A New City Governance Structure: Who Handles Impasse?

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1 A New City Governance Structure: Who Handles Impasse? By: Abby Jarl Purpose This paper discusses the dilemma faced by the fictitious City of Happyville when its charter was changed from a City Council/Manager to a Strong Mayor form of government and the existing impasse procedure was not reconciled with the new structure. Impasse is difficult for both Management and Labor Unions. However, problems multiply in a situation where A Strong Mayor system of government (hereinafter Strong Mayor ) had been newly implemented; Differing interpretations exist as to how impasse is to be conducted; and Conflicting advice of an elected City Attorney. Strong Mayor Form of Government Two main forms of City government are: City Council/ City Manager Strong Mayor City Council/City Manager: Happyville had been governed by a City Council of eight members elected by district and a Mayor elected citywide. The City Manager implemented the policies, rules and decisions of the Council. Strong Mayor: Happyville s current Strong Mayor structure eliminates the Mayor as a legislative member of the City Council and gives him/her all authority, power and responsibilities previously conferred upon the City Manager. The Mayor is the Chief Executive Officer of the City with the power to enforce all laws, ordinances and policies including creating Administrative Regulations which direct the City s administration. Impasse The Meyers-Millias-Brown Act (MMBA) governs local government s labor-management relations in California. The MMBA requires employers and labor unions to meet and confer in good faith on matters that are within the scope of representation. A party violates its duty to bargain if the party fails to negotiate in good faith on a topic within the scope of representation. 1 1 William F. Kay and M. Carol Stevens, et. al, Legal Trends 2008 (Burke, William & Sorenson, LLP, 2008). 1

2 Impasse means that the parties to a dispute over matters within the scope of representation have reached a point in meeting and negotiating at which their differences in positions are so substantial or prolonged that future meetings would be futile. 2 In simpler terms, impasse is the point in negotiations at which one or both parties determine that no further progress can be made toward reaching agreement. Declaration of impasse usually precedes implementation of the impasse procedures that are included in the agency s Local rules, if any, or unilateral action to implement its last offer by the employer. 3 An agency may adopt local rules governing the impasse process. Happyville has such rules. Aspects of the local rules that fall within the scope of bargaining are subject to meet and confer. The Effect Local Rules Have on the Impasse Process Happyville s local rules on impasse prior to changing to a Strong Mayor: Impasse Procedures: A. Initiation of Impasse Procedures If the meet and confer process has reached an impasse, either party may initiate the impasse procedures by filing with the City Council a written request for an impasse meeting, together with a statement of its position on all disputed issues. An impasse meeting shall then be scheduled promptly by the City Manager. The purpose of such meeting shall be: 1) To identify and specify in writing the issue or issues that remain in dispute. 2) To review the position of the parties in a final effort to resolve such disputed issue or issues; and, 3) If the dispute is not resolved, to discuss arrangements for the utilization of the impasse procedures provided herein. B. Impasse Procedures If no agreement is reached at an impasse meeting, impasses shall then be resolved by a determination by the Civil Service Commission or the City Council after a hearing on the merits of the dispute. Determination of which of the above bodies shall resolve a particular impasse shall be dependent upon: 1) The subject matter of the impasse, and 2) The applicable provisions of the Charter and Municipal Code of the City of --- as interpreted by the City Attorney. Problem Number One: The impasse procedure above was not changed when the Strong Mayor form of government was implemented. This procedure is an independent Council Policy which may only be amended by action of the Council (and any required meet and confer). Thus, the impasse procedure is outside the jurisdiction of the Mayor. Further, Happyville s amended Charter removed the Mayor as a legislative member of the council and designated him/her the executive of the City. The Mayor lost his/her authority to amend any regulations under the purview of the legislative body 2 Gov. Code (f) 3 Madge M. Blakey, Word for the Wise, 2

3 (Council). He/she can recommend changes to the Council, but the Council has discretion whether to make changes to its Policies. In addition, proposed changes to the impasse procedure that fall within the scope of bargaining would have to be negotiated with the labor unions. If the City and the labor unions fail to reach agreement over changes to the impasse procedure, the preexisting impasse procedure would be utilized. Also, under the new structure, the Mayor as Chief Executive replaces the City Manager as the official with authority to negotiate with the labor unions. This raises a major dilemma: an impasse procedure under the discretion of the City Council and labor contract negotiations under the discretion of the Mayor. The interrelated processes of negotiations and impasse should be under a common authority, but in Happville they are split between the legislative body and the City Executive. The drafters of the charter provision that created the Strong Mayor obviously overlooked the impact on the impasse process of establishing a Strong Mayor. Language should have been included in the charter to clarify that where a discrepancy exists between council policy and mayoral authority, mayoral authority would prevail. Generally, the reorganization of an agency is a matter outside the scope of bargaining. However, since the original impasse procedure did not contemplate the Council and the Mayor as separate entities, substantive changes were proposed to clarify the legislative body s and City executive s respective roles. Before the Strong Mayor, the City Manager followed the direction of the legislative body (Council and Mayor), which could change the last, best and final offer proposed by the City after input from Labor Unions at the impasse hearing. However, after the implementation of the Strong Mayor, since the Mayor was negotiating with the Unions, the Council no longer had the ability to change the City s last, best and final offer. This effect creates a substantive change in the impasse procedure. Because of the confusion over roles and authority, the Mayor proposed to clarify the process. However, this clarification was seen as a brand new process by the unions and therefore subject to meet and confer. The proposed impasse procedure sought to clarify confliction interpretations of the original, i.e.,: If impasse occurs, the Mayor/ City Manager would present the City s last, best and final offer and the Council could vote it up or down but not change it. As opposed to: The Mayor/ City Manager would present the last, best and final offer and the Council could approve or amend sections. 3

