April 9, 2015

Shedding Light on Anti-transparency Arguments

The Francis Quadrangle columns and main building at the Universi

A bill is making its way through the Missouri Senate that would require public universities to disclose basic information about college courses. Ordinarily, a bill like this wouldn’t be necessary, but a recent court decision gave Missouri’s public universities cover for keeping syllabi and other course content closed from the Sunshine Law. The professors and administrators trying to keep course content from the Sunshine Law argue that transparency laws harm their intellectual property interests. This argument rings false for three simple reasons:

  1. The anti-transparency faction at the University of Missouri argues that professors own the content of their courses, while the University of Missouri’s own rules suggest otherwise. According to 100.030.A.2 of the Collected Rules, the university owns the copyright to “works that are commissioned for University use by the University” and “works that are created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired.”
  2. Even if professors have an intellectual property interest in syllabi, nothing about making this information publicly available would prevent professors from enforcing a copyright claim. If a member of the public accesses a syllabus through the Sunshine Law and then plagiarizes the syllabus, the professor could still sue for a violation of copyright. Making information publicly accessible is not a bar to enforcing copyright.
  3. Fair use should protect disclosure of public records pursuant to state sunshine laws. Fair use doctrine allows for copyrighted work to be transformed or appropriated, within limits, for certain educational, scholarly, satirical, and noncommercial uses. In other words, fair use protects creators and commentators alike, facilitating discussions about ideas and, ultimately, building knowledge for society. For a publicly funded university system to reject this well-established framework suggests that it wants neither the comment nor the discussion the publication of these syllabus materials may generate. If that’s the system’s goal, it’s an appalling objective for an institution of higher learning, public or otherwise.

I doubt college administrators and university professors are ignorant of these facts. I suspect that the intellectual property argument is just an excuse for avoiding the transparency requirements that every other public entity is subject to. If you don’t want the potential scrutiny that comes with transparency, then perhaps you shouldn’t work for a public institution.

April 6, 2015

Chicago Fight Reveals Extent of Government Union Political Involvement


In neighboring Illinois, a government union representing Chicago transit workers is suing the Chicago Transit Authority (CTA) for refusing to let union members pass out fliers in support of one of the candidates in this week’s runoff mayoral election.

From the Chicago Sun Times:

The Amalgamated Transit Union Locals 241 and 308 filed the lawsuit Tuesday in federal court, arguing that the CTA violated workers’ freedom of speech by prohibiting the “Transit for Chuy” flier from break rooms.

But CTA spokesman Brian Steele said the ATU is the lone CTA union “seeking to violate long-standing state laws that prohibit political activities on government property and government time, at taxpayer expense.”

Setting aside Chicago politics, I see this fight as an illustration of the often-overlooked fact that government unions are uniquely political actors. Government unions are one of the most important special interests in contemporary politics. They have special access and privileges, and, as taxpayers, we pay for them. A union’s whole purpose—to influence employer decisions on behalf of its members—is political when the union represents government.

In Missouri, public agencies may meet with unions and set policies in closed sessions. Also in Missouri, government unions may hide their financial and political activities, while traditional unions have to disclose this information to the public.

The framework for American collective bargaining was created to protect industrial workers from progressive-era robber barons. Is it a good idea to allow government bureaucracy the same legal privileges? If we’re going to give government unions this kind of power, we should at least hold it in check with a modicum of transparency.

April 3, 2015

Study Slams Missouri for Lack of Transparency Regarding Release Time

It’s no secret that public agencies in Missouri routinely allow for “release time,” which is paid time off from official duties to allow a government employee to perform union business. However, a recent study by the Competitive Enterprise Institute (CEI) found that Missouri public agencies often fail to track or disclose release time records, making the amount of release time actually used in Missouri impossible to calculate.

Release time is controversial. It allows unionized government workers, such as teachers or firefighters, to perform union duties while on the job. A government union, despite often being referred to as a “public union” or a “public-sector union,” is actually a private organization. The CEI study argues that release time constitutes a public subsidy to a private organization that confers no benefit to the public. When public employees use release time, they are being paid by the taxpayer to perform duties that benefit their union, rather than the public at large.

