Judge issues important contract transparency public records ruling

Jason Mercier of the Washington Policy Center explains that state and local government employment contracts should not be negotiated in secret

Jason Mercier
Washington Policy Center

The Citizen Action Defense Fund (CADF) last week won its public records lawsuit against the Office of Financial Management. At issue were the original offers exchanged between state employee unions and the Governor’s office concerning pay raises for the 2023-25 budget. Though not a party to the lawsuit, the original records request was made by WPC. In a press release announcing the victory CADF said:

“The suit was originally filed last December against the Office of Financial Management (OFM), which is part of the Governor’s office, for failing to provide public records in connection with the Governor’s ‘secret’ negotiations with public sector employee unions last year that led to biennial agreements with $997 million in increased salary and benefits for state employees.

Last year, the Governor’s OFM began negotiations with government unions on contracts for the next biennial (2023-25) budget cycle. The behind closed doors agreements, that were finalized and signed by the parties, resulted in nearly ten-figure increases for public sector union membership in salary and benefits. The agreements were politically controversial as the unions made significant political donations to the Governor and his allies in the months leading up to the November 2022 elections.

On October 20, 2022, CADF learned that the Governor’s OFM was refusing to provide copies of the state and unions’ original offers in the negotiations until after the Legislature approves the entire General Fund state budget during the current 2023 session and the Governor signs it into law. CADF submitted a new request pointing out that the public records act contains no such limitations on public records. OFM continued to withhold the documents.”

Thurston County Superior Court Judge Mary Sue Wilson will sign an official order and determine a public records penalty award at another hearing on April 28.

According to its website:

“CADF is an independent, nonprofit organization based in Washington state that supports and pursues strategic, high-impact litigation in cases to advance free markets, restrain government overreach, or defend constitutional rights. The government watchdog nonprofit files lawsuits, represents affected parties, and intervenes in cases when the state enacts laws that violate the state or federal constitutions, when government officials take actions that infringe upon the First Amendment or other constitutional rights, or when agencies promulgate rules in violation of state law.”

According to its Executive Director, CADF has two additional lawsuits pending:

“2022 Transportation Package Suit. Filed in January in Thurston County Superior Court. Constitutional challenge to legislation if successful could significantly lower the cost of fuel and license fees. Challenge is that key legislation in the transportation package violated the single subject requirement in the state constitution. Next step is to file a summary judgment motion and schedule for hearing in next few weeks.”
“Department of Ecology Suit. Legal challenge filed in March in Thurston County Superior. Challenge is to legislation that allows for delegation of rule-making authority by Ecology to un-elected board in California which will have the effect of banning the sale of motor vehicles with combustion engines in Washington state after 2030.”

For additional details about the public records ruling and CADF activities, you can contact Jackson Maynard.

As for the need for more collective bargaining transparency, before 2002, collective bargaining for state government 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, while 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.

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 the 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 may rely 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.

If the legislature is going to continue to allow the Governor to set the terms for these budget decisions totaling hundreds of millions of dollars, these contract negotiations should be subject to the state’s Open Public Meetings Act (OPMA) 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 this 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.

While we wait for these broader contract transparency reforms, we should all thank the Citizen Action Defense Fund for its effort to fight for open government and set the precedent for the timely release of these public records for future years.

Jason Mercier is the director of the Center for Government Reform at the Washington Policy Center.