Stealing the Public Purse: Why Washington's Collective Bargaining Law for State Employees Violates the State Constitution

By Abbott, Christopher D. | Washington Law Review, February 2006 | Go to article overview

Stealing the Public Purse: Why Washington's Collective Bargaining Law for State Employees Violates the State Constitution


Abbott, Christopher D., Washington Law Review


Abstract: In 2002, the Washington legislature passed the Personnel System Reform Act (PSRA), which gives state employees the right to collectively bargain over wages and other economic terms of their employment. Section 302(3) of the PSRA further provides that once the Governor and collective bargaining units reach a proposed collective bargaining agreement, the legislature may not amend the agreement. Instead, the legislature may only express disapproval with any portion of the agreement by rejecting funding of the agreement as a whole. This Comment argues that section 302(3) of the PSRA, now codified at RCW 41.80.010(3), violates the separation of powers doctrine under the Washington State Constitution. The separation of powers doctrine forbids one branch of government from invading the province of another, especially if doing so alters the constitutional system of checks and balances. Under article VIII, section 4 of the Washington State Constitution, the legislature holds near-exclusive power to determine how public funds will be spent. By contrast, the Governor's check on this process is limited to the line item veto. The PSRA turns this process on its head: the Governor determines the level of funding and the legislature holds the veto, thus giving the Governor primacy over spending in this area. By doing so, section 302(3) usurps one of the legislature's core functions, upsets the system of checks and balances, and violates the separation of powers doctrine.

On June 20, 2005, Washington state government employees rushed to union offices to pay union dues for the first time-dues required for union membership.1 By paying dues, employees could reap the advantages of a 3.2% pay increase-beginning July 1-for union members only.2 Non-union employees would not receive any pay increase for an additional two months.3

The events leading to this two-month windfall for union employees culminated with legislative approval of the first-ever collective bargaining agreements over economic issues for state employees.4 Two years earlier, the legislature had approved the Personnel System Reform Act (PSRA),5 which gives state employees the right to collectively bargain over wages and other economic terms and conditions of employment.6 Before the enactment of the PSRA, the legislature determined increases in compensation for state employees through the biennial appropriations process.7 However, under section 302(3) of the PSRA, now codified at RCW 41.80.010(3), the legislature cannot modify an agreement once it is reached. Rather, the legislature must either accept or reject funding for collective bargaining agreements as a whole.8

The PSRA's limitations on the legislature's power have already made a difference.9 The 2005 legislature accepted the 3.2% raise beginning July 1, 2005, and the 1.6% raise beginning July 1, 2006, negotiated between the unions and the Governor-the first agreements ever negotiated under the PSRA.10 At the same time, however, section 302 prevented the legislature from amending the funding for the pay raise schedule without rejecting the entire collective bargaining agreement.11 Although the legislature also funded a similar pay raise for nonrepresented employees, the limitations of section 302(3) did not apply to employees who did not collectively bargain.12 Using its broader discretion to determine the details of compensation for these employees, the legislature delayed each raise for these workers by two months.13

This Comment argues that section 302(3) of the PSRA violates Washington's separation of powers doctrine. Washington courts generally find that a statute violates the separation of powers doctrine where the statute: (1) modifies the constitutionally established system of checks and balances; (2) acts in an area of executive-legislative relations lacking any previous history of inter-branch cooperation in the area; or (3) usurps a core function of another branch in the process. …

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