When Legal Counsel doesn’t Objectively apply the Regulations
The integrity of any personnel system rests on one foundation: positions must be classified based on their duties and responsibilities. This is not optional, negotiable, or subject to internal politics—this is explicitly required by the Board of Education Personnel Regulations. Yet in my classification grievance, that standard was ignored. Instead of applying the board’s regulations, the legal counsel issued a conclusion that relied on organizational charts, hypothetical departments, and structural assumptions rather than the only legally relevant factor: the duties performed.
The legal counsel’s conclusion stated:
“Despite overseeing both direct employees and contractors, Mr. Smith is under the supervision of the Director of CIP… If Mr. Smith were reclassified to Pay Level 26, it would necessitate the creation of a new Department… Therefore, for Mr. Smith to be classified at Pay Level 26, the Board would need to modify PSS’s organizational chart to establish a new directorate.”
This statement alone reveals multiple legal and procedural errors—errors that undermine fairness not only in my case but for all PSS employees.
Why the Legal Counsel’s Reasoning Is Legally Invalid
1. Classification is based on duties—not hierarchy or structure.
The Board of Education Personnel Regulations are clear: classification is determined by the duties and responsibilities assigned and performed, not the organizational chart or number of departments.
2. Organizational structure is irrelevant to evaluating duties.
The legal counsel improperly used organizational placement—“under the supervision of CIP”—as if it controlled classification. The regulations state the opposite: duties define the class, not who supervises the employee.
3. Legal counsel’s conclusion contradicts its own findings.
The conclusion admits that I oversee both direct employees and contractors—a direct acknowledgment of supervisory duties. Under the personnel regulations, overseeing staff constitutes supervision, a defining component of Director-level work. Yet the legal counsel disregarded this fact.
4. The legal counsel failed to apply the class specification documents.
The class specifications—defining Manager vs. Director duties—were withheld from me and even from the hearing panel. Without these documents, neither party could make a fact-based determination.
5. The hearing panel did not write this conclusion.
The conclusion was written under the direction and guidance of the legal counsel. Had the panel produced such a flawed conclusion independently, the legal counsel was obligated to correct it based on the regulations.
6. He allowed HRO—under the direction of ACAS—to withhold and redact essential classification documents, including class specifications that the panel was required to use.
This obstruction deprived both the grievant and the panel of the tools necessary to make a lawful determination.
7. The reasoning violates the “equal pay for equal work” doctrine.
Board regulations require equitable treatment: employees performing higher-level duties must be classified accordingly. The counsel’s conclusion contradicts this principle.
8. The timeline for reclassification begins at the date of grievance filing.
Altogether, these failures raise legitimate questions about whether the legal counsel’s conduct meets ethical standards for neutrality, objectivity, and fidelity to established law.
Why This Matters
This case exposes a troubling pattern:
- Misapplication of Board regulations
- Obstruction of due process
- Redaction and withholding of class specification documents
- Misleading conclusions drafted by legal counsel rather than the hearing panel
- Potential ethical misconduct within the legal office
- Senior leadership (ACAS, HRO, COE) allowing or participating in the misapplication of established policies
When the offices responsible for employee fairness fail to follow the rules, the entire system is compromised.
What Should Have Happened Once the Conclusion Was Issued
Had the personnel regulations been followed—as required—the process should have unfolded as follows:
- Apply the Board of Education Personnel Regulations directly to the duties and responsibilities, not to the organizational chart.
- Provide the class specification documents to all parties, including the hearing panel, without redaction.
- Evaluate my actual duties against the Director-level class specifications.
- Identify any classification errors, as required of the Commissioner under the regulations.
- Correct the classification when the duties performed align with the higher class.
- Implement reclassification retroactive to the date the grievance was filed.
- Issue a transparent decision citing the specific regulations used in the analysis.
- Hold accountable those who failed to follow the regulations—including ACAS, HRO, COE, and the legal counsel—because failing to apply mandatory policies is not an administrative preference; it is a procedural violation.
- ACAS should have ensured the correct application of policies.
- HRO should have used class specifications and duties, not organizational charts.
- COE (Commissioner) is bound by regulation to correct classification errors, not justify them.
- Legal counsel should have upheld due process and prevented the issuance of a conclusion unsupported by regulations.
Accountability is not punitive—it is essential for restoring integrity to the system.
Conclusion
The Board of Education Personnel Regulations were designed to ensure fairness, consistency, and accountability. When legal counsel, HRO, ACAS, and leadership fail to apply them, it transforms the classification process from an objective system into an arbitrary one.
If regulations can be ignored in one case, they can be ignored in any case—placing every employee at risk.
It is time for the Board to insist that its own rules be followed and that those who refused to apply them be held accountable. Only then can the personnel system regain credibility and trust.
Glenn Smith
Editor’s note: The views and opinions expressed in this op-ed are those of the author and do not necessarily reflect the views of NMI News Service or its staff. All assertions are the sole responsibility of the writer.
To submit an op-ed for consideration, email your piece to brad.ruszala@nminewsservice.com
