We have consistently talked about opening up the current ongoing negotiations with the city’s bargaining units to greater transparency. However, the state law makes that prospect difficult.
California laws makes it a virtual requirement to conduct bargaining in closed session, away from public scrutiny. The problem as we have seen is that once the contract is negotiated in private, it ends up as a consent agenda item for ratification.
“For the next few months, employee groups will meet with their representatives, who will then meet with representatives of the Davis City Council, who will report back to the council in meetings closed to the public, which is allowed by law.
Some have asked for the sessions to be conducted in public, but that would be ineffective, Navazio said.
“There would not be one peep from these groups if there were a reporter or a member of the public there,” he said. “The idea is not that it’s done in secrecy, but that we’re doing it in a way that gets the best options for the city. But we’re trying to be more transparent. It’s not an all-or-nothing thing.””
I am not sure he is correct there, but the law seems pretty clear in precluding such options.
Peter Scheer is the executive director of the California First Amendment Coalition, an organization dedicated to protecting and defending the public’s right to know. Back in May of 2008 following the Vallejo declaration of bankruptcy, he called for more transparency in city-union contracts.
He wrote:
“If no one is watching, it’s easy for public officials to give generous pay and benefit increases without having a clue how to pay for them. That’s not so easy to do in a public session, where voters demand to know how much taxes will have to be raised, and how much other expenses cut, in order to make good on the promised increases in compensation. Such resistance is called political accountability, and it obviously depends on public access to the meetings in which elected representatives make their decisions.”
The problem is that current laws not only allow but in many cases require that these negotiations happen in closed session.
So we might view on the city council agenda as we do this week:
“Conference with Labor Negotiators pursuant to Government Code §54954.5:
Agency Designated Representatives: City Manager Bill Emlen, Assistant City Manager Paul Navazio, Human Resources Administrator Melissa Chaney, City Attorney Harriet SteinerEmployee Groups/Organizations: Davis City Employee Association, Davis Police Officers Association, Department Heads, Executive and General Management, Firefighters Local 3494, Police Lieutenants, Professional and Support Employee Association”
They are required by law to tell who the negotiators are in this case it is the City Manager, Finance Director, HR Administrator, and City Attorney. And it tells us who the bargaining groups are. But that is really all that is required.
This is the sum total of the law requiring disclosure:
“The Brown Act provides, in Government Code Section 54954.5:
For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format.
(f) With respect to every item of business to be discussed in closed session pursuant to Government Code Section 54957.6:
CONFERENCE WITH LABOR NEGOTIATOR
Agency negotiator: (Specify name)
Employee organization: (Specify name of organization representing employee)
or
Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations)”
Mr. Scheer writes:
“Although in theory legislative bodies in California must operate in the “sunshine,” 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 (“collective bargaining agreements”).
Negotiating positions are determined in secret, negotiations themselves are conducted in secret, and negotiated contracts are ratified in secret. By the time the public gets to see the compensation provisions of a new union contract, it is already a done deal–indeed, any effort to change the terms likely would be a breach of the contract.”
What the city is looking to do is deal with the ramifications of the second paragraph. So the negotiations will be done in secret, but they will try to prevent the contract from being a done deal by the time the public sees it. So there will be a period for public scrutiny between the time the contract is released and the time the contract is ratified in open session.
While the system is better than nothing and an improvement over the past when apparently councilmembers were given the contract and told by staff to sign it.
However, I would go further. The real danger is that once a contract agreement is reached, the negotiators turn from agents for the city to advocates for the signing of agreed upon contract.
I would therefore add some caveats to this still unsatisfactory process.
First, staff should under no condition recommend to the city council for the ratification of an agreed upon contract. The logic here is simple, if we want real transparency and openness in the system, real scrutiny on the contract itself, really want the public to weigh in, staff should remain neutral and allow the public and council to scrutinize the contract without prejudice or pressure.
Along those lines, staff should not advocate on behalf of the agreed upon contract. Council is often reluctant to go against staff. Staff often becomes an advocate for these contracts once they are negotiated and therefore at times have adovocated on behalf of the employees they had previously negotiated against. Staff needs to present the contract in a balanced manner and neither recommend its adoption nor advocate on its behalf.
Third, and this might be more specific to Davis, I do not trust the staff who has to work with the bargaining units to be able to be effective advocates on behalf of the public. Therefore I recommend that council does not rely on the city manager, finance director, city attorney, and HR director to conduct negotiations. To put it mildly I lack trust in their ability to do this the right way.
Fourth, it would be nice if the city could find a way to provide some measure of public updates to the process. I still have an overriding fear that the first-mover advantage principle applies here.
The first-mover advantage is principle developed in economics that suggests that there is an advantage held by the initial occupant of a market segment that allows the entrant to gain control of various resources that followers cannot match.
This principle has since been applied to the realm of politics, specifically in barganining situations. Basically it argues that setting an initial position can be a strategic advantage as it sets the status quo or the point of reference that needs to be argued against.
By having periodic updates on the status of negotiations, it might be possible to change the trajectory of the negotiations before positions become locked in.
