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Council approves pay raises for union

Original post made by Jesse on Dec 11, 2013

So somebody please correct me if I'm wrong, but did I hear city attorney Bill McClure say last night that Council had to approve the AFSCME contract? He seemed to be saying that the union could sue the City for negotiating in bad faith if the council rejected the proposed contract. Well, if that's the case, why bother releasing the contract two weeks early for public review if the comments from the public don't matter, and Council isn't going to revise the contract? Why have a public hearing if it's a done deal? Does the Brown Act allow council to give final approval to a contract in executive session?

Just wondering,

Jesse

Comments (17)

Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 11:00 am

Peter Carpenter is a registered user.

"Does the Brown Act allow council to give final approval to a contract in executive session?"

NO it does not. Note that the BART Directors refused to approve a specific portion of a management negotiated settlement.
" 8-1 vote on Nov. 21, when BART's board of directors rejected ratifying an agreement their authorized chief negotiator Thomas Hock, Assistant General Manager Paul Oversier, and Labor Relations Manager Rudy Medina signed and bargained with the unions to end a contentious four-day strike in October.

The reason they refused was over a "mistake" agreed to in negotiations: To pay union workers six weeks of paid Family Leave in addition to the three to six weeks of vacation, 13 paid holidays and 12 sick daysemployees already receive annually.

After the contract was signed, BART's managment said it was "mistakenly" agreed to and that the agency couldn't pay for it."
**************************************

There is no reason to make the PROPOSED contract public if its approval has already been agreed to.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 11:18 am

Peter Carpenter is a registered user.

Here is the Fire Board's binding resolution on contract review, public notice and Board approve. Note that it states "any PROPOSED collectively bargained labor " making it clear that elected officials must approve the proposed contract - just as the individual union members must approve a negotiated agreement. The whole concept behind the Fire Board adopting this position was just as the labor negotiating team had to get their members approval of a proposed agreement that the management negotiating team should also be required to get the approval of its members - the taxpayers as represented by their elected officials.

********************
RESOLUTION OF THE BOARD OF DIRECTORS OF THE MENLO PARK FIRE PROTECTION DISTRICT ADOPTING A POLICY REGARDING DISTRIBUTION
OF PROPOSED COLLECTIVE BARGAINING AGREEMENTS


WHEREAS, in accordance with the policy of promoting prompt public access to government records, the California Public Records Act broadly defines public records (Gov. Code Section 6252, subdivision (3)) and the exceptions to disclosing public records under the California Public Records Act are narrow; and

WHEREAS, the Ralph M. Brown Act, Government Code Sections 54950 through 54963, enacted into law in 1953, requires open meetings of local agencies "to curb misuse of the democratic process by secret legislation of public bodies"; and

WHEREAS, the Ralph M. Brown Act "…reflects a legislative determination that 'public agencies in this State exist to aid in the conduct of the people's business,' and an intent 'that their actions be taken openly and that their deliberations be conducted openly' (Gov. Code Section 54950); and

WHEREAS, the Ralph M. Brown Act and the California Public Records Act require the District to conduct its business in a transparent manner; and

WHEREAS, the Board, as duly elected representatives of the citizens within the District, in conformance with the Ralph M. Brown Act and the California Public Records Act, is committed to providing the District's citizens with information considered by the Board in making its decisions; and

WHEREAS, the Board believes due to the importance of proposed collective bargaining agreements with the District employee labor representatives, that these proposed agreements should be made available to the citizens of the District in sufficient time prior to the Board's adoption of the proposed agreements so as to allow for adequate review and comment by the public prior to final Board action.

NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the Menlo Park Fire Protection District does hereby move that any proposed collectively bargained labor agreement between the District and designated District employee representatives shall be made publicly available at least fifteen (15) calendar days before the meeting at which the agreement will be acted on by the Board.



PASSED AND ADOPTED as a resolution of the Board of Directors of the Menlo Park Fire Protection District at the Regular Meeting held on the 16th day of December 2008


Posted by WhoRUpeople, a resident of another community
on Dec 11, 2013 at 11:27 am

I think what you heard was the City's attorney providing his client with legal advice that a possible consequence of action by the CC to not ratify the agreement could be that the union could file a law suit claiming negotiating in bad faith. Sound advice, but just because the union could sue, doesn't mean they would; nor if they did sue, that doesn't mean they would prevail. I didn't get the impression that the CC's approval of the agreement was based on a fear of suit or an understanding they didn't have a choice. Peter's comments about the Bart situation are accurate, but the issue there a specific one to that agreement--was the clause in question included "by mistake". Contract law clearly provides relief by recognizing that for a contract to be valid in must accurately represent the meeting of the minds of the parties and cannot be based on mistakes.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 11:40 am

Peter Carpenter is a registered user.

Here is what the Closed Session agenda stated:
"CL1. Closed Session pursuant to Government Code Section §54957 to conference with labor negotiators regarding labor negotiations with the Police Officers Association (POA) and
Service Employees International Union (SEIU)"

Note that there is NO mention of Approval.

And here is what the Open Session Agenda stated:
"F4. Consider approval of the Terms of an Agreement between the City of Menlo Park and the American Federation of State, County and Municipal Employees, Local 829"

It would be impossible to 'consider approval if approval had already been given.

