ML19329E635
| ML19329E635 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/17/1973 |
| From: | Joseph E Pollock MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006160416 | |
| Download: ML19329E635 (21) | |
Text
_ _ _ _
.IITED STATES OF AMERICA h} f I
BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
)
)
Consumers Power Company
)
DocketNumber@0-329A}
(Midland Plant, Units 1
)
DU-430A and 2)
)
)
THIS DOCUMENT CONTAIN INTERVENORS' ANSWER TO POOR QUAUTY PAGES MOTION TO COMPEL THE PRODUCTION OF DOCUMENT To:
Jerome Garfinkel, Esquire, Chairman, Atomic Safety and Licensing Board Pursuant to Section 2.730(c) of the Commission's
- l Rules of Practice, 10 C.F.R. Part 2, Intervenors respectfully request the Chairman, or the Bcard, to deny Consmmers Power Company's motion to compel the production of a document in the possession of the Department of Justice and to issue a protective order pursuant to Section 2.740(c) (6) with respect to the document held by the Department of Justice and to all other similar documents in the possession of the members of the MMCPP.
In support of these requests, Intervenors state as follows:
)
i I.
Backaround The Chairman and the Board were made especially aware of the b
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Specifically, the Municipals of Grand Haven and Traverse City and the Cooperatives of Northern Michigan and Wolverine, which comprise the Michigan Municipal Cooperative Power Pool (MMCPP).
.8006160f((
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subject of the documents in question at the second pre-hearing conference held on October 25, 1972, where at R 104-105, counsel for Intervenors stated as follows:
"Mr. Fairman:
I don't have anything further to say, but I would like to let it be known that during the course of this prcceeding there are engineering meetings going on in connection with a present contract with the Municipal Cooperative Pool and these matters are going forward to provide an interim kind of arrangement for power supply.
To my know-ledge these discussions have not touched sub-jectively on any of the issues which may be involved in this proceeding."
The document in question is directly related to discussions by members of the Michigan Municipal Cooperative Power Pool (MMCPP) with their Engineering Consultant - Daverman Associates, Inc., at Grand Rapids, Michigan on February 14, 1973, and relates to current contract negotiations with Consumers Power Company concerning the purchase of wholesale electric energy.
Several meetings between representatives of the MMCPP and Consumers Power Company have been held since the inception of the instant case.
These meetings, negotiations and discussions in no way relate to the Midland Plant or to the transmission facilities owned by Consumers Power.
As stated by counsel,"[these discussions have not touched sub-jectively on any of the items which may be involved in this proceeding."
i i
TI.
Contract Negotiations Are Still In Progress Attached hereto as Appendix "A" is a letter dated March 29, 1973 from W. Jack Mosley to H. Rademauer and A. L. Edwards, transmitting Consumers Power's latest draft proposal for the agreement between the MMCPP and Consumers Power Company.
This indicates clearly that negotiations are not only currently proceeding on this agreement but also that further discussions and meetings are contemplated.
The document in question relates solely to this agreement and is not an appropriate subject for discovery by Consumers Power.
III.
Intervenors Are the Real Parties in Interest We do not know how a copy of this document came into the possession of the Department of Justice, except that Daverman and Associates, Inc. have been furnishing the Department of Justice with materials concerning its clients relative to engineering studies being conducted in preparation for this casc.
We assume that it was sent in error since it does noc directly relate to any of the issues of this pro-ceeding.
Consumers Power directed interrogatories to the MMCPP members concerning the Pool activities, billings and other data, and including the minutes of pool planning and.
l
operating committees.
These have been supplied.
There was no interrogatory requesting documents, studies or materials concerning the present negotiations with Consumers Power Company.
Had such a request been made an objection would have been made and a protective order would have been promptly requested.
The joint document requests did not request such information of the Company nor have any such current materials been supplied.
In its motion, Consumers Power alludes to more than fifty documents relating to negotiations between the Company and MMCPP m3mbers concerning which counsel sought and received a stipulation of confiden-tiality from counsel.
These are not documents concerning these current negotiations.
Accordingly, we herewith lodge a single copy of the "so called" confidential documents for in camera inspection by the Chairman and so that he may have the opportunity to compare them with the Daverman docum'ent being furnished by the Department of Justice for similar in camera inspection.
We can state that in our preliminary review of the 25,000 pages furnished by Consumers Power we find most if not all of these " confidential" documents supplied in duplicate in other numbered pages.
It is incongruous to label a document " confidential" when its duplicate version has been furnished without such label.
We are also unable to find any document relating to the current contract negotiations within the " confidential" documents.
IV.
The Document Requested Does Not Fall Within The Michigan Statutes Providing For Public Inspection While it may be construed that the municipals must maintain an open book policy with respect to the public, the situation involving the document in question poses an entirely different set of circumstances.
In this matter, the MMCPP members have been and are continuing to negotiate a contract for wholesale electric power with Consumers Power Company.
Meetings have been held separately and together with the company to negotiate an agreement.
