Troopers’ pay raise? Not legal without legislative approval

BUT WHAT ARE YOU GOING TO DO, ARREST HIM?

BY ART CHANCE
SENIOR CONTRIBUTOR

As Must Read Alaska reported, Gov. Bill Walker, with considerable fanfare, announced a 7.5 percent general wage increase for State Troopers, using the standard Democrat excuse of “recruitment and retention” problems.

In the last years of the Knowles Administration everybody was having “recruitment and retention” problems and looking to use it as an excuse to give themselves or somebody a raise.

This “recruitment and retention” problem got Gov. Walker the endorsement of the State Troopers’ union, the Public Safety Employees Association, otherwise known as the law enforcement wing of the Democrat Party.

That’s at least curious since Mark Begich is Democrat royalty and his administration raped Anchorage taxpayers on behalf of Anchorage’s Police and Fire unions.

Now I do pedantic really well and this is pedantic and legalistic, but I think it is important for politically involved people to understand.

Everybody who knows as much or more than I do about the State’s relations with its unionized employees has either left the State or left this earth altogether.  That said, for the first time in years, I read the Public Employment Relations Act (AS 23.40. 070 – 260).   The most important piece for this issue is Section 215, the Legislative approval section.

I’ll confess; I don’t have a clue what Section 215 means.

The issue is whether Gov. Walker can give this paycheck boon to the Troopers without the approval of the Legislature, and in this circumstance whether he has that approval.

First some history. Section 215 in the original Act just said that the monetary terms of a labor agreement under PERA were subject to legislative appropriation.  This is necessary to keep the Act constitutional because if a contract could be funded without the Legislative act of an appropriation, the Act would be unconstitutional.

Gov. Sheffield rewarded his union friends with all sorts of goodies complete with cherries, nuts, and sprinkles, and the one that really got the Legislature’s attention was when Sheffield made a State employee’s birthday a paid holiday.

The Legislature responded by amending the Act, and requiring that the “monetary terms” of an agreement be submitted for approval by the Legislature and setting out that the monetary terms could be disapproved by a majority vote on a concurrent resolution of disapproval. It went on to specifically define monetary terms in the definitions at Section 250.

The first time the Legislature used this power was to disapprove the monetary terms of the third year of several agreements with an 84 – 86 term.  The General Government Unit, all 8000 or so of them, were supposed to get a 3.6 percent increase on July 1, 1985 (I am working from memory here), and they didn’t get it.   I have that number burned into my brain, and for years two drinks and an hour of conversation with any union rep would bring on a conversation about the 3.6 percent that the State still owed them. Then the decade-long war began.

The Legislature used that power in its disapproval of a genuinely rapacious PSEA contract during the Hickel Administration, when it for the first time rejected an interest arbitrator’s award to the union. Yes, the courts upheld it.

The Legislature used the disapproval power several times during the Knowles Administration.

The unions/Democrats hated the legislative approval power and the Administration “worked with” the Legislature to try to clarify Section 215.

The unions/Democrats succeeded in getting the Legislature to make the law unintelligible.   The only thing that is clear is that the monetary terms are subject to approval and the terms must be submitted to the Legislature for “action;” what action isn’t specified.

The plain language of Gov. Walker’s agreement with PSEA says that the pay increase is effective on legislative approval.  That is boilerplate language that I’m not confident that whoever inserted it really knew what it meant.  The only person in State labor relations or Law who even worked with anyone who goes back to days of these battles is Kate Sheehan, the director of personnel and labor relations, a person I hired when I was director of labor relations.

Kate has the authority to do a salary survey and change the pay range of a State job classification to increase or decrease the pay of that job.   But, she must do that as a part of a State Classification and Pay Plan that must be submitted to the Legislature, which has the power to disapprove it.

Gov. Walker does have Kate’s determination that the pay range of the State Trooper classifications should be increased.  However, State Trooper contract ranges aren’t a part of the State Pay Plan at AS 39.27.011, but rather are collectively bargained range designations.

Consequently, I submit that the director’s authority is not controlling but rather the collectively bargained pay increase expressed by the Letter of Agreement with PSEA.

The Legislature is not in Session and the law requires that a monetary terms report be submitted to the Legislature within 10 days of the next Session of the Legislature.   Therefore, the agreement with PSEA cannot become effective until the Legislature next convenes and takes some action on the agreement.

GOVERNOR’S RATIONALE NEGATES SECTION 215 OF PERA

Now we get to the really pedantic part.  Gov. Walker’s press release suggests that a supplemental appropriation request and intent language in that request authorizes him to confer this increase.

If that is true, it negates Section 215 of PERA. In PERA litigation the Alaska Supreme Court has held that it will not countenance implicit repeal of legislation.

Going back all the way to IBU v. Hafling in 1978 or so, the Court held that PERA had to be construed in paria materia, law on the same subject, with other relevant legislation.

If either the director of personnel on her own authority or the governor on his own authority can do this, it repeals Section 215 of PERA and abrogates the authority of the Legislature over appropriations and State expenditures.

To be clear, a range change increase for Troopers may be justified.

That said, the last decade of my career I sat across the table with them and they threw down the Anchorage cops’ contract on the table. We said, “go to work for them.”

Here’s the problem in recruitment: There’s a dearth of applicants who can pee in a bottle and pass a background check.

The issue at hand in this column is not what is getting in the way of hiring, but whether a bureaucrat that only people like me know, the director of personnel, or a governor can do this, or whether the Legislature must authorize spending the public’s money.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon. He only writes for Must Read Alaska when he’s banned from posting on Facebook. Chance coined the phrase “hermaphrodite Administration” to describe a governor who is both a Republican and a Democrat. This was a grave insult to hermaphrodites but he has not apologized.