by James C. Sherlock

Some Virginia local governments will be negotiating this year for the first time with public sector unions.

There is a lot of experience and recommendations documented in other states upon which those governments can draw.

Recommendation #1 is that cities, counties and towns hire:

• law firms with proven experience representing municipal governments in negotiations with public unions; and
• an independent auditor with experience in contract negotiations to assess the fiscal impacts of proffered terms and conditions.

The unions will show up with seasoned contract negotiators. It is not a game that favors rookies.

Always remembering recommendation #1, we’ll take a look at Virginia law and then at what the professional literature suggests are some of the ways for governments to prepare for first-time union negotiations.

Who approves contracts? In Virginia, § 40.1-57.2. Collective bargaining sets the rules. First, the local government must agree to negotiate.

A. …in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution.

As used in this section, “county, city, or town” includes any local school board, and “public officers or employees” includes employees of a local school board.

B. No ordinance or resolution adopted pursuant to subsection A shall include provisions that restrict the governing body‘s authority to establish the budget or appropriate funds. (emphasis added)

Governing body defined:

“Governing body” means the board of supervisors of a county, council of a city, or council of a town, as the context may require.

In Virginia,

A locality may make appropriations for the purposes for which it is empowered to levy taxes and make assessments.

I take all of the above to mean:

• that school boards can negotiate, but only the governing body with taxing authority can fund any contract resulting from those negotiations; and thus…
• the contracts negotiated by school boards cannot be signed, binding the taxing authority without that governing body’s approval.

I expect unions to take that interpretation to court unless (and perhaps even if) those conditions are defined in the city, town or county ordinance that governs negotiations.

Negotiating team for school contracts. The interests of both the governing body and the school board must be represented by the team negotiating school employee contracts.

In the case of Richmond, of which I have written, the school board resolution is much broader than the city council ordinance drafts in its definition of the scope of negotiations. I think the school board made an enormous mistake. But the principle applies of a duty to bargain in good faith regarding the subjects of bargaining. Thus the Richmond Public Schools contract negotiations will be very complex.

Prepare for negotiations. The government negotiation team must be selected and then the city, county or town must decide its negotiating position and the negotiating environment well before negotiations begin.

The negotiation environment is very important. Experts can help define the physical and software environments to minimize distrust and misunderstandings and set daily time limits to eliminate fatigue as a factor.

For the negotiating position, priorities, tactics and limits must be defined.

Research will include:

• fiscal data including government revenue expectations and the part of that available for personnel costs;
• economic data including local labor market assessments, expected health of the local economy and inflation assessments;
• regional comparable wages and employee benefits; and
• an assessment of opposing bargaining unit tactics history and internal union pressures.

The government must determine what experts call “negotiation anchoring” — the opening government offer. The opening union offer is guaranteed to exceed what the government can accept.

Both sides are represented by elected officials, government and union. It is important that both sides be able to claim some level of win for their constituents, so the opening offer from the government and the unions should not represent their best and final.

Define what are expected to be the difficult issues and come to both initial offer and best and final positions. Salaries are forever, bonuses one-and-done. Employee health care premiums, deductibles and co-pays will always come up. Work rules represent particularly complex cost assessments.

FOIA. I assume all such government preparations are closed meetings, negotiations are closed meetings and the work products of both are protected from public disclosure.

But it is not clear from my research that the General Assembly accomplished all of that when authorizing union negotiations with local governments.

I will today ask the Virginia Freedom of Information Advisory Council what the laws require.

Allow time for public comment. Disclosing any tentative agreement and “making it subject to more than one city council meeting provides the opportunity for the public to effectively weigh in on the matter.” Do it.

Citizens should weigh in. This will be hard.

Professional negotiators and auditors with experience in municipal contract negotiations with unions must represent the government.

If you live in a city, town or county that will negotiate with unions, check with your local government officials and see how they intend to proceed.

If they do not plan to hire experienced professional negotiators, they are not doing it right.