Open government negotiations: why not?

Here’s a thought experiment for you:

“Imagine that the governor is holding a series of secret closed-door negotiations with a company that could result in hundreds of millions of dollars in taxpayer expenses. Now imagine that the same company secretly meeting with the governor is also a campaign contributor. Also imagine that the Legislature is barred from changing the details of an agreement negotiated in secret with the governor and can only vote up or down on funding the final proposal.

Sounds outrageous?”

That’s from Jason Mercier of the Washington Policy Center, in a Columbian op-ed arguing that the state should let the public and reporters watch collective bargaining negotiations between the government and employee unions. Mercier’s point, of course, is if it sounds wrong to allow negotiations to take place between government and a business in secret, then it’s just as wrong to keep negotiations between government and its employee unions behind a closed door.

That’s not a radical idea. Several states hold open collective bargaining meetings – and the sky hasn’t fallen. Florida’s law seems like a smart compromise, keeping internal government meetings on negotiation strategies closed but opening up negotiating meetings between the two sides. That keeps management and labor on equal footing, with neither side having to reveal its intentions heading into the negotiation.

When the state Legislature passed a collective bargaining law in 2002 under Gov. Gary Locke, it made negotiating sessions exempt from the Open Public Meetings Act. As Mercier points out, that exemption flies against the spirit of our voter-approved law, which affirmed that “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know” (that declaration is also made in the state Public Records Act).

I’ve heard good arguments made on both sides of this issue, including by some people I respect greatly who worried that open negotiations would open a can of worms. I keep returning, though, to government transparency as a first principle for our society. Keeping the public informed of contract negotiations shouldn’t be a barrier to completing a mutually agreeable contract.

One bill from the last legislative session showed how labor and its legislative allies view open negotiations. SB 6183 wouldn’t even have mandated open negotiations; the two sides would still be allowed to move to executive session if they both agreed to it. The bill just would have changed the presumption, from assuming a closed meeting to assuming an open one.

An employee from the Washington Federation of State Employees said of the proposal, “Nobody negotiates in public. The private sector doesn’t, the public sector doesn’t. There’s a reason for that. It doesn’t work. It’s a recipe for gridlock.” But government has far different accountability standards than private businesses. The people have a right to know what is done on their behalf, one they don’t yield to state officials. And, other states have shown that negotiations can be conducted fairly in open settings.

A representative from the Washington State Labor Council also dismissed the idea, saying “Opening these negotiations changes the dynamic, including inviting negotiators to spend more time grandstanding and mugging for the camera than actually trying to come to an agreement.” Surely you could make that argument about almost anything government does. We still allow the public and reporters into legislative committees, and broadcast them on TVW, because openness in the legislative process is important. The possibility of “grandstanding” doesn’t trump the greater good of conducting important public business in the open.

The powers-that-be who prefer to negotiate behind closed doors likely hold the trump card on this issue for now. In the future, they will have to keep fighting against the power of a good idea – and opening negotiations up so the public can hold officials accountable is a good idea.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.