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HB 1413 (2018): All that labor

01 Tuesday Jun 2021

Posted by Michael Bersin in Missouri General Assembly

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Tags

anti-labor, General Assembly, HB 1413, missouri, Missouri Supreme Court, opinion, organized labor, severability

Today, from the Missouri Supreme Court:

“The exemption of public safety labor organizations violates principles of equal protection. The exemption of public safety labor organizations permeates throughout HB 1413 and reaches all provisions. The operation of this exemption forces this Court to declare HB 1413 void in its entirety rather than sever the offending provision. The circuit court’s judgment is affirmed.”

Void. In. Its. Entirety.

In 2018 HB 1413 was introduced as this:

HB 1413 — LABOR ORGANIZATIONS [pdf]
SPONSOR: Taylor

This bill prohibits any sum from being withheld from the earnings of a public employee for the payment of any portion of dues, agency shop fees, or other fees paid by public employee members of a public labor organization or a public employee who is a nonmember except upon the annual written or electronic authorization of the employee.

A public labor organization is prohibited from using or obtaining any portion of dues, agency shop fees, or any other fees paid by member and nonmember public employees to make political campaign contributions or expenditures unless it obtains a written or electronic authorization from the member or nonmember within the previous 12 months.

Failure to provide any written or electronic authorization shall not be a condition of employment.

This bill further requires public labor organizations to maintain financial records, identical to those required by federal law (29 U.S.C. 431(b)), for no less than five years. Each report required under this section must be made available to employees in a searchable electronic format. If a public labor organization fails to make the reports available to an employee, that employee will have a cause of action against the organization.

This bill is the same as HB 251 (2017).

And it morphed and was approved as this:

SS#2 SCS HB 1413 — LABOR ORGANIZATIONS [pdf]

This bill makes various changes to the laws regarding public employees, public employee labor organizations, and labor agreements between those labor organizations and public bodies. However, public safety labor organizations, and employees of the Department of Corrections are exempted from the bill’s provisions (Section 105.503, RSMo).

The bill provides that no sum shall be withheld from a public employee’s earnings to pay dues or other fees to a public labor organization without annual authorization. Labor organizations are required to maintain financial records substantially similar to federal law, and must make the records available to employees in a searchable electronic format (Section 105.505).

The bill requires labor organizations to adopt a constitution and bylaws and file a copy with the Department of Labor and Industrial Relations, along with a report containing specified information about the organization. Labor organizations are also required to annually file a report detailing the organization’s financial condition and operations. The financial report shall be in an electronic, readily accessible format available to its members (Section 105.533).

This bill requires every officer and employee of a labor organization to annually file a report listing any legal or equitable interest, income, or transaction the person, his or her spouse, or minor child received or derived from a labor organization or public body with employees that the labor organization represents or is seeking to represent (Section105.535).

The reports and documents filed with the department under the provisions of this bill are public records. The department must allow for the inspection and examination of the reports and documents, as specified in the bill, and furnish copies upon payment of the service (Section 105.540).

Each person required to file a report shall maintain, for at least five years, sufficient records to verify the information contained in the report. Each labor organization shall file a report within 90 days of becoming subject to the provisions of this bill, and people required to file reports shall file such reports within 90 days after the end of each fiscal year (Sections 105.545 and 105.550).

Any person who knowingly violates certain provisions of the bill related to the required reports or files a false report is subject to a fine or imprisonment of not more than a year (Section 105.555).

The bill provides that supervisory public employees, as defined in the bill, shall not be included in the same bargaining unit as the public employees they supervise and that the same labor organization shall not represent both non-supervisory and supervisory public employees (Section 105.570).

Recognition may only be obtained by a labor organization through an election before the State Board of Mediation. Voluntary recognition by a public body is prohibited. An election by secret ballot will be held after the board is presented with cards containing signatures of at least 30% of the employees in the bargaining unit.

The bill specifies the ballot language to be used for the selection of a labor organization as the exclusive representative for the bargaining unit. More than 50% of all public employees within the bargaining unit must vote positively to certify the labor organization as the exclusive representative. However, public employees of the bargaining unit may seek to decertify the labor organization at any time with a subsequent election provided that the board is presented with signed cards representing at least 30% of the employees in the bargaining unit. If more than 50% of the bargaining unit votes to decertify the labor organization then it shall no longer be recognized as the exclusive representative.

Labor organizations must be recertified every three years. No more than one election shall take place in any bargaining unit within a 12-month period. The board shall collect a fee from each labor organization participating in an election (Section 105.575).

