Brian Bishop: Perpetual Contracts Push Constitutional Envelope

The General Assembly is still open for business – possibly with questionable motive, as Justin points out. One of the items of unfinished business that certain legislators may wish to revisit as Rhode Islanders head to the beaches is the never-ending contract. Brian Bishop looks at certain constitutional issues raised by the bill.

It is a foundational tenet of the American political system that a sitting legislature cannot bind a future legislature. This concept is the very basis of our electoral system. Elections would have little meaning if the actions of former legislators could not be dislodged by their successors.
The RI Supreme Court has articulated this common-law principle as meaning

any contract made by a governmental authority involving the performance of a governmental function that extends beyond the unexpired terms of the governmental officials executing the contract is void because such an agreement improperly ties the hands of subsequent officials.

As is often the case, one needs to refer to another case on how this limitation on “governmental function” applies to running public schools. The Supreme Court subsequently said unequivocally

It is our opinion that the operation and the maintenance of a public school is a governmental function and not a proprietary one.

In “proprietary” areas, political actors can contract for periods normal to similar private transactions without regard to elective terms. Proprietary functions, according to the court, are those

not so intertwined with governing that the government is obligated to perform it only by its own agents or employees.

Ironically, the Ocean State Policy Research Institute has argued forcefully that public education ought to be viewed more as a proprietary function — not so fully dependent upon government run schools or so fully funded by government resources. To date, we have not prevailed in making this case and absent such a clear change in public policy the Court has definitively limited contracts with public school teachers.
In apparent recognition of this paradigm, the legislature has limited teacher contracts to years. But this year, they have proposed making public teacher contracts perpetual.
Of course the same principle at issue here means that the present legislature is not bound by the previous legislative determination that 3 years is a proper contract horizon. Although this proposed legislation seems to confirm the custom of keeping the old contract in force while negotiating a new one, such an enactment would be constitutionally suspect.
Often, by mutual agreement, contracts made in previous elective cycles have been continued during an impasse in negotiations with newly elected officials. But mandating this outcome is quite different than sitting school committee members endorsing it.
The cities and towns are the laboratories of democracy in Rhode Island. School budgets represent the vast majority of local spending, and teachers’ salaries the lion’s share of those budgets. Altering local officials’ ability to control those costs relegates local elections to doing little more than changing the names on town welcome signs.
It seems certain that adopting perpetual contracts, even in the name of smoothing labor disputes and improving government functioning, is constitutionally prohibited.

[Brian Bishop is the Director of the Founders Project and Fellow for Regulatory and Environmental Policy at the Ocean State Policy Research Institute.]
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