Overview: Collective bargaining; meet &
confer state mandate in SB 13-025
Kevin Bommer, Deputy Director Colorado Municipal League June 6, 2013
On June 5, 2013, Gov. John Hickenlooper signed SB 13-025, the “Colorado Firefighter Safety Act,” concerning collective bargaining by firefighters. CML opposed the
legislation from its introduction. SB 25 became law immediately upon the governor’s signature, and certain provisions of the legislation can be acted upon immediately by firefighters covered under the bill.
The purpose of this document is to generally outline the operational language of SB 25 and the mandates placed upon covered employers as a result. This document will also outline the specific points of opposition by the Colorado Municipal League and other local government associations, as well as identify some of the options municipalities may pursue in the months ahead. This document is not intended to serve as a legal analysis, and we encourage affected members to consult with appropriate staff in their respective communities.
General requirements of SB 13-025
The “Colorado Firefighter Safety Act” contains several key components
Declares collective bargaining a matter of statewide concern and establishes a right to collective bargaining for firefighters
Mandates a “meet and confer” requirement on employers of two or more paid firefighters
Mandates a prescriptive framework for collective bargaining on employers of 24 or more paid firefighters through a petition and election process outside of traditional municipal initiative procedures and affiliated statutory protections
Guarantees several rights for firefighters, including the right to “fully participate in the political process of their public employers.”
Legislative declarations
The legislative declaration of SB 25 enumerates several items that are broad in scope and may have potentially far-reaching circumstances. The circumstances likely include future discussion of collective bargaining rights by other public sector employees, local and state.
In general, the declaration states that “strife and unrest” among firefighters occurs when they are not allowed to bargain collectively and that there exists an associated risk to public safety. The declaration, without specificity, states that unresolved disputes harm
the public, the employer, and the firefighters. Further unattributed language states that “experience has proven” that strife and unrest are removed and public safety assured when firefighters have the right to bargain over compensation, hours, and terms and conditions of employment.
In order to attempt to justify state interference with local government employment matters, the declaration goes on to equate a statewide concern with interjurisdictional mutual aid agreements. Fire departments from multiple jurisdictions worked alongside each other in recent wildfires, and the declaration states that the “ability to coordinate and cooperate is critical to effective fire protection and disaster response.” Not noted is that many of the fire agencies responding are volunteers that are not covered under SB 25 and therefore are not accorded the same rights.
Perhaps most notably, the legislative declaration establishes significant policies of the State of Colorado to mitigate and eliminate “certain substantial obstructions to public safety”:
Protect the exercise by firefighters of full freedom of association, self-organization, and other mutual aid or protection.
Encourage and promote the practice and procedure of collective bargaining.
Protect the right of firefighters to choose their own representatives and right to participate in the political process while off duty and not in uniform.
Obligating public employers to enter into collective bargaining agreements if approved by voters.
Obligating employers to meet and confer with firefighters on issues of “safety, equipment, and non-compensatory matters.”
Finally, the declaration cites a 1977 Colorado Supreme Court decision to declare that collective bargaining is a matter of statewide concern affecting public safety and general welfare. The case cited dealt with issues related to an initiated charter amendment in a home rule municipality that granted collective bargaining rights to firefighters and
whether or not the binding interest arbitration component of the charter amendment was constitutional. However, SB 25 does not cite subsequent case law declaring, generally, that personnel matters of home rule municipalities are matters of local and municipal concern.1
Meet and confer requirement
SB 13-025 mandates that public employers must “meet and confer” with firefighters, if requested, unless a collective bargaining agreement already exists. Meet and confer must allow a discussion of policies and other matters related to their employment. Other than discussions of compensation, which is excluded, any other matter related to
employment is on the table. This includes “terms and conditions of employment,” which is defined in the broadest possible fashion so that they include “all matters affecting the
1 City and County of Denver v. State of Colorado, et al. and Colorado Professional Fire Fighters, et al.,
employment of firefighters except the budget and organizational structure of the public employer.”
