Minority Report
On
The Governor’s Reorganization Plan
No. 2 of 2007
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An Act Increasing the Efficiency, Effectiveness and Fairness of the Commonwealth’s Labor Relations Agencies
(see House, No. 4244 of 2007)
(submitted by the Governor pursuant to Article LXXXVII of the Amendments to the Constitution)
A minority of the members of the Joint Committee on State Administration and Regulatory Oversight respectfully submit the following as their report on legislative recommendations concerning House bill 4244, An act increasing the efficiency, effectiveness, and fairness of the Commonwealth’s labor relations agencies, submitted by the Governor pursuant to Article LXXXVII of the Amendments to the Constitution.
PROCEDURAL HISTORY
House bill 4244, Executive Reorganization Plan Number 2, was filed by His Excellency the Governor under Article LXXXVII of the Amendments to the Constitution of the Commonwealth of Massachusetts on September 13, 2007.
An executive reorganization plan is defined by Article LXXXVII as a proposal to “transfer, abolish, consolidate or co-ordinate the whole or any part of any agency, or the functions thereof, within the executive department” or to allow any officer of an agency to delegate his functions.
Article LXXXVII sets forth a very specific legislative process for the consideration of executive reorganization plans. The process begins when the Governor submits his plan to the Legislature. The Clerks of the two branches, with the approval of the Senate President and Speaker, then refer the bill to “an appropriate committee” within 5 days of the date of submission by the Governor. The committee is required to hold a public hearing on the plan within 30 days of submission by the Governor. Within 10 days after the hearing, the committee must issue a report approving or disapproving of the plan.
The Legislature is not required to vote on the plan. Under the Constitution and Joint Rules, if no action is taken, the plan is deemed to be approved and automatically becomes law 60 days after the date of its submission. If no action is taken within the 60 day window, the Clerks of the two branches are required to place the plan in the Orders of the Day in both branches within 7 days of the expiration of the 60 day limit.
Either branch of the Legislature can unilaterally veto the plan by a majority vote. But the Legislature does not have the power to propose alternatives or amendments to the Governor’s plan until the expiration of the same 60 day time period. Furthermore, only certain procedural motions are allowed during debate, as per Joint Rule 23A. Thus, the legislature may only completely support or oppose the plan as originally submitted by the Governor. Even technical corrections to the Governor’s filing are prohibited.
FACTS
The Labor Relations Commission (LRC), and the Joint Labor Management Committee (JLMC) were established by the Massachusetts General Court in 1937. Both bodies are statutorily independent from the executive branch. See G. L. c. 6A § 17D, and 17E. The Board of Conciliation and Arbitration (BCA), also independent, was established in 1886. It is the longest continuously running agency in the Commonwealth, and was the first agency of its type established in the United States. See G.L. c. 23C § 2. The purpose of the LRC is to facilitate the fair resolution of Massachusetts public employee collective bargaining disputes. The JLMC encourages the resolution of collective bargaining disputes involving municipalities and their police officers and fire fighters. The BCA offers dispute resolution services to mediate and arbitrate labor disputes for both public and private sector unions and employers.
All three agencies are semi-independent by design. Each exists under the executive office of labor and workforce development but is “in no respect subject to the jurisdiction thereof.” See G.L. c. 6A § 17D and § 17E; c. 23 § 3 and § 9O; c. 23 § 2. The LRC, JLMC, and the BCA have always been funded through three separate budget line items: 7002-0600; 7002-0700; 7002-0800, respectively.
Between fiscal years 2002 and 2004, funding for the LRC was reduced by more than 22% from $1.07M to $833K. Due to funding reductions, the LRC was forced to reduce its number of hearing officers by 5. See Appendix A. This is the only time period in recent years during which the commission closed fewer cases than it received. During the past three fiscal years, the LRC has received an average of 529 cases each year. From fiscal year 2005 to 2006, since funding has leveled off, it has had a 100% or higher case resolution rate, closing an average of 510 cases per year.
Labor Relations Commission: Cases Received vs. Cases Closed |
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Fiscal Year |
Funding Received |
Cases Received |
Cases Closed |
2004 |
833,316 |
604 |
578 |
2005 |
832,700 |
508 |
513 |
2006 |
832,701 |
476 |
508 |
As expressed through this data, there is a direct correlation between consistent funding levels and the ability of the LRC to completely and efficiently resolve the number of cases received each year.
ARGUMENT
I. REORGANIZATION PLAN 2 SHOULD NOT BE ADOPTED BECAUSE ITS OBJECTIVES OF INCREASED EFFICIENCY AND ACCOUNTABILITY, THOUGH WORTHY, ARE OUTWEIGHED BY ITS EFFECT OF UNDERMINING THE INDEPENDENCE OF SUBJECT AGENCIES
The following list contains the expressed goals of the Patrick Administration regarding the reorganization of the LRC, the BCA, and the JLMC:
administrator who is responsible directly to the Governor
(FTE) to per diem staffers
While it is logical to streamline processes and ensure effective and efficient accomplishment of set goals, achieving this should not occur at the expense of the original purpose of the LRC, BCA, and the JLMC. No substantive changes should be made to alter the structure that protects the independence of these agencies as they were originally established by the Massachusetts General Court.