Within eight weeks of a certification election, the labor organization shall meet and begin bargaining with representatives of the public body. No labor organization shall refuse to meet with the representatives of the public body.

Bargaining for renewal agreements shall take place triennially, provided that those labor agreements must be subject to certain limitations. Such limitations include management reserving the right to hire, discipline, and discharge employees; reserving the right to make and amend reasonable work rules; prohibiting all strikes and picketing; extending the duty of fair representation to all employees of the bargaining unit; prohibiting labor
organization employees from accepting paid time by a public body for conducting labor organization business with certain exceptions; and providing for the modification of the agreement in the event of a budget shortfall (Sections 105.580 and 105.585).

A labor organization, or associated representative, or public body, or associated representative, that violates the provisions of this bill is subject to a civil action for appropriate relief, including injunctive relief. Attorneys’ fees shall be awarded for the enforcement of the provisions of this bill (Section 105.595).

The provisions of the bill shall apply to personal care attendants and their labor organizations, as well as all officers and employees of such organizations (Section 208.862)

Ah, piling on.

The Missouri Supreme Court today:

…The State’s argument in favor of severance of the exemption is illogical in that the result would make public labor law reform applicable to public safety labor organizations, which the legislature specifically excluded. The exemption is not concerned with a singular provision or aspect of the bill; rather, it provides an exemption from the overall statutory scheme itself, which consists of approximately 20 sections. Even without giving weight to the late addition of the exemption in the legislative process, this Court refuses to sever the exemption and make this public labor reform law applicable to public safety labor organizations when the legislature contemplated this application and intentionally crafted section 105.503.2(1) to avoid such an outcome…

The anti-labor right wingnuts in the General Assembly were just too clever.

…This Court cannot say the legislature would have enacted the valid provisions of HB 1413 without this void one. If the legislature desired to pass a scheme imposing reform provisions to all public labor organizations, it had the opportunity to do so. But it did not; it specifically provided the reform provisions would not apply to public safety labor organizations. This Court will not, by severance, leave in place legislation contrary to the legislature’s intent. By its plain language, section 105.503.2(1) is essentially and inseparably connected with all other provisions of HB 1413; therefore, HB 1413 must be declared void in its entirety…

Yep, the General Assembly was trying to be much too clever.

So, organized labor organizations are organized labor organizations. Do you wonder why that “exemption” existed in the first place?

Severability is a double edged sword.

State Auditor Nicole Galloway (D): not so fast…

07 Tuesday May 2019

Posted by Michael Bersin in Missouri Governor

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Tags

Attorney General, governor, Mike Parson, missouri, Missouri Sunshine Law, Nicole Galloway, opinion, RSMo 610, State Auditor

The Missouri Attorney General shall, in the Missouri Revised Statutes:

27.040. Opinions to be given, when. — When required, he shall give his opinion, in writing, without fee, to the general assembly, or to either house, and to the governor, secretary of state, auditor, treasurer, commissioner of education, grain warehouse commissioner, director of the department of insurance, financial institutions and professional registration, the director of the division of finance, and the head of any state department, or any circuit or prosecuting attorney upon any question of law relative to their respective offices or the discharge of their duties.
[….]
(1974) Opinions of the attorney general are entitled to no more weight than that given the opinion of any other competent attorney. Gershman Investment Corp. v. Danforth (Mo.), 517 S.W.2d 33.

27.070. Shall file and index opinions. — The attorney general shall keep in his office and provide for his official use, and that of his successors, indexed copies of all opinions delivered by him during his term.

State Auditor Nicole Galloway (D) [2018 file photo].

Today, from State Auditor Nicole Galloway (D):

Statement from Auditor Galloway on request for Attorney General Opinion on Sunshine Law exceptions
May 7, 2019

JEFFERSON CITY, Mo (May 7, 2019) — Missouri State Auditor Nicole Galloway today released a statement after formally requesting a legal opinion from the Attorney General on the appropriateness of Sunshine Law exemptions, as claimed by Gov. Parson’s office. Recent media reports revealed that Gov. Parson’s office failed to disclose information in response to Sunshine Law requests, citing the First Amendment. Auditor Galloway’s request asks whether it is appropriate to redact information related to individuals conducting business with, lobbying or attempting to influence a government entity.

“Government should not be in the business of finding ways to hide information from taxpayers, but time and again, we have seen continued efforts to do just that. Most recently, reports revealed Governor Parson’s office used the First Amendment to withhold information requested under the Sunshine Law. This is why I have requested clarification from the Attorney General as to whether these actions were lawful. There should be no confusion on how the Sunshine Law is applied.”
[….]

