Recently an op ed piece by Peter Scheer, executive director of the California First Amendment Coalition, suggested that the Legislature could help citizens keep public safety (police and fire) employee union pay and benefit agreements in prudent checkand thus reduce the risk of municipal bankruptcies like Vallejo’sby removing some or all of the secrecy that is permitted by the open meeting laws to surround the negotiation of such agreements. As it now stands, he said,
the Brown Act, the state’s open-meetings law, carves out a huge exception for negotiations with public employee unions. The combined effect of this exception, and separate provisions of the labor code, is to close the door, pull down the shades and turn off the lights on virtually all decisions relating to employee compensation and other terms of union contracts. By the time the public gets to see the compensation provisions, it is already a done dealindeed, any effort to change the terms likely would be a breach of the contract.
The prescription suggested is to roll up the metaphorical shades in favor of legislatively created sunshine.
Vallejo, whose city council voted May 6 to seek bankruptcy protection, would be the first California municipality to declare bankruptcy in the current economic downturn; others are likely to follow, unfortunately. These debacles are sure to have repercussions in Sacramento, as legislators consider measures to prevent cities from reaching the financial abyss into which Vallejo has fallen.
Of all the steps they could take, the most important would be to end the secrecy surrounding public employee contract negotiations.
Although getting more sunshine on bargaining with local public safety employee unions (by amending the Brown Act) would be pretty daunting, since their clout in Sacramento is at least as strong as in any city hall, there are three facts to take into account.
1. There is a precedent and model for creating a window on what agreements are being proposed. It now governs school employee bargaining only, but at least shows how public awareness could be built into the process:
Government Code Section 3547.
(a) All initial proposals of exclusive representatives and of public school employers, which relate to matters within the scope of representation, shall be presented at a public meeting of the public school employer and thereafter shall be public records.
(b) Meeting and negotiating shall not take place on any proposal until a reasonable time has elapsed after the submission of the proposal to enable the public to become informed and the public has the opportunity to express itself regarding the proposal at a meeting of the public school employer.
(c) After the public has had the opportunity to express itself, the public school employer shall, at a meeting which is open to the public, adopt its initial proposal.
(d) New subjects of meeting and negotiating arising after the presentation of initial proposals shall be made public within 24 hours. If a vote is taken on such subject by the public school employer, the vote thereon by each member voting shall also be made public within 24 hours.
(e) The board may adopt regulations for the purpose of implementing this section, which are consistent with the intent of the section; namely that the public be informed of the issues that are being negotiated upon and have full opportunity to express their views on the issues to the public school employer, and to know of the positions of their elected representatives.
Government Code Section 3547.5.
(a) Before a public school employer enters into a written agreement with an exclusive representative covering matters within the scope of representation, the major provisions of the agreement, including, but not limited to, the costs that would be incurred by the public school employer under the agreement for the current and subsequent fiscal years, shall be disclosed at a public meeting of the public school employer in a format established for this purpose by the Superintendent of Public Instruction.
(b) The superintendent of the school district and chief business official shall certify in writing that the costs incurred by the school district under the agreement can be met by the district during the term of the agreement. This certification shall be prepared in a format similar to that of the reports required pursuant to Sections 42130 and 42131 of the Education Code and shall itemize any budget revision necessary to meet the costs of the agreement in each year of its term.
The California Supreme Court has commented on this approach favorably: "Thus, although the public is excluded from actual negotiating sessions . . . its opportunity to be fully informed and to express its views is preserved." San Mateo City School District v. PERB, 33 Cal.3d 850, 864 (1983).
2. There is no exemption from disclosure under the California Public Records Act or any other statute for draft agreements or other bargaining-related communications between public agency employers and their employee unions. When asked, cities and other local agencies may claim these documents are confidential as "drafts" or otherwise, and most requesters will settle for that. But even the draft exemption exempts only the "recommendatory opinion" of a document’s authornot factual material such as what terms are actually being proposed. Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704, 717 (1985). And of course the only records connected with employee bargaining whose disclosure would hamper the agency’s position would be the consultative exchanges between the governing body and its own bargaining agentnot the information shared with or received from the bargaining adversary.
3. There is no need to await legislative amendments to state law in order to adopt a local public disclosure and involvement protocol. A city council or other governing body could adopt procedures mirroring the Government Code Sections above affecting school boardsor take a simpler approach. The San Francisco Sunshine Ordinance, for example, enacted in the strongest labor town in the state, provides in Section 67.12. (b) (5), "Collective Bargaining: Any collectively bargained agreement shall be made publicly available at least 15 calendar days before the meeting of the policy body to which the agreement is to be reported."