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HomeMy WebLinkAbout2010-12-15 Work Session Minutes Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, DECEMBER 15, 2010 ___________________________ Present were Commissioners Dennis R. Luke, Tammy Baney and Alan Unger. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Mark Pilliod and Chris Bell, County Counsel; Debbie Legg, Personnel; Patrick Flaherty, District Attorney-elect; several representatives of the local media and ten other citizens. Chair Luke opened the meeting at 2:30 p.m. 1. Meeting with Patrick Flaherty, District Attorney-elect, regarding Communication with the District Attorney’s Office in 2011. Patrick Flaherty said that first, do no harm, stop and make certain what is happening. It may be better to do nothing than to risk causing more harm. He thinks this saying applies to this situation. There is no compelling reason for the Board to take action on the proposed union agreement before he takes office. Today is not a deadline to make this decision. This will not impact the Board’s ability to either ratify or reject the contract. There are compelling reasons to delay taking action. The contract has no impact on the outgoing District Attorney, but it will impact the incoming D.A. substantially. It will negatively impact his ability to appoint Deputy District Attorneys. Commissioner Luke asked why he feels this way. Mr. Flaherty said as a practical matter, after an appointment is made and a vacancy is created, the County has to accept the new appointment and pay a salary. He feels if the contract is signed, it will impede his ability and sets up taxpayers for expensive litigation. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 1 of 11 Pages Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 2 of 11 Pages Commissioner Luke asked why this would affect the ability to appoint someone. If there is no position in the budget, it cannot be done anyway. Mr. Flaherty said the appointments now in place expire when the current D.A. leaves. Statute 8.870 requires that the District Attorney “shall” appoint Deputy D.A.’s. He stated that there will be a few that will not be offered an extension. He does not think the voters want to be saddled with this situation. At a minimum, they would want the new D.A. to be involved in the negotiation process and sit down at the bargaining table to figure out how this impacts the D.A.’s Office. He is just a private citizen at this point, but believes the voters would want him to take part in these negotiations. He feels there is no reason to rush into this contract prior to January. Commissioner Luke said the only way the D.A. can take part in the negotiations is if the contract is rejected. The union could ask for an impasse at that point, and it could go to an arbitrator. The arbitrator takes what is felt to be the best agreement and often supports the union. It will be approved, but it is a matter of who decides what the agreement will be. Mr. Flaherty said that at some point maybe there might be this scenario, but he feels that there is no need to act right now. There is a total of 150 days allowed, which goes into February. There has been dialogue and he has made his position clear. He needs the opportunity to engage in the bargaining process, as it will affect his department substantially. He has had no input in the process at all. On the surface, the whole concept of changing the long-standing practice and custom in personnel rules and throughout the country from “at will” to a contract for cause does not make good sense. He wants to be involved in the process. Commissioner Luke stated that he understands that if this is postponed, if there are discharges in January with people in the union, there could be a filing with the Employee Relation Board declaring retaliation for union activities, which could take a lot time to address. This leaves the status in the air. Mr. Flaherty believes that lawsuits may be filed. If the current status of “at will” to a tenured position is changed, this guarantees expensive litigation. The second point is that he will not be discharging anyone when he takes office. He will be making appointments. Four of the eighteen will not be receiving appointments. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 3 of 11 Pages Commissioner Luke asked for a copy of the Statute that was named, which was provided. Commissioner Unger said that the legislature created binding arbitration for Deputy D.A. unions, putting them on the same level as police and fire so the system can move forward. There needs to be basic binding arbitration and they have some rights already, under civil service and labor laws per statute. They formed the bargaining unit, which has been recognized by the State. The County bargained with them and got a very fair contract. They wanted a “just cause” provisions. Four other counties have this already, so it is not something new. Whether this agreement is accepted or another one is developed, there will be a “just cause” provision, and other things might not be so favorable to the County. If the Board accepts this contract, Mr. Flaherty will go into office and there will be some who do not