BY PETER SCHEER—Jerry Brown is often praised for his political independence, for his willingness to make policy choices that he thinks are right on the merits, even if it means angering poerful constituencies.
But there are limits.
They were reached in the latest legislative term in the Governor’s decision to sign legislation drafted and backed by public employee unions determined to abort efforts by cities and counties to shed light—not much light, but some—-on decisions about how much to increase workers’ salaries, pensions, job security, medical coverage and other benefits.
Although California public sector unions once enjoyed considerable public support for their compensation demands, faith in democracy in recent years has given way to secrecy——and generous campaign contributions to compliant local officials—-as the unions’ preferred strategy for maximizing their members’ welfare.
SB 331, the legislation that Brown signed, is a secrecy law masquerading as a transparency law. Local governments that adopt measures to shed light on collective bargaining with their unions—-and only those local governments—- will be subject, under the law, to new requirements for outside contracting that are so onerous, inflexible and costly that affected cities and counties won’t be able to function. Accordingly, they will have no choice but to repeal their local sunshine measures.
And that is precisely the purpose of the new law: to force local governments that enacted transparency measures to repeal them (and, secondarily, to deter other local governments from enacting similar measures). The new law, named the “Civic Reporting Openness in Negotiations Efficiency Act,” is almost perfect in its cynicism.
Hopes that Jerry Brown would resist union pressure, vindicating the public’s right to know about their local officials’ most important decisions (fiscally speaking), were misplaced. However, the battle to crack open the window on collective bargaining on public employee pay and benefit packages—which account for over 70% of most local governments’ total budgets—-is not over.
My advice to local governments, in view of enactment of SB 331, is that yes, they should repeal their sunshine measures; and no, they should not enact new ordinances that would transgress SB 331 and trigger its Draconian penalties.
Nonetheless, at the start of negotiations with public sector unions for their next collective bargaining agreement, local governments should notify union negotiators that they will not sign off on the final agreement until the text is made public and citizens have had an opportunity, over at least 14 days and at two public meetings, to review the proposed agreement; to consult with actuaries and other experts; and to question elected officials about the agreement’s assumptions and costs. Union officials should also be invited to explain the agreement and respond to citizens’ questions (but there would be no requirement that they do so).
What will happen? If the union leaders are smart, they will go along with this small step for greater transparency, not wanting to further alienate voters. And if the union is not very smart, it will challenge this public review procedure as constituting a breach of its statutory obligation to “negotiate in good faith.” And to that challenge, cities and counties will have a succinct response: the First Amendment to the US Constitution.
Public sector unions are not on the same legal footing as private sector unions in this regard. Public sector unions’ rights under state labor laws are limited by citizens’ First Amendment rights to receive information from their elected officials, and by elected officials’ derivative First Amendment rights to communicate with constituents about matters of public importance—-which union contracts covering government employees surely are.
These communications are the essence of democracy, enabling the people to hold government accountable. And the essence of democracy is non-negotiable (to paraphrase activists of another era).
In my opinion, local governments (and their citizens) will ultimately prevail in court in litigation pitting unions’ labor law rights against public officials’ and citizens’ rights of free speech. And that means that Jerry Brown’s gift to the unions, in signing SB 331, will have accomplished nothing.
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Peter Scheer, a lawyer and journalist, is executive director of FAC. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.