Representatives of the Board of Public Defense presented their written contract proposal to a disappointed Public Defender Negotiating Committee October 14 during a collective-bargaining session at the Ramsey County Public Defenders Office in St. Paul.

The next day, Union Local 320 filed a demand for mediation with the State Bureau of Mediation Services, citing the lack of progress in negotiations.

Although the Board was expected to present its written proposal at the October 14 meeting, the public defenders were looking for acceptance of proposed contract language the Board had appeared to agree with. Instead, the Board revamped every article of the public defenders’ proposed agreement and even backed off previous statements on several key issues.

The Board proposed a starting salary of $38,511 for a full-time first-year attorney beginning in fiscal year 2001 (July 1, 2000 to June 30, 2001). But the Board’s salary schedule increases the number of steps for each attorney level from 10 to 19, creating a total of 57 steps for an attorney to progress from beginning Attorney I to the top of the scale of Attorney III (annual salary of $83,366). Each of the 57 steps constitutes a 2% increase. An attorney could not progress more than one step per year, absent an assignment to a new position. (Click here to see the Board’s Salary Proposal.)

That means that a public defender, who each year "fully meets the expectations set forth in their detailed job description," as the Board’s proposal requires, would in theory have to work 57 years to reach the top of the salary scale. And, barring cost of living increases, a public defender would never receive more than a 2% annual increase.

Moreover, the Board proposal grants salary increases solely on "merit," leaving sole discretion to management whether a public defender receives any salary increase at all. This is the same arrangement that is currently effect and which, by even the Board’s admission, has resulted in few annual step increases for public defenders (click here for the Board’s 1999 Salary Advancement Study and see pages 1-2).

In fact, the Board’s proposal leaves itself convenient language to continue the pattern of denying public defenders annual step increases. The proposal states that all salary increases "are ultimately contingent upon the funding provided by the State Legislature. In the event that insufficient money is provided by the Legislature . . . the Employer may make such adjustments it deems appropriate to carry out the mission of the agency." (Click here to see the entire text of the Board’s Proposed Labor Agreement.)

Equally disappointing is that the Board’s salary proposal actually offers less than what was proposed in the Board’s July 1999 Salary Advancement Study. In that study, the Board took note of the sporadic history of merit increases and recommended a "modified" system that would guarantee a 2% annual increase in the budget for salary increases and would result in annual increases to individual public defenders of 1% to 4%. The Board proposal presented October 14 guarantees no annual increase in the budget for salaries and would limit individual annual increases to from 0% to 2% (click here for Board’s 1999 Salary Advancement Study and see page 10).

The public defenders propose a starting salary of $42,000 for an attorney in his/her first year of attorney licensure followed by 5% per year annual step increases that would be guaranteed if the attorney performed adequately. This would allow a full-time attorney to progress to a salary of $83,157 after 15 years, in contrast to the 57 years it would take an attorney under the Board’s proposal (notwithstanding that the attorney under the Board’s proposal would be at the mercy of management to determine each of the 57 years that the Legislature had approved enough money to justify the annual increase). (Click here to see the Public Defenders Proposed Salary Schedule.)

Another fundamental disagreement is the criteria used to determine where an attorney fits on the salary scale. The public defenders propose that a public defender’s years of attorney licensure govern while the Board proposes that years of public defender experience govern—the same system currently in effect. The public defenders maintain that the Board’s current system is arbitrary and unworkable, particularly in that there are no standards defining how a public defender progresses through the steps and through classes from Attorney I to II and III.

This issue led to some sharp discussion at the bargaining session. Dick Scherman, chief Administrator for the Board, stated that attorneys would not necessarily be jumped to Attorney II or III merely because they had begun handling felonies or other complex cases. He stated the Board considers attorneys handling misdemeanors or juvenile to be no less important. Scherman was then asked why there shouldn’t be just one attorney classification, as the public defenders propose, rather than three separate attorney classifications that by definition differentiate the difficulty of cases being handled. Scherman’s response was that the three-attorney classes allow attorneys to "progress through the system" and recognizes when they handle more difficult cases. This was, of course, contradictory to Scherman’s earlier comment that all public defenders’ work is considered of equal importance.

Scherman went on to state that public defenders were told when hired that they might not be paid what they’re worth due to limited funds, implying they should still be willing to accept less than their market value. Scherman also said the chief public defenders have told him they want the three-tier system, but he refused to say why they want it and said he didn’t have to explain it.

Scherman suggested that under the Board proposal some public defenders would be reclassified based on their years of experience that were not credited to them when they were hired, but refused to define how these adjustments might be made.

It left public defender negotiators with little confidence that the inequities that led public defenders to vote overwhelmingly to unionize would be corrected under the salary proposal made by the Board.

This wasn’t the only aspect of the Board’s proposal that had Negotiating Committee members gritting their teeth.

Although Scherman had stated at the September 23 negotiating session that the Board would agree that public defenders be disciplined or terminated only for just cause, the Board rejected the public defenders’ proposed language and presented proposals that appear designed to give management more discretion in disciplining and firing.