The document sought by this consumers Power motion consists of a report of one private meeting held between the MMCPP members and its engineering consultants to discuss current Consumers Power proposals and the prospective terms and conditions relating thereto.
If disclosed by the inadvertency of its having been supplied in error to the Department of Justice, it could cause irreparable harm to the MMCPP members in further negotiations with Consumers Power.
In this respect, Intervenors have not requested similar ;
internal memoranda from Consumers Power concerning this current negotiation with the MMCPP.
However, if the docu-ment in question is ordered to be disclosed, we would and hereby request that the Chairman direct consumers Power company to furnish all of its internal memoranda, discussions, Board of Directors and Executive Committee minutes relating to this current MMCPP agreement.
Such documents should include any reports concerning engineering, feasibility, costs of service or other studies which relate thereto.
Further, this document deals with the underlying policies inherent in the process of negotiation, arbitration and collective bargaining.
If the terms and conditions con-templated by one side are disclosed to the other side, any possibility of negotiation will be destroyed and the agree-ment resulting would reflect only those most unfavorable terns to the party whose prospective terms and conditions were so exposed.
We direct the Chairman's attention lo a Florida 8
case which is directly in point.. The Florida " Government in the Sunshine" law (Fla. Stat. S286.011) was invoked to
_/ Bassett v. Braddock, 262 So. 2d 425 (Florida Supreme Court, January Term, 1972). See Appendix B.,
1
open contract negotiations which were conducted in private.
In affirming the lower courts, the Florida Supreme Court said:
. meaningful collective bargaining in the circumstances here would be destroyed if full publicity were accorded at each step of the negotiations.
The public's representatives must be afforded at least an equal position with that enjoyed by those with whom they deal."
This is directly analagous to the document and others in questian in that the municipals would be forced to disclose their bargaining position to the detriment cf the citizens of the municipality while Consumers Power Company hides comparable documents under a protective order.
- Further, if the Board construes Michigan law to mean that such docu-ments mu?" be revealed to Consumers Power Company, it is forcing the Cooperative Corporations, which are partners of the municipals in the MMCPP, to waive those rights enjoyed by Consumers Power.
'I.
Consumers Power Interrogatories And Document Requests Did Not Request That Such Documents Be Sucolied As stated earlier, those interrogatories and document requests directed to the members of the MMCPP did not list current t I
i L
negotiations between the Muni-Coop Pool and the Company.
Also, those interrogatories and document requests directed to the municipals did not include these materials.
The Board's attention is directed to item 80 of the municipal interrogatories, which is as follows:
"80.
Furnish a copy of any coordinating or integration agreement, contract or understanding for the sale or exchange of electric power and energy between the systems and any other electric utility now in effect, or in effect at any time durin g the period January 1, 1960 to date.
Exclude any such agreement with consumers Power company."
[ emphasis ours].
CONCLUSIONS 1.
The Chairman should examine in camera the document in question as well as the copy of the so-called i' confidential" materials furnished by Consumers Power to counsel under a stipulation of confidentiality.
2.
The document, after in camera review by the Chairman, should be protected under S2.740 (c) (6), or, if disclosure is ordered, all similar Consumers Power Company documents should be ordered to be produced and similarly disclosed.
3.
The document in question, deposited in error __
with the Department of Justice, represents a report on only one of several such meetings which have been held relating to the proposed agreement.
While we do not have a copy of this document in issue or any others pertaining to this MMCPP-Consumers Power agreement, we would assume such documents do exist, and, if so ordered, would also be included in the disclosure along with all of those similar Consumers Power documents relating to this agreement.
4.
The subject matter of the document and the negotiations pertaining thereto do not relate to the relevant matters in issue.
These private meetings, in which bargaining terms and conditions are discussed, should not be revealed to either side of the negotiations.
We do not imply that letters or proposals exchanged between l
the parties should be protected, since both sides are in Treceipt of those materials, and to the extent they are relevant they could be supplied without harm to either party.
We do contend that Consumers Power did not request such materials from the municipals and thus they were not supplied.
WHEREFORE, for the above stated reasons, inter-vening municipals Grand Haven and Traverse City and.
intervening cooperatives Northern Michigan and Wolverine, respectfully request that the motion to compel the production of a document in the possession of the Department of Justice be denied, and further, that a protective order with respect to this document and to any others in existence falling into the same category be promptly issued.
In the alternative, we request that Consumers Power Company be ordered to disclose all similar documents without stipulation as to confidentiality, and that such disclosures be ordered concurrently with disclosure of documents in the possession of the MMCPP.
Respectfully submitted, b _ O t., b.a M 9_
James Q 1 Pollock Attorney for the Municipals of Coldwater, Grand Haven, Holland, Traverse City, and Zeeland, the Michigan Municipal Electric Association, Northern Michigan Electric Cooperative and Wolverine Electric Cooperative I
April 17, 1973 Law Offices of:
George Spiegel 2600 Virginia Avenue, N. W.
Washington, D. C.
