On Friday, Anchorage Assemblywoman Jennifer Johnston (South Anchorage) proposed a new municipal ordinance that would replace last year’s controversial labor law and remove it from a November referendum.
The ordinance, which is not yet numbered and has not yet been introduced before the full assembly, was brought forward at an ad hoc Labor Subcommittee meeting. Johnston drafted the document with the assistance of municipal attorney Dennis Wheeler.
According to committee chair Bill Evans (South Anchorage), the municipal clerk’s office asked the assembly to set aside $436,000 for the November referendum. Assembly chair Patrick Flynn (Downtown) tasked the committee with finding a way to avoid that cost.
Johnston’s proposal is just the latest in a complicated saga. Assembly Ordinance 2013-37 (AO 37) was introduced in February 2013 by then-chair Ernie Hall (Midtown) and then-vice chair Johnston and at the behest of Mayor Dan Sullivan. In a press release, Sullivan stated his objectives were to “maximize efficiency” and “create an efficient and streamlined process.” But in what is already a strong mayor form of government, AO 37 limited many of the items traditionally bargained with workers, tipping power further toward the mayor.
Union reaction was uniformly negative. Hundreds of workers showed up at Loussac Library, filling the assembly chamber and spilling out into the lobby and parking lot. In an unprecedented move, Hall shut down public testimony. AO 37 passed by a single vote in March 2013. There was a backlash at the polls the following month, where some of those who voted in favor of AO 37 lost by big numbers, and Hall nearly lost to his only challenger, write-in candidate Nick Moe. Hall then introduced an ordinance that would have curtailed public testimony in the future.
The genesis of Johnston’s new ordinance was the repeal effort for AO 37. Over 22,000 signatures were collected to subject AO 37 to referendum, about three times more than necessary to get it on the ballot. Wheeler, in his role as attorney, rejected the petition, claiming the ordinance was administrative in nature and therefore not subject to referendum. The city appealed the case all the way to the Alaska Supreme Court before it was confirmed AO 37 is subject to referendum.
Photo courtesy of Repeal 37 facebook page, used with permission.
As the court battle was playing out, the assembly and the administration were trying to determine to which election the referendum should be tied. “Municipal Charter instructs that, upon certification of the necessary signatures, a referendum must occur in one of two ways: special election or regular municipal election, no more than 75 days after certification of the referendum,” wrote John Aronno during his extensive coverage of AO 37.
An ordinance was introduced to place the referendum on the April 2014 municipal ballot, in keeping with charter language. Sullivan immediately vetoed the measure, triggering a rebuke from assembly attorney Julie Tucker. “When the mayor attempts to exercise the veto power to control or manipulate the election date for when a referendum will appear on the ballot, we have a separation of powers problem,” she said. The dispute triggered another lawsuit. Sullivan’s likely goal in keeping the referendum off the April ballot was to protect Adam Trombley (East Anchorage), an ally who voted for AO 37.
An attempt to repeal AO 37 passed at that same assembly meeting, but was again immediately vetoed by the mayor. Trombley voted for the repeal, which would have kept it off the ballot with him. Sullivan later said that Trombley’s subsequent defeat in the municipal election was due to voting for a repeal. “When you don’t stick to your guns on key issues that conservatives are interested in, it’s really hard to energize that base. And one of the first things you learn in politics is you’ve got to keep your base strong,” Sullivan told the Anchorage Daily News.
Keeping the AO 37 referendum off the municipal ballot significantly increased the city’s costs. On Friday, Deputy Clerk Amanda Moser told the committee that, while the final details have not yet been determined, it is likely the city will be unable to put the referendum on the state’s ballot or use state poll workers. This means the city would have to hire 600 poll workers that would not have been additional had the referendum been in April. Moser said the typical $60,000 cost for printing city ballots could go up substantially to cover the higher turnout of a state election. The city also borrows state equipment for its elections, including the Diebold Accuvote tabulators. Those machines would be in service for the state election in November, so the city may need to acquire alternate machines. Add in the cost of election ads required by municipal code and you have an election budget of $436,000.
Johnston explained that the timing of her proposal was to prevent the pre-election ramp up. Moser said that election planning typically begins in earnest four months prior to the election and the printing of ballots about three. This draft should start a conversation that would lead to a finished ordinance by September, before ballot printing would begin, Johnston said.