MoneyThe CEI study, despite only grazing the surface, found thousands of dollars worth of release time used to engage in partisan political activity and to attend union meetings and conferences. The study suggested that this use of release time might be an unconstitutional gift of public funds under the Missouri Constitution.

I can’t speak to the constitutional argument, but at the very least, I find the lack of transparency upsetting. How much time and money are government agencies using on release time? What impact does release time have on state and local politics? How often do employees use release time? I want to know the answers to these questions. A fact-based discussion about the value of release time depends on it.

March 25, 2015

Restoring Accountability and Transparency—Four Quick Points on SB 549

After several posts directed at the labor reforms included in SB 549, it might be useful to summarize what the bill would do. SB 549 is aimed at increasing accountability and transparency in government labor relations. If passed, the bill would:

  • Require a union that seeks to represent public employees as their exclusive representative to stand for re-election by those employees every two years. Existing law often prevents public employees from having a say in who represents them. These elections would ensure public employees have a voice.
  • Require collective bargaining sessions to be held in open sessions covered by the Sunshine Law. Due to a legal loophole, such meetings often are held behind closed doors.
  • Require government unions to disclose financial information in an annual filing. These filings would be similar to the filings traditional private-sector unions already have to make.
  • Limit the term of government collective bargaining agreements to two years, rendering evergreen clauses unenforceable.

All four of these are modest, yet important reforms.

Just a Bill

March 19, 2015

Closing Loopholes in the Sunshine Law

government hallwaySometimes we like loopholes. Maybe you’ve used one to get out of a traffic ticket or to pay a little less tax. I remember hearing about a poorly thought out tax credit for electric vehicles that folks were using to pay for golf carts. Cute. A little scummy, but cute. But when the government uses a loophole to set policy behind closed doors, it’s not so cute.

There is a loophole in Missouri’s open records and meetings law that allows government entities, such as cities, fire districts, and school boards, to negotiate with unions and set public policy in meetings that are closed to the public. State law should open the collective bargaining process because the public pays for, and depends on, the policies set in these meetings.

Some government agencies have already opened collective bargaining meetings. In 2014, the Columbia Public Schools opened its collective bargaining meetings. It has held open meetings ever since. According to Christine King, president of the Columbia Public Schools Board of Education, the board opened the process because they felt open meetings advanced the public’s interest in full transparency and openness. Such openness in public affairs empowers citizens to hold their representatives in government accountable.

Since the Columbia Public Schools began holding its collective bargaining meetings in open sessions, the local paper, the Columbia Daily Tribune, has covered these meetings, parents, teachers, and anyone else is welcome to attend, and members of the public can view meeting minutes online and see that the parties negotiate in good faith with one another.

Open collective bargaining, as practiced by forward thinking local government entities like Columbia Public Schools and Monarch Fire Protection District, should be standard practice for Missouri state and local governments. One bill, SB 549, promises to do just that by closing the loophole in Missouri’s sunshine law that some public entities use to justify closing collective bargaining sessions. Reform that requires these meetings be held in the open would be a win for anyone who wants transparent, accountable government.

March 7, 2015

Bill Addresses Government Union Transparency Gap

What is the difference between a government union, like the American Federation of State, County, and Municipal Employees (AFSCME), and the union representing folks at the brewery downtown?

In the Show-Me State, one big difference is that unions representing public workers, like teachers, police, and firefighters, are not required to be as transparent as traditional private-sector unions. Whereas your neighbor who works for a private business can look up his union’s financial filings and see how union executives use his dues, the dues-paying teacher down the block can be left in the dark about where his membership fees are going. This transparency gap is unfair for workers, but it should also alarm the public, which negotiates with government unions and pays for the services provided by union labor.

transparencySo why do private-sector unions share information about their finances with the public, while Missouri’s government unions do not?

Federal law requires most unions to make annual filings that disclose basic financial information, including assets, liabilities, and money spent on political activities. The federal government makes these filings publicly available and searchable online. This way, a member of the public, including a dues-paying worker, can see how their union spends money. However, federal labor law does not apply to unions representing state and local government employees.

