BOARD AGREES TO ANNUAL STEP INCREASES; OTHER FINANCIAL ISSUES UNRESOLVED
By Patrick J. Fugina
During recent collective-bargaining sessions, the Board of Public Defense has agreed that assistant public defenders will receive annual salary step increases rather than optional merit increases.
All other financial issues remain unresolved as the parties continue negotiating. The next collective-bargaining session is scheduled for Friday, November 19, 1999.
As with the last two sessions, the November 19 session will involve a reduced number of negotiators. During the last two sessions, the assistant public defenders were represented by Brian Aldes, Teamsters Union Local 320 Business Agent; Tom Blackmar, part-time public defender from the 1st District; and Charlann Winking, full-time public defender from the State Public Defenders Office. The Board of Public Defense was represented by Dick Scherman, Chief Administrator; Kevin Kajer, Fiscal Director; and Tim Johnson, Chief Public Defender of the 8th District.
The parties agreed to shift to small-group negotiating sessions after Scherman complained at the October 14, 1999 session that he found it difficult to communicate in large groups.
Following that October 14 session, in which the Board made a written contract proposal that was poorly received by the public defenders, Teamsters Business Agent Aldes filed a written demand for mediation with the State Bureau of Mediation Services.
A mediation session, in which the entire Public Defenders Negotiating Committee would be present, was initially scheduled for December 13. However, Aldes postponed that session in early November when he concluded the small-group negotiations were making progress.
A number of negotiating committee members questioned whether the small-group sessions were making any measurable progress. Last Friday (November 12) members of the negotiating committee met with union officials and discussed the Board’s proposal and the public defenders’ positions on unresolved financial issues.
The public defenders will now go into the November 19 small-group session with clear positions on the unresolved financial issues. The public defenders maintain their position that all financial issues including salary and part-timers’ overhead compensation must be resolved before other contract issues such as benefits can be addressed.
Here follows a summary of the parties’ positions on unresolved financial issues:
Step increases
The public defenders’ small-group bargaining team has negotiated the Board’s agreement to give annual step increases based on satisfactory performance rather than on "merit." The current system of merit increases left sole discretion with management whether to give individual public defenders annual increases. Even those public defenders with favorable performance reviews have rarely received merit increases, instead hearing the tired refrain each year that there was not enough money in the budget for salary increases.
The Board’s recent agreement to have step increases would set up a system where the Board would have to have available monies each year to pay out annual salary increases to public defenders. These step increases would be in addition to any cost-of-living adjustments the legislature would appropriate.
However, the parties have been unable to agree on the size of the annual step increases. The Board has proposed 2 percent annual step increases; the public defenders have proposed 4 percent, reduced from an initial proposal of 5 percent.
This is a significant issue in that several other government employee groups are currently negotiating for 3 to 4 percent annual increases. The American Federation of State, County and Municipal Employees (AFSCME) recently rejected a 2 percent proposal and is pushing for 3 to 4 percent increases. The Hennepin County Public Defenders are rumored to be pushing for 3 to 4 percent increases. The negotiating committee is resistant to any contract that would place them further behind salaries of Hennepin and Ramsey County public defenders. Moreover, another factor in determining the value of annual increases is that a public defender’s annual union dues would be between 1 and 2 percent of their salary. So a large portion of a 2 percent annual increase would be reduced by union dues.
Salary scale
The Board has proposed a three-tier salary scale with a total of 57 steps to move from beginning public defender with no experience at Attorney I, step 1, to the top of the scale at Attorney III, step 19. The starting salary would be $38,511 and the top salary $83,366 (click here to see the Board’s Salary Proposal). But the Board has not released any written criteria on how public defenders would move through the salary scale or how they would be placed on the scale. The Board has suggested it may agree to move public defenders from Attorney I to Attorney II and III without requiring them to advance through each of the 19 steps of Attorney I or II, but has refused to furnish or agree to any specific criteria. The Board’s position on this has given public defenders no confidence that the current arbitrary system of placing attorneys on the salary scale would be eliminated.
