Tis’ the Season, the Season for Bargaining!

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Diana Moffat

From our December 2015 e-newsletter

What does the Holiday Season mean to you? Gathering with family and friends? Lots of good food? Lots of shopping? Getting ready to ring in a New Year?

Gearing up for bargaining season? Yes! In the human resources and labor relations world the approach of the Holiday Season signals time to prepare for bargaining!

Do you have a Collective Bargaining Agreement (CBA) that expires on June 30, 2016? If so, NOW is the time to act. The Collective Bargaining process can, unfortunately, take many, many months to complete. At best, you are looking at two to five months of getting things settled. At worst, much longer! There is a distinct advantage to completing the process, if at all possible, prior to the expiration of the current CBA.

Advantages to early resolution 
If you can resolve your negotiations prior to expiration, you are not faced with any type of retroactive pay issues. This can go a long way with employee morale for both your regular and payroll employees. Often times, unless bargained otherwise, the retroactive increases reach back to overtime calculations. This can be a small nightmare to your payroll department. And, if you have anything less than fully funded insurance premiums, you are not faced with the danger-zone of figuring out what your “status quo” obligations are under the Public Employee’s Collective Bargaining Act at the time of contract expiration.

You can also use “early resolution” to your advantage in getting a settlement. Employees, and their union can be motivated to get the negotiations behind them and move forward. Once the expiration date comes and goes, that advantage is lost.

If faced with a situation of non-settlement by the date of expiration, you can get to mediation and/or arbitration/impasse shortly after expiration. By July and August the waiting time increases. There are only three mediators for the entire State of Oregon!

Timelines to be aware of
Does your CBA require notice to “open” bargaining? If so, you need to meet that deadline with a notice to the Union that you want to bargain for a successor CBA.

The required 150-day bargaining period, under the Public Employee Collective Bargaining Act (PECBA), does not even begin until the initial proposals have been exchanged. Because of that, early scheduling can be a real advantage. If you are able to develop and present your proposals in January or February, you are, at worst, looking at just around the time of contract expiration for the time that you can proceed to mediation if needed.

Development of your proposals should begin sooner, rather than later. Precise contract language is of utmost importance. The development of your proposals should be done in a very thought-out fashion, with input all the way from supervisors, up to Council/Board members. This process takes time.

Developing your plan
Now is the time to review your contract to identify what is working and what needs to be changed. Each management member can give feedback.

Now is the time to decide if you want to do a comparable analysis, in conformity with the PECBA, to assess your place in the marketplace. This can take a month or, usually, more to complete.

Now is the time to look at your budget projections for your limitations or wiggle room.

Now is the time to decide who will be your representative at the bargaining table and who will be on your bargaining team. Do your City Council, County Commissioners, or Executive Board need to be advised on the process, the rules and laws that regulate Public Employee Collective Bargaining? Now is the time to schedule that training. It is important that your governing body understand the rules and obligations which surround bargaining with a public employee union. There can be many danger zones, which they should be aware of.

Current “Hot” issues to consider
There are a number Oregon statutory provisions that go into effect on January 1, such as: SB 185 regarding restrictions to employer required employee social media accounts; SB 454 regarding Oregon paid sick leave; SB 492 regarding use of sick leave for victims of domestic violence; HB 2007 regarding protection of wage information disclosure; HB 2600 regarding health insurance coverage continuation under OFLA; etc. A review of your CBA and Personnel Policies should be undertaken to confirm your compliance with those new laws.

And let’s not forget about the ACA Cadillac tax, which is the elephant in the room! Do you have a plan for how you will address the new thresholds come January of 2018?

In addition, there have been changes to the law surrounding election of remedies, when an employee is faced with a possible grievance and an EEOC filing simultaneously. There are many CBAs in Oregon right now that are not in compliance with the change of law in that area.

Finally, the unions have been pushing for Loudermill, Garrity, and Weingarten rules to be put in CBAs, along with other provisions from the Police Officers’ Bill of Rights statute. Are you aware of the dangers of that proposition? You should seek the advice of your labor relations representative in this area.

So, when you find yourself planning for the Winter holidays let that remind you to begin preparing for the upcoming Bargaining Season! Cheers!

