Cincinnati Mayor John Cranley spent five July days in Philadelphia singing “Kumbaya” with fellow Democrats, rallying behind a candidate whose slogan is “Better Together.” He returned to Cincinnati to lob a political hand grenade at fellow council Democrats in the form of a secretly negotiated deal with the city’s police and other unions to provide budget-busting annual raises totaling 14 percent over 3 years to bracket next year’s mayoral and council elections. The manager and unions ultimately negotiated a compromise before Council voted on the mayor’s plan. But political divisions left in the wake of the mayor’s July surprise will last through the 2017 city elections. 

Several Democratic members of council learned about the mayor’s proposal via a text message only minutes before he went public. Within days public workers and their families were jamming council chambers, demanding to know “which side are you on” from blindsided council members wondering how to pay for the mayor’s generosity.

I have spent a good amount of my legal career representing public employees, mostly teachers and college professors. I am the last to argue that these hard working folk don’t deserve generous raises after a long dry spell following 2008’s Great Recession. Ohio’s local governments were whipsawed by lower tax collections and cuts in the local government funds to pay for Governor Kasich’s income tax cuts. Public workers paid a price. Their families are due some catch up raises now that the economy is slowly but surely rebounding.

But even my eyebrows rose when the mayor circumvented the city manager and Ohio law to cut his deal with the Fraternal Order of Police (FOP). A 1983 Ohio law establishes rules for public sector bargaining. To assure bargaining does not become political extortion, a city or school board appoints a bargaining team to negotiate with the union’s team. The city or school board’s team cannot go around the union to negotiate directly with police or teachers. Correspondingly, a union cannot ignore management’s team to deal directly with the politicians. 

In Cincinnati, the city manager, not the mayor, negotiates labor contracts. Only when a contract is negotiated do the members of the legislative body—City Council—ratify or reject the proposed deal. The law allows for “final offer settlement” for police or firefighters. A conciliator decides the outcome based on the last best offers of union and management, based on comparable pay elsewhere and the ability of the employer to pay.

So how did Cincinnati’s FOP get off this well-worn track? The mayor says the FOP was frustrated with a lack of progress at the bargaining table. No matter that the firefighters had already agreed to 2 percent raises for the next three years, or that council recently adopted and the mayor signed a budget with 3 percent raises. Cops wanted more. Why not use the “last best offer” conciliation process? Why take the risk? Instead, go to the mayor, who wants the FOP’s 2017 endorsement. 

The mayor’s proposal put council on the spot: either vote for budget-busting pay raises, or incur the wrath of the city’s employees and their families on Election Day. Of course, he and council could have privately conferred with the manager to coax a more generous offer at the bargaining table. But that would not allow the mayor to take credit for their raises when seeking union endorsement for his re-election. 

Confronted with the argument that his scheme undercut Ohio law, the mayor took shelter behind the First Amendment : “Of course politicians and unions have the right to talk to each other….” But that parrots the tune of the enemies of collective bargaining. In a recent U.S. Supreme Court case, Friedrichs vs. California Education Assn., anti-union lawyers argued that public sector unions should not be able to collect fair share fees from the paychecks of workers who don’t join the union. They argued that public sector bargaining is simply lobbying elected officials for more pay, and workers have a First Amendment right not to pay for union lobbying. Public unions dodged a bullet when Justice Scalia died before Friedrichs was decided. A 4-4 draw protected union fair share fees, at least for now. 

But when the issue comes to the court again, as it surely will, Mayor Cranley’s political power play with the FOP could become Exhibit A for anti-union forces hoping to cripple public sector unions once and for all.