the comfort of why

Other People’s Moneyitis

Other People’s Moneyitis (OPM) is the syndrome commonly noted where those in charge of the public purse, such as governments who claim to be fiscally prudent, often seem to make decisions which do not appear to be supported by rational business arguments.

We see the symptoms of this syndrome, for example, when governments express concerns about spending, but then increase salaries for political staffers and themselves or run multi-million self-promoting advertising campaigns.

OPM is one of the few explanations which seems to make sense in trying to come to terms with the provincial government’s position on bargaining in the current labour dispute with the BCTF.  A dispute which is threatening to dramatically derail education for approximately 559,000 students this fall.

Why?

As those following the intricacies of public education in British Columbia will know, the BC Supreme Court found that the government acted unconstitutionally in 2002 when it stripped provisions from the teachers’ collective agreement around class size and composition.

Victoria Parliament

This original court case was not appealed which means the government accepted its wrong-doing and accepted class size and composition as working conditions to be negotiated with the union.

The government was given a year to fashion a remedy, but failed to do so successfully and Justice Griffin subsequently ruled that they had negotiated in bad faith, that the remedy was insufficient, and that they had to pay the BCTF $2 million in fines. This is the judgement which the government is now appealing and which will be heard in mid-October 2014.

What does it mean if the government wins the appeal and what does it mean if the government does not win the appeal?

If the government wins the appeal, it means that they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated.  These facts from the original court case do not change.

With a government win, the BCTF may appeal to the Supreme Court of Canada and I understand there would be a significant possibility that the highest court would agree to hear the case in this situation.

If the case does go to the Supreme Court of Canada and if it is found to be in favour of the BCTF, that could have a huge cost implication not only for this one collective agreement but for any collective agreement with any public sector union and for all time.  While the courts would never say how much money government is required to spend, a loss by the government — if they let it get this far — would have tremendous cost implications well beyond anything required to settle the current dispute.

On the other hand, if the government were to win at the Supreme Court of Canada, it would still mean they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated because the Supreme Court would not be examining the original court case. All those legal costs and all the hidden costs of time and resources will have been spent to end up back at the position in which the government started. To refuse to see that even a win at the Supreme Court of Canada may still lead to the government of British Columbia investing a significant amount of money in the public education system is a level of obstinacy and arrogance that can only be afforded with OPM.

Let’s go back to the appeal of the Griffin decision this October.

If the government loses, they can make application to the Supreme Court of Canada, but it’s my understanding that there may be less interest from the higher court in hearing this case under these circumstances.  That means, if the court of appeal expedites its ruling and if the Supreme Court were to turn down the request to hear the case, the end of the legal process would in fact be a lot sooner than anticipated.

With an appeal loss, the government’s risky gamble will have been for nought.  The original finding that they acted unconstitutionally in 2002 and that class size and composition are working conditions to be negotiated would stand. They would have to pay $2 million to the BCTF.  The finding of bad faith bargaining would stand as would the finding that the remedy, which the government fashioned over the course of the year they had, was insufficient.

In addition to funding whatever number or formula or fund is established to deal with class size and composition, an appeal loss would also mean that every instance where a classroom did not comply with the provisions of class size and class composition as per the 2002 collective agreement would form the basis for a grievance.

Think about that for a moment.

Every class throughout the province from 2002 to 2014 which did not comply with the provisions of the collective agreement which existed prior to 2002 would be subject to a grievance with no further legal processes available for the government to pursue.

Every non-compliant classroom.  For each of twelve years.  Throughout the province.

Think about the cost implications not only in terms of the actual compensation that would be paid out in the end, but of the legal fees involved and the demand on resources.  Instead of promoting and providing education, the Ministry of Education, school districts, the union, the local branches, and teachers, would be tied up in an endless series of grievances.

Any private entity, faced with the potential for such a future calamity, would be zealous in trying to extricate itself. In my estimation, it’s only the false confidence of OPM which prevents the government from doing so now.

That’s why I believe a negotiated settlement prior to the appeal being heard is actually one which serves the government interests the best and which would actually be much more mindful of taxpayers’ money. It would be the smartest business move and evidence of fiscal prudence as well as visionary leadership.