Form to Request Attorney General Opinions [pdf]

1. Information about requestor:
Name: State Auditor Nicole Galloway
Address: PO Box 869
Jefferson City, Mo 65102
Phone: 573-751-4213
Date Request Made: May 7, 2019

2. Official capacity of requestor (See Section 27.040, RSMo):
Section 27.040, RSMo, provides (in part), “When required, he shall give his opinion, in writing, without fee, to the . . . auditor . . . upon any question of law relative to their respective offices or the discharge of their duties.”
As the duly elected State Auditor, charged with auditing state and local government entities, as provided by Missouri Constitution, Article IV, Section 13, and Chapter 29, RSMo, I request that the Attorney General issue this opinion.

3. The question of LAW upon which I request your legal opinion is as follows: (Note: Make certain the phrasing of the question is complete and clearly stated because only this question will be considered for an official opinion.)
In responding to Sunshine Requests, the State Auditor’s Office does not redact any identifying information related to an individual who is conducting or seeking to conduct business before the entity, advocating on behalf of a third party or lobbying that entity, or otherwise attempting to influence or advise on any action taken by the government entity based on an exception found in the First Amendment. Should a Missouri government entity, such as the State Auditor’s Office, assert that the First Amendment of the US Constitution provides an exception to the Sunshine Law such that it can redact, any or possibly all, identifying information related to an individual who is conducting or seeking to conduct business before the entity,
advocating on behalf of a third party or lobbying that entity, or otherwise attempting to influence or advise on any action taken by the government entity?

4. A complete statement of the FACTS giving rise to this question is as follows: (Note: If all facts are not furnished which this office needs to respond to this question, it may be rejected as an incomplete request which this office cannot answer.)
The question presented is one of a predominantly legal nature. The State Auditor’s Office does not, and has not, closed information based on an exception to the Sunshine Law found in the First Amendment. In Missouri Law, there is not a specifically enumerated exception in the Missouri Revised Statues that would permit the office to close or redact information under the First Amendment. Additionally, there is no exception imposed by any judge in Missouri caselaw that would permit such an exception solely on First Amendment grounds.
This question nonetheless arises because a Missouri state government entity has asserted that the First Amendment in and of itself requires redaction of information, effectively rendering the Missouri Sunshine Law, and the state’s public policy that records of governmental entities be open to the public, unconstitutional.
This government entity appears to redact information that identifies information related to individuals conducting or seeking to conduct business before the entity, lobbying that entity, or otherwise attempting to influence any action taken by the government entity, claiming that the First Amendment protects this information. Essentially, this government entity asserts that individuals attempting to influence actions taken by the government would not do so without fear of retribution were it to provide in a Sunshine request response identifying information that the individuals voluntarily gave. This position provides greater protections to those lobbying or conducting business with the government entity than is given to individuals who are referenced in arrest and incident report records. See Sections 610.100 to 610.150, RSMo (providing that incident reports and arrest records are open records). While this office does not believe that the
First Amendment exception is a valid exception under Missouri law, it requests the opinion of the Attorney General to ensure that it is properly complying with the law.

5. List each and every governmental entity involved in this request:
The Missouri State Auditor’s office as a public governmental body under Missouri law, and as the executive office whose primary duty is to audit state and local government entities.

6. Which of the entities listed in response to Question 5 have attorneys paid with public funds? For each entity listed, attach a copy of the written legal opinion of each such attorney on the question involved herein. (Note for prosecuting attorneys: Also attach a copy of your legal opinion giving Missouri statutes, significant Missouri appellate decisions and your conclusions drawn therefrom.)
Missouri State Auditor’s Office. See attached legal opinion.

7. State in detail how the question of law relates to your official position or to the discharge of your duties.
The Auditor’s Office, as the executive office whose primary duty is to audit state and local government entities. requests this opinion as an entity subject to the Sunshine Law.

8. Is any litigation pending involving the issues raised in your opinion request?
None are known to date.

9. If the answer to Question 8 is “yes” list the name of case, court in which it is pending and docket number of case:
[….]

Well?

Governor Mike Parson (r) [2018 file photo].

Previously:

Gov. Mike Parson (r): Sunshine Law? What? (April 26, 2019)

Meta: the Warrensburg Daily Star Journal and bloggers

19 Thursday Mar 2009

Posted by Michael Bersin in Uncategorized

≈ 6 Comments

Tags

blogging, Daily Star Journal, editorial, meta, missouri, opinion, Warrensburg

I hate meta.

