Governor's order is largely window dressing

A lawsuit seeking to undo an executive order issued by Missouri's Gov. Bob Holden 18 months ago has provided an interesting education about such orders and about collective bargaining for state employees, the intended beneficiaries of the order.

Even though the governor's right to issue the order was upheld by an appellate court this week, the decision also laid out details regarding executive orders that are worth closer study.

First, some background.

This particular order received a lot of attention because it extended the right of collective bargaining to state employees under the control of the executive branch -- approximately 30,000 of the 65,000 state employees. Prior to the order, state employees had the right to join a union but no right to bargain collectively or enter into binding arbitration. The governor's order, which was the result of a promise made to union backers prior to his election in November 2000, extended both collective bargaining and binding arbitration to the affected workers.

However, the order went on to narrow the scope of rights normally available to union members -- in particular, the right to strike. And the order spelled out that any agreement requiring appropriations to cover pay increases or other expenses would be subject to legislative approval.

Historically, the Missouri Legislature has -- even with solid Democratic majorities in both houses until this year -- denied even limited rights to collective bargaining and binding arbitration for state employees. And the legislature retained control over state dollars involved in union negotiations with state workers under the governor's order.

But the notion that the governor would extend collective bargaining and binding arbitration to some state employees was objectionable enough -- to some legislators, state workers and organizations representing business interests -- that a coalition of plaintiffs decided to challenge the order in court. The lawsuit contended that the governor had exceeded his authority by issuing the order. A circuit court judge in Cole County dismissed the suit on the grounds that the plaintiffs didn't have standing and that the order was so narrowly drafted that it didn't violate legislative authority. The Missouri Court of Appeals Western District's order this week said the plaintiffs had standing but agreed with the lower court that the governor had the right to issue the order, because it didn't interfere with legislative authority.

And this is where the appellate court provided a bit of education. The panel's decision referred to a 1983 case that established three types of executive orders: ceremonial, advisory and those exercising a power granted to the governor by state law of the Missouri Constitution. The order regarding collective bargaining was, the three-judge panel said, an advisory order.

Plaintiffs in the lawsuit were heartened by this even though their challenge was dismissed. The decision reinforced, in no uncertain terms, that the legislature still has the final say on collective bargaining for state employees. That's the historical position that has been maintained by legislators. And the governor's order, it turns out, is no more than window dressing for Holden's union supporters.