And I was wrong - The Brown Act would (sadly) permit the approval to occur in Closed Session BUT only if it was agendized as a consideration of approval' AND the vote on that matter was publicly announced immediately after the closed session:
"With respect to labor negotiations conducted pursuant to section 54957.6, the approval
of an agreement concluding labor negotiations shall be reported after the agreement is
final and has been accepted or ratified by the other party. The report shall identify the
item approved and the other party or parties. (§ 54957.l(a)(6).)"


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 12:07 pm

Peter Carpenter is a registered user.

This what the proposed MOU states:
"This Memorandum of Understanding is entered into by and between American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter "Union") and the City of Menlo Park (hereinafter "City")."
And
"Term - December 11, 2013 (pending Council approval)- June 30, 2015"
"Pay Rates - Effective the beginning of the first full pay period after ratification of this Agreement by the membership and approval by City Council, the pay rates for employees in this representation unit shall be increased by Four and One Half Percent (4.50%)."

The ONLY entity which can authorize/approve any city contract is the elected City Council.


Posted by Jesse, a resident of Menlo Park: The Willows
on Dec 11, 2013 at 12:25 pm

Peter, just to clarify ... A city council shouldn't be bound to what they decided in closed session, and when it comes time for final approval in a public hearing, they should be free to vote the contract up or down? Is that about right?


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 12:33 pm

Peter Carpenter is a registered user.

"when it comes time for final approval in a public hearing, they should be free to vote the contract up or down? Is that about right?"

That certainly is my opinion, my preference and is perfectly legal,

But is takes GUTS.


Posted by guts, a resident of another community
on Dec 11, 2013 at 1:52 pm

During the recent threat of a BART strike, it also took guts for a manager to pilot a train after 20 years behind a desk. Two workers died that day as they were run down by the train.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 11, 2013 at 2:11 pm

Peter Carpenter is a registered user.

Irrelevant to this discussion. What self called guts describes was bad judgement and poor training, it had nothing to do with guts.


Posted by WhoRUpeople, a resident of another community
on Dec 11, 2013 at 2:39 pm

Jesse, a question for you if I may. I responded to your original post because I thought you were merely asking if anyone else watching/attending the meeting heard the City Attorney's comments to Council differently than you did. My response was intended to let you know how I interpreted what I heard, which was basically an appropriate statement of the issue under consideration. However, now I'm thinking the issue behind your initial inquiry is because you saw/heard something that led you to think that Council should not have approved the contract for some reason. Is this the case, and if so, could you share the issue you have the concern about?


Posted by Scott, a resident of Menlo Park: Central Menlo Park
on Dec 12, 2013 at 9:00 am

Of course any guidance from Council about terms cannot be binding on the City because state law requires later public input and then a public vote of the Council. If the part-time City Attorney said otherwise, he should be fired and disbarred. Get the tape.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 12, 2013 at 9:24 am

Peter Carpenter is a registered user.

In this case the council gave secret instructions to its negotiators in a closed session without any public input or knowledge and based on the Meyers-Milias-Brown Act ( which is a different law than the open meeting/transparency Brown Act) the lawyer stated that because of their secret directions they had to approve the resultant proposed agreement.

The concern is wether or not the city bargained in good faith. Here is what the law states:
" "Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual obligation
personally to meet and confer promptly upon request by either party
and continue for a reasonable period of time in order to exchange
freely information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation prior to the
adoption by the public agency of its final budget for the ensuing
year. The process should include adequate time for the resolution of
impasses where specific procedures for such resolution are contained
in local rule, regulation, or ordinance, or when such procedures are
utilized by mutual consent."
It is a matter of judgement, not law, that the council was bound to approve the proposed agreement. And in this case the process for public input was a shame.

To avoid the secret interaction problem an elected body should make clear to its negotiators at the beginning that any proposed deal will have to come back to the elected body for review and approval - just as the labor negotiators cannot bind their union members without a vote of the members.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 12, 2013 at 9:33 am

Peter Carpenter is a registered user.

correction - And in this case the process for public input was a sham ( and a shame).


Posted by Outsider, a resident of another community
on Dec 12, 2013 at 10:27 am

It appears that people are making excuses and pointing fingers at the City
Attorney.

Mayor Mueller voted against the contract. I don't know why the other council members couldn't find the courage or intelligence to do so.


Posted by WhoRUpeople, a resident of another community
on Dec 12, 2013 at 11:08 am

@ Peter- evidently missed something important. You said, "In this case the council gave secret instructions to its negotiators without any public input or knowledge". Was that stated by the City Attorney when making his statement to council about now having no choice but to approve the contract, or did it come from some other reliable/verifiable source?


Posted by WhoRUpeople, a resident of another community
on Dec 12, 2013 at 11:10 am

Correction, "I evidently missed something important". Sorry, it read as though I was say you missed something Peter.


Posted by Peter Carpenter, a resident of Atherton: Lindenwood
on Dec 12, 2013 at 11:13 am

Peter Carpenter is a registered user.

"Was that stated by the City Attorney when making his statement to council about now having no choice but to approve the contract, or did it come from some other reliable/verifiable source?"

SJ Mercury News:
"In response to a question by Vice Mayor Catherine Carlton, Human Resources Director Gina Donnelly and City Attorney Greg Rubens told council members that staff followed the negotiating parameters they set in closed session to reach the agreement with union leaders. To reject the deal now could be perceived as "bad faith negotiating" and lead to a "long, drawn out quasi-judicial process," Donnelly said."


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