State union negotiations should be public

Did you know the governor’s office is currently negotiating pay and compensation with state employee unions for the state’s 2023-25 budget?

What is on the table? Will the outcome of these secret talks be no tax cuts for Washingtonians but big inflation pay raises for government employees? That answer is currently a mystery since these government pay raise talks happen in secrecy without disclosure of the financial details until the deal is reached.

Why is this secret process occurring?

In 2002, Gov. Gary Locke signed House Bill 1268, which fundamentally altered the balance of power between the governor and Legislature concerning state employee pay and benefits. The bill’s purpose was to reform Washington’s civil service laws and for the first time in state history, give state employee union executives the power to negotiate directly with the governor behind closed doors for salary and benefit increases.

Before 2002, collective bargaining for state employees was limited to non-economic issues such as work conditions, while salary and benefit levels were determined through the normal budget process in the Legislature.

Since the collective bargaining law went into full effect in 2004, union executives no longer have their priorities weighed equally with every other special interest during the legislative budget debate. Instead, they now negotiate directly with the governor in secret – lawmakers only have the opportunity to say “yes” or “no” to the entire contract agreed to with the governor. Not only are there serious transparency concerns with this arrangement, but there are also potential constitutional flaws by unduly restricting the Legislature’s constitutional authority to write the state budget.

When announcing the first secretly negotiated state employee contracts in 2004, then Gov. Locke said:

“This year’s contract negotiations mark the first time in state history that unions have been able to bargain with the state for wages and benefits. The new personnel reform law passed by the Legislature in 2002 expanded the state’s collective bargaining activities to include wages and benefits. In the past, the Legislature unilaterally set those terms.”

Missing in this statement, however, is that this was also the first time in state history these spending decisions were not made in public. Gov. Locke failed to note he had negotiated the contracts in secret, often with the same union executives who were his most important political supporters. This same secret process continues to do this day.

The decision made in 2002 that limited the authority of lawmakers to set priorities within the budget on state employee compensation should be reversed. This is especially important considering the compelling arguments made in University of Washington Law Review, noting the 2002 law is an unconstitutional infringement on the Legislature’s authority to make budget decisions.

Ultimately, state employee union contracts negotiated solely with the governor should be limited to non-economic issues, like working conditions. Anything requiring an appropriation (especially new spending that relies on a tax increase) should be part of the normal open and public budget process in the legislature. This safeguard is especially important when public sector unions are also political allies of the sitting governor.

Since 2004, as noted, the governor has been granted the authority to negotiate secretly with union executives to determine how much taxpayers will pay for compensation to government employees. The secret talks involve government employee compensation totaling hundreds of millions in public spending per biennium.

Before 2004, those spending decisions were made in public as part of the normal legislative budget process, with the opportunity for comment at public hearings, before state officials made employee compensation promises.

Not only are public union contract negotiations conducted in secret, but none of the records are subject to public disclosure until after the contract is signed into law (when the budget is approved by the governor). Lawmakers responsible for approving these contracts and the taxpayers who are asked to pay for them should not be kept in the dark until the deal is done and it is too late to make changes.

Some level of collective bargaining transparency is currently standard policy in nearly half of the states across the country. Some states open the entire negotiation process to the public, while others include an exemption when government officials are strategizing among themselves. Once public officials meet with union negotiators, however, the public is allowed to monitor the process.

This is exactly what occurs in Florida. As that state’s Attorney General explains:

“The Legislature has, therefore, divided Sunshine Law policy on collective bargaining for public employees into two parts: when the public employer is meeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with the Sunshine Law.”

In Washington, these closed-door negotiations should be subject to the state’s Open Public Meetings Act or at a minimum, utilize a process like the one used by the city of Costa Mesa in California to keep the public informed. That process is called COIN (Civic Openness in Negotiations). Under that system, all of the proposals and documents that are to be discussed in secret negotiations are made publicly available before and after meetings between the negotiating parties, with fiscal analysis provided showing the costs.

While not full-fledged open meetings, providing access to all of the documents before meetings would inform the public about the promises and trade-offs being proposed with their tax dollars before an agreement is reached. This would also help make it clear whether one side or the other is being unreasonable, and would quickly reveal whether anyone, whether union executive or state official, is acting in bad faith.

State and local government employment contracts should not be negotiated in secret. The public provides money for these agreements. Taxpayers should be allowed to follow the process and hold government officials accountable for the spending decisions that public officials make on their behalf.

– Jason Mercier is the Washington Policy Center’s director of the Center for Government Reform. Email him at jmercier@washingtonpolicy.org.