Let’s Keep Control of Local Spending

One of this year’s most sweeping and costly legislative bills began its stealthy flight through the state Legislature under the radar of most of the California media.

This bill bears the ironic title, the “Burton-Villaraigosa Public Safety Assurance Act.” Far from ensuring public safety, the bill would wrest away decisions about millions of dollars worth of police and fire labor contracts from elected mayors, city councils, boards of supervisors, local voters, the state of California (for state public safety personnel, including the California Highway Patrol), and even private employers of safety personnel, instead investing these powers in unelected, unaccountable arbitrators.

The bill requires that disputes involving the wages, hours and working conditions of firefighters and police throughout California be resolved by professional arbitrators, paid half by labor unions and half by government. This process is called “interest arbitration.” Police and firefighters unions support the bill, the California State Assn. of Counties and the League of California Cities oppose it.

Public safety unions have contributed handsomely to political campaigns, hoping to win support for this bill. Yet the public agencies it will affect are legally prohibited from making contributions. Consequently, this legislation is on a fast track. For a number of reasons, taxpayers will need to get a tighter grip on their wallets if this legislation passes.

First, interest arbitration invests enormous powers in arbitrators to make policy for local government--more power than a mayor, city council, police chief or even the voters. Unlike other forms of arbitration, this type empowers arbitrators to write a contract that includes terms that one or even both parties oppose.

Second, arbitrators are unaccountable to elected officials or the voters. Frequently, they live outside the city or county that their decisions affect. They rarely have fiscal or government policy-making experience and they usually are unfamiliar with a city or county’s existing pay practices, public needs or policy priorities. This bill would empower them to effectively rewrite city budgets.

Third, interest arbitration is a long, expensive and adversarial process. Arbitration cases are like court cases, with lawyers, witnesses, exhibits and briefs. The arbitrator acts as judge, jury and executioner with sweeping powers to compel employers to adopt contracts they can’t afford. Even the courts’ powers are usurped: An arbitrator’s decision is final and binding and rarely can be undone, even if the arbitrator misapplied the law.

Fourth, interest arbitration isn’t just about setting compensation. The bill would compel public safety agencies to arbitrate such issues as work rules, changes to police or fire department general orders and discipline procedures. The arbitrator--not the police or fire chiefs--would effectively determine whether a county could adopt new procedures for putting out fires or fighting crime.

Fifth, because the arbitrator selection process requires that an arbitrator be acceptable to both parties, the pool of candidates includes many who cannot say “no” to demands for wage or benefit improvements, even when the public interest requires it. For example, public sector unions often demand sizable wage increases for their members at the same time that the public agency is experiencing serious fiscal problems. In interest arbitration, the odds will be no better than 50/50 that the arbitrator will decide to protect public resources rather than require additional wages or benefits.

Finally, interest arbitration does not change relationships for the better or eliminate the possibility of strikes, as its proponents argue. Rather, it offers a legalistic alternative to the more balanced process of reaching agreement through bargaining. This is why commentators say that interest arbitration has a “narcotic” effect on bargaining.

Emotion tends to dominate discussions of how police and firefighters’ contracts should be set. Public safety personnel put their lives on the line and the public values the work they do. Unquestionably, these workers deserve to be paid fairly. But who should determine what is “fair?”

The trend in nearly every other arena in which public moneys are at issue is toward greater democracy, public disclosure and public involvement. If the process is abused, the public has the most democratic review process available: the ballot box. This bill would effectively silence the voice of California voters, and it would increase the cost of public services, with California taxpayers and businesses picking up the tab.

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Jeffrey Sloan, an attorney in San Francisco, represents public employers on labor and employment law matters, including interest arbitrations. E-mail: [email protected].