September 4, 2009

Stand Above the Political Mire on Ground of Authority

Justin Katz

We're right, I think to take a moment to flag the suspicious belief of the Rhode Island judiciary that processes must default in the favor of the state's special interests while the judges have their moment to review and direct the minute management details of the government's operation. Layman that I am, it's entirely possible that I'm missing some nuance (or even misreading the legal arguments), but yesterday's court proceedings trace as follows:

  1. Superior Court Associate Justice Michael Silverstein ruled that the clock did not allow him sufficient time to hear and consider the arguments for and against halting the implementation of Governor Carcieri's executive order for government shutdown days, but that he considered precedent for issuing a stay on judicial action (i.e., allowing the shutdown day to proceed) pending arbitration to be clear, and he did so (PDF). He also allowed that, should the Supreme Court immediately vacate his stay, he would begin hearings with the intention of reaching a decision about halting the shutdown day sometime in the afternoon.
  2. The union lawyers ran to the Supreme Court.
  3. Supreme Court Justice Maureen McKenna Goldberg stated that the Superior Court judge "failed to address plaintiffs' request for temporary and preliminary injunctive relief to stay, pending arbitration, the implementation of Executive Order 09-20." She thereupon, without argument, granted the unions' request to halt the shutdown and brought the case into the Supreme Court's hands for September 11 review (PDF).
  4. Governor Carcieri stated that he's been left with no alternative other than layoffs and has asked his department heads to compile a list of the state's 1,000 most recent hires for the purpose of beginning layoff notifications.

Again, speaking as a layperson, McKenna Goldberg's reasoning strikes me as inaccurate to the point of dishonesty and the related ruling as predetermined. Silverstein didn't fail to address the unions' request; he failed to grant it, and that outcome shouldn't have been a foregone conclusion. That said, let's be honest about the effect: If the Supreme Court finds in the governor's favor, then the state can still schedule its twelve shutdown days, albeit perhaps with an additional speed bump of arbitration. Of course, as time passes, the number of days without employees becomes more disruptive, but the judiciary hasn't yet issued an opinion on the executive's authority.

The most destructive outcome, in my opinion, is the continued operation of state government as if its purpose is to produce cliffhangers to bring us to the edge of our seats for the commercial breaks. What will the legislature do? What will the governor do? What will the unions and the courts do? Oh, the drama!

What we need is consistent, predictable leadership. The governor should already have had in his hand a list of every state employee in the order in which they would be laid off, as well as deadlines by which the state's dramatists in the legislature, unions, and courts would have to conclude their performances in order to prevent the pink slips from flowing.

Right now, the process is a deck of reactive wildcards, and it's little wonder that all of the decision makers think they can leave the governor holding the political bag. He could completely turn the cards on them, though, if he articulated his understanding of his responsibilities and authority — "if not shutdowns, I can only begin firing" — and broadcast the next step before each milestone in the wrangling process.

To some extent, that's what he's done, but his method has left the arrow pointing at him as the most recent entity to make a decision. Post the list online. Draw red lines after the appropriate employees, marking how much money must be saved by which date in order to prevent all employees above the line from losing their jobs. And, while we're at it, bring some other wish-list items into the spotlight — explaining, for example, that only the legislature can halt certain costly mandates and giveaways.

If anything has become clear over the past few years, it is that Rhode Islanders cannot, as a body, infer cause and effect beyond the previous day's news cycle and the next day's revenue report. Let's bring transparency to the next level: namely, describing what will happen in the future. If the judges find that the governor doesn't have the authority to do X unilaterally, and if the relevant special interest won't agree to do X mutually, all by a certain date, then Y will be the consequence.

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Couldn't agree more Justin. The governor should have had the layoff list already compiled and ready to go. My hope going forward is that he will in essence ignore whatever the court decides next week and move ahead with layoffs. Given the staggering deficits that are looming just around the corner these layoffs are coming sooner or later. Why not just make it sonner.
My hope is also that this governor will drop an outrageous budget into the laps of the Gen Ass next June and let them squirm as they are forced into making the hard decisions. He needs to get radical with his budget in order to force their hand.

Posted by: Tim at September 4, 2009 8:29 AM

AMAZING! Did I see the new education commissioner as one the new employees subject to layoff? What a hoot!

Does this mean that DEM won't be filling the seasonal positions mentioned in the Projo article today?

I agree with Tim. The Governor should drop the effort to negotiate and just layoff until the budget is balanced.