20037 -
'HITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
)
)
Consumers Power Company
)
Docket Numbers 50-329A (Midland Plant, Units 1 and 2)
)
50-330A AFFIDAVIT DISTRICT OF COLUMBIA, SS:
James Carl Pollock, being first duly sworn, deposes and says that he is the attorney for the Municipals of Coldwater, Grand Haven, Holland, Traverse City, and Zeeland, the Michigan Municipal Electric Association, Northern Michigan Electric Cooperative and Wolverine Electric Cooperative;and that as such he has signed the foregoing Intervenors' Answer to Motion to Compel the Production of Document for and on behalf of said parties; that he is authorized so to do; that he has read said Answer and is familiar with the contents thereof; and that the matters and things therein set forth are true and correct to the best of his knowledge, information or belief.
G,ma L he M James'6arl Pollock Subscribed and sworn to before me this 17th day of April, 1973.
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<-~ J Notary (ublic My commission expires September 30',
1974
APPENDIX A r:
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March 29, 1973 Mr. H. Rademauer Mr. A. L. Edwards, Director Grand Haven Board of Light & Power Washington Street Grand Haven, MI 49417 Gentlemen:
Attached is our latest draft proposal for the agreement between the M4CPP and Consumers Power Company. Similar transmittals are also being made to Messrs. Keen, Houg, Steinbrecker and Daver=an.
This agreement incorporates many of the suggestions made by M4CPP at our last meeting, together with those matters concerning rates and need for both an interconnection and wholesale power agreement as discussed by telephone with Mr. Keen about two weeks ago. It is our intention to attempt to convert the wholesale power contract fozu from a kVA base to a kW base within two years.
4 After you have had time to consider this latest proposal, we would be pleased to meet with you to discuss any further details that need to be worked out.
I regret that it has taken this long to develop this draft, but I would like you to be assured that it has received all the attention that the press of work would allow us to devote to it.
Yours very truly, 1
e WJM/1rt s
RECElVED
[0Q C 107' GEORGE SPIEGEL
APPENDIX B BASSETT v. ERADDOCK Fla.
425 Cite as Fla-. ht2 8 2tl C.
contract negotiations with teachers' repre-Sentatives could negotiate outside of pubhc Patricia K. BASSETT, and Kenneth Hopkin.
son, joined by Mrs. Crutcher Har.
meetings without being in violation of the rison, Appellants.
Sunshme law."
l'.8.A. g A6.0ll.
v.
- 2. Labor Relations Cal 79 1 Holmes BRADDOCK et al., Appellees,
.4h%11.oard may instruct :ind com uit v.
with its !almr ta gotaturs in priv.ite without DADE COUNTY CLASSROOM TEACHERS.
Lemg in violation of the Nunshine law."
ASSOCIATION. Inc., Int rvenor Appellee.
No. 41315.
" 5 Supreme Court of Flortila.
- 3. Schoofs and School Districts C=53(l) 13*T II. IDIl Any initial sio!ation of law resulting from election of chairman and vice-chair.
man of school buard by secret written bal-Action by citizens of county acamst tot uas cured by the corrective, open, public school board for mjunction: teachcrs' ano-vote which followed.
F.S.A. I 2%011.
ciation intervened upon counterclaim for declaratory decree as to teachers' collective bargaining rights. The Circuit Court, Dade Wilham 8. Frates. Larry S. Stewart and County, Rhea Pincus Grossman. J., entered judgment and plaintiffs appealed. The Su.
Jon I. Gordon, of Frates, Floyd. Pearson
& Stewart. 3Iiami. f or appellants.
preme Court, Dekle. J., held that labor ne.
gotiators eniployed by schoo! hoard in pre-Frank A. Howard, Jr., Stiami, for appel-liminary or tcntative teacher cor. tract ne-
- gec3, gotiations with teachers' representatives Tobias Simon and Elizabeth J. duFresne.
may negotiate outside of public meeting, without being in violation of the " sunshine aliami, for intervenor appellee.
law" and that board may instruct and con-Robert L Shevin, Atty. Gen., and Daniel sult with its labor negotiators in private S.
Dearing. Chief Trial Counsci,
Talla-without such violation.
hassee, as amici euriae.
Affirmed.
Roberts P. J., concurred specially and DEKLE, Justice.
filed opinion.
We affirm on this direct appeal the find-Adkins, J., dissented and filed opinion ings and judgments of the learned chan-concurred in by Boyd, J.
cellor. An injunction was sout;ht by eer-tain Dade County citizens as plaintif fs (ap-pellants) against Appellecs-Dade County f
- 3. Labor Relations Cal 79 School Board for alleged failure to compl V Attorney employed in public by school with the so-called " Government in the Sun board for preliminary or tentative teacher shine" law.t Dade County Clawivom 8 Pla. stat. I 2vt.011.
P.8.A.:
tnuic t.. lic Inil.fie aw..iings.. pen t. fl., puhti. at airctin 9 and records; pullic inquv ri,us t all tine.v. :Hi.I no n.nolution, nele. argul.a-pena # ire.-It) All nuttines of nny Im.ani tion ur J.uwel actio# mliall != n.nsi.len I or emunisnion of any state agrticy or not.
binihng curpt ag taken or sna.le at stit h thority nr of any auctory or aesth..rnty of tureting.