Other states, such as Michigan, have enacted some financial transparency requirements for their government unions. These state laws ensure state and local government unions that fall through the cracks in federal law still have some basic standards of financial transparency. Unfortunately, Missouri lags behind.

Right now, the Missouri Legislature is taking up a government union accountability bill (SB 549) that aims to correct this disparity between private-sector unions and government unions. Among other things, the bill would require government unions to disclose their finances in an annual filing very similar to the LM filings that private-sector unions already make. These filings would allow workers and the public to see how government unions spend taxpayer-funded union dues.

Government unions should be at least as transparent as private-sector unions. Bringing government union transparency up to the same level as private-sector union transparency is simply common sense.

February 20, 2015

Shock and Audit: St. Joseph School District Out Tens of Millions Because of Staff “Stipends”

Missouri has seen its share of boondoggles. To name a few in recent years, Moberly was taken in on a $39 million sucralose scam that downgraded the city’s credit rating, left bondholders hanging, and resulted in jail time for one of the masterminds. In Kansas City, officials had to settle with a developer for millions over the failed Citadel redevelopment project, which saw criminal prosecutions of its own.

Now enters the St. Joseph School District. As reported by the St. Joseph News-Press:

“We went back about eight years and found there was over $25 million worth of stipends either not approved, unauthorized or improper. That $25 million worth of stipends is what we found to be problematic,” [State Auditor Tom Schweich] told the crowd inside the Oak Grove Elementary School commons area.

Since there was not full documentation going back further than 2001, Mr. Schweich added, that number could be in excess of $40 million paid out in stipends over that period.

“That is a startling amount of money,” he said, followed by a collective groan from the audience.

“Startling” is an understatement. The questionable stipends account for, on average, over $3 million each of the last eight years that could have gone toward substantive and proper investments in the education of St. Joseph’s children. Instead, according to the News-Press, it appears the money went to a wide array of cronyistic efforts,

including $45 for a Sam’s Club membership for [Superintendent Dr. Fred] Czerwonka, $1,500 for a painting for [Chief Operating Officer Rick] Hartigan’s office and $7,650 in free Internet service for 16 individuals, including an individual the district claimed they did not know.

In the auditor’s words, the stipends operated much like a “slush fund.” Throw in $3.4 million in overpayments from the state to the district because of inaccurate reporting and a swath of closed district meetings that should have been open to the public, and you have the makings of a full-blown scandal in northwest Missouri. It remains to be seen whether criminal action will be taken in the matter, but that seems to be very much on the table at this point.

Frequent readers of this blog know about our positions on transparency (for) and cronyism (against), so I won’t belabor those policy prescriptions in light of the district’s failures. The sheer magnitude of the district’s blackbox behavior is a better argument for vigilance and reform of state and local government than my words alone could offer.

It also goes without saying (though I’ll say it anyway) that “per pupil spending” remains a meaningless statistic, a fact emphasized here. How much you spend “on” a student doesn’t matter if the line items are $1,500 on administrators’ art, rather than $1,500 on the art department.

And yes, there will be many important story lines that will be worth talking about as the district’s actions are fully vetted, but one story line that has to remain front and center is how shameful it is that it took more than a decade for these problems to fully come to light—and the risk that St. Joseph’s scandal is just the canary in the coal mine statewide. That this school district was insulated so long from critical oversight makes me wonder whether similar behaviors might be taking place in one of the other 519 districts (!) in the state . . . and we simply don’t know it yet.

More to the point: If Missouri’s school districts are going to tell the state they have funding problems, then it’s fair for the state and the taxpayers to take a fresh look at how each district spends, or misspends, the state’s tax dollars. That is especially true in light of St. Joseph’s present troubles.

Education funding should be for the children, not for the districts, and it’s time district books were cracked open and thoroughly reviewed. For the state to deliver a quality education for our kids, it needs to hold every district accountable not only to stop problems like this from happening again, but also to ensure that they’re still not happening someplace else.

