PUBLIC DEFENDERS, MANAGEMENT AGREE ON LITTLE DURING AUGUST 18, 1999 BARGAINING SESSION
By PATRICK J. FUGINA
Representatives from the public defenders and management found little to agree on during the collective-bargaining session August 18, 1999.
The public defenders were represented by the following: Union Local 320 Business Agents Brian Aldes and Brenda Corrigan; and Public Defender Negotiating Committee members Chris Anderson, Kari Seime, Kelly Madden and Patrick Fugina from the 10th District; Tom Blackmar from the 1st District; John Fossum and Kevin Riha from the 3rd District; Nancy Mattson from the 5th District; Susan Ginsberg from the 6th District; and Peter Irvine from the 7th District.
The State Board of Public Defense was represented by Dick Scherman, Executive Director; and Tim Johnson, Chief Public Defender from the 8th District.
The session was held at the Thunderbird Hotel in Bloomington in the Pawnee Room. It began at 9:55 a.m. and ended at 4:20 p.m. Discussions among the bargainers were cordial but attempts to reach agreement on any specific language for a tentative collective-bargaining agreement were unsuccessful. By and large, the discussions exposed differences that appear likely to lead to tough negotiations in the coming months.
The parties discussed the first 20 articles of the 33-article Proposed Labor Agreement submitted by the public defenders to management. (For further information on the proposed agreement, click here for Labor Agreement Summary for a summary or Proposed Agreement for the complete text.)
Essentially, the management team -- Scherman and Tim Johnson -- responded to each of the 20 articles by proposing language or concepts solely from the Board of Public Defense Personnel Manual. Management was unwilling, at least at the August 18 meeting, to agree to any language expanding employees’ benefits and rights beyond those stated in the Board’s personnel manual, except for grievance procedures that are mandated by statute for union employees.
Union Business Agents Aldes and Corrigan responded by pressing the expanded benefits and rights the public defenders are seeking in their proposed agreement.
Here follows a summary of the public defender’s and management’s positions on key issues as stated at the bargaining session:
Salaries
Scherman announced that he has submitted his recommendation for salary schedules in the Salary Advancement Study of July 1999 submitted recently by the Board. (Click here for text of the Board’s 1999 Salary Advancement Study.) He said the Board currently has funding of approximately $2.5 million to fund salary increases according to the Board's 1998 Salary Study, which compared salaries of public defender employees with those of the State Attorney General's Office. (Click here for link to the Board's 1998 Salary Study.)When questioned, Scherman also acknowledged the Board has money for Cost of Living Adjustments of approximately 2 ½ to 3 % allocated by the state legislature. These are the monies that were available as of July 1, 1999, but Scherman had previously announced would not be implemented during union negotiations.
Aldes replied that the public defenders are not yet ready to propose a salary schedule, but said the public defenders will be proposing a system of regularly-paid step increases rather than the current merit increase system. He also noted they will be proposing that a public defender’s pay scale be based on date of attorney licensure rather than the current standard of years of public defender service.
Scherman acknowledged that public defenders are underpaid and said the parties have to find common ground on this issue. Scherman said he would like to be able to guarantee step increases, but the public defenders have to show where the money is going to come from.
Scherman’s proposal that public defenders salaries be based on the Board’s 1999 Salary Advancement Study foreshadows an issue of major disagreement with the public defenders. The Board’s 1999 Salary Advancement Study recommends the system of merit increases be retained but modified. It proposes merit increases of 1% to 4%, with chief public defenders determining the level of increase. Some public defender negotiating team members have expressed skepticism about the likelihood of receiving anything but minimal merit-based increases, given the history of the Board making few merit increases.
Indeed, the Board’s own study concedes merit increases to public defenders have been "sporadic." According to the study, there have been 337 merit increases given in the last four years. (Click here for Board’s 1999 Salary Advancement Study and see page 2.) With nearly 300 public defenders, that amounts to an average of about one increase per public defender every four years. In contrast, union public defenders in Ramsey and Hennepin Counties typically each receive an annual salary step increase.
Scherman’s position that legislative funding limits available monies for salaries to the levels of the Board's1998 Salary Study and the 2 ½% to 3% COLAs underscores another difficult issue. Public defender negotiating team members have compared salaries to those of public defenders in Ramsey and Hennepin Counties. Salaries in Ramsey and Hennepin Counties are substantially higher than for public defenders in the rest of the state, despite that Ramsey County is funded 100% by the State Board of Public Defense and Hennepin County is substanitally funded by the same board. The union and negotiating team members believe there should be equity in salaries between the its attorneys and other public defenders and government lawyers doing the same work.
Moreover, some negotiating team members question the validity of the 1998 Salary Study, believing that it did not accurately compare public defender with attorney general staff salaries and that it is now outdated and not based on the current attorney general pay scale.
Overhead compensation for part-time attorneys
Scherman initiated a discussion about overhead compensation for part-time public defenders. The public defenders have stated they will make a proposal for overhead compensation when they submit their salary proposal.