G*l The testnutre of a nutti ig t
any nmtity, niunicipal.wrporation..r army of nny nurls boarel ur.*giuninnion..( nny 1=elitical mul.liunion, cira pt av viherriw untli State agency or. authority shall 1,c prurielr4 in IAc nuntilntine. at w Ale h,f.
pn.mptly n*nnini ami such reevnix *lia!!
ficial arts are to t.c fairm are ihrlarwl be open to pui,lic insluttion. tlc circuit 263 sa to-tm I
i
426 Fla.
262 SOUTHERN REPORTER,2d SERIES Teachers' Assoc. Inc., was intervenor upon sision, proposa!s in this regard have again counterclaim for declaratory decree as to been considered without passage. It is to teachers' " collective bargaining" rights. Le hoped that this will in time reach frui.
The injunction was properly denied; the tion. Meanwile. however, this Court re-declaratory decrte was correct as to "bar.
mains hesitant to allow itself to be pro-gaining rights."
pelled into " judicial impicmentation." For purposes of this appeal, therefore. we mere.
The principal issues are framed as fol-ly affirm the lower court's action in the.se lows' respects. To do otherwise could well deny 1.
Whether labor negotiators employed the public employees' rights to " bargain col.
by the Board in preliminary or tentative lectively" as guaranteed by Fla.Const. art.
teacher contract negotiations with the I. ] 6.
Such " intensity" of the "sunrays
teachers' representatwes may negotiate under the statute, as urged by this appeal, outside of public meetings without Leing in could cause a damaging case of "sunturn" violation of the " Sunshine Law"?
to these employces or to the public which elected the Bostd. It quite possib'y would 2.
Whether the Board may instruct and conih.et with the protective umbrel;a of the consult with its labor negotiators in private constitutional guarantee of { 6.
without such v. lation ?
io Here ue have a literal constitutionst ex-The appeal is from the chancellor's af.
cetion expressly prcvided within the Sun-firmative answers to these queries. We shine Law which states:
except affirm.
as otherwise provided in the constituticn The constitat:enal question s estine juris-(emphasis ours) The " sun-diction in this Court i Fla.Const. art. \\*, i shine" of the statute is still afforded in the 42)), F.S.A. relates to Fla.Const. art. I.
debate and adoption of the ultimate em-
! 6 which guarantees collective largaming ployment contract at a public meeting but for eraployees. See also this Court's ex-with the constitutional polaroid filter from pre <sion thercen in Dade County Classroom the damacint " ultra viokt rays" of pre.
Teachers' Assoc.. Inc. v. Ryan. 225 So.2d liminary skirmishing.
903 (Fla.19f.o)
The alle chancellor's finding as to bar.
Implementirr !cciCat:on unfort inately gaini:T r.egotiations was based on im-has not yet I cen pas ed to give gu: dance pre 3sise, uncontroverted testimony by re-and meanint; to th:s vttal constitutional spectable nat.cnal authorities in the field.
proteet:on.2 PuMc trr,Aoyces are ako en-that mi.mmgiul collective bargaining in the titled to their place m the " sun <hme"
.\\ t c:reumstances here would be destroyed if the 1"72 reg.ilar legtMative session, uhtch full publ. city were accorded at each step of is the third smee pamte of this IW pro-the negotiations.4 It would pit the public
.ourt. of % =t ite hall hu n juri..lkri.,n 3.
W ur -l thi< in Iwle riaurnom Teach.
t o i-- ne injine t va.- r.. co f..ree t h. pu r;n +.,
ere.t in.. inc. v. It> nn. 02.~e 80.?! SHO of t hi
=ces..n o p..n a i.p;i. at i..n hs any (Fla.l! @.
.vire n*..i T U-t it.
i.ep pici i no r-e J.
We qu...- s it h interest fron: "On I'rior 2.
- w. e n...i
- . /, ed, t. tt'... l. - TI.. r f he 1
- e-t r.n nt ' bs l'aul.t. Freun 1 ";1. pub-
..f.
r-.n. f. u.r:. 4 ill unt L.l. rue.e..r li-L*.I m t he ll.innr.1 Lw school Ital.
a brie.i..n e. int i f us. n.L r up..r n..n
!crui uf.b:2, t. l'C l :
.n.,i.l r h : p i n n ia inb.- utd..n. e la b.e..r -
"Th. f ramer nf t h.. Con *titution <cru-2nnir it i..n.
TL- -Je
. u.pi.n ee. la pub.n Ir nenntainc.I the cerce3 of their w.I t hr...;et i s.N.r..r e v.m.. v..
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.h lil r iro n< in the e..nvent o.n af I N.
? l 2.h-..n' n~re. t he i.e t rew tl. scre not enn ell., v io l t u rt n..:
he
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a.hri I
,t INhh.. i s...