February 19, 2015

Transparency Would Shine Some Light

The essence of a well-functioning democracy includes transparency and a right to information. When fire protection boards, such as the O’Fallon Fire Protection District, make crucial decisions in closed-door meetings, they are violating a critical tenet of democracy.

file0001605429169Former Fire Chief Mike Ballmann, who claims that the firefighters union pressured the board to fire him, believes that the union has overstepped its role in the affairs of the fire district. When asked about union involvement in the management of the fire district, Ballmann said that the Fire Protection District Board of Directors was “packed with union people so the shop gets what it wants without any grief.” With the union’s heavy involvement in deciding who will run for the board positions, has the government union overstepped its role?

Since the district is funded by taxpayers, its business should be conducted with the interest of the taxpayer in mind. However, when board meetings are closed, interested taxpayers do not get to see how government unions involve themselves in district affairs. Furthermore, according to Ballmann, there are instances when the union shop steward is invited into the closed board meeting, which not even fire chiefs are allowed to attend. The problem isn’t the existence of a union, but rather their conspicuous control over the fire protection district.

The obvious and sensible solution is for fire districts like O’Fallon to follow in the footsteps of the Monarch Fire Protection District and initiate an open collective bargaining process. This would make sure that any changes made to district operations, union contracts, and decisions to hire or fire employees are free from ambiguity. However, despite efforts to gain the O’Fallon Fire Protection District Board’s insight on this issue, the inner workings of the district seem as ambiguous as ever.

Taxpayers are aware of the great importance firefighters play in protecting their community; their concern, rather, lies in the fact that their fire district is lacking representative leadership and sufficient oversight. Transparency is essential to guarantee that the taxpayer interests are being met. Once open collective bargaining becomes the norm for all government unions, we can ensure that both the worker and the taxpayer are being represented and considered in the political process.

February 16, 2015

Balance Through Transparency – Part 3

I previously wrote about the problems with overly adversarial government labor relations. This wasn’t to say that a cozy relationship between government and government unions is always a good thing either.

Fox-HenAnother firefighter I spoke with, who wished to remain anonymous, seemed to think the situation in the Saint Louis region was much worse. He told me that at more than one fire protection district the board routinely asks shop stewards for permission to make personnel decisions. According to him, the union packs fire district boards and management positions with people who answer to the union, which, in effect, gives the union control over the management.

Undoubtedly, the union representing firefighters in Saint Louis County, IAFF Local 2665, has another perspective to contribute. It has not yet responded to any of my requests for comment, but I believe there are multiple sides to this story, and I look forward to hearing from them.

It can be tricky to find the right balance in government labor relations. On the one hand, industrial strife leaves citizens dependent on, and paying for, shoddy government services. On the other hand, too cozy a relationship between a government and a government union yields a “fox in the henhouse” situation, where taxpayers get fleeced by a private entity with exclusive control of a government entity. The trick is to find balance. And the best way to achieve balance is to open up the process to the public and let Brandeis’s policeman sort things out.

February 14, 2015

Balance Through Transparency – Part 2

In writing about how increased transparency can help improve government labor relations, I thought it might be useful to illustrate two ways government labor relations can become problematic. The first situation is one where the relationship between a government union and government becomes toxic, making it hard for government employees to deliver public services.

David Richard, a former fire captain and union member in Saint Louis County, told me that somewhere along the line the collective bargaining process became “infected.”

Tug-of-war“The union became radical,” David told me. David believes a firefighters union can serve a good purpose, but the situation in many districts has become too adversarial. “The district needs a dialogue, a common ground.” And with the infected relationship between management and the union, ordinary procedures, such as employee review, are compromised.

“I was torn between my duties as a captain and my duties as a good union member,” David said of the employee review process. As a captain, he had the duty to review employees, but as a union member, he had a duty to protect his fellow union members. As the union became more militant, it became increasingly difficult for him to play both roles.

What’s the big deal? People complain about their union being too radical or too soft all the time.

The difference here is that we’re talking about our government.