With no structure or definition to “meet and confer,” the legislation is extraordinarily vague and ripe for litigation. It also allows supervisors to be part of the employee organization for these and all other purposes of the act.
Vote to obligate public employer to engage in collective bargaining
As introduced in the legislature, SB 13-025 was a direct mandate on local governments to engage in collective bargaining with firefighters. When faced with critical opposition, the legislation was changed to mandate an election requirement loosely modeled after existing municipal initiative laws and procedures. However, the failure to reconcile the statute with existing constitutional and statutory provisions for municipal initiatives, in addition to the manner in which it is mandated, creates significant conflicts and likely grounds for legal challenges.
Instead of following existing law on petitions, signatures verification, circulators,
residency requirements, protests, and unlawful acts, SB 25 allows firefighters to decide to circulate a petition and gather signatures. Free from any of the existing statutory guidelines, unapproved petitions that can be signed by anyone without verification may be circulated for an indefinite period of time. When signatures representing 5 percent of the total number of persons voting in the previous general election – or whatever the municipality otherwise requires in charter or ordinance – are submitted, a mandated question must appear on the general election ballot.
The question to determine whether the public employer is obligated to engage in collective bargaining actually asks voters if employees should be covered by the “Firefighter Safety Act.” This mandated language is also in conflict with municipal initiative statutes that require ballot titles to “correctly and fairly express the true intent and meaning of the measure.”2
In its final form, SB 25 was amended in a conference committee to allow municipalities to alter petition requirements by charter or ordinance. There is no such provision for districts or authorities. While the language of the entire section is poorly written, it is conceivable that a municipality could pass an ordinance requiring any opt-in to the Colorado Firefighter Safety Act to be done only by a home rule charter amendment, initiated and approved in the same fashion as any other charter amendment under the municipal initiative and referendum statutes.3 This would include petition format, signature requirements, circulation time frames, title setting requirements, and other petition and election procedures set forth in state law.
Gov. Hickenlooper acknowledges this in his signing statement for SB 25 by saying, “As we confirmed with the Attorney General’s Office, under this legislation, local
communities will maintain the statutory authority to clarify language on any ballot title so
2 C.R.S. 31-11-111 (3) 3 C.R.S. 31-11-101 et seq.
that it correctly and fairly expresses the true intent and meaning of the measure.”4 If this
statement is accurate for the purposes of correcting the misleading ballot title mandated by SB 25, then it is true for all other aspects of the otherwise unconstitutional and
inappropriate infringement of the state into municipal elections.
State-mandated form of collective bargaining
Unlike municipalities and special districts that have established the manner in which collective bargaining agreements are created through local determination, the state mandates the form of collective bargaining in SB 25. Any opportunity for local voters to modify the agreement is stripped, since only changing state law could allow for any ability to change a local issue. There is no apparent ability for a municipality, fire authority, or fire protection district to deviate from the mandated language. The only exemption from this mandate, other than home rule municipalities with collective bargaining in their respective charters, is for fire agencies with less than 24 paid firefighters.
The employee organization named in the petition process is automatically the exclusive representative for all firefighter in the bargaining unit and is granted a number of powers by the legislation. A right conferred upon the employee organization by the legislation is the ability to compel the employer to automatically deduct dues, initiation fees,
assessments, and other monies from the pay of firefighters with their authorization. The specific framework of the collective bargaining agreement process is prescribed by statute. It includes:
Definitions
Establishment of the employee organization as the exclusive representative of the employees
Obligation to negotiate in good faith
Collective bargaining agreement terms
Impasse resolution procedures
A strike prohibition with no associated consequences
Exemption for existing collective bargaining agreements in home rule charters
Treatment of existing bargaining relationships
Firefighter/employee organization right to sue
A full analysis of the collective bargaining framework is not included in this summary document, but it is likely that CML will compile a more comprehensive analysis in the weeks ahead.
Overview of legal and constitutional issues
While too numerous to cover in significant detail, this section identifies two broad legal and constitutional issues raised by SB 25. It is a distinct possibility that these and other issues will be addressed in the judicial branch.