Yesterday the Warrensburg Daily Star Journal published an editorial which happens to mention “bloggers”:

3/18/2009 12:42:00 PM

Bloggers offer news, but scope too narrow

Jack Miles

Editor

…But bloggers, in general, are not journalists. Bloggers often offer one-sided opinions, not news…

…The best bloggers may be accurate, but what if they are not?

Do editors force them to double-check facts? Must they seek opposing opinions?…

…Unlike most bloggers, mainstream reporters must deal with editors who question articles before the information is presented to the public. Editors also know that – not just in physics, but in life – for every action there is an equal and opposite reaction, meaning reporters need to know that if there is more than one side of a story, those other sides must be presented. If a reporter is wrong, he must write a contrite correction saying so and if a reporter is wrong intentionally, he is unlikely to remain a reporter for long…

…Bloggers have value, but people who value democracy need to understand the narrow agenda and resources of bloggers are no substitute for the broad agenda and resources of reporters.

Where to start?

Okay, so it’s “National Sunshine Week”. And criticizing blogtopia (yes, skippy coined the phrase!) as inadequate has exactly what to do with the price of beer in Germany?

“…Bloggers often offer one-sided opinions, not news…”

Exaggerate much?

The Johnson County recount case is finally over – for sure, sort of

The Johnson County recount case is finally over – for sure, sort of – part 2

Did you miss this one? Or just ignore it?

Democratic Attorney General Debate in Kansas City, part 1

Democratic Attorney General Debate in Kansas City, part 2

Democratic Attorney General Debate in Kansas City, part 3

Democratic Attorney General Debate in Kansas City, part 4

Antonin Scalia in Warrensburg, part 1

Antonin Scalia in Warrensburg, part 2

Antonin Scalia in Warrensburg, part 3

Antonin Scalia in Warrensburg, part 4

I could go on and on.

By the way, was the Daily Star Journal there? If so, what was the coverage like?

“…The best bloggers may be accurate, but what if they are not? …”

If we’re not accurate then we’ll get hired as on screen talent for a cable news network. Or, we can change our name to Judith Miller and flaunt our Pulitzer Prize.

If one of us “frontpagers” were to do anything to damage the reputation of Show Me Progress I guarantee that there would be dire consequences for that kind of failure.

As for editorial control, we do not have prior review or prior restraint here. To posit the lack of an editor’s filter as a weakness indicates a woeful ignorance of the dynamic of the blog. If we fail we have peers and readers who will quickly take us to task on our own turf.

This is a collaborative effort among all of the “frontpagers”. If one of us were to do anything on the blog contrary to the purpose of this blog their tenure here would end swiftly.

“…Must they seek opposing opinions?…”

“…Editors also know that – not just in physics, but in life – for every action there is an equal and opposite reaction, meaning reporters need to know that if there is more than one side of a story, those other sides must be presented…”

All opposing views are equal? Please. Sometimes blatantly stupid just doesn’t deserve the light of day. Sometimes. Sometimes it does.

The stenographer: all things being equal…

…Political stenography in old media must dictate false equivalence as a matter of course. It’s definitely time to convene another panel on blogger ethics.

…If a reporter is wrong, he must write a contrite correction saying so and if a reporter is wrong intentionally, he is unlikely to remain a reporter for long…

Uh, if we’re wrong we’ll run a correction. On top of that, if someone wants to comment on our posts all they have to do is register and post a comment. As long as they conform to our Posting Guidelines.

Question: Has the Daily Star Journal ever spiked or avoided a story because of worries about what it would do to advertising revenue? Just asking.

Question: Has the Daily Star Journal ever spiked or avoided a story because of worries about getting cut off by sources? Just asking.

“…resources of reporters…”

Tell that to the folks at McClatchy who’ve cut reporting and content in search of higher profit margins. Then get back to me with their response.

In the not so distant past the old media would never bother to mention blogs and bloggers. Heh. Now they do, usually along with muttered curses. I wonder why?

We’re here because the old media has failed so miserably. Not because all journalists are incompetent or don’t do great reporting, but because the media business model, the corporate news industrial complex, and bad choices have diminished the journalistic values that were once there in sufficient amounts to help preserve Democracy. So spare us the “preserving values” lectures.

As for blogs and bloggers? We’re not the enemy. We have the same ideals that the old media once possessed. We look for facts and we seek the truth. If the old media actually did its job we wouldn’t be here. We’re not the enemy, but we may be the future.

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