Perpetually unconstitutional

Those of you following S713 and H5762 (the bill to allow never-ending teacher contracts) will be interested in the following OpEd in the ProJo and accompanying policy brief. Printable pdf and word versions of the policy brief are available on the OSPRI website (follow the link for policy brief above).

Legislature assaults local democracy

 

 

 

 

  

 

 

 

 

 

 

Good for your Constitution – notes from the Founders Project
A Policy Brief from the Ocean State Policy Research Institute
June 26, 2009
Perpetual Contracts push Constitutional Envelope

 

 

It is a foundational tenet of the American political system that a sitting legislature cannot bind a future legislature. This concept is the very basis of our electoral system. Elections would have little meaning if the actions of former legislators could not be dislodged by their successors.

The RI Supreme Court has articulated this common-law principle as meaning: “any contract made by a governmental authority involving the performance of a governmental function that extends beyond the unexpired terms of the governmental officials executing the contract is void because such an agreement improperly ties the hands of subsequent officials.”1

As is often the case, one needs to refer to another case on how this limitation on “governmental function” applies to running public schools. The Supreme Court subsequently said unequivocally: “It is our opinion that the operation and the maintenance of a public school is a governmental function and not a proprietary one.”2

In “proprietary” areas, political actors can contract for periods normal to similar private transactions without regard to elective terms. Proprietary functions, according to the court, are those: “not so intertwined with governing that the government is obligated to perform it only by its own agents or employees”.3

Ironically, the Ocean State Policy Research Institute has argued forcefully that public education ought to be viewed more as a proprietary function — not so fully dependent upon government run schools or so fully funded by government resources. To date, we have not prevailed in making this case and absent such a clear change in public policy the Court has definitively limited contracts with public school teachers.

In apparent recognition of this paradigm, the legislature has limited teacher contracts to 3 years. But this year, they have proposed making public teacher contracts perpetual.
Of course the same principle at issue here means that the present legislature is not bound by the previous legislative determination that 3 years is a proper contract horizon.

Although this proposed legislation seems to confirm the custom of keeping the old contract in force while negotiating a new one, such an enactment would be constitutionally suspect.

Often, by mutual agreement, contracts made in previous elective cycles have been continued during an impasse in negotiations with newly elected officials. But mandating this outcome is quite different than sitting school committee members endorsing it.

The cities and towns are the laboratories of democracy in Rhode Island. School budgets represent the vast majority of local spending, and teachers’ salaries the lion’s share of those budgets. Altering local officials’ ability to control those costs relegates local elections to doing little more than changing the names on town welcome signs.

It seems certain that adopting perpetual contracts, even in the name of smoothing labor disputes and improving government functioning, is constitutionally prohibited.
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1 R.I. Student Loan Auth. v. Nels, Inc., 550 A.2d 624, 626
2 Chakuroff v. Boyle, 667 A. 2d 1256, 1258
3 Lepore v. Rhode Island Public Transit Auth., 524 A.2d 574, 575

Brian Bishop directs the Founders Project at the Ocean State Policy Research Institute, studying the application of the constitutional principles of the United States and Rhode Island to public policy.

 

 

It is a foundational tenet of the American political system that a sitting legislature cannot bind a future legislature. This concept is the very basis of our electoral system. Elections would have little meaning if the actions of former legislators could not be dislodged by their successors.

The Rhode Island Supreme Court has articulated this common-law principle as meaning: “any contract made by a governmental authority involving the performance of a governmental function that extends beyond the unexpired terms of the governmental officials executing the contract is void because such an agreement improperly ties the hands of subsequent officials.”

How does this limit come into play with teacher contracts, which represent the single largest expenditure for cities and towns as they balance their budgets in the wake of cuts in local aid?

The legislature itself has recognized the role of local elections in the shaping of teacher contracts and has specifically limited their term by statute to three years. Even this policy might be subject to constitutional challenge, in cases in which school committees are elected for two-year terms.