QRF: This Long-Time Purchasing Program is Still Around and Still Mandatory

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Ross Williamson

From our December 2015 e-newsletter

This article discusses the mandatory public contracting program known as the Qualified Rehabilitation Facility program or “QRF.”

Although this program has been in existence since 1977, it is time to get reacquainted. The program is most notably known as the way to obtain janitorial services, but it is actually much broader. The program has been in existence for so long that it is time for a reintroduction so that we all do not forget it is still alive and kicking.

The statutory authority for this program lives in ORS 279.835 – 279.855. The QRF program came to life in legislation adopted by the 1977 Oregon Legislature. The purpose of the program is “to encourage and assist individuals with disabilities to achieve maximum personal independence through useful and productive gainful employment by assuring an expanded and constant market for sheltered workshop and activity center products and services….” (ORS 279.840.)

The QRF program is mandatory. State and local government agencies are required to purchase QRF products and services, so long as the product or service meets the purchaser’s requirements. Purchases made through the QRF program do not go through a competitive solicitation process under ORS Chapter 279B. As a result, contracting agencies negotiate directly with the QRF service provider without a competitive bidding process.

QRF providers are nonprofits that provide vocational services for persons with disabilities. The Oregon Department of Administrative Services (“DAS”) is charged with running the QRF program and has adopted administrative rules applicable to the program.

DAS helps in the selection process by maintaining a “procurement list” of products and services available for contracting agencies. Services are generally provided on a county-wide basis, while QRF products are generally available statewide. To be on the procurement list, the QRF provider must demonstrate the capacity to perform the service or provide the product at an industry standard.

The services available from QRF providers are generally custodial or janitorial services, including grounds maintenance, but also include other things like food services and recycling services. If you are in the market for these types of services or products, the first step is to visit the on-line product list and see if a QRF is available in your area. The product list is available here: http://dasapp.oregon.gov/qrf/index.aspx

If no source is located on the procurement list for your specific needs, you are excused from the QRF requirements and should proceed with a standard ORS Chapter 279B procurement process.

If you do see your product or service on the procurement list, contact DAS to see if it has a price agreement with the particular provider. If you are purchasing a product or service from a QRF and DAS does not have an established contract for that product or service you may work directly with the QRF to negotiate your own contract. But note, DAS must approve the contract price before starting the work.

The QRF program connects service providers with local governments. The program serves an important role in providing job skill and job training to Oregonians. It is also mandatory; so now is a good time to reacquaint yourself with this unique public contracting requirement.

More information, including DAS staff contacts, is available here:  http://www.oregon.gov/DAS/EGS/ps/Pages/QRF%20Menu.aspx

 

2016 Public Contracting Rules Update

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Carrie Connelly

From our December 2015 e-newsletter

As you are aware, ORS Chapters 279A, 279B and 279C (the “Public Contracting Code” or “Code”) has been in place since March 1, 2005. Since that date, the legislature has amended some aspect of the Code nearly every session. The 2015 legislature’s changes went into effect on September 21, 2015, and January 1, 2016. By statute (ORS 279A.065(5)(b)), each public contracting agency must review its rules once new AG rules take effect, to ensure statutory compliance. I have reviewed the AG’s new rules and prepared the necessary updates to replace any rules your entity may have adopted since 2005.

The most significant updates in our 2016 rules reflect changes in anti-discrimination laws, tax law compliance certifications, and “determination of responsibility” findings. Further, you may not have amended your rules yet to reflect the 2013 increase in the small procurement threshold for goods and services, from $5,000 to $10,000 and the requirement to follow the Attorney General’s Model Rules for Construction Manager/General Contractor (CM/GC) contracts.

I understand that the frequency of these regular updates may be frustrating, but we consider it our duty to continue making our update service available to you. By presenting the changes in a flat fee packet, our goal is to limit your costs while ensuring a legally sufficient product.

Our packet includes a letter explaining the changes and applicable adoption process, the updated rules, notice, and an amending resolution. If you purchased our 2012 packet, the most recent update can be purchased for $150. For those of you who have our rules in place, but have not updated within the past four years, the flat fee is $400. If you have not previously purchased our rules, the entire packet can be purchased for $650.