The government is standing on quicksand when it comes to the labour dispute with BC’s teachers although they are acting as if they’re secure in their bunker.

However, if they don’t pursue an out-of-court settlement now (a negotiated settlement which would enable school to start on September 2 as scheduled), if they don’t consider the abyss into which they are staring, when they fall, they will drag students, families, and one of the world’s best public education systems down with them.

13 Responses to Other People’s Moneyitis

  1. It’s s a complicated issue that you’ve strived to make a little less complicated. Government must have received similar advice regarding the outcome of the appeal – which explains why, in April, they proposed that a way to settle the grievance issue resulting from the court case, be negotiated into the collective agreement. This particular fact, among a myriad of others, I feel is one of the reasons negotiations have been stalled.

    As for the actual grievances, BCTF has already filed. two grievances – one for all of the classes that exceeded the provisions of the collective agreement between September 2002 and January 24, 2014 and a second for classes that exceed the reinstated provisions of the CA from January 25, 2014 and onwards.

    I’m cynical-part of me thinks governments plan is to wait until October to legislate teachers back to work, after spending September painting teachers as intransigent in order to further bolster their need for legislation. I can then see part of this legislation framed to supersede the court judgements against them and again strip our contract the same way they did in 2002 and sit back and wait for it to go through the courts. Really, what’s to stop them? They’ve already done it once. Why wouldn’t they do it again?

    • Thank you Sharon for taking the time to read and respond to this new blog post.

      I guess the government could opt to legislate – the worse possible outcome in my opinion not only in terms of what teachers would have to accept for the term of the contract, but for the negative impact on relationships throughout the system and the disregard for student needs today – and to leave resolution of the issue in the lap of the courts. However, at some point, the fact that they would be in court consistently, that education would be continually disrupted, would start to reflect upon their leadership and management capabilities.

      Any diminishment of the government’s standing in the circles of influence will start to have an impact on their electability especially if John Horgan’s efforts for the NDP begin to gain traction and to connect with voters.

      That’s why I tried to frame my discussion today in terms of what the business argument for an out-of-court settlement may be because I think there’s a strong case to be made there. I’m hoping that at the same time I’m thinking along these lines some within the circles of influence around the Premier and Cabinet, including the lawyers managing this file, might be saying some of the same things.

      I’m hoping that they start to agitate for a negotiated deal — not because it’s the right thing to do from a social justice point of view (which it is), but because it’s the right thing to do if you are governing well, if you are managing your risk well, and if you are intent on dealing with issues which may impede future election results.

  2. This is an outstanding post, that speaks to the problem in a way many of my more conservative friends will hear. As a west van teacher this has been a very difficult time. On the one hand I have always felt supported by leadership in the district (at WVSS and the board office). On the other hand the provincial dispute has caused a lot of strain and a sense of division. Teachers want a similar level of advocacy from their admin and executives, and they want to hear it in the same language they as teachers would use. This is unrealistic as the board comes to education with different training and perspectives. Your words here bridge the gap between the business and academic world view very nicely, and I hope they are read widely and help negotiations in good faith move forward.

    Best regards,

    • Thank you so much for writing. I cannot tell you how much your words mean to me. First of all, I want to thank you for your kind thoughts regarding the leadership in school district 45. Second, I think your recognition of the fact that we each use a different language even though we’re dealing with the same issues is profound. That’s a level of understanding which often seems absent. Of course the challenge when we use different languages is to build that sense of common purpose so that we each bring our strengths to bear on an issue rather than to be working at cross purposes. Finally, if I can be of any help in reaching those more conservative friends of yours or of the governments, I will feel like I’ve made a contribution because I think we need the business people and other supporters of the BC Liberals to see that money spent on securing a negotiated deal today is a much more savvy approach to public education than pushing for a Pyrrhic victory at some future date. With appreciation.

