DO NOT TAKE THIS POST AS LEGAL ADVICE. I am a lawyer, but I’m not your lawyer. The information I give here is for purposes of arguing my position, not giving advice. If you want legal advice, go see your own lawyer.
I keep hearing that the current negotiations between the district and its teachers’ union are top-secret and that nobody involved in them is permitted to disclose what happens in them to anyone who was not involved in them. The negotiators seem to think that they are each other’s therapists rather than on opposite sides of a negotiation.
And, as far as I can tell, they’re wrong. Let’s look at what the contract and the laws actually say.
The just-expired contract between the district and the teachers says this about the negotiations:
ARTICLE III – NEGOTIATION PROCEDURE
A. The Board and the Association agree to bargain in accordance with Title 26, Chapter 9-A and Title I, Section 405, D. for a successor agreement.
B. Any news releases shall be jointly released except as provided in Title 26, MRSA, Section 974.
It’s nice of the parties to agree to follow the law. But I think they have the law wrong.
Title 26, Chapter 9-A of the Maine Revised Statutes (at least I assume that’s what they’re referring to, although their citations would get an F from a law professor or an English teacher) is the Municipal Public Employees Labor Relations Law. I read through that chapter, and there are only a couple of things in it about secrecy, and none of those prevent the parties from reporting what happens during negotiations.
Section 965(2)(G) says that information provided to a mediator during mediation is privileged. That doesn’t prevent either of the parties to the negotiations to report what either of them said to each other. “Privileged” means that it can’t be used in later legal proceedings, but it’s not the same thing as being “confidential” such that the other side can’t publicize it. Plus, section 965(2)(G) applies only to mediations.
Section 965(3)(C) is about the fact-finding process that the parties are about to go through and says this:
C. The parties shall have a period of 30 days, after the submission of findings and recommendations from the fact finders, in which to make a good faith effort to resolve their controversy. If the parties have not resolved their controversy by the end of said period, either party or the Executive Director of the Maine Labor Relations Board may, but not until the end of said period unless the parties otherwise jointly agree, make the fact-finding and recommendations public.
Section 965(4) has some specifics about arbitration, which comes after fact-finding, which, like the fact-finding, provide for confidentiality of the arbitrators’ decisions for a short amount of time.
Lastly, section 974 says, in its entirety, this:
Either party to negotiations may publicize the parties’ written initial collective bargaining proposals. No proposal may be publicized until 10 days after both parties have made their initial proposal.
Again, this keeps some information (the initial proposals) secret for a very short amount of time. And it applies only to the initial written proposals.
The “Title I, Section 405, D” part of the contract seems to refer to Title 1, section 405(6)(D), which permits
Discussion of labor contracts and proposals and meetings between a public agency and its negotiators. The parties must be named before the body or agency may go into executive session. Negotiations between the representatives of a public employer and public employees may be open to the public if both parties agree to conduct negotiations in open sessions;
This does allow the parties to conduct negotiations in private, but it also allows them to do it in public, and does not prevent anyone from talking about the negotiations later. Of course, the Board members may choose not to disclose anything that happened in the executive session, but I don’t know of any law that requires a person who is not a member of the municipal board from disclosing what happened in an executive session that the person attends. If there is one, I’m all ears.
The contract does also say that any “news release” shall be jointly released. It’s not clear what a “news release” is, but I’m pretty certain that it wouldn’t apply to someone telling others what happened in a negotiation.
Clear to me throughout all of this is that the parties can agree to share information with the public. At this point, I don’t know why they haven’t. I can only surmise that they have something to hide, something that they would be very embarrassed about if it got out. But this is no way to run a public railroad.
The public, not to mention the teachers whose contract is at stake, are entitled to know what the differences are between the parties’ positions. The negotiations should not be some back-room dealing (although I suppose nowadays the back rooms aren’t smoke-filled) with public money about one of the most important roles of government. It seems to me that the public has made pretty clear that it’s willing to spend its money on education, but for some reason the district doesn’t want to go along with that and wants to use its own secret reasons to do something different.
I don’t blame the teachers’ negotiation team for this. I think that they have probably been mislead about this, and don’t realize that, at the very least, the parties can agree to release information. I think that they have probably been told that the negotiations are secret and that they are not permitted to disclose what happens in them.
Please, ladies and gentlemen, come out of the non-smoke-filled rooms and tell us what’s going on.
For more thoughts on secret public-labor-contract negotiations, see these articles:
(Ignore this article’s claim that Maine requires secret negotiations–the citation to Maine law is not, in fact, a valid citation to Maine law, and I can therefore only surmise that it’s from another state).