Please call or contact Carrie, at the Local Government Law Group with any questions you may have. If your entity chooses to purchase a 2016 rule update, let us know how you wish to receive the updates (e.g., hard copy, electronically, or both). In addition, please let us know which prior version of our rules you purchased. We look forward to hearing from you.

Homeless Camp Removal Requirements

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Mark Wolf

From our November 2016 e-newsletter

More and more communities throughout Oregon are faced with issues related to homelessness. One such issue is how to deal with illegal campsites on public property and the mess left behind when residents move on. At times, these campsites are abandoned and other times, cities or counties act to evacuate the camps. Either way, cities and counties are left to clean up the sites and remove property left behind or unclaimed. This article aims to help local governments understand their legal obligations, while providing some best practices when removing homeless campers and cleaning up homeless camps. While cities and counties primarily must address this issue, special districts should also be aware of these requirements as district employees regularly are called upon to assist in this process. Those entities could be named in a lawsuit along with the city or county.

Minimum Requirements Imposed by State Law

Many public officials are unaware that state law requires cities and counties to develop a policy that recognizes the social nature of the problem of homeless individuals camping on public property and to implement the policy so as to ensure the most humane treatment for removal of homeless individuals from camping sites on public property. ORS 203.077.

The policy developed and implemented must contain certain provisions including notice to the individual(s), notification of social service agencies, storing and making available unclaimed personal property, and a prohibition against issuing citations during certain time frames. ORS 203.079. Specifically, state law requires:

(a) Notice. Notice, written in English and Spanish, must be posted 24 hours prior to removing homeless individuals from an established camping site. However, notice is not required when illegal activities (other than camping) are occurring or for emergencies, such as site contamination by hazardous materials or danger to human life or safety. Consider laminating or otherwise weather-proofing the notice.

(b) Social Services. When posting notice, cities must notify local social service agencies. The local agency also has the right to arrange for outreach workers to visit the camp site to assess the need for social service assistance.

(c) Personal Property. All unclaimed personal property must be stored for 30 days prior to being disposed of and must be reasonably available to those claiming ownership. The statute defines “Personal Property” as any item that is reasonably recognizable as belonging to a person and that has apparent utility. Items with no apparent utility or that are in an unsanitary condition can be discarded immediately. Weapons, drug paraphernalia and items that appear to be stolen or evidence of a crime shall be turned over to law enforcement.

(d) Citations. State law prohibits citing homeless individuals for illegal camping at these locations within 200 feet of the notice and within two hours before or after the notice was posted.

Best Practices

While state law sets minimum requirements, some recent (unpublished) Oregon federal District Court cases help show us what to do, or at least what not to do, when implementing a policy on the removal of homeless campers and their property. Here are some points that I found helpful and interesting:

(a) Store the Personal Property in a Reasonable Place. In one case, a city’s argument that a dumpster was a “reasonable” storage facility, unsurprisingly, did not persuade the court. Cities should store personal property in clean, dry, and reasonably secure locations.

(b) Develop a System to Identify and Locate the Stored Personal Property. In another case, a homeless individual called the city (using the phone number provided on the notice) multiple times but was never directed to where his property was actually being stored. The court held against the city because even though the city stored the property for the required 30 days, the individual didn’t have any real opportunity to claim it. Remember, ORS 203.079 requires the property to be “reasonably available.” Often times, the person calling will not have a telephone – making it important for a city to be able to identify where the property is stored and relay that information to the caller on the first call.

(c) Document City/County Action. Maintaining detailed records of any city action will help any city faced with a claim. Consider having a policy in place detailing: (1) when the city posted notice; (2) the location of the property when it was removed; (3) what property was removed; (4) what property was retained, where it was stored, and for how long; and (5) what was thrown away (and why). Taking pictures of what property was stored and what was disposed of may be an effective way of documenting city action.

Regardless of how detailed and specific your policies are, the key takeaway is that state law requires all cities and counties to develop and implement a policy for the removal of homeless individuals and their property and sets minimum requirements. Remember, one person’s trash is another person’s treasure, so don’t be too quick to throw out something that may have value to someone else. The Local Government Law Group is here to help answer any questions or draft a policy that fits the needs of your community.