In approving the 2018-2019 state budget last week, Governor Brown incidentally gave local government employee unions the right to rush new hires for membership at meetings kept secret from the public.
That’s an important and extremely timely advantage for labor groups representing workers in cities, counties and special districts, cushioning the U.S. Supreme Court’s Janus v. AFSCME decision, also last week, that public employees can’t be required to pay union dues in order to share in the benefits won by the labor groups at the bargaining table.
The labor groups have for years enjoyed access to employees’ home addresses and phone numbers, despite those items’ exemption from disclosure to the public under the California Public Records Act. The trailer bill now gives the labor groups exclusive access to the time, date and location of an agency’s new employee orientation session, where they will be able to make the case for membership with no public observers—or current employees—present.
The orientation access provisions first surfaced this spring in AB 2970 (Cooper), where they were strongly opposed by the California News Publishers Association (CNPA) as well as the California School Boards Association, the League of California Cities, the California State Association of Counties and all other major local government agency lobbies. The union sponsors and supporters said the secrecy was necessary in view of (unspecified) studies showing workplace violence on the rise in local government.
But to avoid further resistance, AB 2970 was then transferred wholesale into a budget trailer bill, thus bypassing further normal legislative safeguards. Dan Walters recently explained why.
When voters decreed a few years back that the state budget no longer needed a two-thirds legislative vote to pass, they unwittingly applied that looser standard to those ancillary measures that traditionally were written to implement the budget’s appropriations. Since the budget and its trailer bills take effect immediately upon being signed by the governor, and therefore are immune to a challenge by referendum, it was an invitation for governors and legislators to load them up with decrees unrelated to the budget. Dozens of trailer bills are drafted only a few days, and sometimes a few hours, before their enactment. Because they are also exempt from the usual legislative procedures, such as waiting periods and committee hearings, they have become vehicles for doing things on the sly. It’s why some folks around the Capitol call them “mushroom bills” that sprout in the dark, fertilized with manure.
Suppressing public awareness of what public employee unions are telling new hires in order to get their membership (and dues) is the second win in less than a year for keeping such activity unknown to voters and taxpayers. The first was AB 1455, enacted last fall, which assures that when residents become aware of the salaries and benefits conferred on employees by city councils, county supervisors and special district directors and ask, “What were they thinking?” the agencies will be able to keep secret any documents and communications that could answer that question.
The constitutionally required finding of “necessity” for AB 1455 was:
This act balances the right of the public to access relevant information about employee relations matters while protecting sensitive information related to collective bargaining and collective bargaining deliberations, the disclosure of which would frustrate the purpose of collective bargaining at local agencies and would make it more difficult to resolve disputes regarding wages, hours, and other terms and conditions of employment . . .(emphasis added)
The finding stated of the need for AB 2970 and its trailer bill version is: “This act balances the right of the public to access writings of public agencies while protecting the privacy of employees.” (emphasis added)
Quite apart from these bills’ altogether political judgment that government unions’ dealings with government employers are simply none of the taxpayers’ and voters’ business, the more fundamental damage done by these ”findings” is that they make no attempt to demonstrate, as the constitution requires, the interest protected by the denial of access and the need to protect that interest. Instead they speak blandly of “balancing” “the right of the public to access” with “sensitive information” or “privacy” or (fill in the blank). This approach disables Proposition 59 of 2004’s constitutional requirement for open government wherever some lack of “balance” with other values can be recited.