Home rule
The Colorado Constitution was amended in 1902 to include Article XX: Home Rule Cities and Towns. The original version applied to Denver in reaction to several decades of state legislative interference in Denver’s charter and local governance. Such
interference even included a dispute in March 1894 between Gov. Davis Waite and the Denver Fire and Police Board, in which the ultimately state militia had guns trained on city hall while armed police, firefighters, and citizens prepared to defend the structure.5
In 1912, the constitution was again amended by the addition of Section 6 to Article XX to clarify that home rule municipalities “have supreme authority in areas of local and municipal concern.”6 Among the specific powers listed are:
“The creation and terms of municipal officers, agencies and employments; the definition, regulation and alteration of the powers, duties, qualifications and terms or tenure of all municipal officers, agents and employees.”7
“All matters pertaining to municipal elections in such city or town…”8
CML advocated against SB 25 primarily based on the conflict of the legislation with these matters of specific local and municipal concern, further supported by the Colorado Supreme Court that held that the State of Colorado cannot interfere with “the power of home rule municipalities to determine conditions of employment for their employees.”9
This decision does not affect or help statutory municipalities, special districts, or local fire authorities.
Unfunded mandates
To the extent that SB 25 mandates a local government to create a new program without funding from the state, there is a potential conflict with the Taxpayers’ Bill of Rights (TABOR), enshrined in the Colorado Constitution. Section 9 of TABOR states that a “local district may reduce or end its subsidy to any program delegated to it by the
general assembly for administration.”10 The unclear language of the restriction, coupled
by the relatively poor case law on the issue, creates some hurdles for a TABOR challenge of SB 25. However, at some point, the Supreme Court will be forced into interpreting what this section actually covers.
5 Frank Gibbard, “The Denver City Hall War,” The Colorado Lawyer Vol. 42, No.6 (2013): pp. 57-61. 6 Colorado Municipal League, Home Rule Handbook: An Introduction to the Establishment and Exercise
of Municipal Home Rule, (Denver, 1999) p.64.
7 COLO. CONST. art. XX, § 6(a). 8 Id. at § 6(d).
9 City and County of Denver v. State of Colorado, et al. and Colorado Professional Fire Fighters, et al.,
788 P.2d 764, 767(Colo. 1990).
Aside from the constitutional prohibition on unfunded mandates found in TABOR, there is also statutory language that directly prohibits, with some exceptions, the state from imposing mandates on local governments.11 The statute defines state mandates broadly
to include:
“Any legal requirement established by statutory provision or administrative rule or regulation which requires any local government to undertake a specific activity or to provide a specific service which satisfies minimum state standards, including, but not limited to:
(I) Program mandates which result from orders or conditions specified by the state as to what activity shall be performed, the quality of the program, or the quantity of services to be provided; and
(II) Procedural mandates which regulate and direct the behavior of any local government in providing programs or services, including, but not limited to, reporting, fiscal, personnel, planning and evaluation, record-keeping, and performance requirements.”
The remedy for a local government is to treat the matter as “optional” and refuse to implement the mandate. Combining this statute and Section 9 of TABOR may establish a substantial limit on the ability of the state to mandate new programs or procedures on local governments (not just home rule municipalities) without accordant funding.12
Conclusion
This brief overview only touches on some aspects of the legislation and potential legal issues. Numerous other issues will be discussed over the weeks and months ahead, as local governments determine how best to move forward. The Colorado Municipal
League, along with our partners in other local government associations, will continue to be a resource for our members. CML will also continue to advocate for reform on this issue, support any efforts to repeal SB 25 in the statehouse or the courts, and defend against further expansion of this unfortunate and unnecessary legislation.