  3. Thanks for the read. I agree with Sharon. The gov needs to drive support for Legislation in the fall. BCTF have been bargaining against themselves for quite some time. That essentially means any movement at the table will be backwards for BCTF’s agenda. The strike has accomplished one huge benefit for teachers; drawn attention to their cause across the province. People like myself who only casually watch from the sidelines have researched extensively and are now aware of what is at stake. I’m not sure what BCTF strategy is going forward but being legislated back in the fall would not be ideal. It would only push back the dates for applying final court rulings for another few years. I would offer two scenarios that would serve unions agenda better than legislation back to work. 1. Negotiate 3 year term, only wages and direct benefits, leave CS/C for the next round of bargaining after the ruling, not accepting any money for CS/C. If that proves difficult 2. End the strike and be patient. There’s no way Gov wants to be faced with a lingering court ruling AND no agreement in place. However; I’m outsider and may not understand all intricate details. Hoping for school in fall. @Pinchy82 on twitter.

    • It’s so nice of you to make the leap over from Twitter! Welcome.

      Thank you so much for taking the time to study the issue in more depth. To a certain extent, we’re all outsiders except for the parties at the bargaining table and that’s why we all need to exert pressure for a negotiated settlement to make sure school starts on September 2 as scheduled.

      In the past, I’ve promoted the idea of your option 1, but now I think that’s not enough of a “win” for government. It’s too short a term for them to sell with any credibility (especially since a year has already elapsed which means that 1/3 of a 3-year agreement has already been chewed up). And, if you buy the argument that a settlement today is a solution to a future liability, why would you accept something — even part of a something — which does not close up that liability?

      Ending the strike is an interesting conjecture, but I’m not sure it’ll work for the BCTF membership given what they’ve sacrificed already. It’s a scenario which is worth at least contemplating.

      What we really need is the families of the 559,000 students to actively say to the government and to the BCTF that school must start on September 2. They don’t have to pick sides because really their primary interest is not vested in one party or the other. They just have to echo the call for a settlement today and let each side know that any other alternative is unacceptable.

    • Hi, Pinchy. I’ve read many of your posts on Twitter with interest, and now that you’ve made the leap to posts greater than 140 words I’m even more intrigued. 😀

      If you’re still following this, I would really like some elaboration on your points about the BCTF “bargaining against itself” and what you feel is the BCTF’s agenda and why you feel movement at the bargaining table would not be serving this agenda. I’m trying to figure it out, but I’m frankly mystified.

      I would also add that teachers have been “patient” for twelve years, some even longer. What you’re seeing is the result of a lot of frustration that’s been the result of too many straws on too few camels’ backs. I, too, have been mulling over the notion of a return to work in September, but my concern is that it would send out the wrong message that everything really isn’t as bad in BCED as it’s been made out to be.

      I do appreciate your efforts to research and put thoughts together on this subject, though. Thanks for doing due-diligence!

      CB

  4. First, thank you for the opportunity to respond to your blog.

    I’ll begin by saying govt has already accepted class size and composition as working conditions to be negotiated with the union. This is evidenced in their E80 proposal: http://bit.ly/1lBJTUQ

    You’ve gone to considerable length to repeat this point, the implication being the govt disputes this. They don’t.

    The argument, and the reason for appeal, is at what starting CS levels will the negotiating begin. I again refer to E80 where the govt disputes “BCTF’s assertion a judicial body can or will determine ‘content’ of the new CA”

    See BCTF proposal U62 for proposed CS: http://bit.ly/1iqfWZ7

    In other words, union wants CS of 20-22-28
    and govt wants current CS of 22-24-30 to be start position of CS negotiations.

    This is why the govt is appealing because the immediate implementation of union CS levels would be a financial shock to tax payers (1.5 billion or so), not to mention how do you hire thousands more teachers and build hundreds more classes to accommodate the new CS levels.

    So a govt win means that Bill 22 stands as the remedy to the illegal stripping of the much publicized contract. The full bill can be read here: http://bit.ly/UEqJmR A summary of the bill can be read here:

    With Bill 22 standing as the remedy, beginning negotiations for CS would be the current 22-24-30.

    If govt loses the appeal there are options the court has other than requiring the govt implement union CS.
    1 – The court can require the govt to rewrite the bill to be Charter compliant. This is a real possibility as courts give govt opportunities to right their wrongs.
    2- The court may allow the law to stand, even though it violates the Charter, if the govt can demonstrate the broader public interest is served. See Section 1 of the Charter.

