as you think, I agree with Larry.

    If it is not, while I believe it idiodic that the leader of the org doesn't have to follow the rules and it sets a bad precedent, pick another battle. You could write a letter as Larry suggests giving your respectful opinion of the matter to CYA, but ultimately it's their decision and it's their ass on the line.
  • >Are you sure the acting ED meant exepmt from the entire policy or just
    >the drug testing portion of it?
    Exempt from the whole policy. I actually overheard it, and got it directly from the horse's mouth (the Chairman). I have informed the Acting ED that I'm writing a memo covering my behind, and she said to include her name, or let her be a co-author.

    >would want to confirm
    >that is the case with someone on the board.
    Requested confirmation from another Board member but haven't received it, and probably won't...

  • Our City Personnel Rules apply only to what we call "Classified" employees. Each of us "Non-classified" employees (Dept Heads) are not literally subject to the rules. However, it is generally expected that we are subject to the same guidelines as the others, which includes drug screens for new hires and randoms. It's just that we don't have the protections the others do of hearings, appeals, etc., etc.

    As you can see by the other posts, this situation is not all that uncommon, even though frustrating. I would have thought the ED would have wanted to take the drug screen to show his support of the program. Maybe once the ED gets settled in, you can sit down and work something out for the future. Is he the only one in your organization not subject to the personnel rules?
  • Yep. We've got 52 regular (full time) EEs and about 14 part timers. We had to scramble to find funding to pay for the tests for the part timers (their income is funded by a grant, which doesn't cover drug tests), so it's even more frustrating for me because I fought to not test the part timers, and now I'm having to fight to test a regular. Getting major mixed signals here.

    I've drafted my memo of protest and it's under review by the acting e.d. (she's trying to decide whether to add in her name to it to be included on record in the protest).
  • You have to make your own decision on this memo of protest, but from what you've laid out, I'd probably not pursue it. The Board has already made their decision, your boss says to let it go, your acting ED is hesitating, who knows how the new ED will perceive your actions, and other than the personal satisfaction of stating in writing that they're making a mistake in your opinion, what will you gain? Anything negative that comes up with the new ED will clearly be on their heads, not yours. I'd rather keep the Board on my side for future issues. Good luck.
  • It sounds to me that you should be prepared that if you do anything, it could mean your job and/or your working releationship in the future with current and future ED. (I hate to say that but know it is the truth... word gets around.) I don't know if you peraonally know any legal people that you could bounce this off of without causing any bill, just personal advice.
    This is one of those "ethical" challenges that is difficult when you don't think something "smells right". This is the one thing that I hate when working in HR. If you can get some legal advice, obviously think about what they say. If it was me, I would write a letter to someone defending my professional advice to CYA. However, you might want to let attorney read it before it is written. You don't want to get the "blame" for anything that might occur in the future, but do you want to make a big scene? It is sort of having to pick your fights, but also having ethical beliefs about what your job duty is. Good luck, I don't envy you on this.
    E Wart
  • My final comment on this matter is to place a statement in a file that the action of the Board is contrary to their adopted policy, yet it you must recognize that the Board has acted based upon its primary employee, which they can do. This is the nature of Chief Administrative Officer positions reporting to governing bodies. As stated in another post, this individual does not have the same rights of due process as other employees and is truly "at-will". You do not need to be in jeopardy for your job over this. But, if you make a big issue calling into question the authority of the Board to make decisions relative to its primary employee, then you may be setting yourself up. Chill out, document your position without emotion, and let the chips fall where they may. The Board will have to eventually answer for the actions taken, not you.
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