A side-by-side comparison of AO 37 and Johnston’s proposal does show that many of the “nuclear options,” as she describes them, have been removed. Key points of contention in AO 37 were prohibitions on the strike and establishment of “managed competition,” the ability of the city to privatize work that falls under the purview of public union workers. In a memorandum to the assembly, Sullivan alleged that unions had “no inherent right to strike.” Johnston’s ordinance restores the ability to strike and eliminates managed competition.
Other AO 37 provisions which unions found objectionable and are absent from the new ordinance include a cap on wages and benefits, the uniformity of benefits, the uniformity of holidays, elimination of pay enhancements, limitation of contract length to three years, the effective elimination of appeals of unfair labor practices, and a limit on overtime pay to time-and-a-half. AO 37 also eliminated the independent arbitration of contracts, mandating the assembly instead choose between the city’s and the union’s “last best offer” in the event of a bargaining impasse. Union representation work was also made the financial burden of the union. This means that if the city unjustly disciplined a worker, the union would have to pay the shop steward for time spent investigating the city’s infraction. These provisions are also absent from Johnston’s ordinance.
Unions will take a hard look at vestiges of AO 37 still present in Johnston’s revision. Johnston retains the elimination of past practice as a consideration of a bargaining mediator. Past practice is behavior by management or the union that falls outside the language of a collective bargaining agreement. For example, if a contract does not stipulate an extra break but workers have always taken one with the knowledge of management and without intervention, management’s approval can be assumed through past practice.
AO-37 mandated that bargaining begin at least 120 days prior to the expiration of a contract, a provision Johnston retains. Interestingly, she also mandates the assignment of a mediator 120 days prior to contract expiration. Since she shifts half the financial burden of mediation to unions (which AO-37 did, as well), this could become quite costly. Extended bargaining is often a technique employed by management to save money through delayed raises and benefits changes.
Johnston’s ordinance also retains increases in management rights, specifies that supervisory and timekeeping work does not fall under collective bargaining units, and shifts some administrative workers from unions to management.
Union opposition was not just to the heavy-handedness of AO 37, but also to its legislative nature. Items dictated in AO 37 had previously been bargained. AO 37 left little to discuss across the table. While Johnston’s proposal is a dramatic improvement over existing law, it still dictates formerly bargained items. Labor subcommittee member Dick Traini (Midtown) asked the unions present at Friday’s meeting to take the proposal back to their members and decide which items they could agree with and which items needed to be bargained.
Traini continues to advocate for a full repeal of AO 37. Moser said the opinion of the clerk’s office was that, for the sake of transparency, a repeal of AO 37 should be a separate document from any revisions to municipal labor law. Johnston agreed, making a repeal of AO 37 much more likely and the need for a referendum moot. There is nothing regarding repeal on the consent agenda for Tuesday’s upcoming meeting, but it could be brought up under new business. Further discussion on Johnston’s revisions is tentatively scheduled for the subcommittee meeting on May 30.
Toward the conclusion of Friday’s meeting, Wheeler was asked for his opinion. Johnston had said the items retained in her document were kept with his input. Wheeler, addressing administrative versus legislative provisions, said,
There are some big ticket items that were pretty easy to pull off. Later in the document there’s a few where judgments are going to need to be made. So from my perspective, step 1) repeal AO 37, step 2) which is either in the same ordinance or a separate ordinance, put back in those provisions that may be clearly administrative or are on the line. It’s up to policymakers to decide where those things fall.
It has already been decided in the Supreme Court that the changes in AO 37 were not administrative and were subject to referendum. Wheeler’s suggestion that the provisions of Johnston’s ordinance- almost none of which are original- are administrative could open the city up to another lawsuit unless unions are closely involved in refining the ordinance.
Johnston’s proposal, were it to eventually pass the assembly, would probably escape a mayoral veto. Sullivan, who is running for lieutenant governor, could end up being on the ballot in November during the referendum. His advocacy for AO 37 could seriously jeopardize his election chances. However, if Traini’s full and thorough repeal is passed, Sullivan would be forced by his track record and previous statements to issue a veto or appear to be a “flip-flopper.”
This is the start of a long process with big ramifications. Stay tuned.