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Union opposes outsourcing Recreation

August 1, 2013

AFSCME: ‘Ill-advised, illegal and not in the community’s interest’

If Mammoth is to create a separate entity to manage recreation, it will have to resolve objections by the employee union that represents the town’s municipal workers.

In a sharply worded rebuke to the town’s effort toward establishing a nonprofit NGO called “Mammoth Lakes Recreation,” a spokesman for the American Federation of State, County and Municipal Employees (AFSCME) said such a move probably would be illegal.

Mark Murphy, the fiscal policy analyst for the union’s Department of Research and Collective Bargaining Services, advised the town of the union’s position in a cover letter to Town Manager Marianna Marysheva-Martinez on Tuesday, July 30.

Murphy’s letter, which was copied to town council members and members of the town’s recreation commission, took special aim at Mammoth Mayor Rick Wood, who has been a vociferous proponent of creating an entity to be known as Mammoth Lakes Recreation (MLR)—a third-party entity similar in structure to Mammoth Lakes Tourism (MLT), Mammoth Lakes Housing (MLH), and the Eastern Sierra Transportation Authority (ESTA).

Wood declined to comment on the letter.

Mammoth Town Attorney Andrew Morris said the town had no response to the letter immediately, and characterized it as “premature” because the town has made no formal move to create such an entity.

But, Morris said, he and the town staff are looking at the letter intently.

Murphy cited a nine-page report that dealt specifically with Mammoth’s potential move to the creation of MLR.

“The mayor’s recent statements supporting privatization (outsourcing) of the town’s recreation services should be a concern to the residents of Mammoth Lakes,” the AFSCME report stated.

“It is also a major concern for AFSCME members. Privatization of the town’s Recreation Department is ill-advised and likely illegal.

“It is ill-advised because privatization has a long record of lowering the quality of services, raising prices for users, and imposing hidden costs on the public.

“More fundamentally, privatization hands over control and accountability of a valued community resource to private entities with priorities that conflict with the public interest.

“The privatization model depends on imposing deep cuts in employee compensation, or more drastically, the loss of jobs, as well as raising user fees. Privatization of recreation services and facilities is deeply unpopular in California, around the nation and even overseas.”

Wood, in pushing the proposed creation of an MLR entity, recently called for a special recreation summit, in which 39 people representing 32 recreation user groups, organizations, and government departments, gathered for preliminary talks aimed at discussing the formation of a single recreation organization.

The meeting, facilitated by the Strategic Marketing Group of North Lake Tahoe, met in Suite Z of the town’s offices on Monday, July 22.

It has two more meetings, after which it will recommend to the Town Council a thumbs-up or thumbs-down on the scheme.

Not once in the four-hour meeting on July 22 did the notion of a union blockade come up.

The union, in its letter to Marysheva-Martinez, went a step further than merely trying to prove the scheme might be inefficient.

It also advised the town of possible legal ramifications, citing a recent case the union took against the City of Costa Mesa is similar circumstances.

“Privatization is also likely illegal, based on California statutes, Attorney General opinion, and court rulings,” the AFSCME report stated.

“The recent Costa Mesa case, where injunctions blocking the city’s planned privatization of municipal services including park maintenance were upheld by the state Court of Appeals and Supreme Court, brings to light just how strict the prohibitions are on privatization by municipalities like Mammoth Lakes.”

According to the report, Costa Mesa in March 2011 authorized the outsourcing of 18 city services to private contractors, including park maintenance services, and requiring more than a hundred layoffs.

The Costa Mesa City Employees’ Association filed suit against the city to block the privatization.

It won a preliminary injunction that stopped the city from pursuing the plan on the basis that the layoffs would cause irreparable harm.

Moreover, it argued the union was likely to prove that the privatization plan violated state law as well as the collective bargaining agreement.

The state’s Fourth District Court of Appeals agreed with the union and the trial court that the injunction was proper pending resolution of the suit.

The state Supreme Court denied the city’s request for review in November 2012.

In its decision, the appeals court explained that the state statute and the California State Constitution prohibit a general law city from contracting with a private entity for non-special services.

Whether a service constitutes a “special service” depends on the nature of the service, the qualifications of the person providing the service, and the availability of public employees to provide the service.

Generally, these include financial, economic, accounting, engineering, legal, administrative, medical, therapeutic, architectural services, airport or building security, and laundry services.

Only two services targeted by the city for privatization—jail services and administration of payroll—met the legal criteria for special services.

The appeals court cited the 1993 Attorney General’s opinion, and, although that opinion related specifically to counties, the appeals court explicitly affirmed that the same protections apply to cities.

The union left no doubt as to how the Costa Mesa case might affect Mammoth.

“The mayor’s publicly stated effort to outsource recreation services in Mammoth Lakes likely violates state law and would almost certainly be challenged by the union,” it concluded.

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