MANEUVERING THROUGH PUBLIC SAFETY NEGOTIATIONS. Lisa Torres

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1 INTRODUCTION MANEUVERING THROUGH PUBLIC SAFETY NEGOTIATIONS Lisa Torres Maneuvering through negotiations with public safety unions is a unique, often challenging, process. The public-safety negotiator s success is dependent upon a number of factors, including knowledge of each union and their history; the possible challenges that may be encountered throughout the process; and techniques and strategies to aid in reaching a successful conclusion, a signed contract, or Memorandum of Understanding (MOU). Although a negotiator may have experience reaching agreements with other public sector unions, it s important to recognize that public safety, namely sworn police and fire unions, represent some distinct characteristics that should shape one s approach to negotiations. BACKGROUND Prior to the 1960 s, California public safety employees had very few organizing or bargaining rights. In 1961, California passed its first public sector bargaining law, the Brown Act, which gave unions the right to meet and confer. 1 The Meyers-Milias-Brown Act (MMBA) of 1969 provided the full range of collective bargaining rights afforded to public safety employees today, including full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations. 2 The overall intent of the MMBA, to strengthen merit, civil service and other methods of administering employer-employee relations through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed 2, serves a valuable role and helps to level the playing field of employee-employer relations; however, given the essential services they provide and the lack of competition in the private sector, police and fire unions often hold an advantageous position in the negotiations process. Likewise, police officers and firefighters duty to protect and serve and the inherently demanding and dangerous nature of their jobs afford both groups a good deal of community support, which is not shared by other public sector unions. As such, although they do not sit at the bargaining table, citizens have a noticeable role in public-safety negotiations. In fact, it s not uncommon for police and fire unions to utilize various tactics in an effort to get residents to support their cause and provide additional leverage in attaining a more desirable contract. As an example, in October 2011, in response to budget cuts that resulted in layoffs of five police officers, the Chula Vista Police Officers Association (CVPOA) sent letters to Chula Vista, California residents warning, We believe that there may not be enough police officers to adequately provide for your safety if something is not done about this. It continued with, If you are concerned about your safety, or have a complaint about police service response times, contact your elected officials at city hall. 3

2 Understandably, as taxpayers who essentially pay for this service and have the expectation of help arriving when they call 911, this message would be disconcerting. Even though there weren t any additional layoffs planned, it was enough to sustain the community s support for the foreseeable future. The letter also gained the attention and public backing of a few council members, which could very well impact the next round of negotiations. During this same time, Chula Vista s International Association of Firefighters (IAFF), Local 2180, agreed to some contract concessions and didn t experience any layoffs; however, as stated on their website, in an open to the mayor and council, they maintain that, The Chula Vista Fire Department currently has one of the lowest staffing levels in the nation. This department cannot afford cuts and continue to offer the same level of service that I expect in return for my tax dollar. Adding, Please consider every possible avenue to not only maintain our current fire department staffing levels, but increase them in order to make Chula Vista a safe place to live. 4 Although, at first glance, this may sound alarming, it should also be taken into consideration that, as noted in a Grand Jury Report, Organized firefighting in America was established over a century ago primarily to guard against loss of property. Over time, the nature of emergency calls has changed. By the 1970s, calls for fire service were dwindling dramatically, largely due to the development and enforcement of stringent building codes calling for, among other things, the use of fire-retardant building materials and the installation of sprinkler systems in most buildings. 5 As a result, the majority of calls for service in most, if not all, municipal fire departments are actually medical in nature. Nevertheless, the fire service is rooted deep in tradition and most change, or suggestion thereof, is met with challenge and resistance, which may explain, to a certain degree, why the minimum staffing models most commonly used still reflect those needed for fire-related emergencies. POSSIBLE CHALLENGES At some point in the negotiations process, it s possible that the public-safety negotiator may have to contend with one, or more, of the following challenges: large-scale emergencies and/or natural disasters, the political climate, budget constraints, and pension reform. After the September 11, 2001 terrorist attacks, concerns mounted about whether or not similar attacks would occur elsewhere and agencies began extensive recruitment efforts to maximize their staffing levels. There was clear competition amongst agencies to offer a more appealing pay and benefit package to both their current and prospective employees. Ironically, those agencies with the most generous contracts are now the ones left reeling from offering too much and not having the financial resources to maintain those benefits. Large-scale emergencies and natural disasters test the fortitude and preparedness of all emergency services personnel and the agencies for which they work. The importance of welltrained staff with the necessary resources cannot be overstated and is closely scrutinized, along with each labor union s contract, in the aftermath of such calamities. To this end, an agency s 2

3 heightened sensitivity to the public s perception and safety concerns often takes on a political verve. Politics, even if inadvertent, play a significant role in all public sector negotiations. It s especially noticeable with police and fire unions, who typically have ample membership and large coffers, during election years. In 2010, the Chula Vista Police Officer s Association endorsed Patricia Aguilar for election to City Council, which she subsequently won. Since that time, Ms. Aguilar has continued her support of the union. It s also not uncommon for a councilmember, hoping to get re-elected, to seek the union s political endorsement in exchange for his/her union support. Needless to say, this can put the negotiator in a difficult position as they try to balance the direction they may receive from the council, who must ultimately approve all contracts, with the best interests of their agency, as a whole. Often times, a councilmember s support of a particular union doesn t waver due to possible budget constraints. This can be especially challenging with public safety as it is typically the most costly service that cities provide. According to the League of California Cities most recently available data for fiscal year , police and fire departments accounted for an average of 57% of California cities budgets, remaining relatively constant over the previous years. 6 Police and Fire Net Total Expenditures as a Percentage of General Revenues - California Cities Count Mean 48% 50% 54% 51% 50% 57% 61% 57% Historically, public safety budgets were left untouched. As stated in a recent article in the San Antonio Business Journal, Public safety and criminal justice are sometimes called sacred cows because public officials know that providing safe communities is one of the most basic government services. 7 Additionally, it was not uncommon to see cost-of-living adjustments (COLAs) of twenty percent, or higher, spread out over the life of a three to five year contract. Of course, that all 3

