The public union negotiation trap

June 24, 2017

OPINION by MIKE BROWN

The San Luis Obispo County Board of Supervisors’ recent ratification of several expensive employee labor contracts reminds us that the process is devastating for the taxpayers and the public interest. The problem is that the contracts are negotiated in secret by county staffers, labor law consultants, and the employee unions’ expert negotiators. The process entraps the county and ultimately the taxpayers.

The public is not allowed to observe the negotiating sessions. Staff communication with the board of supervisors to receive direction takes place in confidential executive sessions. The public and media have no idea about the scope and cost of union demands or the county’s counter proposals.

In the end, the finished contract is placed on the board agenda, and it is only then that the public finds out what it’s going to cost and other details. At that point it is too late for the board to reject the contract even if the public objects. This is because of a state law (the Meyers-Milias-Brown Act. – not to be confused with the Ralph M. Brown Act, which pertains to open meetings) requires “bargaining in good faith.”

Once the supervisors have tentatively agreed, and the union has been informed and its members have ratified the contract, the board may not change its mind. If it did, the union would file an unfair labor practice with the State Public Employee Relations Board (PERB), charging the board of supervisors members with bargaining in bad faith. Board members and the county could face legal penalties.

Supervisors who vote against the contract in closed session are allowed to vote against it when it reaches the public meeting, but those who supported it may not change their minds. Supervisor Debbie Arnold actually did vote against several of the contracts and had apparently voted against them in closed sessions.

Currently, there is no law requiring that the contracts be negotiated in secret or forbidding local governments from reporting periodically on demands and progress to keep the public informed.  Instead, the secret arrangement is a practice supported by both governments and unions and is usually embedded in negotiation ground rules adopted by mutual agreement of the parties at the start of negotiations.

It should be noted that there is a current effort, Assembly Bill 1455, which has passed the Assembly and is under consideration in the Senate, which would make public disclosure of proposals illegal. The bill is in response to efforts by the City of Costa Mesa and other jurisdictions to make their process more transparent to the public.

Another problem is that the California Open Meeting Law, the Ralph M. Brown Act, exempts city councils, boards of supervisors, and boards of special districts from being required to discuss their labor strategy or direction with respect to a particular set of negotiations in public. Note that the Act does not forbid them from holding the discussions in public.

California’s open meeting laws allow a local agency governing body to meet in closed session to provide instructions to the agency’s bargaining representatives. These sessions may take place both before and during labor negotiations. The instructions can include parameters on salaries, benefits, and working conditions.

Discussions on funding priorities and available funds may occur, but only insofar as necessary to instruct the agency’s bargaining representatives.

In fact, if someone comes out of closed session and reports on details, he or she can be charged with both an unfair labor practice and violation of the open meeting law. They may be subject to sanctions by the PERB as well as fines by the State Fair Political Practices Commission.

Over the decades, and when multiplied across 58 counties, 450 cities, and thousands of special districts, this exception to public transparency has been a major cause of California’s unsustainable governmental salary and pension costs. These in turn have displaced funds that would otherwise go to maintaining and expanding roads, jails, parks, and other vital facilities.

Of course, these out of control expenditures also burn up funding for the actual ongoing services such as public safety.

As a step toward transparency, we hope the board of supervisors (and all the city councils) would oppose AB 1455 as part of their legislative programs.  Moreover we recommend that the board adopt a new labor bargaining transparency policy, which would take place during negotiations and at a minimum would include:

·         Publication of the union’s initial demands and positions (and estimated costs) at the start of negotiations.

·         Publication of the county’s initial counter proposal.

·         Periodic updates of changes proposed by both parties.

·         Periodic publication of the reasons for impasse and resulting mediation, arbitration, and other mandatory facilitated processes that may take place if agreement is not reached.

·         Periodic cost updates for the various proposals as they evolve, and explanation of the funding sources and impacts on service levels.

·         Periodic publication of the costs for salary increases, reclassification of positions (job titles), pensions, health benefits, overtime, standby time, increased vacation, and all the rest. 

Why should members of the public be denied this information until it is too late for them to express their concerns to the board of supervisors and for the supervisors to consider them?

Here is a perfect no cost opportunity for all the supervisors to promote transparency and lead the way in San Luis Obispo County. At the least, the process should allow the public and media to peer into the trap. We think that over the years such provisions might save tens of millions.

Who would object to that?

Mike Brown is the Government Affairs Director of the Coalition of Labor Agriculture and Business (COLAB) of San Luis Obispo County. He had a 42-year career as a city manager and county executive officer in four states including California. He can be reached at mike@colabslo.org.