Our legislature has recently proposed to make public teacher contracts perpetual. This is suspect from the perspective of both constitutional law and policy.

Unfortunately, very few lawmakers see the danger of this approach. Continuing the terms of an existing contract until it is replaced by a new contract, they believe, simply confirms a longstanding custom which insures continuity of service. In practice, however, such a device turns public labor contracts into perpetual one-way ratchets. Salaries and benefits can go up, but they can never go down.

The last three generations of Americans, including Rhode Islanders, were blessed in experiencing a growing economy (and productivity) that, at its weakest, did not create a sustained downward pressure on wages. It was a time when the battle cry of public-sector unions was to maintain parity with opportunities in the private sector.

It should raise some suspicion that the sudden rush to enact a statute locking the terms of old contracts in place comes when the private sector is, for the first time in recent memory, experiencing reductions in wages and benefits. Suddenly the argument for parity with the private sector has gone silent. The new paradigm being pushed is that public employees should always be entitled to at least the status quo.

And there is no mistaking the specific context of this legislative effort. These bills were filed shortly after the East Providence School Committee, between an economic rock and hard place, determined it would not continue the provisions of its expired contract and unilaterally cut pay and instituted a health insurance contribution as a deficit-reduction measure.

There is precedent for this action in labor law, but it is not an outcome we have been used to seeing in Rhode Island. Often, by mutual agreement, contracts made in previous elective cycles have been continued during an impasse in negotiations with newly elected officials. But mandating this outcome is quite different than sitting officials’ agreeing to it.

The cities and towns are the laboratories of democracy in Rhode Island.

To undercut the prerogatives of local elected officials in the name of maintaining friendly labor negotiations is to violate the very purpose of our electoral system. School budgets represent the vast majority of local spending, and teachers’ salaries the lion’s share of those budgets. Altering local officials’ ability to control those costs relegates local elections to doing little more than changing the names on town welcome signs.

By the same token that current school committees cannot be bound by the actions of their predecessors, the legislature is not bound by its own decision that three years is a proper teacher contract horizon. It seems certain, though, that adopting perpetual contracts, even in the name of smoothing labor disputes and improving government functioning, is constitutionally prohibited.

Perhaps one could make the case that it is the constitutional rule that is inappropriate, but that would require demonstrating that previous experiments at perpetual contracts have been effective and harmonious.

The firefighters in Providence have shown what to expect. The legislature enacted binding arbitration for these public-safety workers. Thus, their contract is effectively continuous and its terms will be decided through arbitration if the parties cannot agree within 30 days of commencing negotiation.

This may come as a surprise to those familiar with the signs that have adorned public streets near Providence firehouses complaining how many days the firefighters have worked without a contract. What those signs actually count is the number of days Mayor Cicilline has refused to accede to the wishes of the fire fighters for a generous contract without arbitration.

The delay in the arbitration process lets the firefighters claim they don’t have a contract, even when the history of arbitration shows they will be quite reasonably treated by the outcome and are working under mutual legal obligation with the city. If their behavior at the U.S. Mayors’ Conference is the “labor peace” that is being bought with perpetual contracts, it might be time to reconsider whether that tree is really bearing fruit.

It goes without saying that, absent serious economic justification, any school committee or council that effectively locked out its teachers would face serious political consequences. That may well be why the last 50 years hasn’t produced a handful of such events, while every year we are treated to the news of teacher strikes.

The teachers shouldn’t be blamed for aggressively standing their ground. Rather, the blame falls on politicians who refuse to fight fire with fire —and worse, on state legislators who now seem poised, absent a public outcry, to tip the scales even more in favor of the teachers unions.

Brian Bishop directs the Founders Project at the Ocean State Policy Research Institute, studying the application to public policy of foundational principles of the U.S. and Rhode Island constitutions. (Susan Carcieri, the governor’s wife, is a member of the Board of Directors of OSPRI but does not review or approve publication submissions.)

 

01:00 AM EDT on Saturday, June 27, 2009
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