.d v.e am e ci'She.) until hi.h-ai h. f..r rv 3 ear < Inte r.
ii.e r oche e.. -i re Nr. r.- n it - fair su upp.we. prons te.1 e r..-
- n..I..aeli.I.l. bate w it hin : L.-
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BASSETTv.EP.ADDOCK Fla.
427 Cite sw Fls. 3t2.% :4 sa "t.ut only formal aet, but ako acts esi Lady as a sirtual "Dmd" wett out 1-enei.t of "shng* a agam3t the Gohath champion dehhsraimn. dncu ion and titcahng. occur.
(negotiators i for 7.44 employees m this rme, prior to.ind leadmg up to af firmatne immediate case and over.> H ma cenp'u.wr-iorrual actue:.
Whi!c evnesdmg that our who could Le uit:mately mvoked.
opimons hase been a 1 road as possih!c to
!ct in the sunshine undcr the f.egislature's The puttic's representataca must l e af-
. n et:act.t. nes ertheles, a carcin! rcread.
fordcd at least au rqual posit:on w.th that mg of our op nions and the act tad to sup.
enjoyed by those with whom they deal. port the foregumg omient:vn. It was not The public should not suf fer a handicap at specifica!;y involved m our prior decisions the expense of a purist vicw of open pulhe whish haw dealt prmapally with "mest-meetings. so long as the ultimate dtbate ing "(some mformal) of a board. We have and decisions are pubhc and the " official m carher opmions referred to " matters i
acts
- and " formal action" >pecii.cd by the on which foreseeable action will be taken statute are taken m open "put he meet-by the Board" and "any discussions on mat-ings.= e This affords the adequate and ci-ters pertammg to the duties and responsi-fective protection to the public on the side bihties of the Board of Pubbe in*truction j
of the "right to know" which was mtend-of Ilroward County."' Th(se are broad ed.'
considerations but they stdl do not invade the areas of debl,eration here involved, for
[1] The Board's employed attorney for it udl be noted that in all of these observa-the negotiations C* negotiator") was em.
tions by the Court. they are predicated ployed in public; he had no authority to upon a " meeting." Ilere the required ac.
Lind the Coard (and in fact his rceom. t:en under the statutes :cas taken in a pub-mendations were later modified by the lic meeting; changes were made and voting Board m open meetmgs); he made his re-had all in public. The discussions and port to the Board in public where the deliberations, however, in an executive discussions were spirited and the ultimate process often take place beyond the veil 4
vcte was 4 to 3! Full consideration of of actual " meetings" of the body involved.
i the rcconuncndations of the Board's nego.
It is only in those "mcetings" that official tiator was accordingly had in a public meet.
action is taken. Preliminary " discussions" ing and aired and voted upon in public. may never result in any action taken.
i Those recommendations were in a sense There may Le numerous informal ex-simply the acorn from which the final ch.uges of ideas and possibilities, either contract grew-in the sunshine. There is among msmbers or with others (at the no violation.
coke machine, in a foyer, etc.) when there is no relationship at all to any meeting at Appellants urge that the Act and our which any foreseeable action is contem.
prior decisions compel public meetings for olated.'
Such things germinate gradually h.
vention. nnd vitally encouraged the shifts memlers believed it right to shield their
]
in voting, the creat cumpromises calculat-own discussions from the public and dis-ed ambiguitics and deliberate lacunae that rione only the final actions taken."
4 made poaxible in the end a masterful chat-g ter.
"The original Conntitution nminined no
- 6. Fla. Stat. I N1.011.
guarantee of freedom of niewh. nave for L II.md of Public lustruction v. Ibran, membem of Congress, and nuue for th, M Md W Ms.1DQH ; City of 31iami When the first Congrew pratwed Itrach v.1terna. OG so.2d M (Fla.197D.
press.
' the First Amendment the 8 enate. It Is worth reinemtwriog. nat in wrcry. For
- 8. M fire years the Senate hcid it, drhaten he-J hinit vie w.I d.mrs liclicving in the lih.
- 9. 11.swarkn=cits has a "right to-know" law.
erty of the pregs et the name brae the 3f axxachu setts th neral leiws. Annut. Ch.
J.
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428 Fla.
262 SOUTHERN REPORTER,2d SERIES and often without really knowirig whether tage in order to be effective in his efforts.
any action or meeting will grow out of the It might be noted that in a case like the exchanges or thinking.
present where the negotiator is an attorney that certainly he is entitled to consult with Every action emanates from thoughts the Board on matters regarding preliminary and creations of the mm. d and cxchanges adv. ices.8' lie is also thereby gu.ded to-i with others. These are perhaps "dclibera-ward an eifective result. It is not that tions,, m. a wnse but hardly demanded to appellees are hiding anything but simply be brought forward.m the spoken word at a trying to get the best.barga.., available m
public meeting. To carry matters to such for the public schools and not to be placed an extreme approaches the ridiculous; it at a disadvantage m their efforts. It there.
would defeat any meaningful and produc-fore follows that th.is is not m violation tive proecss of government. One must of the " Sunshine Law" for the Board to in-maintain perspcetive on a liroad provision struct and to consult with its labor nego-such as this leg. lative enactment,in its ap-tiator in private without it being a viola-is ph.eation to the actual workings of an tion of I 286.011.
