Fraternal Order of Police Lodge No. 165 v. City of Choctaw
| Decision Date | 09 July 1996 |
| Docket Number | Nos. 85460,85542 and 85266,s. 85460 |
| Parties | 159 L.R.R.M. (BNA) 2553, 1996 OK 78 FRATERNAL ORDER OF POLICE, LODGE NO. 165, Appellant, v. CITY OF CHOCTAW, Oklahoma, Appellee. INTERNATIONAL UNION OF POLICE ASSOCIATIONS, LOCAL 24, Appellant, v. CITY OF LAWTON, Oklahoma, A Municipal Corporation, Appellee. Richard FERLING, President of Fraternal Order of Police, Lodge 136 of Edmond, Oklahoma, and Fraternal Order of Police, Lodge 136 of Edmond, Oklahoma, an Oklahoma nonprofit corporation, Petitioners, v. CITY OF EDMOND, Oklahoma, a municipal corporation, Respondent. |
| Court | Oklahoma Supreme Court |
Ted Pool, Sherry Blankenship, Pool, Blankenship, Vincent & Love, Oklahoma City, for Appellee City of Choctaw, Oklahoma.
Diane Pedicord, Sue Ann Nicely, Oklahoma City, for Amicus Curiae Oklahoma Municipal League, Inc.
John H. Vincent, Senior Asst. City Attorney, Lawton, for City of Lawton, Oklahoma.
Nancy Nichols, City Clerk, Stephen T. Murdock, Municipal Attorney, Edmond, for City of Edmond, Oklahoma.
This Court is once again faced with the question of whether a recently enacted section of the Fire and Police Arbitration Act is constitutional. At issue is 11 O.S.Supp.1994, § 51-108, which in effect mandates binding interest arbitration. Because three cases pending in this Court involve the constitutionality and application of this section, we have made them companion cases. We now uphold the constitutionality of the challenged provision as written, although we observe that an unconstitutional application of it could occur in practice.
The statute is as follows:
§ 51-108. Hearing procedures--Special municipal elections--Effective Date of Agreements
A. 1. The arbitration board acting through its chairman shall call a hearing to be held within ten (10) days after the date of the appointment of the chairman and shall, acting through its chairman, give at least seven (7) days' notice in writing to each of the other two arbitrators, the bargaining agent and the corporate authorities of the time and place of such hearing.
2. At least seven (7) days before the date of the hearing the corporate authorities and the bargaining agent shall submit to each other and to the arbitration board members a written arbitration statement listing all contract terms which the parties have resolved and all contract issues which are unresolved. Each arbitration statement shall also include a final offer on each unresolved issue. The terms and offers contained in the arbitration statements shall be known collectively as each parties' last best offer.
3. The hearing shall be informal and the rules of evidence prevailing in judicial proceedings shall not be binding. Any and all documentary evidence and other data deemed relevant by the arbitrators may be received in evidence. The arbitrators shall have the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the productions of books, records, and other evidence relative or pertinent to the issues presented to them for determination. A hearing shall be concluded within twenty (20) days from the time of commencement.
4. Within seven (7) days after the conclusion of the hearing, a majority of the arbitration board members shall select one of the two last best offers as the contract of the parties. The criteria to be used by the board in determining which offer to select shall be limited to paragraphs 1 through 5 of Section 51-109 of this title. The arbitration board may not modify, add to or delete from the last best offer of either party. Written notice of the selection decision shall be mailed or delivered to bargaining B. If the city's last best offer is not selected by the arbitration board, that party may submit the offers which the parties submitted to the arbitration board to the voters of the municipality for their selection by requesting a special election for that purpose. The request for an election must be filed with the clerk of the municipality within ten (10) days of the date of the written decision of the arbitration board. Written notice of the filing of the request shall be given to the bargaining agent. if a request for an election is not filed in a timely manner, the board's selection decision shall be final, and the last best offer it selected shall constitute the agreement of the parties.
agent and the corporate authorities.
C. Upon receiving a request for an election pursuant to the provisions of this section the clerk shall notify the mayor and governing body of the request. Within ten (10) days of such notification the municipal authorities shall call for a special election. The election shall be governed by the state laws on special municipal election except that only a minimum of thirty (30) days' notice shall be required to be given to the county election board conducting said election. Only residents of the municipality shall be eligible to vote in said election. The ballot shall inform the voters that they must choose either the last best offer of the bargaining agent or the last best offer of the corporate authorities. The last best offer receiving a majority of the votes shall become the agreement of the parties.
D. Concerning issues relating to money, such ballot shall clearly state the total dollar amount of the offer from the corporate authority and the total dollar amount of the offer from the bargaining agent. Such ballot shall also disclose the percentage of increase or decrease both offers have over or under the last contract of the two parties.
E. Agreements which are reached as a result of selection by the arbitration board or by election shall be effective on the first day of the fiscal year involved regardless of the date of the final selection.
(Emphasis added)
The first case, Richard Ferling v. City of Edmond, No. 85266, 1996 WL 383263 (1996) is an application by Petitioner as President of the local Fraternal Order of Police asking that this Court assume original jurisdiction and issue a writ of mandamus ordering the City of Edmond to comply with a collective bargaining agreement which was reached through the procedures of Section 51-108. The City of Edmond urges that mandamus is not proper because Section 51-108 did not become law until two months after the collective bargaining agreement was to become effective.
On March 14, 1994 the FOP entered negotiations with respondent for a new collective bargaining agreement to become effective July 1, 1994. On April 14, 1994, petitioner requested arbitration of unresolved issues. It was not until August 25, 1994, after negotiations had begun, and after the statutorily-mandated effective date of the collective bargaining agreement, that § 51-108 became effective. The parties continued negotiations through September. The arbitration board heard the remaining issues on September 20, 1994 and rendered its decision on October 14, 1994. The board accepted the "last best offer" of the FOP.
The City of Edmond did not submit a "last best offer," and has refused to recognize the decision of the arbitration board. It claims that Section 51-108 is inapplicable to this case because it did not become law until several months after negotiations began and after the fiscal year had begun. Petitioner concedes that the general rule calls for prospective application of statutes, but claims that the legislature intended the statute to apply retroactively. Briefs filed by the amicus curiae Municipal League of Oklahoma urge that the statute is unconstitutional.
of Lawton and Fraternal Order of Police, Lodge No.
The Legislature first passed the Fire and Police Arbitration Act in 1971. The first section stated that as a matter of public health, safety and welfare the right to strike is withheld. 11 O.S.1991 § 51-101. The Act went on to provide for arbitration in the bargaining process, but interest arbitration was non-binding.
In 1985 the Legislature attempted to give the employees relief in the event their collective bargaining agreements were not renewed, with a provision requiring continuation of the old agreement until a new one replaced it. That part of § 51-105 was called the "Evergreen Clause." We were compelled to strike down the "Evergreen Clause" when the cities correctly pointed out it violated our Constitution's Art. 10 § 26, forbidding municipal indebtedness payable out of revenues beyond the current fiscal year. Del City v. F.O.P. Lodge 114, 869 P.2d 309 (Okla.1993). In response to Del City the Legislature amended § 51-108 to read as we earlier set it out, in effect mandating binding interest arbitration, but with the twist that if the City Council's best offer is not...
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