On December 8, the Washington Supreme Court released a decision holding that a Spokane ordinance requiring collective bargaining between the city and city employee unions be conducted in public is unconstitutional.

In 2019, a City of Spokane voter-approved initiative amended the city charter to require all collective bargaining negotiations to be done in public and make all materials used in the negotiations available to the public. Despite the ordinance, in 2020 the Washington State Council of County & City Employees (a union who represents city employees) notified Spokane they wanted to engage in traditional, closed-to-the-public negotiations to renew their contract. The city initially insisted on following the open negotiations ordinance and the parties were unable to agree on ground rules for negotiations. The union sued, arguing that the city ordinance violated the state Public Employee’s Collective Bargaining Act (PECBA) and the Washington State Constitution.

The state Constitution allows cities “to make and enforce local regulations so long as they are not in conflict with general laws.” The Court agreed with the union that Spokane’s public collective bargaining ordinance was preempted by the state’s PEBCA. While the PEBCA allows broad latitude on negotiation methods, it requires parties to negotiate in good faith, meaning that negotiation ground rules had to be agreed on by both parties, not unilaterally imposed by one party. Because of this, the Court found that the city’s ordinance equated to an unfair labor practice since it amounted to a refusal to bargain in good faith as the PEBCA requires. Since the ordinance conflicts with state law, the ordinance itself is unconstitutional.

Importantly for cities going forward, the Court went on to hold that the legislature intended to have state law govern public employee collective bargaining, and that local governments were preempted from regulating public employee collective bargaining. Spokane unsuccessfully argued that the PEBCA did not preempt the ordinance, since public access to negotiations was not a mandatory subject of bargaining. However, the Court disagreed, saying that the legislature intended to create a uniform system of collective bargaining for public entities across the state, regardless of the issue being a mandatory or permissive subject of bargaining, and that only state law controls. It said that to do otherwise would create a patchwork of bargaining rules across the state, against the clear intent of the legislature for a “uniform” system.

For any jurisdiction considering a move towards public bargaining, you should consult your legal counsel about the appropriate steps given this decision.