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SEE YOU IN COURT! - November 2015

CABE Journal

November 2015

Authors: Thomas B. Mooney

Negotiations with the Nutmeg Union of Teachers (NUTS) went better than usual this year.  NUTS did not waste a lot of time trying to usurp management rights, and it focused instead on the bread-and-butter issues of salary and insurance.  For its part, the Negotiations Committee of the Nutmeg Board of Education was simply looking for more time for teachers to collaborate and otherwise trying to keep the settlement to a reasonable level.  Though negotiations are never easy, NUTS and the Board Committee reached an agreement in mediation late one night shortly before arbitration was to commence.  The Committee dropped its demand for additional time and settled the contract with NUTS for salary increases of around 3.25% each year (including step), increased employee premium cost sharing, and a reopener to deal with the Cadillac tax.

The Committee met privately with the full Board before its next meeting to describe the settlement, and it urged the full Board to ratify.  During that confidential session, the Board members expressed satisfaction with the proposed agreement and thanked the Committee for its good work.  When the Board reached the agenda item “NUTS Contract ratification” at the meeting that followed, there was no discussion and the Board members simply voted unanimously to approve the new contract.

The next day, Nancy Newshound, ace reporter for the Nutmeg Bugle, wrote about the Board meeting with the headline, “The Fix Was In.”  There, she reported that the Board approved the Town’s most costly contract without a peep before the vote, and she took the Board to task for not having an open discussion.

The Board was used to being criticized, and it simply went on with its business.  As required by the Teacher Negotiation Act, the Board filed the ratified contract with the Town Clerk for the Town Council to review.  However, the Board’s problems with the contract continued.  At the next meeting of the Nutmeg Town Council, Mayor Megillah spoke out vehemently against the contract.  “What are those people thinking?” he railed.  “Under a new law, we are now subject to a budget cap of 2.5%, and this contract is over 3%!!  How could we ever approve such a contract?”

The other members of the Town Council nodded in agreement during Mayor Megillah’s rant, and then they chimed in, one after the other, about how they must reject contract and send a message about fiscal responsibility to the Board of Education.  Sure enough, when the motion was made, the Town Council rejected the contract by a unanimous vote.  Then, Mayor Megillah asked for a second vote, this time directing the Board to limit any last best offers made in arbitration on salary to an overall cost of 2.5% for each year.  That motion passed unanimously as well.

The Nutmeg Board of Education didn’t know what to do next.  Mr. Board Attorney advised the Board that by statute it was required now to go to arbitration.  However, when asked how to determine the issues in dispute, he told them they had to negotiate with NUTS over the issues that the parties will take to arbitration.

“Negotiate about arbitration?” Bob Bombast asked at the strategy session Mr. Chairperson called to get ready for arbitration.  “That doesn’t make any sense at all.”

Does it?

*        *        *

Actually, this process for determining the issues for arbitration does make sense under these circumstances.  When the municipality rejects a complete contract, the only way to figure out what issues to submit to arbitration is for the board of education and the teachers’ union to work that out through discussion.  In such discussions, neither party can prevent the other from bringing an issue to arbitration.  However, neither party will want to arbitrate on every issue, and the parties generally agree on a reasonable number of issues to bring to arbitration.

It is clear, however, that the board of education retains control over the issues that will be in dispute, as well as the last best offers.  Under the Teacher Negotiation Act, the finance authority has the statutory right to be heard at the arbitration hearing, and the legislative body has the right to reject the arbitration award (by a two-thirds vote).  However, the board of education has the sole authority to determine the last best offers it will make on any and all of the issues in dispute.  Accordingly, the Town’s second vote limiting the Board’s last best offers on salary was ineffective.

Apparently, Mayor Megillah urged his colleagues to reject the contract based on his mistaken belief that there is or will be a 2.5% cap on municipal budget increases.  Such is not the case.  Changes to a state statute on municipal revenue sharing made in the last legislative session have been widely misunderstood and incorrectly described.  The statutory changes amend Conn. Gen. Stat. Section 4-66l, which provides for a municipal revenue sharing fund for specified purposes.  In the last legislative session, the General Assembly changed the way that the fund will be distributed, starting with the 2017-2018 fiscal year.

The misconception over a “2.5% cap” is based on what is supposed to happen in 2018-2019.  The amended statute provides that a municipality will suffer a consequence if its budget increase year-to-year is larger than 2.5% or the rate of inflation, whatever is greater.  The statute further provides that the municipality’s share of the revenue sharing fund will be reduced by $0.50 for every dollar by which the municipality exceeds the cap, starting with the 2018-2019 fiscal year.  However, there are many questions and uncertainties.

Right now, it is not clear how much money will be in this fund and be at risk in 2018-2019.  Moreover, as written the statute raises serious questions as to implementation.  Excluded from the calculation are “expenditures for debt service, special education, implementation of court orders or arbitration awards, [or] expenditures associated with a major disaster or emergency declaration . . . .”   To use this very example, appropriations to cover the spending increases associated with the NUTS contract would count against the cap if the Town approved the contract, but would be excluded from the cap if the Town rejected the contract, forcing the parties into arbitration, and then making an appropriation to cover the same increases, which after a contract rejection would be awarded through arbitration.  Clearly, the General Assembly should give further thought to this whole statutory construct.

Finally, Nancy Newshound made a story where there was none.  It was perfectly appropriate for the Committee to meet with the full Board in a private strategy session, because “strategy or negotiations with regard to collective bargaining” is excluded from the definition of “meeting” under the Freedom of Information Act.

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