Specific reference is currently made to the complete independence of all three agencies in no less than five separate sections of the General Laws. See G.L. c. 6A § 17D and § 17E; c. 23 § 3 and § 9O; c. 23 § 2. While all three agencies fall within the executive office of labor and workforce development, they are currently “in no respect subject to the jurisdiction thereof.” House bill 4244 strikes all five references to the jurisdiction of the executive office over the agencies and inserts a new section, in section 8 of the bill, ensuring that the LRC, BCA, and JLMC are afforded the same legal powers, authorities, responsibilities, etc. The new division of labor relations would fall completely under the jurisdiction of the executive office and the three agencies would cease to be funded under three separate line items. No mention is made of any limitation of jurisdiction with regard to the executive office.
Funding would be consolidated into a single line item for the division of labor relations, giving the executive branch direct influence on the funding of an agency directed to mediate public sector labor disputes. This would create a potential conflict of interest for the agency and substantially undermine the agency’s effectiveness.
This conflict of interest extends to the new staffing requirements of the division of labor relations. Within the new division, a Commonwealth employment relations board (CERB) nominating panel would exist to identify and screen candidates for CERB, the new five-member appellate board that would replace the current three commissioners who head the LRC, BCA, and the JLMC. The nominating panel, made up of 13 members, would consist of at least 5 members or representatives of public sector labor unions and 5 members or representatives of public sector managers, among others. These members would advise the division of labor relations on “policies, practices, and specific actions that the division might implement to better discharge its labor relations duties.” See section 5 of House bill 4244. The members will also review all applications for potential members of CERB, rank each candidate, and submit candidates that they deem qualified to the Governor. This gives the nominating panel, and thus the union members on the panel, an unsuitable amount of influence over the policies of the division and the potential outcome of cases. There is a distinct possibility that these union members will be put in the position of affecting the outcome of a labor dispute involving their own unions.
There is no evidence to suggest that the proposed changes to the structure of the agencies are necessary to accomplish the goals of the Administration. While it has been suggested that the LRC is highly inefficient, statistics provided by the commission show that this is not the case. No statistical information has substantiated the existence of an extreme backlog at the LRC as a result of the current structure. See Appendix B. The available information indicates a direct relationship between the predictability of funding levels and the ability of the LRC to close the over 500 new cases they receive per year. This raises the question of whether smaller changes in funding and staffing issues should be addressed, rather than far-reaching structural changes that compromise the agency’s ability to accomplish the goals for which it was established 70 years ago.
II. TECHNICAL PROBLEMS WITHIN REORGANIZATION PLAN 2 FURTHER COMPLICATE ITS ADOPTION.
Concerns about the substantive effects of the bill are further complicated by the drafting errors present throughout the current version of House bill 4244. During the October 2, 2007 public hearing for House bill 4244, Secretary Suzanne Bump admitted there was a “mistake” included in the legislation. A case-clearance deadline, whose purpose is to encourage the resolution of the supposedly backlogged cases, was not included in section 8 of the legislation as the Administration originally intended. The Secretary suggested that a decision will be made whether or not to establish a case-clearance deadline after the annual review of the division in one year’s time. Limiting the division of labor relations to a particular time frame for case resolution could have far-reaching effects on the ability of the division to thoroughly and fairly resolve cases brought before it, and should be considered by the legislature within the context of the overall reorganization, not a year down the road.
There is also a drafting error in section 5 of bill, which establishes a new subsection (c) of section 9T of chapter 23. The subsection would allow the director of the division of labor relations to issue any regulation for the enforcement of section 9T and the “3 following sections.” This would refer to sections 9U, 9V, and 9W; however, sections 9V and 9W are not included in House bill 4244 and do not exist in current statute. Under the legislative voting process prescribed by Article LXXXVII of the Constitution, no amendments or changes may be offered by members of the legislature to any reorganization bill filed by the Governor or his administration. The legislation will become law within 60 days of findings being released by the committee, in this case the Joint Committee on State Administration and Regulatory Oversight, unless it is voted down by a legislative majority in either the House or the Senate. Since no amendments can be made to a bill filed pursuant to Article LXXXVII, recommending the passage of this piece of legislation would recommend the passage of an obvious drafting error and an admittedly mistaken policy.
CONCLUSION
These agencies have existed in their current structure since 1937 without the General Court seeing any need for substantive changes. Any far-reaching measures to affect change within the agencies should be carefully considered and agreed upon, without reservations, before they are implemented. It is important to provide the legislature with the opportunity to consider the goals of any such reorganization plan weighed against the repercussions of implemented changes. At the very least, opportunity must be provided to propose alternatives or alterations to the plan, whether that is accomplished by redrafting the current bill or filing the bill as a normal piece of legislation.
Due to the procedural and substantive concerns raised by House bill 4244, it is the minority recommendation that the legislation ought not to pass as currently drafted. The minority recommends the reconsideration of the available information regarding case resolution and staffing limitations prior to the pursuit of potentially unnecessary alterations to the agencies’ structures. Equally important is the emphasis that should be placed, regardless of any decisions that are ultimately made, on preserving the independence of the three agencies as was originally intended by the General Court.
With no opportunity for amendments to resolve the current drafting errors in House bill 4244, the Legislature will have no choice but to vote to support or oppose a piece of legislation with basic drafting errors. The Legislature cannot make a reasonable decision regarding a bill while disregarding the openly admitted problems existing within the structure of the legislation itself.
We, the undersigned, therefore register our opposition to House bill 4244, An Act increasing the efficiency, effectiveness, and fairness of the Commonwealth’s labor relations agencies, submitted by His Excellency the Governor and recommend that the reorganization plan ought not to pass.
Members Signed |
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| Susan W. Gifford, Ranking Member | Bradford Hill | |
APPENDIX A
APPENDIX B
