Freedom Foundation

Lincoln County Handed Unsatisfying Win in Four-Year Battle For Transparency

A Spokane appeals court judge on Sept. 18 issued what should have been a decisive ruling in Lincoln County’s four-year struggle to open contract talks between the commissioners and unions representing county employees to public scrutiny.

But because of Washington’s convoluted labor laws, it didn’t feel much like a victory.

On paper, the court sided with Lincoln County, its taxpayers and the Freedom Foundation, concluding that the Washington State Public Employment Relations Commission (PERC) erred when it ruled previously that when the parties involved in collective bargaining come to an impasse over a “permissive subject” of bargaining, they must return to the status quo.

Unfortunately, the court offered no remedy, sending the case back to PERC.

And on go the perpetual legal proceedings.

In labor law, the term “permissive subject” refers to matters not directly related to the work. That is, these subjects fall outside of wages, hours and working conditions and generally are matters that relate to the nature and direction of the business/industry or relate to the internal union affairs.

And in collective bargaining, it’s considered an unfair labor practice to come to an impasse over a “permissive” subject of bargaining and use that impasse in bad faith to refuse to bargain over wages, hours and working conditions.

Whether contract negotiations in the public sector happen in the open or behind closed doors, for example, is considered a permissive subject, and the union representing workers can’t force the government to negotiate in private.

By the same token, the county can force the union to negotiate in public only if it can show that openness is a core function of government.

If a permissive subject is, by definition, not required to be negotiated — and neither side has the authority to make a determining decision about the process — you have a problem.

That’s why observers of the ongoing drama in tiny Lincoln County, Wash., were holding their breath as we waited for clarity after oral arguments were heard on Sept 18.

Would the court side with the county, the taxpayers and the Freedom Foundation, making it clear the community and its democratically elected representatives have the managerial right to negotiate publicly with taxpayers’ money?  That is, in a republican form of government, does the relationship between elected officials and the citizens who voted them to hold official positions go to the core of representative government, justifying the elected officials’ managerial control over whether the citizens should be able to see for themselves how their taxes were being spent?

Or would the court agree with Teamsters Local 690, giving a private special interest group the power to force elected officials to negotiate away our taxes while meeting in secret?

Finally, four years into a legal battle over public employee union collective bargaining transparency, the Division III of the Washington State Court of Appeals on Nov. 3 issued a ruling.

Considering the county failed to raise taxes several times and was pushing for transparency to earn the support of the public to increase revenue, it was disappointing to learn the court does not believe the authority of elected officials to require public transparency regarding taxpayers money to be “at the core of entrepreneurial control.”

Rather than concluding the public has every right to know how its tax dollars are being negotiated away and requiring negotiations be open to scrutiny, the ruling suggested bargaining sessions could still be conducted in private and either side could simply disclose after each one what happened.

Wait, what?

First of all, how many taxpayers trust elected officials on their word alone? You might have voted for someone, and you might even count on them, but there is nothing quite like verification to confirm your trust.

More importantly, what happens when the union comes out of the very same bargaining session with a completely different version of which side was unreasonable?

This isn’t idle speculation. It happens every day in both private- and public-sector contract talks.

But the real problem with the court’s ruling is that it still does not clarify who is responsible for an unfair labor practice if they insist on open or closed meetings.