State Supreme Court overturns voter-approved local collective bargaining transparency requirement

Jason Mercier of the Washington Policy Center shares why taxpayers still have a right to know how public spending decisions are made on their behalf

Jason Mercier
Washington Policy Center

In 2019, nearly 80% of Spokane voters approved a city charter amendment requiring collective bargaining negotiations in the city to be open to public observation. Last week, however, the state Supreme Court, in response to a union lawsuit, ruled unanimously that this open government reform was unconstitutional. According to the justices:

“We hold that the legislature has preempted the field of collective bargaining through PECBA and PERC regulations. We find that to interpret PECBA and PERC as the City prescribes could lead to a patchwork of rules relating to bargaining negotiation. Such a decision would defeat the ‘uniformity’ goal of PECBA and PERC. Where field preemption exists, local governments lack authority to regulate in the same space because the local ordinances defeat the uniformity intended by the legislature. We hold that section 40 is preempted by state law and is unconstitutional under article XI, section 11 of our state constitution.”

With this ruling, the state Supreme Court agreed with government unions that the legislature created a uniform system for collective bargaining and local governments can’t change that to add transparency requirements. Essentially this means a change in state law is now necessary (either passed by the legislature or by the people via statewide initiative) to allow local government to require open collective bargaining transparency like occurs in several other states across the country.

Although local governments can no longer require open collective bargaining transparency under the ruling, elected officials can still encourage government unions to engage in transparent discussions and pass resolutions embracing the desire for these talks to be conducted out of the shadows. Of course, the unions can say no, but elected officials should at least ask the unions to agree to conduct the process transparently as clearly supported by the public.

Ending secrecy in government employee contract negotiations has strong public support. A statewide poll of 500 Washington voters conducted in 2015 found that 76% supported “requiring collective bargaining negotiations for government employers to be open to the public.” This level of public support was almost the exact margin of victory when Spokane voters adopted Proposition 1 in 2019.

At a bare minimum, local governments should follow the Civic Openness in Negotiations (COIN) process used throughout the country. Under COIN, 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.

Collective bargaining negotiation transparency is:

Good for taxpayers. Since government-employee contracts account for such a large portion of public spending, they should not be negotiated in secret. Taxpayers provide the money for these agreements and they should be able to follow the process, holding government officials accountable for the spending decisions they make.
Good for union members. Because they know exactly what proposals their union representatives are requesting and rejecting, transparency benefits rank-and-file union members, providing information on how they are being represented.
Good for local government. Transparency instills more accountability into the collective bargaining process by quickly identifying whether one side is being unreasonable in negotiations or acting in bad faith. This clarity correlates with higher levels of trust in government, an important factor as local officials tackle a range of challenges requiring voter buy-in.

The state Supreme Court has ruled. Taxpayers, however, still have a right to know how public spending decisions are made on their behalf. If for no other reason, transparency increases public confidence in the efficacy of government institutions. Opening union contract negotiations to the public as other states and cities have done is a practical and ethical way to achieve that standard.

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