Freedom Foundation

Lawsuit Shows DSHS Supports the Union More Than It Respects the Law

I was privileged this past week to argue a lawsuit before the Division 2 Court of Appeals in Tacoma over whether the Washington State Department of Health and Social Services’ obvious foot-dragging in response to a valid Freedom Foundation information request violates the state’s Public Records Act and Supreme Court precedent.

The more important question raised by the case, however, is how employees working for a state agency could conclude their responsibility is to the labor union that represents them rather than the law.

In April 2017, the Freedom Foundation won a Court of Appeals decision holding that contracting appointment calendars were public records and had to be disclosed. The organization immediately filed a public information request seeking the current dates on which the state of Washington’s Department of Social and Health Services (DSHS) would be holding contracting appointments with individuals participating in a program under which they would be paid by Medicaid for providing in-home care for a low-income, disabled loved one.

Because the caregivers are compensated with taxpayer money and the meetings are administered by public employees in public buildings, the schedule showing when and where they will be held is clearly a matter of public record.

But rather than simply honoring the request, DSHS caved to union fears that the Freedom Foundation would use the information to cut into its revenue stream.

Not long after the U.S. Supreme Court’s 2014 ruling in Harris v. Quinn that in-home care providers are not full-fledged state employees and, thus, not subject to then-existing laws making union dues (or agency fees) compulsory for all state employees, SEIU 775 — the union authorized to automatically deduct dues from the caregivers’ paychecks — directed its allies in the Washington State Legislature to pass a law requiring that all newly hired employees attend a “contracting employment” with DSHS to discuss their job responsibilities and procedures.

At the union’s insistence, the meetings also include a 30-minute, face-to-face meeting with an SEIU operative trained to deliver a one-sided (and often highly deceptive) sales pitch, after which the fledgling caregiver is pressured to sign a membership card.

Attendance during the union portion of the orientation session is voluntary, but the employee isn’t always told this. Consequently, the Freedom Foundation began sending paid canvassers to these meetings to hand out material informing attendees of their right to skip the sales pitch and opt out of union participation altogether.

But that can’t happen unless the canvassers know the time and location of the meetings.

When the Freedom Foundation submitted its information request in April 2017, DSHS estimated it would take until June 13 to comply. But we later learned the agency had released the first installment of those records to the SEIU Training Partnership on May 12 — four days after it had made a public record request of its own for the exact same records sought by the Freedom Foundation.

Because the agency’s actions caused an additional 32-day delay in the Freedom Foundation receiving the records, the subsequent lawsuit asks for attorney’s fees and statutory damages.

In April 2017, the Court of Appeals had said that these records should be disclosed, and DSHS was doing everything it could to avoid having to disclose those records, including aiding the SEIU Training Partnership. At this point, it’s no longer about whether the Freedom Foundation is entitled to the same information anyone else could access — information it happily provided to the SEIU Training Partnership. The court has already established that fact.

What remains to be settled is the fundamental question of who those in charge at DSHS are working for.

We cling to the quaint notion that public employees working for a public agency have a responsibility to serve the public — and obey the same laws the rest of us do. However much it may seem otherwise, the residents of Washington are still calling the shots, not the unions.