The public defenders proposed a one-tier scale with a starting salary of $42,000 for an attorney in his-her first year of attorney licensure followed by 5% annual step increases to a top salary of $83,157 after 15 years (click here to see the Public Defenders Proposed Salary Schedule). This would be a simple, easy to apply salary scale that would enable public defenders to clearly see how they would progress in pay.
The Board has also taken the position it has limited, finite money to pay for salary increases to public defenders. The Board has stated it only has appropriations from the state legislature for 2 ½ percent and 3 percent cost-of-living increases for Fiscal Years 2000 (July 1, 1999 to June 30, 2000) and 2001, and $2.4 to $2.5 million for increased salaries pursuant to the Board’s 1998 Salary Study comparison with attorney general salaries. Of that $2.4 or $2.5 million, the Board stated at the last small-group session that it plans to earmark $1.698 million for increased salaries for attorneys and $700,000 for increased salaries for other staff including secretaries, paralegals, dispositional advisors and investigators.
The public defenders have taken the position that they should be paid comparable to what other government lawyers earn for doing similar work, and that the money should be available to fund such a system if the Board budgeted wisely and improved lobbying techniques with the state legislature.
Criteria for placement on salary scale
The Board compared salaries based on years of licensure of its attorneys with years of licensure of attorneys with the State Attorney General’s Office in its 1998 Salary Study (click here to see the 1998 Salary Study comparing public defenders salaries with attorney general salaries). Yet the Board has insisted that public defenders be placed on a salary scale based on their years of public defender experience, not years of attorney licensure.
Recently, a letter sent by Union 320 to public defenders polling them on their years experience has suggested the Board intends to set salaries based on years of continuous public defender experience. The Board’s definition could prohibit public defenders from earning a salary based on credit for years of public defender experience while doing contract work in a county system, or if they left public defender work for a time, or for years spent practicing law in private practice, prosecuting or law-clerking, all endeavors for which they arguably gained valuable experience useful in their public defense work.
Admittedly, negotiating committee members and public defenders throughout the state have had differing views on what experience public defenders should receive credit for toward salaries. But the negotiating committee has consistently taken the position that public defenders should receive credit for all prior public defender work and at least some of their non-public defender work as licensed attorneys. The negotiating committee has agreed to a proposal giving public defenders credit for non-public defender experience.
Cap on salary increases
The negotiating committee has taken the position that all current public defenders of equal experience should be paid equally under a uniform salary scale. This would eliminate the current inequities where public defenders were placed on the salary scale arbitrarily depending on which district they were hired and what monies were available at the time of hire, among other factors. These inequities have become even more pronounced in recent years as some public defenders received merit salary increases for their increasing experience while most did not receive merit increases and hence no credit for their increasing experience.
The Board proposes to continue some of these inequities in taking the position there should be a $10,000 cap on salary increases, exclusive of the COLAs appropriated by the legislature. This would mean that the attorneys who were penalized the most in being denied credit for years of experience would continue to receive lower salaries than other public defenders with comparable experience, because a $10,000 increase would not raise them to the level of attorneys with equal experience.
Overhead compensation
The Board has declined to discuss the issue of overhead compensation, stating that it does not have money to modify the current system and wants to defer the issue into the future.
The negotiating committee proposes eliminating the current requirements that part-time public defenders must have at least a half-time secretary, phone answered during regular business hours and an updated version of Minnesota Statutes Annotated. The negotating committee argues those standards are outmoded with voicemail and computer access to statutes. The committee has proposed monthly payments of $1,500 to ¾-timers and $1,000 to ½-timers.
Because the majority of public defenders in the membership are part-timers, the negotiating committee believes this issue must be dealt with in the current collective-bargaining contract negotiations.
Schedule for upcoming sessions
Following the small-group bargaining session on November 19, the negotiating committee will meet December 3 to review that session. There are no small-group or mediation sessions currently scheduled after the November 19 session.