We need to inflict pain to promote real change.

Posted by: John at September 4, 2009 8:49 AM

Why not just lay-off Union members, leaving those not in the Unions untouched?

Posted by: George Elbow at September 4, 2009 5:32 PM

George, have you ever seen the bloated salaries of those in the governor's office (and The Don keeps on hiring, fiscal crisis be damned)? And how about the six-figure pensions for judges?
No union members there.

Posted by: rhody at September 4, 2009 9:41 PM


Love your two-wrongs-make-a-right argument.

The Union controlled GA could solve these issues in a nano-second.

But like you, they use the judge argument as an excuse not to address the problem.

Posted by: George Elbow at September 4, 2009 10:58 PM

"have you ever seen the bloated salaries of those in the governor's office (and The Don keeps on hiring"

For the record, the Governor pointed out on one of his radio appearances this week (can't keep them straight, there's been so many; by the way, surely the GA leadership has been making the rounds in similar fashion to defend their budget; I must have just missed all of their appearances ...) that he has cut his staff from 52 to 37 and that he and they have already taken the 4.5% pay cut he has asked of everyone else.

Posted by: Monique at September 5, 2009 7:01 AM


We can't blame Rhody for not knowing / recongnizing that the Gov already pink-slipped a large number of employees within his administration.

After all, they were professionals who went away quietly and didn't go whining to the courts and the press like the lazy, Entitlement-minded, coddled, not-so-bright, low-self-esteem, scared of the free-market, horrified at the prospects of living in the real world, chicken-crap, hardly-working Union-hack dependents.

Thus, Rhody didn’t have the benefit of a Projo headline or a piece on that stink-tank RIFutureless to inform his “thinking”.

Posted by: George Elbow at September 5, 2009 8:32 AM

That would be game, set and match for George. You nailed it (and Rhody) beautifully and quite accurately. Nice!
Most citizens don't know it but the Gov has been reducing the state employee workforce since he took office. Methinks we're down about 3,000 from where we were. The Gov has reduced his own staff by 25% over the years. Thank God the Gov has been pro-active all along because we'd be in a much deeper fiscal hole had he not. Next time these brainless fools roll out the "bloated salaries in the gov's office " argument ask them just how many hours the Gov and his people work week and and week out. Here's a hint, none of the Gov's people look like Council 94 head Michael Downey = fat, bloated and frumpy.

Posted by: Tim at September 5, 2009 9:50 AM

Uh, George, if someone took away your job (or cut your pay), you'd fight, too (unless you're dependent on corporate welfare). And if you tell me you wouldn't, you're a liar.
A little intellectual honesty goes a long way.

Posted by: rhody at September 6, 2009 11:51 AM

Careful, Rhody, your entitlement mentality is showing. Many of us have taken pay cuts not out of timidity, but understanding the circumstances of our employers and the job market. Grownups capable of understanding the functioning of a society of individuals will stand up for themselves but won't "fight" to keep something that they're supposed to earn.

Posted by: Justin Katz at September 6, 2009 12:00 PM


Salary increases (in fact, even flat salaries) should be the result of Two things:

1) The entity paying the salary must be able to afford the increase (or be able to afford the current level). Currently, the state, cities and towns and it's taxpayers can not afford to provide increases.

2) The individual receiving the increase must do something to merit the increase.

Your Union-hack friends could give a rat's ass about the firt criteria.

With respect the second criteria, the concept of "merit" is foreign to them. In their world, salary increases are merely dependent upon the passage of time.

With respect to "fighting" for my job: I don't go thru life thinking I am owed a job or someone (e.g. the state and/or it's taxpayers) owe me a job. But alas, as Justin alluded to, you come at this issue with an Entitlement attitude.

Posted by: George Elbow at September 6, 2009 1:22 PM

I was a public employee for 14 weeks over the course of two summers while in college many moons ago, so I admit having sucked on the public tit (my father, about as anti-union a person as you'd ever want to meet, helped me obtain the job, ironically enough).
Since I have been a member of the private sector since then, you're damned right I'm going to fight for my job or against pay cuts. When somebody tries to take a chunk out of you or your family's livelihood, you fight, whether you're a union member or not.
If I just rolled over, as you would advocate I do, my wife would really wonder what kind of milksop she married. I'm sure your spouses might feel likewise in similar situations.

Posted by: rhody at September 6, 2009 11:21 PM
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