get appointed. There will then probably be a grievance and an unfair labor process filing. At that point, there may be a process of deciding and clarifying the authority of the D.A. The law is silent to this and a case is needed to clarify this issue in State law. It would help if there already was case law to depend on. Commissioner Unger feels this could end up being a test case. If the contract is not approved, it will be a case of the County not working in good faith, or it will end up in litigation in some form, either through a grievance or the ERB and outside arbitration. Mr. Flaherty stated that he feels if contract is signed, there will be litigation. The Deputy D.A.’s signed on as at-will employees and knew the policies and practices, subject to the direction of the D.A. as a political office. He feels there are no grounds for a lawsuit if he decides not to appoint them. There have been crystal ball projections made that he disagrees with. If it goes to arbitration, there is no way to know if it will be worse for the County. There is no case showing this. An arbitrator may agree with the D.A. on standard practice in the state and the U.S. He feels that an arbitrator will support the D.A.’s authority. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 4 of 11 Pages Commissioner Luke noted that the Statute shows the Deputy D.A.’s share the D.A.’s qualification and duties, subject to the D.A. There is nothing in the Statute that talks about un-appointing them. He asked if Mr. Flaherty believes that all of the appointments expire. Mr. Flaherty said that it says that the D.A. “shall appoint”, and this is consistent with practice. The D.A. is a State official. Commissioner Baney pointed out that the County is asked to pay their salaries and provide office space. Commissioner Unger asked if the Deputy D.A.’s are considered “at will” employees. Mark Pilliod replied that he can only speak to County policy. He has not examined what happens across the nation. Some locales have offered some protection to these employees, so there are exceptions to the “at will” status. County policy and Code provide now that they are “at will” employees. If the Board ratifies the contract, that condition would be nullified. Commissioner Luke asked if they are members of a protected class and also “at will”, what happens. Mr. Pilliod replied that this is subject to exception by the Court and by Statute. Protected classes, such as those defined by race, sex, religion and so on, cannot be a part of this. There are limitations on the “at will” concept, and there are ways for employees to deal with discrimination. Commissioner Unger said that it seems like there will be an appointment process and some will not be reappointed. He asked what their recourse might be. Mr. Pilliod continued that potential liability cannot be discussed by counsel in a public session, but a person could submit through a court or other tribunal that the failure of an appointment would be considered a discharge. The court may or may not be drawn into the situation. He said this has never come up while he’s worked for the County. He is not aware if a D.A. has to reappoint at all, but has not studied this. Mr. Flaherty asked that the contract be delayed to allow him to get into office. Commissioner Luke stated that he believes the contract still gives the D.A. a lot of flexibility in managing the personnel in his office. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 5 of 11 Pages Mr. Flaherty disagreed. He wants the opportunity to review the contract. He knows some effort was made to define the concept of “just cause” that is not found in a typical labor agreement. This is replete with interpretations of application and is seldom seen in these types of agreements. Commissioner Baney clarified that a copy of the contract and the language was extended to Mr. Flaherty for him to provide comments. That opportunity was given. Commissioner Luke pointed out that public comments were welcomed at the Board meeting last week, and the contract has been available on line for some time. There was also written correspondence and e-mails received. Mr. Flaherty conceded that he did see the contract and provided some comments. Commissioner Unger said that as he looks at it, there are three choices. Rejecting or delaying approval says the same thing. Commissioner Luke added that if it is rejected, it goes back to negotiation since the union already approved it. Mr. Pilliod said that the parties would be required to return to the bargaining table. If the 150 days expires with agreement, it will then be resolved through the court in binding arbitration. Commissioner Luke stated that the County would have to submit a final offer, the union would do the same, and the arbitrator will decide what is best. Mr. Pilliod noted that it would probably be different for the union, as the agreement was based on the premise that the County would agree to “just cause” and a grievance process; the union agreed to all other provisions. The resulting document, which is very favorable to the County, was very different from the original agreement. The union would probably want to go back to the original document. Mr. Kanner said that the arbitrator would compare the agreements to comparable ones in the State, and would select one that is most like what is already out there. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 6 of 11 Pages Commissioner Baney asked if they would look at the current agreement. Mr. Pilliod said that this is why the situation is so unusual. The fundamental posture was for them to agree to just about everything as long as “just cause” was included. The assumption was that it would be ratified by year-end. It is a principle in bargaining that the parties do not backtrack. The union would take the position that they should be able to do that. The County could argue that this is regressive bargaining. It is unclear and a dilemma. Mr. Kanner said that about half of the employees in the D.A.’s Office are in a union, but they are not Deputy D.A.’s. Commissioner Luke stated that another option is to approve it. Another option is to delay the vote. A concern was raised that if the vote is delayed, it is too close to the deadline to allow for negotiations. Mr. Pilliod stated that it does not bind the County or County officials. The Deputy D.A.’s would have no protection at that point. A delayed vote is in essence a “no” vote. Mr. Flaherty will take whatever action he wants, and the ones who feel their rights were violated may sue at that point. Commissioner Luke asked if some are discharged or not appointed, and there was already a union vote, how would they then vote again. Mr. Pilliod replied that the union was certified by the ERB. Just because the vote is delayed, even with the change in membership this action is not dissolved. Commissioner Luke noted that some people who took part in the union organization could say they are subject to retaliation for union activities. Mr. Pilliod said that they would have to convince the ERB that not being reappointed is equivalent to a discharge. They would most certainly file this, as it is a protected activity. Commissioner Luke said that just because the D.A. changes does not necessarily mean that the appointment changes. When the County hires a new employee, they get an appointment letter. Mr. Kanner said that it points out starting salary and benefits. The D.A. uses a different appointment form. Commissioner Luke asked if the letter says they are “at will”. Debbie Legg confirmed that it does. Mr. Pilliod added that the union agreement would change this. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 7 of 11 Pages Commissioner Unger asked what the County would do with the four people who do not get reappointed. Mr. Kanner stated that one is a supervisor and is not covered by the bargaining agreement. There is an additional process for the others. Commissioner Unger asked if they get a letter of termination. Mr. Kanner replied that if the contract is delayed or rejected, the appropriate personnel forms would be used. If the contract is approved, the D.A. still has the right to terminate, but there is a process to follow. He would certainly want to discuss potential liability in executive session. Commissioner Luke said that the Attorney General seems to feel that the D.A. would be bound by the contract. Mr. Flaherty stated that the e-mails forwarded from Mike Dugan are not from the Attorney General. Commissioner Luke asked what would happen if the agreement had been approved two years ago; would it still be binding? Mr. Flaherty said that the same argument could be made. They started the union for the purpose of obtaining job security, which undermines the outcome of the election and the authority of the D.A. Mr. Kanner said that they are State officials, but are paid by the County and fall under County rules. There are many tests to determine how this could be handled. The employment liabilities of the D.A. are liabilities of the State, not the County. Typically mandatory are grievance procedures, wages and benefits and so on, as determined by the Employment Relations Board. Mr. Flaherty said that these individuals were put on notice, and cannot make false claims because of that. This part of the negotiations should be addressed again. Mr. Pilliod said that negotiating part of the contract means that negotiations on all of it are open again. Commissioner Unger stated that he wants to support Mr. Flaherty but needs to do what is right for all. Commissioner Baney said that the number one function of the office is public safety. She wants the D.A. to be successful. The issues are far greater than those discussed today. Mr. Pilliod stated that, as a member of the management team negotiating in good faith a very management-friendly agreement, he and the team recommend that the contract be ratified. Mr. Flaherty and a few other citizens left the room at this time. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 8 of 11 Pages 2. Decision regarding Document No. 2010-718, a Labor Agreement with the District Attorneys Association. Commissioner Unger stated that the team has put together an excellent agreement for the County. It provides a process for a wide range of just cause issues that recognize some issues raised today, and a grievance procedure that can move the issues through quickly. This puts the agreement under a different light than an arbitrator or the ERB would. He believes that if the contract is ratified, there will be issues to address in any case. He thinks there might be litigation for a long time. He is concerned about potentially greater exposure and litigation against the County if the agreement is not ratified, although there could be litigation in any case. The contract was drawn in good faith, and there is a process to follow if there is litigation. There is a concern about a State official functioning in his office, but there are also County employees to consider. There may be allegations of the Board being complicit with the D.A. if the agreement is not approved. This could reflect unfavorably on the County. He sees that if the contract is rejected, it could put the County in the position of having to deal with labor law regarding good faith, and there might be all kinds of issues in the future with the ERB. This could all take a very long time. The County could be held liable for back pay and attorney fees to a greater extent. He feels the County is stuck between a rock and a hard place, but it is in the best interest of the County to ratify the agreement and let things move forward. Mr. Kanner added that bargaining has concluded. It was done in good faith in a timely manner. Delay or rejection does not constitute bad faith bargaining, as ratification is not a part of the bargaining process. Commissioner Unger asked if there is further liability if it is delayed. Commissioner Luke stated that he does not believe the Board should reject it. It was done in good faith, and there will be a contract one way or another. The next one might not be as good. He respects the new D.A. but disagrees with some of his opinions. Electing the D.A. did not necessarily mean the voters wanted others to be fired. There is concern on how this might affect the backlog of cases as well. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 9 of 11 Pages He said that the County is fortunate in that it has not had to go into binding arbitration in the past. Other bargaining units would have better pay and benefits had that happened. Jefferson County had to do this and had to lay off deputies because of it. He agreed that ratification is not part of bargaining in good faith. There are three or four other bargaining units that are watching what happens here, and this could affect what they do in the future. Some are much bigger and more powerful. There is a bigger picture to consider, one that could negatively affect the County in many ways. He feels that the unions have treated management fairly and visa versa, recognizing the limitations of the economy and other issues. Rejecting the contract is not wise because he is not willing to just roll the dice to see what an arbitrator might do. He agrees it should be approved, either today or later. He will be a private citizen then and will have to live with whatever results. Commissioner Baney said she is not in favor of moving forward today. It is important that this was done in good faith, but it is unfortunate that they are there today talking about another union. She is proud of the work done by staff, and many of the components are favorable to the County. The biggest issue is that this is a contract not for today, and time needs to be taken. The current D.A. was not involved in negotiations. There is a responsibility to wait for the new D.A. to be involved. There has been a lot of talk about litigation, but it is not known what the ramifications might be. She is not as fearful about this as others. Commissioner Luke said that some publications seem to think this is still the 1920’s or 1930’s. Unions have played a very necessary role in this country. He has a problem only with unions that get out of hand; but unions as a whole have raised the level of employees and improved working conditions for many. Commissioner Unger stated that he appreciates those comments. He has said before that they will have to live with this for a long time. There will be others that will be challenging to the budget. There is an issue of the D.A. looking forward to appointing who he wants, but there will be fallout from that and some litigation resulting. The contract would address a lot of issues that will come up eventually, that are now favorable to the County. Minutes of Board of Commissioners’ Work Session Wednesday, December 15, 2010 Page 10 of 11 Pages Ratifying the contract will set the D.A.’s office on a good path to deal with issues for years to come. There will be initial issues to deal with no matter what. However, looking into the future and other potential matters, it is better for the County to ratify this now. The process has been good and fair, and the rules of the State have been followed. UNGER: Move approval of ratifying the agreement. The motion died for lack of a second. BANEY: Move to postpone this action until the second regular business meeting in January. UNGER: Second. VOTE: UNGER: Yes. BANEY: Yes. LUKE: Chair votes yes. 3. Update of Commissioners’ Meetings and Schedules. None were discussed. 4. Other Items. None were offered. The meeting adjourned at 4:25 p.m.