Thursday, November 03, 2011

What to do about Issue 2?

There have been many deceptive statements made about Issue 2 on both sides.  For example, the “vote no” side has said that firefighters would not be able to get the equipment that they need if it passed.  But this is what the final analysis of Legislative Service Commission says:

“Although the act limits the topics of collective bargaining as described above, under the act, equipment issues directly related to personal safety are subject to collective bargaining.”

Many people on both sides keep repeating misstatements like this about Issue 2 because they have not read it.  Now, I can see voting “no” on something if you have read only part of it and you have found something in it that you are absolutely opposed to.  Once you get to that point, there is no point in reading it any further.  But no one should vote yes on something unless you have read it (and understood it).  Otherwise, you have no right to complain about Congressman and Senators voting for bills that they don’t read.  It’s the same thing.  But it doesn’t necessarily mean that you have to vote “no” on it.  It is perfectly honorable to abstain from voting on something you don’t understand or don’t know.

Now before you read the actual bill, it would be better to read the final analysis of Legislative Service Commission (LSC).  These are the folks who actually wrote the bill.  (Legislators don’t actually write the bills.  They get an idea for a bill and send it to the LSC.  The LSC then translates it into legalese, finds the appropriate place(s) in the Ohio Revised Code for it to be added, eliminates or changes any laws that may conflict with the legislator’s idea, and writes a legal summary so that folks can find out what the bill does without having to read hundreds of pages.)  Now even this LSC summary (called the final analysis) is fifty pages long.  But is it too much to ask for you even to read this much before voting yes on it?  I have read both the LSC final analysis AND the actual bill.

What Does S.B. 5 Say About Strikes?

“The act also prohibits any public employee or any employee organization from causing, instigating, encouraging, or condoning a strike.”

So while I agree that public employees should not be allowed to strike, S.B. 5 goes way too far.  This is Orwellian territory.  I would put making it a crime to encourage or condone something into the same category as hate and thought crime legislation, something that I have spoken out against many times on this blog.  It would clearly be a violation of the freedom of speech to make such a thing a crime.

For this striking (or condoning of it) the employee loses not only pay for the day(s) in which the employee was on strike, but an additional day’s pay is also taken from the employee.  This is clearly a fine.  (This would not be the case if the employee was merely docked pay for the days that he was on strike, or if he was fired, demoted, suspended or had his salary reduced for it.  Taking back money that was already given to him in the manner that is prescribed by S.B. 5 is unconstitutional property deprivation as you will see by reading on.)  The employee does not have to be charged with a crime in order for this penalty to be levied and the principle of innocent until proven guilty is not regarded in the procedure for penalizing the employee.   The penalties are assessed BEFORE the accused employee is given any hearing at all.  The LSC final analysis makes the following three disturbing statements:

“If…the hearing officer determines…that the employee did not violate any of the prohibitions the chief fiscal officer must [stop]…all further deductions and refund any deductions previously made pursuant to the act.”

“The employee bears the burden of proof at the hearing.”

“The act prohibits…any court of competent jurisdiction from waiving the penalties or fines assessed regarding a violation of any of those prohibitions as part of the settlement of an illegal strike.”

Thus the hearing that the employee is entitled to is not a trial by jury, violating Article I, section 5, Ohio Constitution which says,

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

(If there is anyone out there who reads my articles, you know that I do not believe that the 14th Amendment of the U.S. Constitution was properly ratified.  But if you believe that it was properly ratified, then for you, its Due Process clause would also be another way to prove that S.B. 5 is unconstitutional.)

But yet, the public employer is afforded all of these rights.  The LSC final analysis says,

“Whenever a strike occurs, the public employer may seek an injunction against the strike in the court of common pleas of the county in which the strike is located.  Under continuing law, an unfair labor practice by a public employer is not a defense to the injunction proceeding.”

The Obligation of Contracts

The LSC final analysis says,

“Any bargaining unit of a fire department that does not conform to this requirement on the act’s effective date ceases to be an appropriate unit upon the expiration of the collective bargaining agreement covering that unit that is in effect on the act’s effective date or three years after the act’s effective date, whichever is earlier.”

Whether you agree with collective bargaining agreements or not, a deal is a deal.  The above provision could void existing contracts.  This could potentially create a violation of Article I, section 10 of the U.S. Constitution which says,

“No state shall…pass any…Law impairing the Obligation of Contracts…”

This is also a principle upon which our entire system of government is based, since the law itself is a contract between the People and the government.


As I have stated before, I am all for privatization in most instances.  But when it comes to law enforcement, I say no way.  Here is what the LSC summary says about privatization:

“The act further prohibits any agreement entered into or renewed under the PECBL on or after the act’s effective date from containing any provision that in any way prohibits a public employer from entering into a contract with another public or private sector entity to privatize the public employer’s services or the contracting out of the public employer’s work.”

There is no exception given for police officers, prison guards, or other officers of the law.  If they would have put in such an exception, then I would be OK with it.  But this is dangerous.

How Will Teacher Pay be Determined Under S.B. 5?

The LSC final analysis says,

“The evaluation on which a teacher’s pay must be based is a new evaluation under the act…At least 50% of each evaluation must be based on measures of student academic growth specified by the [State] Department of Education…. The State Board must review the [Superintendent’s] recommendations [and] must vote either to adopt the recommended frameworks for evaluations or to request that the Superintendent reconsider the recommendations… [and if the Board disapproves] the Board must modify the frameworks prior to adopting them.” 

So it will not be the parents of the children who will decide the criteria for how public school teachers will be compensated, not even indirectly through their locally elected school board members.  It will be bureaucrats in Columbus who will have all of the influence on these decisions.

S.B. 5 mandates that teachers and other public employees be graded by the use of these performance evaluations.  This may seem like a good idea, and I am not opposed to it in general, but I know how these things usually end up because I am an exempt unrepresented state employee myself (but not a teacher).  (Being unrepresented, I am not subject to any collective bargaining agreement and therefore my pay is adjusted, at least in part, based on such evaluations.)  But whenever my boss wants to give me a raise (and if there is no pay freeze in effect) he fills out the forms and makes sure that the measures of rating my performance improve over the last time I was evaluated.  I am not saying that my boss did anything wrong, I do believe that he honestly wants to give me raises that I deserve, but filling out the forms is just going through the motions.  If he wanted to give me raises despite poor performance, no one would ever know the difference.  So this whole evaluations thing, though much better than a longevity-based system, is really no big deal.  It’s all subjective and unenforceable.

More Bureaucracy

I don’t see one place in S.B. 5 where any bureaucracy is eliminated.  We still have all the same overlords plus one more.  The LSC final analysis says,

“The act creates the Ohio Commission for Excellence in Public Service, which consists of at least 7 and not more than 11 voting members.”

This is just another board to which politicians can appoint those who have helped campaign for them or their party.  There is even also a touch of globalism in this new commission:

“The Commission is required to consult with public and private organizations located internationally…”


S.B. 5 may save a lot of money (in the short run) and prevent some unfair practices, but you have to look at the bigger picture.  All of these gains are not worth it if you have to violate the Constitution in order to get them.  If this issue passes and the unconstitutional provisions of S.B. 5 are upheld as legal by the courts, the resulting precedents could be used against us.  S.B. 5 does not really address the most relevant problem anyway, which is the centralization of power. (In many instances it actually increases the centralization of power.)  If we would just allow local communities to make their own decisions regarding compensation for local public employees, and make the funding of these positions local instead of pouring state money into them, then I believe the legitimate reasons for supporting S.B. 5 would be dealt with more effectively.  I will vote “no” on Issue 2.

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