11 C.R.S. § 29-1-304.5
APPENDIX A
A. Municipalities & Districts with Collective Bargaining Agreements
1. Aurora Fire Department, Career with 310 firefighters 2. Boulder Fire Department, Career with 160 firefighters 3. Cunningham Fire District, Career with 72 firefighters 4. Denver Fire Department, Career with 860 firefighters 5. Englewood Fire Department, Career with 51 firefighters 6. Greeley Fire Department, Career with 101 firefighters
7. Leadville Fire Department, Career with less than 24 firefighters
8. Mountain View Fire District, Combination with 66 FT paid, 6 PT paid and 3 vol firefighters 9. North Metro Fire District, Career with 120 firefighters
10. North Washington Fire District, Combination with 60 FT, 20 vol firefighters 11. Pueblo Fire Department, Career with 136 firefighters
12. Thornton Fire Department, Career with 95 firefighters
13. Trinidad Fire Department, Career with less than 24 firefighters 14. West Metro Fire District, Career with 330 firefighters
B. Municipalities subject to Meet & Confer, Collective Bargaining
1. Castle Rock Fire Department, Career with 68 firefighters 2. Colorado Springs Fire Department, Career with 400 firefighters
3. Fountain Fire Department, Combination with 25 FT paid, 6 PT paid and 40 vol 4. Grand Junction Fire Department, Career with 104 firefighters
5. Lamar Fire Department, Combination with seven FT paid and 25 PT paid firefighters 6. Littleton Fire Rescue, Career with 126 FT firefighters
7. Steamboat Springs Fire Rescue, Career with 34 FT paid firefighters 8. Vail Fire Department, Combination with 24 FT paid and 14 PT firefighters 9. Westminster Fire Department, Career with 130 firefighters
C. Municipalities subject to Meet & Confer only
1. Black Hawk Fire Department, Career with 19 firefighters
2. Cripple Creek Fire Department, Career with 14 FT paid and 17 PT paid firefighters 3. Federal Heights Fire Department, Combination with 17 FT paid and 15 vol firefighters 4. Golden Fire Department, Combination with 9 FT paid and 95 vol Firefighters
5. Grand Lake Fire, Combination with 5 FT paid and 20 vols 6. Lafayette Fire Department, Career with 19 firefighters
D. Districts/Authorities subject to Meet & Confer or Meet & Confer + Bargaining
1. Boulder Rural Fire Department, Combination with 17 FT paid and 35 vol firefighters 2. Clifton Fire Protection District, Combination with 14 FT paid and 21 vol firefighters
3. Colorado River Fire Authority, Combination with 45 FT paid, 30 PT paid and 30 vol firefighters 4. Durango Fire Rescue Authority, Combination with 64 FT paid, 14 PT paid, 12 contract and 72 vols. 5. East Grand Fire District, Combination with 4 FT paid and 35 vol firefighters
6. Eagle River Fire District, Career with 60 firefighters
7. Evans Fire District, Combination with 14 FT paid and 9 PT paid and 24 vol 8. Fort Lupton Fire District, Combination with 12 FT paid and 45 vol fire fighters
9. Frederick – Firestone Fire District, Combination with 35 FT paid and 20 vol firefighters 10. Gypsum Fire District, Combination with 12 FT paid and 40 vol firefighters
11. Lake Dillon Fire District, Career with 46 firefighters
12. La Junta Fire District, Combination with 7 FT paid and 28 PT/vol firefighters
13. Loveland Fire Authority, Combination with 79 FT paid, 12 PT paid and 20 vol firefighters
14. Montrose Fire District, Combination with 36 FT paid, 10 PT paid and 6 vol firefighter 15. N.E. Teller Fire District, Combination with 13 FT paid, 15 PT paid and 4 vol firefighters 16. Oak Creek Fire District, Combination with 3 paid FT, 8 PT paid and 4 vol firefighters
17. Platteville Gilcrest Fire District, Combination with 16 paid FT, 2 PT paid and 21 vol firefighters 18. Poudre Fire Authority, Combination with 169 FT paid and 34 vol firefighters
19. Snowmass-Wildcat Fire District, Career with 19 FT and 8 PT paid fire fighters 20. South Metro Fire Department, Career with 284 firefighters
21. Southwest Adams Fire District, Combination with 40 FT paid and 15 reserves who receive a stipend 22. Windsor Severance Fire District, Combination with 30 FT paid, 13 PT paid & 40 vol firefighters 23. Wheat Ridge Fire District, Combination with 33 FT paid and 30 vol firefighters