    Also note, the Appeal Court has already issue a stay.

    Justice David Harris said, “It is clear, in my view, that the harm suffered in implementing the judgment is irreparable.”

    Your conclusion that the govt is required to cut a deal now is premature given the ramifications of the court case.

    Thank you

    • Thank you for taking the time to comment.

      Yes, the government has accepted that class size and composition are working conditions to be negotiated because they did not appeal the original court case. My argument is that the proposals currently on the table do not represent a departure and that’s become a stumbling block. Averring the status quo is not in fact negotiating with the other party.

      You’ve said: “In other words, union wants CS of 20-22-28 and govt wants current CS of 22-24-30 to be start position of CS negotiations.” If you look at those two class size positions, they are not that far apart. They could split the difference and call it a day. The dispute is more complicated than that and I believe the sticking point is in how those class sizes are inserted and protected in the collective agreement.

      While you’ve emphasized the financial shock to taxpayers, I think you’re overlooking the fact that the government has realized those savings over 12 years through the unconstitutional strip of contract provisions. You’ve also simply focused on class size and not the other two issues of class composition and ratios for non-enrolling specialists.

      Yes, a stay was granted while the appeal is in process and I know there’s no going back to 2002. However, I do think there’s an argument here for an out-of-court settlement just as there was in the California power case because even if the government wins the October appeal, then they are still bound to negotiate.

      As to what happens if the government loses the appeal, I believe your solutions are those which the Supreme Court of Canada could offer, not the BC Court of Appeal and there’s some question as to whether the case would even make it there. So, the scenario of possible losing the appeal and not being heard at the Supreme Court of Canada is still not one you’ve answered.

      I appreciate your point of view and all the information you’ve provided for readers to consider in making up their own minds as to what scenarios the government may have to contend with going forward.

      Thanks again for dropping by.

      • You don’t understand why the govt wants the current CS as start position to bargaining and why we frequently clash on twitter.

        Govt has no intention of changing the CS levels. Govt feels, as I do, the current levels are optimal.

        I point to student outcomes as proof current CS is working. For those reading, I point to the recent Conference Board of Canada report: http://bit.ly/TBlSCA Note there were 9 separate indicators to measure student outcomes.

        Click on ‘see the rankings’, refer to the first 9 indicators that apply to k-12. BCED is he highest ranked education system in Canada, the 3rd in the world. Only marginally behind Japan and the much touted Finland.

        Also, from the tax payer POV, there were no ‘savings’. It was an unnecessary cost not added and thus should not be a consideration in this argument.

        To dismiss the financial implications is to ignore the election results last year, as well as the recent public sector union contract signings. This govt was elected on a platform of balanced budgets and fiscal restraint.

        You’re assuming the court will not choose option 1 or 2 I listed above and will require the govt to immediately implement union CS.

        I disagree with this unlikely scenario, the scenario your argument relies on. I point to what they have already said when issuing the stay.

        Thus, my conclusion is an out of court settlement is premature and the court process should be left to play out.

        Thanks

        • And I had so hoped I’d be able to give you the last word!

          Of course I understand why the government wants to uphold the current class sizes – they do not want to spend additional resources on the public education system. However, I fundamentally disagree because those class sizes are not applied uniformly throughout the province and do not address situations which are not working well for students especially since class composition issues are not being addressed.

          Government may feel current levels are optimal, but the BCTF does not and given that the original court ruling pointed to class size as one of three distinct working conditions which are to be negotiated, the government is under an obligation to negotiate with the BCTF on a solution to which they both agree.

          You often focus on outcomes and that is one measure of which we can all be proud. However, there are many issues which need to be addressed in order to better meet the needs of students and to ensure that the programs and services cut by many school districts in deficit positions can be restored where warranted. This is the point on which you have been very intransigent.

          The approximately $300 million (a court figure) kept out of the public education system since 2002 is not to be ignored. If the funds weren’t spent there, then it was in fact a savings to the government or money made available for spending elsewhere.

