Employees on leave get millions from state

Two glance boxes, sent to desk. One lists top administrative leave payouts by department; the other lists top 10 individual payouts. bk

The State of Ohio spends more than $2 million each year to pay state employees to stay home from work, in some cases for nearly a year or longer, according to a Dayton Daily News analysis of state payroll data.

Between 2007 and 2011, Ohio spent an average of $2.2 million a year on paid administrative leave, which is most commonly used while the state investigates allegations of misconduct against employees. Although 2012 information has not yet been made available, as of October the state was on track to pay out $2.1 million in paid leave last year.

In one case discovered by the newspaper, a state employee under investigation for improperly disposing of confidential documents sat at home for 15 months while continuing to receive his $76,500 salary. The case, which was handled by the Ohio Office of Inspector General, languished for months. OIG on Feb. 13 finally released a report clearing the employee, Kevin Salsbury, of wrongdoing. He returned to his job with the Ohio Rehabilitation Services Commission in Portsmouth later that week.

Suspending employees accused of wrongdoing with pay is a common and best practice, said Jon Hyman, a Cleveland-area attorney who specializes in employment law. Cases, though, can drag on as investigations become more complicated, especially if law enforcement gets involved.

There are no rules on how long a state employee can remain on paid leave. But a 2009 memo from the Ohio Department of Administrative Services says paid leave shouldn’t last longer than three months, unless a comprehensive review is performed to justify extending the suspension.

Most of the time, investigations into employees are resolved in fewer than three months, a review of state payroll records obtained through a public records request shows. But since 2007, 289 state employees were paid a total of $5.2 million to stay home longer than three months.

Eight state employees have spent 10 months or longer on paid leave since 2007. They include:

State officials said they keep close track of paid administrative leave to keep costs down, while public employee union officials said the millions spent on paid leave is a small price to pay to ensure due process.

How paid administrative leave works

Ohio law allows governments to pay employees not to work “in circumstances where the health or safety of an employee or of any person or property entrusted to the employee’s care could be adversely affected.”

Sometimes this means employees are paid not to work when offices are closed because of gas leaks or bad weather, or to take time off while waiting to see a doctor for a job-related injury. But administrative leave piles up when it’s used to suspend employees while they are under investigation for wrongdoing.

Paid administrative leave protects employers, said Hyman, the Cleveland attorney.

“You’re basically doing the best you can under the circumstances,” he said. “You separate employees to insulate yourself against any claim that you’re allowing wrongdoing to continue.”

But, Hyman added, paying employees while they’re suspended protects employers from any later claims — as in a wrongful termination lawsuit — that the investigation was biased.

Government workers with civil service protections are guaranteed due process under the U.S. Constitution, Hyman said.

“If you fire a public sector employee without due process, you’ve likely violated constitutional rights in addition to it just being a horrible business practice,” Hyman said.

Employees on paid leave can’t go to their workplace or contact their co-workers. The memo issued by the Ohio Department of Administrative Services also says employees on paid leave should remain available during business hours and not get a second job during those hours.

Tim Shafer, operations director for the Ohio Civil Service Employee Association, said it’s important that investigations into misconduct are thorough and fair.

“If it takes a year to prove somebody’s innocent, then it should take a year, and if it takes 30 days, it should take 30 days,” said Shafer, a former corrections officer. “But don’t try to railroad somebody.”

Prison employees accused most often

Three state agencies that run institutions — the Department of Rehabilitation and Correction, the Department of Youth Services, and the Department of Developmental Disabilities — spent the most on paid suspensions since 2007. The departments incur these costs because they have staffing 24 hours a day, and because of the nature of their work, state officials said.

“We face significantly different security and safety concerns with staff behavior and their ability to perform their jobs” than other state departments, said JoEllen Smith, a spokeswoman for the DRC, which manages Ohio’s prisons.

It is the state’s largest department, employing about 12,000 people, and has spent $4.5 million on paid administrative leave since 2007.

Second was the Department of Youth Services, the juvenile equivalent of DRC, with about $1.8 million paid out. Third was the Department of Developmental Disabilities, which operates group homes for people with severe disabilities, at $1.4 million.

Vicki Rich, spokeswoman for ODODD, said employees who are under investigation have the option of taking administrative leave rather than being assigned to different duties temporarily.

Youth Services places staff on administrative leave immediately if allegations against them are made, agency spokeswoman Kimberlee Parsell said in an email.

“Determinations regarding staff on leave are made as quickly as possible, but sometimes investigations involve multiple parties and complexities,” Parsell said.

Lengthy investigations

The Ohio Rehabilitation and Services Commission case involving Kevin Salsbury was the state’s longest single instance of paid administrative leave since 2007.

Salsbury, who declined to comment for this story, was suspended from his state job as a vocational counselor in Scioto County on Nov. 23, 2011, after someone found confidential documents for which he was responsible in a dumpster.

Records show that the OIG conducted interviews through January 2012, then spent three months waiting on phone records they had subpoenaed.

Meanwhile, Salsbury continued collecting paychecks, covered through a mixture of paid administrative leave and his unused paid time off. He used his time away from work to attend college, said RSC spokesman Brad Reynolds.

Written activity logs show that deputy inspector general Michael Roever received the last of the phone records in May 2012. But he didn’t start writing the report until July 13.

In August, the OIG’s office told RSC Chief Legal Counsel Christina Wendell that the investigation would not show any wrongdoing on Salsbury’s part.

“She (Wendell) advised they were going to keep him on leave for now,” Roever wrote.

The OIG finally issued its report on Feb. 13, 2013, concluding that it couldn’t figure out how the records ended up in a dumpster and that no one’s confidential information was misused. Salsbury went back to work two days later.

What took so long?

“We were asking some of these same questions ourselves,” Reynolds said. “I don’t know if it was a manpower issue or what, but we never received good information from them, other than that they were working on it.”

Carl Enslen, an OIG spokesman, said he wasn’t sure why the case took so long. But he said investigations can sometimes get pushed back as investigators work other cases.

“There’s always the possibility that we’re not able to address it for some time,” he said.

Enslen said the inspector general’s office tries to conduct efficient investigations while also being thorough. “It weighs on us because of the cost, and also because people’s lives are hanging in the balance,” he said.

Another case involving the OIG illustrates how lengthy investigations of government employees can be costly to taxpayers.

Five administrators in the Ohio Division of Wildlife were suspended with pay in April 2010 after they were indicted for felony obstruction of justice and complicity charges stemming from how they handled misconduct by an employee. They had decided to reprimand Allan Wright, a wildlife officer, for letting an out-of-state friend use his address for an Ohio hunting license, saving that friend about $100.

The indictments came after the OIG issued a report that criticized wildlife leadership for not reporting the case to authorities.

The five administrators — Randy Miller, James Lehman, Todd Haines, Michele Ward-Tackett and David Graham — were together paid nearly $250,000 not to work before they were brought back to the office in November 2010.

Then-ODNR Director Sean Logan told the Dayton Daily News at the time that the administrators were needed in the office.

“I have to balance respect for the court and common sense as a public manager,” Logan said.

Today, the case is still active as legal wrangling continues — it’s currently before the Ohio Supreme Court — over whether the inspector general report can be used in court. Ward-Tackett and Haines still work for ODNR, while the others have retired.

Wright pleaded guilty to four misdemeanors in February 2012, and was sentenced to five years probation and fined $1,000. He received $16,200 in administrative leave payments between April 2010 and March 2012.