It's basically a union case, but more broadly, a municipality/democracy issue. In tension are two concepts as to which I'm fully and completely on board: (1) that a union (or an individual employee, for that matter) has a right to enter into a contract with an employer and, once entered, that voluntary contract is to be respected by everyone, and (2) that the people (e.g., voters) have a right to enact initiatives and referenda that govern their democracy, and that no one (not even a legislative body) can interfere with that right.
Normally, those two salutary principles aren't in conflict. But what about when they do?
For example, take today's opinion. The people of Sonoma County decided that the oversight of police officers in that county was inadequate, so they passed an initiative that increased the powers of the police review board to investigate officers, review body-worn camera footage, etc. A fairly basic exercise of fundamental democratic principles.
But prior to the passage of that initiative, in an agreement with the union that's both typical as well as protected by labor laws, the County had promised to bargain with the union before doing anything that might affect the terms and conditions of employment for the officers. Fairly clearly, the matters raised by the initiative affects the terms and conditions of employment for the officers.
So which of these two principles gives way to the other?
Is the obligation to bargain supreme, which would mean that the County had to bargain first before it was allowed to put the initiative on the ballot? Or does the right to enact an initiative approved by the voters trump the obligation of the County to bargain?
The trial court thought the former, and on that basis, invalidated the results of the election. It held that because the County didn't bargain first (which it indeed didn't), the measure was invalid, even though it had been approved by the voters.
The Court of Appeal agreed in part, but tried to thread a needle and come to a conclusion that was sort of in the middle of where the parties stood. Today's opinion held that, yep, the County had a duty to bargain, which it violated, but that this didn't necessarily mean that the election was invalid. It instead "remand[s] the matter for PERB to determine whether to declare
void the Board’s resolution placing on the ballot the Measure P provisions
subject to effects bargaining, or to impose any other remedy such as ordering
the County to cease and desist from implementing the Measure P
amendments on Association-represented employees until the County fulfills
its effects bargaining obligation" -- and also notes that the election might be potentially invalidated in a separate quo warranto proceeding.
So maybe the union wins, maybe it doesn't. And maybe the initiative gets enforced, and maybe not.
But let me ask the more foundational question: Does it really make sense to allow the County to bar (in sum or substance) certain subjects from an initiative?
In one sense, of course it can: We do that all the time. They're called contracts. Municipalities can enter contracts that are binding on everyone, including from abrogation via initiative. For example, if the County enters into a contract with me to employ me for a year at $25/hour, that's the contract even if an initiative subsequently passes that bars the County from paying me for more than six months and/or over $20/hour. Too bad, so sad. Contract rules.
And, the argument goes, what's good for individuals is equally true for groups of individuals; e.g., unions. So, here, if the County wants to agree with the union (as it surely did) that it'll bargain with 'em before changing any terms of employment, then that's what it's gotta do -- and can't get around that (or change those terms) through an initiative. The contract, again, rules.
But that's in tension, I think, with the overall initiative process. Imagine, for example, that the voters believe -- perhaps for darn good reason -- that their elected officials (including the County) are far too soft on police officers, perhaps precisely because the police union is particularly powerful. The County (and union, for that matter) might well perceive this reality and act proactively, and one may they might attempt to ensure that the voters didn't get their way was to enter into precisely the type of contract at issue here -- one that requires the County to negotiate before any changes. So if the County doesn't do what the contract requires (e.g., bargain ) -- and the County might have zero desire to do so -- then the voters can't change things. Contract rules, right?
Or imagine an even stronger contract that says "Here are the conditions for employment, which will last for 50 years and cannot be altered except by the mutual consent of the County and the union." Does this contract really permissibly stop the voters from, for example, putting body camera footage on the web (as in the present case), or doing anything else that would enhance oversight of the police? Wouldn't that be a legislative restriction on the initiative process that's invalid? And if so, doesn't that precise problem exist here? Why can the County's failure to bargain stop, in any way, the voter's ability to enact an initiative?
Except, of course, for the fact that they're both the "people". The "people" that entered into the binding (?) contract at issue.
I imagine that the way precedent plays out -- and, again, I'm no expert in this area, but I know what I've read (or at least vaguely recall it) -- is that a "duty to bargain" wouldn't entirely preclude an initiative since those could be enacted entirely by the voters themselves, whereas the one here was (at least in part) proposed by the County itself. But to some extent, that's somewhat a distinction without (much of) a difference, right? It still begs the question: "Well, what are the legitimate constraints on initiatives set forth by contracts?" If contracts can't bar initiatives, then presumably, at least, they can't bar initiatives at all, including those that start with the County or in which the County admitted has some degree of involvement. Whereas if initiatives can't violate contracts, then it doesn't matter whether the County's involved or not, right? And I strongly doubt that the correct rule is that initiatives can violate contracts when they're voter-initiated, but not when they're County-initiated. That'd be sort of silly, right? Either one of the two principles -- democracy versus contract -- should hold sway in both cases, I'd guess.
Today's opinion doesn't really grapple, at all, with this underlying issue. An issue that I think's a fairly important one. Implicitly, at least, it takes sides with the "contract" position, since it holds that the trial court (on remand) has the power to potentially enjoin the voter-approved initiative.
That's a policy choice, for sure. I just wonder if it's the right one, and whether -- or to what degree -- contract rights can really overcome foundational democratic principles.
Tough issue. Tough calls.
