COVID 19: The Duty to Meet and Confer and Other Public Agency Obligations During A Public Health Emergency

CATEGORY: Special Bulletins
CLIENT TYPE: Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Mar 23, 2020

With cities and counties scrambling to develop and deploy emergency plans in response to the COVID 19 pandemic, demands from employee organizations to meet and confer are increasing.  This fact sheet is offered to answer frequently asked questions regarding the duty to bargain and provide information to employee organizations during a public health emergency.

  1.   Q:  How is the duty to meet and confer affected by a public health emergency?

A:  Cities and counties are required by law to “give reasonable written notice to each recognized employee organization affected by any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation…” and an opportunity to meet and confer with the agency before the action is taken. (California Government Code (“Gov’t Code”) section 3504.5(a)).  The exception to this general rule is where in cases of emergency the public agency determines that the proposed action must be taken immediately, without prior notice or meeting.  Known as the emergency exception, this statutory provision allows the public agency to suspend the duty to meet and confer until “the earliest practicable time following the adoption of the ordinance, rule, resolution, or regulation”.  (Gov’t Code section 3504.5(b)).  While many decisions would qualify to be made per the emergency exception since they relate directly to the COVID emergency, not all decisions (with the scope of bargaining) will qualify.  If you have any questions about a particular decision, please contact one of our attorneys and we will help with the analysis of application of the emergency exception.

 2.  Q:  What constitutes a public “emergency” for purposes of the exception?

A:  The courts have defined the emergency exception as requiring an unforeseen situation, requiring immediate action that is presenting an imminent and substantial threat to public safety.   Certainly, the COVID 19 pandemic meets this definition.

3.  Q:  How soon following the action taken by the public agency must it meet and confer?

A:  While the law does not define “earliest practicable time”, the public agency has a general duty to act in good faith in discharging its duty to bargain.  This standard generally obligates the agency to meet with the employee organization as soon as manageable under the circumstances presented.

4.  Q:  What must the public agency meet and confer over under the emergency exception?

A:  The public agency  is required to meet and confer over all matters within the scope of representation impacted by the emergency action.   This means any and all effects on terms and conditions of employment of the affected bargaining unit.   There should be some connection or nexus between the action taken and the effects or impacts to be addressed with the employee organization.

5.  Q:  Does the emergency exception authorize the public agency to decline a demand to meet and confer from the employee organization?

A:  No.  The emergency exception applies only to formal action taken the public agency’s governing body in response to a declared emergency.  A separate demand to meet and confer from the employee organization should be evaluated and responded to in accordance with the public agency’s general statutory duty to meet and confer in good faith over proposed changes to terms and conditions of employment.   It should be noted that a demand to bargain by the employee organization before the public agency takes emergency action may be declined as premature if the content of the demand concerns the same or related areas being considered as part of the emergency response.

6.  Q:  Does the emergency exception excuse the public agency from responding to a request for information from the employee organization.

A:  No.  The emergency exception does not pertain to the employee organization’s right to receive information related to the organization’s responsibility to represent its members.   Any and all requests for information from the employee organization should be evaluated and responded to in accordance with the agency’s general duty to provide all necessary and relevant information.

7.  Q:  What steps should the public agency take to invoke the emergency exception?

A:  Early written communication to the employee organization should be provided, justifying the necessary emergency action, demonstrating why immediate action was  necessary and identifying the actual or potential impacts or effects on matters within the scope of bargaining.    The communication should acknowledge the employee organization’s role and confirm the public agency’s intention to meet with the employee organization at the earliest, feasible opportunity.

8.  Q:  What obligations does the public agency have with respect to Public Records Act requests?

A:  The Governor’s Executive Orders issued as of March 22, 2020 do not suspend any agency obligations with respect to the Public Records Act, and the Public Records Act itself does not contain any provisions to extend deadlines in emergency circumstances.  That said, as a practical matter, it may be impossible for agencies to comply with the CPRA’s 10-day deadline for initial responses, given COVID-19- related staffing issues.  If you are unable to comply with CPRA deadlines, it is advisable to send requestors a message similar to the following:

****Due to the State of Emergency declared by Governor Newsom [and any applicable local order], a response to your request will be delayed. We will respond as circumstances allow.****

9.  Q:  For public agencies currently underway in contract negotiations, does the public health emergency justify reduction or withdrawal of its economic proposals?

A:  It depends.   Generally, reducing economic proposals constitutes “regressive bargaining”, which could be viewed as an indicia of bad faith bargaining.   However, regressive proposals can be justified by an adequate explanation.  Once explanation PERB has accepted is “changed economic conditions or other changed circumstances.”   The COVID 19 pandemic and its anticipated economic effects would qualify as sufficiently changed circumstances.  There is some risk however, that PERB would disagree looking back at the circumstances through an unfair practice process that could take place two to three years after the fact.   The public agency should be prepared to demonstrate through hard data the economic exigencies justifying the change.