4 changed with the recession and the resulting decline in each city s revenue base. COLAs have all but disappeared from negotiation discussions and employees are contributing more of their own money to help pay for many of the benefits they receive. In these difficult economic times, pension costs have become a huge burden on public agencies, with most struggling to meet their financial obligations. As a result, reform has come swiftly and hit police and fire unions quite unexpectedly. The enticing 3% at 50 CalPERS retirement formula that was first seen in contracts in the late 1990 s and became commonplace throughout the following decade has essentially been phased out and replaced with less generous figures, with 3% at 55 and 2% at 50 being among the most common. The employee noncontribution has also all but vanished from California agencies, with most public safety employees now paying the full 9% of their retirement contribution. Although the initial rancor over these changes may have worn off, the negotiator should be cognizant of the possible residual union hostility and the likelihood that it may last for some time, especially as talk of proposed pension reform, with such recommendations as conversion to a defined benefit, 401(k)-type, retirement plan for public sector employees linger. TECHNIQUES & STRATEGIES In years past, multi-year contracts, with an occasional re-opener clause, were the norm. Now with shorter, one to two year, contracts in place after many unions accepted less-than-favorable contract terms in order to avoid layoffs, the parties will be back at the bargaining table sooner, rather than later, to resume previously deferred discussions. Maintaining positive employee-employer relations and establishing a respectable level of trust will be paramount to these negotiations being successful. Doing so may be as simple as scheduling regular meetings with each union s representatives to discuss any potential areas of concern and to exchange information as it is requested. Beyond that, careful consideration should be given to logistics. It s not uncommon for police and fire contracts to expire on or around the same time because they were negotiated simultaneously, or closely thereto; however, depending on the circumstance, it may be an option to negotiate one contract after the other has been ratified. The latter will lessen the likelihood of both contracts reaching impasse because one group isn t willing to concede unless the other agrees to do the same. Competition amongst police and fire unions is almost to be expected; what one gets, the other wants, and sometimes more. To this end, the me too clause can be a help and a hindrance. Its use is helpful in that it can save time and make the negotiator s job a bit easier; if you spend weeks, or possibly months, negotiating a contract term with one group, you likely won t have to devote the same amount of time and energy with the other group vying for the exact same benefit. Yet, it s important to keep in mind that, once used, the me too clause can set the tone for future negotiations, making it difficult to establish a clear delineation between the two groups and almost defeating the purpose of bargaining separately. 4

5 CONCLUSION Public sector collective bargaining is undoubtedly entrenched in uncertainty. Although not enough signatures have yet been collected to qualify for the November 2012 ballot, the following terms of initiative 1546 ( , Amdt. #1S) 8 would have far-reaching ramifications: Reduces pension benefits for current and future public employees, including teachers, nurses, and peace officers, but excluding judges. Eliminates constitutional protections for current and future public employees' vested pension benefits. Creates hybrid pension plan for new employees, capping collective benefits at 75 percent of salary. Limits cost-of-living adjustments for retired and current employees. Prohibits public retirement systems from providing death or disability benefits to future employees. Requires that current employees add up to three percent of their salary to their pension contribution annually, when pension plan is underfunded. The California Center for Public Policy is also spearheading three additional ballot initiatives. The first is aimed at eliminating, altogether, collective bargaining rights for public sector employees, including police officers and firefighters. The second is geared toward instituting an income tax on CalPERS and CalSTRS pensions above $100,000. With the third being a proposed increase to the retirement ages for public sector employees to 65, or 58 for public safety. 9 In closing, although it s impossible to predict where these unprecedented times may lead, a paradigm shift has most certainly already begun to take place. The days of unions asking, What can you do for me? are being slowly replaced with, How can we work together?. This change of thinking will surely impact the negotiations process with all public sector unions, especially police and fire, as they, along with the negotiator, learn to maneuver their newly modified position at the bargaining table and adjust their approach accordingly. Lisa Torres Senior Human Resources Analyst City of Chula Vista 276 Fourth Ave. Chula Vista, CA

6 (619) REFERENCES 1) Government Code 54950, et seq (Brown Act). 2) Government Code 3500, et seq. (MMBA) 3) 10 News. (2011). Chula Vista Police Union s Letter Says Public Safety At Risk. Retrieved from 10 News Online 4) IAFF Local Retrieved from ountid=91 5) Santa Clara County Grand Jury Report. ( ). Santa Clara County Civil Grand Jury Report Fighting Fire or Fighting Change? Rethinking Fire Department Response Protocol And Consolidation Opportunities. 6) California Local Government Finance Almanac. City Program Expenditures. Retrieved from 7) Nabers, M. (2012). Many public safety projects escape budget knife. San Antonio Business Journal. 8) Secretary of State. Initiatives and Referenda Cleared for Circulation. Retrieved from 9) California Center for Public Policy. Retrieved from 6

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