By Frank Guido, General Counsel
There is an unsavory phenomenon that rears its ugly head when economic times, real or perceived, are difficult. This phenomenon infiltrates the mindset of some individuals in leadership roles in state and local government, causing them to believe they can “solve” economic problems, as if they were “anointed,” thereby forgetting they have been elected by the people. Semper pro-Populus is the Latin phrase for “always for the people.” When some state legislators and local government officials act on behalf of their ego, they fail to act on behalf of the people who elected them. There is little question that a parallel exists between fiduciary duties and the obligations of elected public service. The term fiduciary, as derived from the Latin term “fides” or “Fiducia,” means trust and confidence. When the public elects an official, the public places its trust and confidence in that individual to act on behalf of the best interest of the public. Elected officials make significant decisions on behalf of the public, including how to spend taxpayer money and how to deliver services.
A fiduciary, who has the power and obligation to take action on behalf of others, must adhere to strict standards of diligence, responsibility, and honesty. Fiduciaries must use their “best efforts” for those they serve. Likewise, in the case of an elected public official, a responsibility exists to use skill, care, and diligence in providing service to the public. When a public official faces a difficult decision that may involve a trade-off between what seems to be equally significant goals, there is guidance in how to reach the best decision. Considerations of fairness, fair processes, trustworthiness, responsibility, loyalty, compassion, and respect are useful when making a difficult decision. The degree of loyalty, however, must always be to the entity served, the people, and not individual interests. For true fiduciaries, the ultimate source of accountability may be the courts. Public officials, however, must also be answerable to the public.
When public officials cross the line, forgetting that they are elected and not “anointed,” the parallel to fulfilling fiduciary responsibility is lost. As the dictionary states, to “anoint” is to be smeared or poured upon with perfumed oil or other substance in a ritual process. In Western Tradition, the anointing of a King is the equivalent of a crowning. When some government officials perceive that they may act with impunity, as though “anointed” as a King, they have forgotten that they are, in fact, elected by the people and that they do not have unfettered discretion when they act. Times are perilous in the labor-management arena. We are confronted daily with dangerous legislation being proposed by state legislators adversely affecting fundamental public employee labor rights. Likewise, at the municipal level, we are confronted with bizarre employment decisions that do not reflect elected officials acting in the interest of the people, but, instead, players who are putting self and ego at the forefront of their decision-making process.
If you ask what is the rationale, the answer may be found, in part, in the following analysis: The State has no money, so the State cannot give financial support (i.e. revenue sharing) to local government in the amount needed, hence, the State will “destroy,” I mean “amend” State law to empower local government to run roughshod over employee collective bargaining rights so that local government can allegedly “solve” their economic problems to take State government off the financial hook. That twisted logic, which unduly hammers public employees, will not fix the problems which exist. Instead, an entirely new set of problems, financial, emotional, and physical, will result.
I need not elaborate on the assault which we have recently witnessed, not only in Michigan but across the country, especially in the State of Wisconsin, where the real issues at hand have taken a back seat to the power play of ego. The proposed legislation spewing from Lansing is a new life form unto itself. Proposals are flowing daily which gut collective bargaining rights, unilaterally impose requirements on public employees to forego contractually arrived at benefits and wages, and require employees to absorb insurance costs without negotiation or agreement. Other proposed legislation seeks to void contracts and eliminate collective bargaining rights for lengthy periods of time. The proposals make little or no effort to distinguish between which public employees will be affected. “All are punished,” to quote Shakespeare. The proposals, in reality, accomplish little more than turning back the clock to a period in our history that caused the necessity of labor unions in the first instance.
As we all know, “history repeats itself.” The only question is what will be the ultimate consequence of the present level of anti-union folly. Speaking specifically of public employees, Michigan law has long recognized that it is the “public policy of this state…” that because “the right of employees to strike is by law prohibited…,” “the high morale of…employees and the efficient operation of…departments” requires mechanisms to be in place to resolve disputes. To restrict or eliminate rights to collective bargaining and to tamper with compulsory arbitration of disputes, is to negate the very public policy which is in place in this state, to which elected officials owe fidelity and not a self-serving, ego-driven “anointed” versus elected mentality. Looking to someone who has truly been anointed, Pope Benedict XVI, in an address on January 31, 2009, stated that labor unions have an important role to play in finding a way out of financial crisis to establish a new culture of solidarity and responsibility in the market place.
To that end, he stated that “Union organizations can make a significant contribution” to a “new synthesis between the common good and the market, between capital and labor.” Giving recognition to his predecessor, Pope John Paul II, Pope Benedict further stated that labor is a key component in social questions and an indispensable element of social life in modern industrialized societies. The Pope embodied his strong position on the role of labor organizations in his third encyclical entitled “Charity and Truth.”
Transcending the legislative upheaval in Lansing is the equally malicious penchant of some local government officials who consider difficult economic times as a free-for-all to cut budget corners by cutting public employee personnel, either through attrition or suspect disciplinary action, without distinguishing between essential and non-essential governmental services. When public employees are fired in circumstances that in “good economic times” would have yielded far less scrutiny, let alone discharge, then acting in the public good is not being furthered. Inevitably, a union will challenge such action, which then yields a time consuming and costly fight, generally through arbitration and thereafter the possibility of the courts, with a result that costs the employer not only substantial legal fees but also the inevitable restoration to work with back pay and benefits. The parties, as a result, are placed in a worse position than they were in when the ill-thought-out decision to discipline was made in the first instance.
With the advent of legislation authorizing the creation of an “Emergency Financial Manager,” we will now have an individual who is not elected, yet will possess and wield more power and authority than those who are elected. Perhaps, it is an “anointing.” Or, perhaps it is the creation of a new class of individuals, the government-sanctioned “carpetbagger.” The EFM could truly be called a “carpetbagger,” since the EFM will ride into town, motivated by political and financial advantage, and will operate with unfettered discretion affecting everyone. The old saying of “power corrupts, but absolute power corrupts absolutely” is a real possibility for the future, with the overly broad “absolute” powers contemplated for an EFM.
Before anyone considers my thoughts as mere rants and raves, it must be said with equal vigor that there are officials in state and local government who truly remember their “elected” capacity, and act in furtherance of the interest of the people at all times. Those individuals fulfill the unwritten fiduciary duty of the job. We call them friends and we will not forget them. Let it equally be said that there are some public-sector unions that deserve to be chastised for their demands at the bargaining table and their dealings with public employers. Unions that are intransigent in thought and deed have fueled governmental disdain toward all public sector unions. We are all now paying the price for the arrogance and wrongful actions of both government and unions.
The TPOAM/POAM membership can rest assured that we are reviewing, on a daily basis, legislative proposals, conversing with legislators and local government officials, and proposing revisions to pending legislation to reach an amicable resolution to the problems in the labor-management arena. We hope for success, but we are prepared, if necessary, to take aggressive legal action to protect our membership. We all remember “The Good, The Bad, and The Ugly.” Will it now be the Elected, the “Anointed,” and the Carpetbagger? Well, time will tell.
That’s my article for this edition, “Generally Speaking.”