-active Board fraught with many and varied problems and demands.
[2].\\s to the second issua-the Board cross-appeal, the final judgment that the 1
instructing its negotiator in private-it hke.
election of the chairman and vice-chairman wise fMions that this is authorized on the of the Dade County School Board was valid same grounds and reasonine alme. The in the particular circumstances here. It was "othcr side" (teachers' negotiator) is being first by secret written ballot but was then
" coached' and given advices privately and unanimously by election upon motion and from time to time during the bargaining vote in open meeting. In this particular in-period; it is only cornmon sense and fair stance, any initial violation by secret writ.
play that "our team" have the same advan. ten bal!ot was cured and rendered " sunshine 03 I
- 'IA (supp.1W h.
An Attorney Tids is al4u the view of the Attorner General opinion !..o 1.cl.1 this !aw in be in.
General of Wisennain, where the statute applicall ta r..ifeetite fareCnMe -.wi.n-proude that no formal action of any con.harted 1-tm.-n uta..itator.
hitel snar be intro. lured..leliberated ur:on.
"Af ter rw fut enn-ob-ratu.n. I ha$a at adot.ted at any cl.aed meeting of the mn lu.l.-l that tt.i entnre doe, n..r age cho.4 haard. The Attorne> Generare in.
ply to cio' etive f.artanun:: --
i..n-with formal opinian reads as in1trn:
whool emph ve+. Th d ri-ise pe. int "I l-line it m1y be broa.lly grate.1 tnat
(* that -n. h e sion* nrr n r meerine.'
preliminary nerottations b. tween a rep-within the tn-aning of th..t terra in tt e ra entative of a tunnicipal emplayer and
>t a t ut e.
TL Le-et i n J* te u th !.
the a repre-ent.itive of its emplovets are not i
- t stat.* r. frr ar r-o h r t ho-- in u ld. '.
snhjee t to requirements nf See. 14.00 t he' inte rnnt.iieu -ian*.
.l iiherations
> tat *, ( Anti.8ce rcry Law). but that and u. tin: n(.in neenr3 nte.-f publi..
leihratione ami adoption of any spe-e m.ern. A 41. -tis c hare uinn.: ---lon, cific ren.mmendation on the part of on the nr ner s.an.l. i a n... rni
. w hi. h t!a. municipality must compl.r with that
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the emt.b.ser an.i mpt.w.-- are one need tat ute.
Whnol thmrd and Teacher 1
in i pr..... 4 an inter.4eu: e and :.nat t.
Leothfi.an in Wiensin Public J
pp.11-l'. Wismnain Assn.
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et-i. o.
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8 'onom i..ner. f DI :. a..tt The s.> rarnento f *ounty !*e.ard of Super.
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BASSETT 1r. BRADDOCK Fla.
429 I
Cite a Fis 202 N td C*.
bright" by the correctne o n, pubbe vote ment in the sun.hn.c law,. l.4.A.. is appli-which followed.
cable to collective bargaming by public i
errptoyees.
Affirmel Thus far the gosernment in the sunshine law has withstood various attacks where a i
CARLTON and McCAIN. JJ., ar.d fe'w minuided local %ards and agencies DREW. J. (Retired), concur.
have attempted to seek a means 1,y which they could circumvent the law so as to re-l ROBERTS, C. J concurs specially with sume sceret rnettings.
t I
opinion.
Appellees say that meanmgful collective j
Largaming would be destro>cd if full pub-i ADKINS, J., dissents with opinion, licity were acco ded at each st:p of the negotiations. It should be recognized that evcry taxpayer is an interested party in BOYD, J., dissents and agrees with AD-negotiations concerning the salaries to be KINS' J' paid public employees. The members of the 3
school board are mere represcntatives of l
ROBERTS, Chief iustice (concurring the public and any action taken by the specially).
school board is the action of the public.
4 I concur in the opinion and judgment of We have previously defined a secret Mr. Justice Dekle. However. I note that mecting in the following language:
there was apparently an informal secret
..A secret meeting occurs when public straw ballot between the members as to the offic als meet at a time and place to avoid selection of a chairman with an obvious being seen or heard by the public. When understanding that the result of the straw at such meetings officials mentioned in vote would te approved in an cpen formal Fla. Stat. l 2S6.011 F.S.A., transact or meeting. Since the secret straw vote was agree to transact public business at a fu-an integral part in the selection of the ture time in a uttain manner they violate chairman, the vote of the individual mem-the government in the sunshine law, re-bers at the informal straw po;l should have gardless of whether the meeting is formal been made public in the minutes.
or informal" City of Miami Beach v.
Berns. 243 So.2d S. 41 (Fla.1971).