Scherman stated he thought there might be disputes among the public defenders between full-time and part-time employees about overhead compensation. He stated the Board had originally requested $18,000 annual overhead compensation for ¾-timers and $12,000 for ½-timers. He said the legislature gave public defenders the choice of either overhead compensation or benefits such as health insurance, and public defenders expressed a preference for benefits. He said the legislature made a commitment for "some" overhead, which turned out to be the current $1,500 per year available to some part-timers who meet certain requirements such as an office with a half-time secretary and copy of Minnesota Statutes Annotated.
Scherman stated the legislature recently approved more funding for overhead compensation when it modified Minn. Stat. § 611.20 to provide that all monies collected from the courts from defendants as public defender reimbursement be paid to part-timers as overhead compensation. Previously, the first $180,000 collected went to the state general fund and there was little left over for the Board of Public Defense.
Later in the session, Scherman told the negotiators that the statutory change took effect July 1, 1999, and the Board is just now receiving funds earmarked for part-timers’ overhead. He said public defenders might not be pleased with the way funds are dispersed, because the statute requires the funds be paid to the part-timers in the district where they are received. This means some districts will be paid a lot more than others, and some part-timers will receive a lot more money than others.
Scherman suggested that the manner of dispersing the monies could be modified if the negotiating committee authorizes him to hold the funds and seek some modification of the statute from the legislature. Otherwise, he said, it isn’t clear from the statute whether the monies must be dispersed monthly or held until the end of the fiscal year for dispersal, and if he is pressured to release the monies immediately he may have to do so.
After caucusing and discussing this issue, the public defenders told Scherman they were not in a position to direct Scherman what to do with the monies and that he should release them as required by the statute. (Click here for a link to Minn. Stat. § 611.20.)
The issue of overhead compensation for part-timers will be one for further discussion during later negotiations. Some members of the negotiating committee believe part-timers should receive more than $1,500.00 per year and that the requirements of having a secretary and M.S.A. are too stringent. For example, in Ramsey County all part-timers receive $325 per month.
Scherman stated that he also believes the requirements for eligibility of overhead compensation should be "less restrictive and more inclusive."
Sick leave
The public defenders’ proposed agreement contains essentially the same provisions as the current Commissioner’s Plan, i.e., Personnel Manual. Scherman asked whether the proposed agreement includes sick leave for part-timers. If it does, he stated he wants the public defenders to provide a cost analysis for that addition.
The public defender proposed agreement does not propose sick leave for part-timers.
Scherman indicated he wanted to submit his own proposed language about sick leave and would do so before the next bargaining session. However, Tim Johnson proposed language very similar to the public defender proposal providing accumulation of four hours per pay period up to 900 hours, and after an employee accumulated 900 hours they could "bank" an additional two hours per pay period.
Scherman and Tim Johnson proposed expanding sick leave usage to include the illness or disability of same sex domestic partners. They also proposed adding this language to funeral leave usage.
Vacation
The proposed agreement proposes basing vacation accrual on the same schedule as for managers, which begins at six hours per pay period rather than four hours and maxes out at nine hours after 24 years service rather than 30 years service.
Scherman did not take a position on the vacation accrual schedule. He did propose inserting language allowing public defenders with "previous public service" to request credit for it for years of service for vacation accrual purposes. Brian Aldes replied the public defenders would want to define "previous public service." Scherman prefers no written standard or definition.
Holidays
The public defenders propose that part-timers receive pro-rated holiday pay and one floating holiday per year. The proposal provides that full-timers receive two floating holidays rather than the current one day.
Scherman proposed that part-timers receive no holiday compensation. He also questioned why public defenders should receive two floating holidays when no other employees groups do, and said he wanted a cost analysis of the proposals for increased holiday compensation.
Kelly Madden replied that Hennepin County public defenders receive two floating holidays.
Independent contractors
The public defenders want a provision preventing the Board from hiring independent contractors. The intent is to preserve union positions.
Scherman and Tim Johnson pointed out Minn. Stat. §611.27 provides for hiring attorneys as independent contractors in special circumstances. They said management wants to retain this option. Tim Johnson said management does very little hiring under this statute. Scherman said the Board does not intend to hire independent contractors to avoid hiring union positions.
Seniority
The public defenders propose a classification system based on seniority that would require management to conduct layoffs and give job preference according to seniority.
Scherman and Tim Johnson expressed no agreement to this proposal. Scherman stated he had concerns about how to administrate such a system and said reaching agreement on it would require a lot of work. Tim Johnson said such a system causes him concern with outstate job relocation issues.
Meet and confer
The public defenders propose a system enabling a committee of public defenders to "meet and confer" about issues of concern with representatives of management.
Scherman stated he was not opposed to meet and confer, but wanted requests to meet to be reasonable and the meetings productive.
Next meetings
The parties did agree on one thing at the end of the session: When to hold future meetings. The next four negotiating sessions will be held on September 2, September 23, October 7 and October 21, all at 10:00 a.m. at the Thunderbird Hotel.
Mark these dates and check the web-site for updates. If anyone has any questions or comments, please contact a Negotiating Committee representative (click here for list of reps and links to email addresses for the reps).