There is reason to be concerned the AFSCME lawsuit challenging the recent collective bargaining amendments will undermine the legislature’s effort to reform public sector collective bargaining. As discussed in our previous post on the new law, AFSCME Council 61, the state’s largest public employee union, filed a lawsuit to invalidate the new law on February 20, 2017, only three days (and one business day) after the law went into effect.
The target of the lawsuit is the exemption in the new law for “public safety” employees. Any employee who is part of a bargaining unit with at least thirty percent (30%) “public safety” employees is exempt from the amendments to the law. That means, unlike all other public employees, employees in a public safety bargaining unit have the right to bargain over benefits, working conditions, evaluation procedures, seniority, transfers, grievance procedures and a host of other subjects. Non-public safety employees’ bargaining rights are limited to base wages.
The law defines “public safety” employee to include a sheriff’s regular deputy, a police officer of a city, members of the division of state patrol, narcotics enforcement, state fire marshal, or criminal investigation, conservation officer or park ranger, fire fighter, and DOT enforcement officers. Police officers not employed by a city and corrections officers are not included within the definition of “public safety” employees.
The AFSCME lawsuit includes four individual plaintiffs strategically chosen to highlight what AFSCME characterizes as the arbitrary nature of the “public safety” exclusion. For example, one of the plaintiffs is a DOT enforcement officer, which is included within the definition of a “public safety” employee. Yet, more than 30 percent of her bargaining unit is non-public safety, so she is not covered by the exemption. Another plaintiff is identified as a “police officer III” employed by the state. Even though his duties are similar to a sheriff’s deputy or city police officer, he is excluded from the definition of “public safety” employee, and thus not covered by the exemption.
The legal challenge is based upon Iowa’s version of the equal protection clause, contained Article I, section 6 of the Iowa Constitution. That section provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”
To pass constitutional muster, laws that relate to economic issues, like the collective bargaining amendments, must satisfy what is known as the “rational basis” test. So long as there is a rational connection between the purpose of the statute and the classifications in it, the law does not violate equal protection. Generally, the “rational basis” test is a low bar. A person does not have a fundamental right to public employment, nor is union membership or collective bargaining a suspect class subject to strict court scrutiny. Therefore, even if a court disagrees with the purpose of the law or means of achieving it, they are supposed to defer to legislative judgment and not substitute its own.
But, that does not mean the courts will give this law a free pass. The only stated reason I have seen or heard for including the public safety exemption is a political one; that is, public safety employees are viewed more favorably than other public employees, and granting them more rights will garner more support for law’s passage. While many of us agree public safety is the most critical function of government, it does not necessarily follow that granting a certain segment of these employees favored bargaining rights promotes public safety. The 30% bargaining unit threshold seems particularly arbitrary. The biggest challenge facing the law’s proponents is coming up with a principled, rational reason for this classification. Hopefully they have thought of one, and will at some point share it with the rest of us.
While there are very few Iowa Supreme Court decisions striking down legislation using the rational basis test, it is not unheard of. The Court’s recent constitutional jurisprudence has tended to be unpredictable, especially when the issue is politically charged. Thus, while I am not making a prediction, there is a legitimate risk the Court will rule that granting favored bargaining rights to a limited segment of public safety employees violates equal protection. Unfortunately for the proponents of this law, it will be at least two years before that happens. It is very possible the window of opportunity for this type of sweeping reform will have closed by then.