ADKINS, Justice (dissenting):
Also in Board of Public Instruction of I dissent. The questions involved in this Broward County v. Doran. 224 So.2d 693 litigation would never have arisen if the (Fla.1%9), we held that the statute was in-
]
Legislature by statute had imp!cmented the tended to cover any gathering dealing with j
provisions of Fla.Const. art. I (Declara. some matter on which foreseeable action tion of Rights), j 6, F.S.A reading:
would be taken by the Board.
The statute does not make reference to "The right of employees, by and through a labor organization. to bargain col-the existence of a quorum 50 tl}at a meet.
ing i any agency or authority ut the livard lectively shr.ll not be denied or abridged.
- I
- I" "E "
Public cmployees shall not have the right pen to the pu' die at all tunes...The impor-to strike.,.
tant question i$ not whether a quorum must In limiting our consideration of this case Le present, but whether the agency or au-C solely to the poncts of the judicial branch thority of the Itoard deals with any matter of government, we should only determine on which forcsecabic action may 1,e taken l
whether or not Fla. Stat. I Rd.01 (guvern-by the Board.
i 4
I e
I
~430 Fla.
262 SOUTHER!f REPORTER,2d SERIES 6
The right of the public to be present, to those with whom they deal. Such reason-i be heard, and to participate should not be ing overlooks the provision in the constitu-circumvented by having secret meetings of tion which prohibits strikes by public em-various committees appointed by the 11oard ployces, thereby removing the only weapon l
and voted with authority to make recom. by which labor may insure good faith col-mendations or suggestions to the Itoard lective bargaining, conccenme a matter on which foroccable In other words, the constitution contem-action may be taken. It is true that during plates open collective bargau..ung m good
'hc carly 3 cars of our democracy pubh.c faith without secrecy and w. hout strikes.
it ofh.. ls icit that most meetings concerning The standards of performance m. bargain-eia governmental decisions should be secret but mg collectwely as contemplated in the Na they soon bceame aware that an enlightened tional Labor Relations Act are discussed. -
m pubhc is the foremost safeguard for the The Law of Labor Relations, by Werne, at 4
contmued cu>tence of our form of govern-N' ment. It is esen more important that local boards, subject to the immediate scrutiny "While the Act, as amended, defines of the local citizen, be required to conduct the dut) to bargain collectively, it leaves their meetmg in the presence of those who to the Board and to the courts the deter-l t
will be directly af fected by the decisions of mination of what tests shall be applied the Itoard. This is a renovation nf the for the purmse of ascertainine whether l
- town hall mcetin(* where public officials employers and unions are performing were able to >ccure the !cncfit of the such duty. The standard of performance thoughts an.1 nicas of those most interested is said to be negotiation in good faith to in gescrnennt-that as. :he citizens who the end that agreement shall be reached pay the tascs.
with respect to wages, hours and condi-tiors of work, and reduction of the agree.
The goscrrment m :Sc sunshme law pre-ment to a signed contract for a itxed rea-s em> the flo rd :. tom tunctiomne weereth-sonable period. 31ere gestures m such a undct the gn:Sc of small comm:ttec*. li direction do not constitute col!cctive bar-
- hi< were donc, cach mem...c r w ou.d have an gaining..N.or does the requirement that epportunit3 ta ec=mit hewelf on some the emp!oyees submit a h.st of demands.
atter, en wh:ch fotocca.le action w Cl Se wh:ch are either accepted or rej.ected taken. 5 egres,.nc hm < elf at.. seers t without explanation, sattsty the require.
connu: tee mce:mc c: the absecci c f the 4
...ent s.
pase and wu'otn g.ut c the pu. he an op-p.r: ann 3 :a 1 e heard. The uh.ma:e action
-The submission of proposals t.y a ci the er:;re it. ard n p.Che mc(tegs urnon ar by an employer, with a take-it.
wcu!d merely 'e n affumrition of the or cise' attitude, does not constitute co!-
.armum *.ere: cc-nnnt:ic usctmes hs;d m
!ecta e 1.arcaimng. Negotiations with an in: int only to delay and ponpone a settle-ue:c.t:c : of F.c :;.a.
mer.t until a strike can te broken" are not There
- o: 9.
3.
n :he tr:a' fnd:e co"ectis e !.argainmg.
Sc:. th;t -c rn.:
co:!cctac !stes:mne
. Interchange of ideas. communication w dd
- .c.ic 'in s.. ii. paU.'ef.y w(re of : cts peculiarly within the know!edre
.- rd.d.. cach >:s?.-t :hr r.ce at t u.on' c,i cither party. pctsonal persuasion and ph reicc : 2".:d
' ?,e M *St **
ths' epprtunity to mod:iy deman!* :n ac-
.i al? id ccedare with :he total >ttuat:on thus re-I!
..,.,,, ; N.... at n e i.
e
- .ccc;, s irta r -; r Flc.f n<
- . a *
,,. !cd t :he c:cictence is of the essence i
.i- ~ p A..n;. r:ce the :P! to Nr i t.e nyr n g procos/
i
-cci u s -. I:. :... m t%: ^r t,-E :u. -. + c at:ordid "TFe nature of the govo. fat:h require-7
.. n s+.
