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Unfireable Offenders

For over two decades, attorney Philip Howard has endeavored through his nonpartisan organization Common Good to promote a restoration of “common sense” in government operations by replacing bureaucratic red tape and legal roadblocks with individual accountability. His previous four books, starting with the 1995 bestseller The Death of Common Sense, and notably including one titled Life without Lawyers, have earned acclaim from across the mainstream political spectrum, from George Will to Arthur Schlesinger Jr., to the New York Times.

In his newest tome, Not Accountable, Howard traces the lack of government accountability to what he concludes to be its underlying source: the rise of public employee unions. Whereas his earlier studies described “a flawed governing philosophy” that overemphasized procedural rights at the expense of the public good, “applied by people acting in good faith,” this one “is a story of raw power and democratic disloyalty.”

Howard opens by citing the case of Derek Chauvin, the Minneapolis policeman who killed George Floyd in 2020, setting off a wave of protests and riots throughout the country. Chauvin, it turned out, was the subject of a long stream of citizen complaints and was said to be “tightly wound”—”not a trait ideal for someone patrolling the streets with a deadly weapon.” Nonetheless, the city’s contract with the local police union prohibited the commissioner, in response to those complaints, from dismissing or even reassigning Chauvin.

Such a lack of accountability, Howard observes, is endemic in American government, with many public managers reporting that they’ve “never seen a public employee dismissed for poor performance.” For instance, of the 2,600 complaints that the Minneapolis police department received during the decade prior to Floyd’s arrest, only 12 led to any disciplinary sanction, of which “the most severe was a forty-hour suspension.”

In 2019, Howard reports, a New York school principal was found to have “created a fraudulent system of school achievement” in order to boost his record. Though he was dismissed, thanks to his union contract, “he will get full salary and benefits of over $265,000 annually for the next seven years.” And at the federal level, an EPA employee found to be surfing porn sites in his cubicle “was paid for almost two years until he made a deal to retire.” Finally, returning to New York City, Howard notes that “no detail” of municipal operations “is too small to be vetoed by a union entitlement,” with a Parks Department employee filing a grievance against his supervisor for asking him to straighten his nameplate. And “rigid job categories” written into union contracts “substantially raise maintenance costs” at New York’s Metropolitan Transit Authority, with the size of work crews being bloated by “the need to assign workers for each job category even if that part of the work is incidental”—for instance, asking a signal repairman “to cut an overhead branch.”

These tales of union-protected malfeasance or abuse are all too familiar to anyone reasonably attentive to the way that public business is often conducted in the age of public employee unions. This is not to deny—nor does Howard deny—that a large majority of police, firemen, school teachers, and other government workers are competent and devoted to doing their jobs well. (In fact, he observes, many public employees, especially those holding important responsibilities, such as judges and well-qualified teachers, are underpaid under the current system, by comparison to what they might earn in the private sector.)

But to take a couple of examples from the city I inhabited for 46 years, Worcester, Mass., there was a tenured elementary school teacher decades ago who was widely known to be suffering from severe, and continuing, mental illness. So scandalous was her on-the-job behavior that the city went to the expense of attempting to dismiss her. But so strong was her union protection that removing her took several years and cost Worcester hundreds of thousands in legal fees. That fact served as a deterrent, in a city of fewer than 200,000 residents, to undertaking such a process again. (Unlike college faculty, whose records are commonly assessed for tenure during their sixth year, Worcester school teachers must be evaluated by their third year—hardly enough time, in many cases, to make an adequate assessment of their work.)

Another abuse guaranteed by a union contract: Massachusetts is the only state whose municipal contracts require that any road-reconstruction site be manned, not by civilian “flagmen” (who elsewhere earn barely above the minimum wage), but by uniformed policemen, who not only receive their regular hourly salary, but are guaranteed four hours of pay, even if the job takes half an hour. Service on these much-coveted “police details” commonly boosts the salaries of senior members of the force so as to place them among Worcester’s most highly paid public employees. (As a benchmark, in the town of Brookline, those who serve on the details are paid $62 per hour on weekdays, $71 on weekends.)

Howard attributes such “endemic failures of modern American government” as bad schools and unaccountable police to the legalization, beginning in the early 1960s, of public collective bargaining, which has enabled unions to impose ever-more-restrictive limitations on the capacity of government managers to do their job. These have included limits on “reassigning” (or dismissing) incompetent personnel, “allocating responsibilities for projects,” and such “mundane managerial prerogatives” as “dropping in on a classroom” or informally asking employees “how to improve things.”

So how did organized public employees acquire such a controlling role over governmental operations in the first place? “Until the rights revolution” of the 1960s, Howard observes, “the idea of negotiating against the public interest was unthinkable,” even to AFL-CIO leader George Meany and progressive president Franklin Roosevelt. The reason is simple. In private business, while union representatives are expected to bargain aggressively on behalf of their members, their demands will have to be limited, in the end, to what the company can afford to pay—rather than driving costs so high as to drive it out of operation, or else to move to another state.

