Forty-one states require or encourage secret contract negotiations

February 18, 2013

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Trevor TenBrink Trevor TenBrink

Trevor was website administrator for EAG from December 2012 to March 2014.
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By Victor Skinner
EAGnews.org
     
PHOENIX – Common sense suggests government should strive to be open and transparent so taxpayers can hold public officials accountable for their decisions.
    
topsecretA recent study by the Goldwater Institute, however, shows common sense is sorely lacking in many states and municipalities around the nation. The Institute released a report last month titled “Airing Out Smoke-filled Rooms: Bringing Transparency to Public Union Collective Bargaining” that explores how employee unions and government officials conduct the public’s business.
    
What researchers found is troubling, but not terribly surprising.
    
Nearly a dozen states require collective bargaining between government and union officials to be conducted behind closed doors, and in most cases the public doesn’t get a say in the process until after the resulting contracts are legally binding.
    
In some places in Arizona – the Institute’s home state – the public officials conducting union negotiations are forbidden by law from discussing the details with elected leaders or anyone else.
    
That kind of secrecy allows unions to exert a lot of pressure and extort a lot of money.
    
“When total secrecy in negotiations is combined with laws forcing government employers to engage in collective bargaining … government unions are free to deploy maximum leverage in negotiations – consisting of political pressure and monopoly power – while hiding from any meaningful oversight,” according to the Institute’s report.
    
“It is no wonder that the Bureau of Labor Statistics has most recently reported that state and local government employees make nearly 43 percent more per hour on average in total compensation than private sector workers.”
    
Secret union contract negotiations are certainly a problem in public education, as EAGnews has repeatedly documented in our review of many teacher union contracts in recent years.
    
Union leaders routinely help to elect friendly candidates to local school boards during low-turnout, off-season elections. The scheme allows union bosses to elect board members who are willing to put the union before students and taxpayers during negotiations.
    
As a result, public school union contracts are frequently rife with expensive union perks that are unheard of in the private sector, such as bonuses for unused sick days, publicly funded “union release time,” automatic annual raises, lavish health insurance plans and other special pay provisions.
    
Secret deals
    
Secret collective bargaining between unions and government agencies is mandated by law in 11 states – Alaska, Connecticut, Illinois, Iowa, Kentucky, Maine, Nevada, New Hampshire, New Jersey, New Mexico and Wisconsin, according to the report.
    
Closed negotiations are also common practice in many individual municipalities and school districts in other states like Arizona, because lawmakers have left enough wiggle room in open meetings and records laws to allow city managers or other non-elected officials to conduct confidential negotiations.
    
In many cases, even elected leaders don’t know or understand what they’re signing when it comes time to approve union contracts.
     
“Although elected officials are ultimately responsible for approving the final version of union contracts that are negotiated in secret, Arizona’s system of secret collective bargaining typically renders approval by elected officials a rubberstamp because it tends to keep elected officials in the dark about what they need to know,” according to the Goldwater report.
    
“Elected officials simply cannot meaningfully check and balance collective bargaining negotiations when they do not oversee them and the law keeps the media and the public dumb, deaf, and blind.”
    
The Goldwater study cites examples in two Arizona cities – Chandler and Avondale – that specifically prohibit transparency in the collective bargaining process, which local officials refer to as “meet and confer.”
    
Chandler city ordinance prohibits those on both sides of the collective bargaining table from revealing “any matters concerning the meet and confer proposal with city elected officials or the news media,” according to the Goldwater report.
    
“Chandler even forbids city managers from meeting more than once with elected officials to discuss and seek instruction on resolving areas of impasse.”
    
While some cities explicitly require secret negotiations by law, others use loopholes in the state’s weak open government laws to circumvent transparency measures.
    
Arizona’s open meetings laws, for example, allow closed door sessions for “discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body.”
     
It’s a lot of jargon that essentially allows cities to conduct secret union negotiations without complying with the requirements of the state’s Open Meetings Act. Goldwater found similar provisions in states across the country. 
     
Goldwater researchers rated each state’s transparency laws using a zero through four scale, with four representing strong transparency for all government unions.
    
Only two states, Tennessee and Florida, were rated a four. Texas and North Dakota were each given a three for strong transparency for some union negotiations, while Oregon, Ohio and Maryland required moderate transparency for some labor negotiations.
     
But a total of 41 states either require secret union negotiations by law or fail to impose meaningful transparency requirements to prevent it from happening. In other words, 41 out of 50 states allow or encourage secret negotiations between union bosses and public officials.
    
Drawing conclusions
    
Goldwater researchers point out that the easiest way to end secret deals and the added expense of collective bargaining is to end collective bargaining altogether, though that’s a politically difficult task to accomplish.
    
“States across the nation could save $50 billion – and Arizona in particular could save $550 million – every year in excessive pay to public employees simply by banning government union collective bargaining,” according to the report.
    
For many states ending collective bargaining simply is not feasible in the current political landscape. But Goldwater suggests the next best approach is for state lawmakers to enact stronger transparency laws that have the potential to diminish union clout.  
    
Conservative-leaning organizations like the American Legislative Exchange Council have crafted model legislation to help let the sun shine in on union negotiations, but Big Labor bosses have attacked the measure as “union busting” when it was introduced in Louisiana, Colorado and elsewhere, Goldwater reports.  
    
While unions generally oppose transparency for obvious reasons, their traditional liberal allies are starting to come around.
    
“It is clearly consistent with democratic process for citizens to have a formal third-party role in public sector collective bargaining … citizens have the fundamental right to hold officials accountable for how their tax dollars are spent,” Richard C. Kearney wrote in a 2009 article for Labor Relations in the Public Sector, Goldwater reports.
    
The Labor and Employment Law Section of the American Bar Association also chimed in on the issue in 2012, stating that “perhaps the interest of the parties, their constituents and society as a whole would be better served by shifting the balance toward greater public disclosure of all aspects of public sector collective bargaining.”
    
Florida provides the best example for other states to follow because it requires all collective bargaining to be held at open meetings regardless of who negotiates the union contract or how. Florida law also requires attorney-client conversations during executive sessions to be transcribed, according to the report. 
    
The Goldwater Institute, however, encourages lawmakers – in Arizona in particular – to take transparency a step farther than the Sunshine State by requiring any and all communications regarding negotiations to be recorded and available to the public.
     
Increasing transparency not only has the potential to save taxpayers millions by exposing the collective bargaining process, it’s the morally correct thing to do. 
    
If the public has to pay the bills, the public should be able to witness the decision-making process.
    
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