Earlier this month, I reported on 2d Judicial District Judge Huling's ruling that the City of Albuquerque could scale back wages for the AFSCME bargaining unit, while negotiations for a successor contract was pending.
Well, the beat goes on. On February 2, the Albuquerque Journal reported that Second Judicial District Court Judge Nan Nash has ruled that the City was not required to implement negotiated annual pay increases for City firefighters, based on financial difficulties. See Dan McKay, "Judge Dismisses Firefighters' Lawsuit."
As in the earlier AFSCME case, a big issue was the Public Employee Bargaining Act's (PEBA) subordination of contract rights to the appropriation and availability of revenue. As the Journal reported, Judge Nash "said she doesn't have the authority to decide whether the city could have paid for the raises somehow." Specifically, Judge Nash is quoted as saying the court "does not believe that the judicial branch has the power to examine and review a legislative body's budge or decisions regarding tax increases to determine whether funds for the contractual obligations are actually available."
As in the earlier AFSCME case, a big issue was the Public Employee Bargaining Act's (PEBA) subordination of contract rights to the appropriation and availability of revenue. As the Journal reported, Judge Nash "said she doesn't have the authority to decide whether the city could have paid for the raises somehow." Specifically, Judge Nash is quoted as saying the court "does not believe that the judicial branch has the power to examine and review a legislative body's budge or decisions regarding tax increases to determine whether funds for the contractual obligations are actually available."
A similar case concerning City police officers is still pending, and these decisions will likely be appealed. On one hand, there's the notion that "a contract is a contract is a contract"--however, public bodies unlike private bodies cannot simply go out of business if it turns out they made bad economic choices. Rather, public services must continue to be met, which PEBA itself likely foreshadows, by indicating one of its major purposes is not simply promoting harmonious labor relations, but also "to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions." Arguably, an important aspect of this latter purpose would be the continued provision of public services at a rate affordable to tax payers.
I was also intrigued by Judge Nash's observation regarding the court's ability to review legislative decision regarding funding. While a hearing examiner with the State Public Employee Labor Relations Board (PELRB), I occasionally heard management representatives argue that if a union disbelieved a claim lack of funding, its recourse would be to file a complaint for breach of the duty to bargain in good faith. Judge Nash's observation raises the interesting question of whether the PELRB (an executive agency) would be in any better position, under the separation of powers principle, to review such a legislative determination regarding funding.
These are all questions that will continue to pique the public consciousness for some time to come. Nor are they issues limited to New Mexico. For example, as you will recall, California was an early trend setter in the use of furloughs of public employees to meet its fiscal emergency. Those furloughs were challenged and rejected by the trial court and Court of Appeals, but ultimately upheld by the California Supreme Court in October 2010. See Christoper Weber, Politics Daily, at http://www.politicsdaily.com/2010/10/04/schwarzeneggers-plan-to-furlough-workers-upheld-by-california-h/. There the California Supreme Court's determined that the executive "shares ... power" related to balancing that State's books. Id.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