          I understand the reality of the election results and have, more than once, said on social media that I don’t believe the BCTF can realistically expect more than the wages and benefits pattern which other public sector unions have accepted. The question now is how you figure out what that means in this case given that one year has already expired. So, without some retroactivity for the past year, the BCTF is being asked to accept zero in year 1 and I don’t believe that’s the pattern for other public sector unions. And while I appreciate the government’s political platform, I believe the obligation will be on them to accommodate the money that is required for a settlement especially because of the court rulings.

          I am saying to you that I don’t believe the option 1 and 2 which you’ve listed are within the BC Court of Appeal’s jurisdiction. Those, I believe, are options which would have to come from the Supreme Court of Canada and there is no guarantee — especially if the government loses in October — that the highest court will hear the case. I am also not saying that the government, even if they lose the appeal, will have to unilaterally implement whatever the BCTF wants. I’m saying they have to negotiate a new standard. It won’t be 2002, but if they are truly bargaining, it won’t just be the status quo either.

          I appreciate your conclusion, but again I still disagree. There is enough of a future liability — especially if you factor in potential grievances — which lends itself to a settlement today. It’s not a premature option; I believe it’s a strategically sound one if the government has it’s eyes on the best interests of the public education system in the long-run. If their horizon extends no further than reelection in 2017, then I’m anticipating a very sorry few years in public education.

          • I agree the govt is under an obligation to negotiate CS but they are under no obligation to change CS.

            Govt and BCTF have a fundamental difference of opinion as to how large a determinant CS plays in student outcomes.

            There is much discussion on the issue. The famous Colorado study shows that CS of 13-17 improves student outcomes. No one disputes this. However, the union is not proposing a CS reduction to those levels.

            There is a study, by Harvard, that shows reducing CS by 2 or 3 (24-22) does not affect student outcomes. You can view it here: http://bit.ly/1o5Z0Dp Conclusions start page 29.

            So the often repeated ‘Class size matters’ only applies if CS is between 13-17.

            I do point to measurable outcomes as proof current CS levels are working. The key word is measurable.

            I’ve asked teachers for other ways to measure student success, other than test score or grad rates, and have been met with anecdotes. You can’t measure anecdotes.

            Test scores and grad rates are the best measures we have for student outcomes or success. Unless teachers can come up with an alternative that’s what we have.

            Of course the 300 million should be ignored. You’ve already admitted there’s no going back. The cost wasn’t added. It’s done.

            Option 1, rewrite the law, was already ordered by a lower court. The Appeal Court certainly has the power to compel the govt to rewrite the law again to be Charter compliant.

            I spoke to the issue about negotiating CS. Govt can negotiate CS but is under no obligation to negotiate CS down.

            This is where we disagree.

            You see a potential liability and conclude govt should settle out of court. I don’t see a potential liability so govt should not settle out of court.

            Thanks again for allowing me the opportunity to discuss the issues in more depth.

          • Refusing to change class size is not meeting an obligation to negotiate.

            Recognize the info you’ve provided regarding class size, but one would think the attempt would be to get as close as possible to the class sizes proven to be the most effective especially in increments. Also, by looking at overall numbers and not the impact of class composition is an oversight.

            Test scores and grad rates are measures to use, but you can’t use them to camouflage the weaknesses in the system. One ought to be doing what one can to maintain those test scores and grad rates; not to simply assume they can be kept at the same level as programs, services, and resources are shed.

            You can’t treat the $300 million as a sunk or lost cost. There is a number somewhere between the $75 million of LIF and the $300 million, along with other pieces of the puzzle, which might be the combination needed for a negotiated settlement which I strongly feel is the best possible outcome.

            Option 1 was ordered by a lower court and it’s what the government failed to do. I don’t believe the BC Court of Appeal jurisdiction works as you’ve outlined. They may find the remedy to have been sufficient, but I don’t believe they can say the government has another chance. They are strictly to rule on whether the Griffin decision in any way contains error of law.

            I understand that you don’t put any value on the potential liability and I do. Guess it’s a draw.

            Thanks once again for participating in the dialogue.

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