...s......
y -
--ert n i:c.:e* : hat w%thi r the stat dard T
I I
l i
Fla.
431 of performance is met will depend on the proved by the some vote of the memLers at the same mett:ng.
facts m c. # s e e where the.our =
raised. The guide posts for performance Although in mv judgment the election of and the manifestations of non.grform.
the ( hairman by secret ballot was contrars ance are considered m connection with to the spirit and ktter of the government refusals to bargam col!cetn cly s
in the sunshme law, the su',*equent election The primary requirement is good faith.
of the Chairman t,y vowe sote m this u-Certainly, negotiations in put,hc would not stance should not be upset. The reason for detract from good faith f.argauurg. In this view is that regardless of the prior vio-fation of the *tatute, the lloard members fact,it may be said that bad faith emanatcs from closed doors. There is no case cited were at hberty to choose a Chairman of which requires that collective '.argammg their choice I.y voice vote at a pubhc meet-me. This action should not be disturbed, negotiation must be behind closed doors:
therefore, for the Court to make thi* an ex.
although it may well be argued that it is the ception to the governmcnt in the sunshint.
iruit of the dieg41 prior action.
law would be legislation.
It is within the province of the Legi<la.
ture, as a matter of policy, to determme whether co!!ectise bargaining should t e an exception to the gosernment in the sunshine law. I express no opmion on such a matter of public policy, but believe that it is not a violation of Fla.Const., art. I. s 6, F.3..\\.,
to require such collective bargainmg to taic place in public at a public meetirg.
In Board of Public Instruct:on of Ilrow-ard County v. Duran, supra, we he!d that the statute did not authorize secret meet-mgs on privileged matter. Under this de-cision the instructions to the negotiator should also be a matter of public concern.
Even though this may, on its face, seem to give the negotiator for the teacher an un-fair advantage, it will 1,e necessary for him to bargain in good faith with full knowledge that his position cannot be enhanced by the use of the one weapon which ensnres true collective bargaining in the classical sense, the strike. This puts each side on an o >
footing so that public negotiation may re-sult in benefits to the teachers, the Board, and the public. The Board is without bene-fit of secrecy and the teachers are without benefit of the threat of strike.
The further quc> tion appearing in this case was whether the secret ballot c!cction of a school it.,ard Chairman was made valid when the action was subsequcntly ap-
TITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
)
)
Consumers Power Company
)
Docket Numbers 50-329A (Midland Plant, Units 1 and 2)
)
50-330A Certificate of Service I hereby certify that the foregoing document in the above-captioned matter was served upon the following by deposit in the United States mail, first class or air mail, this 17th day of April, 1973.
Algie A. Wells, Esq., Chairman Joseph Rutberg, Esquire Atomic Safety and Licensing Atomic Energy Commission Board Panel 7920 Norfolk Avenue U.S. Atomic Energy Commission Bethesda, Maryland Washington, D. C.
20545 Abraham Braitman, Chief Jerome Garfinkel, Esq., Chairman Office of Antitrust and Atomic Safety & Licensing Board Indemnity U.S. Atomic Energy Commission U.S. Atomic Energy Commission Washington, D. C.
20545 Washington, D. C.
20545 Joseph J. Saunders, Esquire Mr. Frank W. Karas, Chief Department of Justice Public Proceedings Branch Antitrust Division Office of the Secretary Washington, D. C.
20530 Atomic Energy Commission Washington, D. C.
20545 Harold P. Graves, Esquire V. P. and General Counsel Wallace Edward Brand, Esquire Consumers Power Company Antitrust Public Counsel 212 West Michigan Avenue Department of Justice Jackson, Michigan 49201 Post Office Box 7513 Washington, D.
C.
20044 William Warfield Ross, Esquire Wald, Harkrader & Ross Dr. J. Venn Leeds, Jr.
1320 19th Street, N. W.
Post Office Box 941 Washington, D. C.
20036 Houston, Texas 77001
y Hugh K.' Clark, Esquire WilliLa T. Clabault, Esquire Post Office Box 127A David A. Leckie, Esquire Kennedyville, Maryland 21645 Antitrust Division Department of Justice Honorable Frank Kelly Post Office Box 7513 Attorney General Washington, D. C.
20044 State of Michigan Lansing, Michigan 49813 Robert J. Verdisco, Esquire Counsel for AEC Regulatory Staff Atomic Safety & Licensing U. S. Atomic Energy Commission Board Panel Washington, D. C.
20545 U. S. Atomic Energy Commission Washington, D. C.
20545 Mr. James B. Falahee General Attorney I
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201
% ea %s James Carl Pollock Attorney for the Municipals of Coldwater, Grand Haven, Holland, Traverse City, and Zeeland, the Michigan Municipal Electric Association, Northern Michigan Electric Cooperative and Wolverine Electric Cooperative Law Offices of:
George Spiegel 2600 Virginia Avenue, N. W.
Washington, D. C.
20037.
-