The Board proposal would require newly-hired attorneys to serve a probationary period of two years, rather than the customary six months proposed by the public defenders. During the probationary period, attorneys could be terminated at any time. Although permanent employees could be disciplined only for just cause, the employee would only have seven days to appeal a disciplinary action and would not have the right to have a union representative present in a meeting where he or she would be questioned by management about the disciplinary issue. Furthermore, the Board’s proposal eliminates the option of mediation from the grievance procedure, leaving only the step of binding arbitration available to an employee aggrieved by a disciplinary action supported by management.

The Board’s proposal would limit union participation in general by allowing only 11 public defenders to act as stewards statewide and requiring those stewards to take unpaid leave when representing employees in union matters. The public defenders proposed 25 stewards, noting that some outstate districts comprise too much territory for one steward to cover. The public defenders also proposed stewards be eligible for paid leave for reasonable time spent representing employees and working on union matters. It might be hard to fill steward positions if they were forced to take unpaid leave for their work.

The Board’s proposal would also prohibit a union representative from accompanying an employee meeting with management about accomodations needed under the Americans With Disabilities Act. Brenda Corrigan, Union Local 320 International Agent, said employees often want the union present in such meetings. Scherman replied that, "Sometimes the perception is the union is always interfering with management perogatives." Corrigan replied the union tries to resolve issues at such meetings.

Although Scherman had stated at earlier negotiating sessions that he felt part-time public defenders deserved overhead compensation and favored lessening restrictions on eligibility, the Board’s written proposal recommends no changes. The Board would pay annually $1,500 to ¾-timers and $1,000 to ½-timers who have an office outside the home, a minimum of a half-time secretary, a phone answered during regular business hours and an updated version of Minnesota Statutes Annotated.

The public defenders propose overhead compensation of $1,500 per month to all

¾-timers and $1,000 per month to all ½-timers, based on a Board of Public Defense study from the mid-1990s indicating that office overhead for full-time public defenders averaged $24,000 per year for each employee.

Scherman announced at the session that the Board would soon be releasing monies to part-timers collected from judicial districts as public defender reimbursement during the first quarter of Fiscal Year 2000 and required to be paid to part-time public defenders pursuant to Minn. Stat. § 611.20, Subd. 3. Due to a modification of the statute that took effect July 1, 1999, all public defender reimbursements collected by the courts are required to be disbursed by the Board of Public Defense to part-time public defenders in each district they are collected. (Click here to see the text of Minn. Stat. § 611.20, Subd. 3.) These monies are mandated by the Legislature to be paid to part-time public defenders for overhead reimbursement. The Board has no discretion to use the monies any other way.

After the session on October 14, a memo was released from Scherman explaining the payout of the monies and listing the public defender reimbursements collected in each county and district. (Click here to see the Board’s Memo disclosing reimbursements to part-time public defenders.) In turn, Luke Stellpflug, Chief Public Defender for the 10^th District, sent an email October 14 to all 10^th District public defenders disclosing that each ¾-timer would receive $289 for the quarter, each ½-timer would receive $193 and each ¼-timer would receive $96. (Click here to see Luke Stellpflug’s email disclosing reimbursements to 10th District part-timers.)

Despite the disappointment of the October 14, session, the public defender Negotiating Committee agreed to meet with Board representatives October 26 and continue discussing salary issues. At Scherman’s request, the Negotiating Committee agreed to reduce the number of representatives who would attend the session. Scherman had suggested the parties might be able to make more progress if meeting in a more informal atmosphere and smaller group.

At the October 14 session, the Board was represented by Scherman; Kevin Kajer, Fiscal Director; Bob Ellingson, Governmental Relations Manager; Tim Johnson, Chief Public Defender of the 8^th District; Elizabeth Shevi, Principal Planner of the Board; and Chris Kohler, Management Public Defender from Bemidji.

The public defenders were represented by Teamsters Union Local 320 Business Agent Brian Aldes, International Agent Brenda Corrigan; and Public Defenders Negotiating Committee Members Tom Blackmar from the 1^st District; John Fossum from the 3^rd District; Nancy Mattson from the 6^th District; Chris Anderson, Kelly Madden and Patrick Fugina from the 10^th District; and Gretchen Otto from the State Public Defenders Office.

After the October 14 session, the Negotiating Committee selected part-timer Blackmar and full-timer Anderson to join Aldes and Corrigan at the October 26 session. Scherman and Tim Johnson are expected to represent the Board at the session.

Aldes filed for mediation October 15 after discussing the negotiations with officials of Union Local 320. He said he does not expect the mediation filing to result in cancellation of the October 26 scheduled bargaining session. After that, it’s expected that a mediator would be appointed by the State Bureau of Mediation Services and would schedule future sessions.

One of the factors that led the Union to file for mediation was that the Board did not make its first written proposal until the parties’ fifth bargaining session. It is customary for management to make a written counterproposal at the second bargaining session, Aldes said.

The purpose of mediation is to encourage both sides to bargain in good faith and work toward an agreement, Aldes said. He added that it was a positive step, albeit a belated one, that the Board presented a written proposal. He said the Board "set the table to negotiate," but added that the content of their proposal indicated they were resisting attempts at a timely and orderly resolution.

Aldes said another reason to begin mediation is to set the stage for consideration of a strike vote. He said the parties must be in mediation at least 45 days before the public defenders would be eligible to poll the membership for an authorization to strike.