By contrast, public employee unions are under no such constraint. It simply isn’t possible for the entirety of a city’s—let alone a state or nation’s—population to pick up stakes and move to another location. And not only can union demands, however unreasonable, always be “satisfied” at least for a number of years by simply raising taxes to finance them; public officials commonly have a strong interest in caving to those demands because union members vote in high numbers and offer “in-kind” assistance at election time by campaigning for favored candidates. In place of the adversarial bargaining that transpires in the private sector, as the website of the American Federal, State, and City Municipal Employees, one of the nation’s largest public unions, boasts, “We elect our own bosses, so we’ve got to elect politicians who support us and hold those politicians accountable.” (As Howard asks, when New Jersey governor Jon Corzine shouted out to a rally of public employees in 2006, “We will fight for a fair contract!” whom was he going to fight against?)

The party that is least likely to be represented at the bargaining table is the taxpayers, who pay for the employees’ benefits as well as the inefficiencies that union rules introduce into government. Owing to a form of what economists call the “collective action problem,” the average voter is less likely to concern himself with the cost of public giveaways or inefficiencies than is the average union member, to whom the benefits of those giveaways and rules are all-important. Hence, while public employees constitute only a limited fraction of the electorate, they are often able to twist candidates’ arms so as to get their way. As Howard notes, members of the teachers’ unions constitute a substantial fraction of the delegates at every Democratic National Convention. Unions’ relative power is even greater at the municipal level, where overall voter turnout tends to be small.

The original impetus for public collective bargaining came at the local level, when politicians like former New York mayor Robert Wagner saw union support as a way of breaking their dependence on the established political “machine.” What Howard calls “the big break,” i.e., former president John F. Kennedy’s executive order authorizing collective bargaining at the federal level, was similarly payback for union political support, rather than being motivated by a concern for “efficiency” as the order stated. Contrary to the implicit quid pro quo that in return for bargaining rights, public unions would not strike, amid the wave of ’60s’ activism, the country was soon swept by a wave of paralyzing strikes. As Howard observes, Kennedy himself underestimated the effects of his executive order by initially excluding “compensation and other budgeting issues from bargaining,” not anticipating how soon the scope of collective bargaining would expand to include them.

The truly novel aspect of Howard’s argument is his contention that public employee controls on government should be declared unconstitutional based on two provisions in the Constitution: Article II, which vests “the executive power” in the president, and the clause in Article IV that guarantees to each state a “republican form of government.” The president’s executive power has particularly been undermined, he observes, by the provision in the Civil Service Reform Act of 1978 that codified into law previous executive orders that required the president to bargain with public unions. It also dictated that any impasse in the negotiations must be resolved by an independent panel or by an arbitrator it selects. These provisions impinge on the president’s executive authority, Howard argues, in a way that turns the executive branch into an “accountability-free zone.”

Among the absurd consequences: When the Veterans Administration sought to assign personnel based on their performance rather than seniority, its request was rejected by the arbitrator in favor of the union’s insistence on the latter criterion. Nor, Howard adds, can executive-branch officials leave candid assessments of their subordinates’ performance in their personnel files, without subjecting them to a lengthy legal process. That’s why “over 99 percent of federal employees receive a ‘fully successful’ rating.” (When the IRS sought to dismiss an employee who repeatedly denied benefits to African immigrants, made discriminatory remarks at work, and “tried to run another employee off the road,” the union lawyers who represented him successfully demanded a “clean personnel record” as the price of his removal, enabling him to take a new job with the U.S. Forest Service.)

Not surprisingly, barely a decade after enactment of the Civil Service Reform Act, the original Paul Volcker National Commission on the Public Service (1989) “found that federal agencies suffer from ‘an erosion of performance and morale,’” while its 2003 successor “found deep resentment” at the way poor performers impede the successful performance of the agency’s duties. In opposition to such practices, Howard cites the mandate in Article VI of the Constitution that executive as well as judicial employees be bound to support that document (over and against partisan loyalties), as well as the federal statute specifically dictating that all public employees “place loyalty to the Constitution, laws, and ethical principles above private gain.”

At the state and local level, Howard finds plausible judicial precedents for the courts to declare the controls exercised by public employee unions to be a violation of the people’s rights to self-government. (He cites the Supreme Court’s 2012 decision in Knox v. Service Employees International Union, addressing the constitutionality of mandatory union political assessments, quoting fliers distributed by the Service Employees International Union’s “Fight-Back Fund,” describing how the union was raising “extraordinary” funds to defeat political incumbents with officials “who support public employees.”)

Howard’s demand that the courts restrict not only public-union political activity but also collective bargaining rights is a tall order. But in its decisions in Knox and then in  Janus v. AFSCME (2018) the Supreme Court has already moved strongly on the former issue, holding on First Amendment grounds that public employees cannot be coerced to contribute to union political actions. (It must, however, be mentioned that unions, as in a California state university where a friend of mine works, often find ways of circumventing Janus.) But Howard’s bill of particulars is so strong that even judges who normally shy away from what may be perceived as judicial “activism” ought, in my opinion, to be persuaded by it. How else will the American people be liberated from the unaccountable system that President Kennedy, Mayor Wagner, and their successors thoughtlessly unleashed on us?

Not Accountable: Rethinking the Constitutionality of Public Employee Unions

by Philip K. Howard

Rodin Books, 160 pp., $21.99

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

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