Finally, the city needs to seriously and PUBLICLY examine their end-game here. They may not be able to conduct negotiations in public, but they can state how this process will play out and allow public scrutiny and debate over that process. That might actually be the second best outcome, a serious debate over process and procedure that will allow public input and scrutiny. At times this has been lacking from the city–serious examination of how something should play out. For example, the Grand Jury investigation the city knew for some time results were coming but seemed to fumble the process trying to figure out how to handle disclosure. This was despite the fact that the city knew this was going to be an issue for at least six months. The city claims they have a policy, but they have never discussed the policy publicly–why?
We know the city cannot negotiate in public, but there is far more that they can do, but have not.
—David M. Greenwald reporting
Thanks DPD,
You state staff should not advocate a position to CC, remain neutral; how is that reasonable if they are the ones negotiating? Here is what we were able to do, but we don’t recommend?
And you state the current staff should not be the negotiating team, who should?
What is the timeline here?
Thanks for dogging this.
“You state staff should not advocate a position to CC, remain neutral; how is that reasonable if they are the ones negotiating?”
In part this gets to my answer that the staff shouldn’t be the ones negotiating. But to the extent that they are, I would say that that just because their task is to negotiate with bargaining units does not mean they have to become advocates to council for the contract they agreed to.
“Here is what we were able to do, but we don’t recommend?”
Here is what we negotiated, now tell us what you think about it.
“And you state the current staff should not be the negotiating team, who should?”
Typically you would hire an outside negotiator.
“What is the timeline here? “
The contracts are up this summer. I would personally allow this to languor until we do it right.
” I do not trust the staff who has to work with the bargaining units…”
This is an important point because who is doing your negotiating can make a big difference.
But the problem is that the majority of the council must trust them otherwise they would send others to negotiate the contracts. Now there are two remedies; first you could run for office something I would really enjoy seeing or second you could demand diferent negotiators. How would you do this? By going to the council of with your mad as hell and not going to take it anymore Fox News, tea bag and pitchfork wielding anti-tax zealots and demanding someone like Rich Rifkin negotiate on behalf of the city.
“Paul Navazio: The idea is not that it’s done in secrecy, but that we’re doing it in a way that gets the best options for the city. But we’re trying to be more transparent.”
Is this the height of political double speak, or what? I would say that it is a pretty good indication of what city staff is going to do – put extreme pressure on City Council to ratify contracts that are not in the best interests of the city, but are in the best interests of City Staff, including the negotiators themselves. Since the City Council majority is in the back pocket of City Staff, I predict the contracts will be ratified on a 3-2 vote, w Greenwald and Heystek dissenting. Then the next step is to renew or up taxes. Now that is where the games begin – since Heystek has thrown down the gauntlet and SAID he will not support renewing or increasing taxes if contract negotiations are not done in such a way as to be fiscally responsible. The real question is will Heystek and Greenwald join forces and refuse to support renewing/increasing taxes? If not, and taxes are renewed/increased, nothing much has changed – the taxpayers will get hosed yet again. If yes and taxes are not renewed/increased, then what? How does the city pay for employee benefits? Cut programs? Cut city staff? That would be nice. And they could start at the fire house first, and go to 3 person teams. Let city employees get a taste of what teachers and other state workers are facing…
So many city jobs are (really and truly) half or three-quarter time jobs; the rest is “down time” and look busy time. The “bank of confidence and trust” is significantly overdrawn relative to what the CC or city tells me. WHY should any of the negotiators or staff really care about the money that is paid out w/new contracts?? It is not their money so they have no interest in preserving it.
Interesting Enterprise headline today, “112 county layoffs”. At first I thought it was city then realized how that could not be given the budget workshop a few weeks ago and the mild chgs proposed by dept heads. Sorry to be cynical.
i wonder if the union and the city could waive the provisions concerning negotiating in secret-if the city would agree and it didn’t happen at least the public would know why it was still in secret
Stan: I believe the answer is always yes, but it would not seem to be in the best interests of the unions to do so.
Negotiations CANNOT be conducted in public; true for private industry, true for government. If the public doesn’t like the result, the remedy is to vote out the council members who voted to ratify the contract–and that IS a matter of public record. If you don’t like it, don’t vote for those guys again; it’s called democracy.
“If the public doesn’t like the result, the remedy is to vote out the council members who voted to ratify the contract”
There is an earlier remedy: put pressure on the existing council to do the right thing.
I realize this is an important issue but lets look at some others as well. Negotiations don’t need to be any more transparent to require a better accounting of future liabilities. Also lets look to the business community – what are their property taxes relative to what they were before Prop 13. The university contributes a great deal to Davis, but it also contributes to the costs. You might also look at how the UC system might pony up a little more to defray the costs they incur. The value of this blog is when it provides more light and less heat. While I think that it is valuabel to examine the costs of city employees, I don’t think it is fair to make them the scapegoat for all fiscal problems.
“While I think that it is valuabel to examine the costs of city employees, I don’t think it is fair to make them the scapegoat for all fiscal problems.”
All of the city’s short-term fiscal problems don’t stem from the union contracts, but 100% of the city’s long-term problems do. Only a union-hack cannot see this reality.
The revenues per household to the City of Davis have grown dramatically over the last 40 years, doubling twice after adjusting for inflation. The problem in the long-run is not Prop 13, Prop 4 or Measure J. The problem is, when you include pensions, time off and all benefits, public “servants” make twice as much money as private employees make for the same jobs. We cannot afford that.