If a traditional private-sector union is too radical and labor relations suffer, then it’s only a private company that suffers. It’s bad for employees and owners of that company, but society as a whole can always buy Toyotas instead of Fords. If government labor relations suffer, then citizens serviced by and paying for that government entity are stuck with the consequences.

More on this to follow…

February 13, 2015

Finding Balance Through Transparency

One of the biggest issues in public policy today has to do with the collective bargaining agreements, or CBAs, that are negotiated between some government unions and the government entities that employ union labor. These agreements can have huge implications for our communities’ future budgets and, ultimately, our tax levels.

That’s why recent, troubling news out of Saint Louis County should concern anyone interested in good, effective, and financially secure government. I’ve spoken to a number of firefighters in Saint Louis County recently, and the stories I’m hearing are not good: self-dealing, intimidation, fire district board members using bulletproof vests in their meetings. Something has gone awry.

In response to this strife, some fire districts are trying something new. At Monarch Fire Protection District, instead of holding collective bargaining meetings behind closed doors, the board has decided to open up the process to the public, as Missouri’s Sunshine Law requires them to do with most other meetings. So far the results have been promising.

So why isn’t this already standard practice with government collective bargaining? After all, collective bargaining meetings are deliberative processes where public officials set public policy, including employee compensation, work rules, and grievance procedures.

BrandeislMissouri Sunshine Law (a.k.a. Open Meetings and Records Law) provides that public government bodies may close meetings, records, and votes to the extent they relate to a negotiated contract until that contract is executed or all proposals are rejected. Hence, government bodies close collective bargaining sessions with government unions under the theory that collective bargaining is a contract negotiation.

Collective bargaining is a contract negotiation of sorts, but it is not the same as contracting with an outside firm. Collective bargaining is a negotiation between staff and management over internal operations. Because policy can be set in these bargaining sessions, exempting government collective bargaining from the Sunshine Law is a mistake, especially when the public is concerned about labor relations at a government entity upon which they depend.

U.S. Supreme Court Associate Justice Louis Brandeis famously wrote,

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

Expanding the scope of Missouri’s transparency laws to cover collective bargaining meetings and access to government records would be one good way to alleviate the labor relations problems we’re seeing in the public sector.

February 11, 2015

How to Ensure Springfield Teachers’ Voices Are Heard

In many school districts, teachers are left out of the collective bargaining process simply because they do not belong to the right teachers association. Recertification elections can give these teachers a voice by requiring an association that acts as the exclusive representative to periodically run for reelection in order to maintain this privileged status.

A good illustration of this problem can be found in Springfield, Missouri. Springfield School District has long had teachers represented by both the Missouri State Teachers Association (MSTA) and the Missouri National Education Association (MNEA). In 2010, MNEA won an election awarding it the privilege to be the exclusive representative for teachers in collective bargaining sessions with the district. This meant that MNEA, and only MNEA, could negotiate with the district on behalf of the teachers.

Your_Vote_Counts_BadgeWhen MNEA excluded nonmembers from discussions on whether to ratify the new union contract, MSTA sued. And lost. As the exclusive representative, MNEA is free to represent workers the way it sees fit. It does not have to include members of a rival union in its deliberation process.

Still, this may not seem very fair to a longtime MSTA member who only recently lost her ability to participate in internal school district politics because of the exclusive representative election. But with recertification elections, her voice can be heard even if her teachers association is not currently the exclusive representative.

With recertification elections, in order for an association to continue to act as the only association able to negotiate on behalf of employees, that association must be re-elected every couple of years. This would prevent an association from winning an election once, and then representing employees for years after the association has lost most of its supporters. It also would empower employees who belong to another association, because the exclusive representative would either have to do a good job of representing everyone’s interests or risk being voted out of office and replaced with a competitor.

Recertification elections are a lot like American democracy where a new party can be put in control of Congress every two years. Congress is by no means a perfect institution, but by requiring our representatives to stand for regular elections, we ensure some level of accountability. Teachers who feel that they don’t have a say in negotiations with their employer, such as MSTA members in Springfield, should clamor for recertification elections. It may be one of the best policy reforms we have that preserves existing rights while empowering workers to hold their representatives accountable.

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