4 This problem was made worse by differing legal opinions about the role of the parties in the impasse hearing. Problem Number Two Since contract negotiations are under the direction of the Mayor, the City Council no longer possesses the authority it previously had to participate in negotiations. The Council can make recommendations to the Mayor, but ultimately it is the Mayor s responsibility to complete negotiations. The objective of the Mayor in negotiations is to achieve a contract with employee unions that serves the best interests of the City as a whole. Therefore, since the impasse procedure says, should issues remain in dispute after the impasse meeting an impasse hearing shall be held before the City Council. At an impasse meeting, labor unions and management present their last, best and final offers in an attempt to resolve unsettled issues before Management takes its last, best and final before the City Council (impasse hearing). This procedure varies among municipalities but for Happyville, the Mayor is responsible for presenting the last, best and final offer including any matters resolved during the impasse meeting. The Council then would impose or reject the Mayor s last, best and final offer. Because of the Council s changed role, the Council requested an opinion from the City Attorney on the matter of its discretion to change any of the Mayor s proposals. The City Attorney issued an opinion that the City Council could neither impose nor reject the Mayor s last, best and final offer. Further, the City Attorney advised that should the Council find the Mayor s offer to be unreasonable and not in the best interest of the City then the Council should vote in open session to reject the offer and the last existing Memorandum of Understanding (MOU) between the City and the Union shall continue to be in effect until a successor agreement is ratified or Council imposes the last, best and final offer by the Mayor. The Council followed the City Attorney s advice and concluded the impasse hearing by imposing the Mayor s last, best and final offer on several labor unions. Then, prior to the conclusion of the subsequent year s negotiations a new City Attorney was elected. This Attorney rendered a different interpretation of the roles of the Council and Mayor in negotiations and impasse. The new City Attorney held that the impasse procedure in the Council Policy was not inconsistent with the City Charter and must be harmonized with the Charter and other state law provisions. He stated that-- 4

5 the City s last, best and final offer should be recommended to the City Council by the Mayor in his role as Chief Executive Officer of the City however, the City Council has the authority to amend the offer and return the parties to the bargaining table, if the Council believes that there is the ability to break impasse. If the Council exercises this authority, the Council changes the City s last, best and final offer and revives the bargaining process. The bargaining process will be completed when agreement between the parties is approved by the Mayor and Council, through the legislative decision and veto process, or when the City unilaterally implements its last, best, and final offer in compliance with the requirements of the Meyers-Milias-Brown Act. Conflicting opinions from two elected City Attorneys. One could conjecture that when another new City Attorney is elected, it is possible the City may receive yet another legal interpretation on these issues. Having an elected City Attorney is not standard and appears unique to larger municipalities. One would hope that unless the legal opinion of the City Attorney s predecessor is proven to be incorrect or the law changes, legal advice would be consistent. Obviously that was not the case for Happyville. The Best Way to Deal With Impasse In a Strong Mayor Form of Government Two problems dominate any discussion of the best way for the City of Happyville to move forward: Conflicting authority over the impasse procedure Differing legal opinions from two City Attorneys Two alternatives may serve Happyville: Negotiate a new impasse procedure, or Continue to follow the old impasse procedure with differing opinions on how it should be implemented. If the City wishes to negotiate a new impasse procedure the most effective method would be for the City Council to nullify the portion of its Policy covering impasse. Since Council Policies are under the exclusive purview of the Council, this would have to be done at a public meeting by the submission and vote on a motion to eliminate the portion of their Policy quoted below: impasse shall be dependent on the applicable provisions of the Charter and Municipal Code of the City of Happyville as interpreted by the City Attorney This revision should eliminate the multiple interpretations. If required, the Mayor would negotiate any aspects of the impasse procedure that fall within the scope of bargaining. If the City and the labor unions reach impasse over the impasse procedure then the existing, problematic, impasse procedure would have to be used one final time. 5

6 However, if the City opts to keep the old impasse procedure then they face the likelihood of differing opinions should a new City Attorney be elected. A major obstacle for Happyville moving forward is that the labor unions may not want to negotiate a new impasse procedure because they may like the current legal interpretation of how impasse works. Therefore the City may not be able to change it unless the City Council is willing to impose the Mayor s, last, best and final offer for a new impasse procedure. Abby Jarl, Student 3535 Collier Avenue #13 San Diego, CA abbylouusd@yahoo.com (209)