it misinterprets the public labor relations act to mean the opposite of what it plainly says and what the general assembly clearly intended by eliminating the provision in section twenty one that makes collective bargaining agreements for state employees subject to the appropriation power of the general assembly and second the appellate court judgment violates the appropriations was of the only constitution at the heart of this case are issues of great importance regarding the separation of powers among the different branches of state government and in this case in particular the power to appropriate public funds to determine how much shall be spent out of the state treasury for what purposes the essence of the union's position in this case i refer to it simply as absentee which the appellate court adopted and we asked the court to reject is that the public labor relations act validly and constitutionally gives the governor the unqualified ability to make judicially enforceable commitments to spend in a centrally unlimited amount of a public funds without an appropriation by the generals in the circumstance that gave rise to disputes in this case relate to fiscal year two thousand and twelve and the fact that the general assembly appropriated for personal services for state employees covered by the asked me contract which covers most of the agencies of the governor's jurisdiction less than was necessary to accomplish two separate things at the same time to fulfill the wage increase in salary increase provisions that were included in the collective bargaining agreement for that year which were approximately five and a half percent plus on jeopardy and stepping reason and to keep a some kind of appropriation i said we see from the briefs that a decision was made in the governor's office to apply the cost of living increases to thirty nine agencies and not to fourteen later became ten lipsticks my question is was it where the decision come from was that how the appropriation was originally structured or how did that happen that's an important question and i don't think the answer is going to change the focus of the analysis but without going into all the details the appropriations were essentially done on an agency by agency basis and often on an operation by operation basis you know by facility or nature a program or activity and that is how is historically been done but not always done so for fiscal year two thousand and twelve looking at the full headcount for many of the agencies there was enough money in the appropriations to provide  for the salary increases in wage increases provided in the quite a bargain agreements and also to fulfill a separate provision that had been negotiated as an amendment to the quite are going to remain under which it was provided that the governor governor would not impose any furloughs layoffs or facility closures so for that majority of agencies there was enough money to keep both of those commitments and that was done for these fourteen agencies the governor's office of management and budget based upon looking at the prior years operations and expenditures said we can't do both of these things and so at the at the beginning of the year they said for these agencies we can't both not lay anybody off and pay you the wage increases something's gotta get and what they and what they did was they said we have an appropriation for the full fiscal year we're not going to you know we're going to fulfill our mission for the fiscal year and  will you know apply that by essentially not implementing the wage increases the general assembly later made some supplemental appropriations for some of the agents fs there was also there was also an unexpected level of some early retirements and some of the agencies in that enabled the the governor who essentially overseeing the process fight these agencies to say ok well now we'll make essentially fulfilled that commitment with respect to those those other agencies out of the fourteen that left six that had insufficient funds in the less live appropriations to pay to to fulfill the no layoff no furlough clause and to meet the wage increase commitments and the like articles that actually points out that there was one agency arm of human services for which some of the appropriations were in the nature of a lump sum it had not always been done that way but for two categories of facilities the mental health facilities where people are detain d involuntarily committed and otherwise provided services by the state and the developmental disability program essentially everybody in which is receiving funds for the medicaid program which as federal standard for those two categories of facilities the initial appropriations lump sum not all of the justification but for those two categories of the lump sum appropriations were approximately eighty five percent of the actual expenditures for two thousand and eleven there was a fifteen percent cut in the total appropriations for those facilities and so there was not only a difficulty in being able to meet the promised  wage increases but also there was a difficulty in trying to figure out how to implement those agencies programs without closing facilities which is what another thing in the collective  supplemental appropriation to keep those facilities open through the end of the fiscal year the legislative intent shows that that supplemental appropriation was intended not to include any money for the wage increases and there can take some of the operational funds not there grant money i can dig out the details if you're interested matt but they can reallocate up to that two percent of unexpended for other purposes they did so after all that was d even in the lump sum category for these two categories of facilities for d h yes there was a substantial short of the total appropriations after everything was said and done were within less than one percent of the prior years actual expenditures for all those facilities so there was no way that they would be kept open through the through the fiscal year without facility closures with no layoffs no for laws and pay the roughly six percent wage increases on average if you calculate this the step in longevity and cost of living increases that reschedule into into the program does that answer your question just doesn't have one more question  some payments were made with respect to the lapsed funds process where their unexpended funds in a given year the circuit court directed that those left lapsed funds to protect them be put into an account and then all to leave they were used to pay some but not all of the claimed wage increases in this case and the stipulation among the parties is that the shortfall between what the what ask me claims and what was paid is to the effect employees is almost fifty three million dollars i think that prevents this case from being moved you have a fifty three million dollars dispute the appellate court said pay it over even without that appropriation by the general assembly our position is no no that can't be done we have two obstacles in the way one is the publicly relations act says that collect arguments are subject to the appropriation power of the employer and to the appropriations was of the only constitution makes it clear that the power of the purses vested exclusively in the general assembly in the notion that you can simply send a wrecking ball into that edifice of the separation of powers that's constitutionally created and give an executive branch official and the bargaining table for public sector employment but there is a large body of case law that establishes that this form of public contracting is the norm it's effectively a function of the separation of powers in government so that executive branch officials who are normally given the authority to negotiate agreements have to do so subject to the ultimate authority of the legislative branch that determines appropriations that's true for multi year construction contracts that's true for multi year procurement contracts for goods and services and as this court indicated in this decision in the erotic versus cook county board case that's also true in connection with public sector labor relations so the negotiations are somewhat different if you can't be confident that the person at the other at the other side of the table can absolutely commit to bind the state to spend a certain amount of money but that's partly a function of the way that government is different from the private sector and it hasn't prevented the government from doing all sorts of things with contracts through the illness it appears that your in answer to the point made by asked me to turn is that meaningful collective bargaining necessarily requires that  with decision makers that have authority to make binding commitments is the overarching understanding and it's subject to the legislature making the appropriation that that's absolutely correct it's a common  of public contracts generally it's a common feature of public sector labor negotiations generally and i'm sure as a policy matter the union would prefer to have the governor or his or her representative have the unqualified authority to make a financial commitment regardless of appropriations but we live under a regime where the constitution has given the legislature that and that makes sense because that is the branch of government whose members are most accountable politically to the voters for those sensitive decisions about how to spend public money for various things this is unusual case only because against the background of the recession and declining state revenues and intense competition the war resources among the various constituent groups asked me convince the governor to agree to the no layoff provision typically if the legislature funds less than would be necessary to to pay wage increases at the compensation rates for a full headcount then what happens in his efforts to me admits that historically that's what has happened is that the governor then works towards  process of imposing either furloughs or layoffs or facility closures typically in consultation with the unions and their members if the if the legislature exercising the power of the purse as we're not going to give you as much as you wanted  then it's the process normally as you move towards earlobes layoffs whatever in this case the the union instead of getting the legislature to commit the level of appropriations necessary to meet those salary and wage increase commitments and avoid any layoffs went to the governor instead they didn't get the appropriations that they would have liked to fulfill both of those purposes they went to the governor and said why don't you paint yourself in promised wage increases and promised that they'll be no layoffs and then their position is that not having gotten the appropriations in the legislature that doesn't matter the courts can step in and enforce the governor's commitments without an appropriat and our position is that both as a matter of statutory interpretation and as a constitutional matter you can't do in end run around the legislature's ultimate authority to determine what public funds are spent for what purposes owing up on just two slices original question and your response and just to clarify for me is a implicit or perhaps an exclusive in as we've argument that the footprint of the budget was large enough to accommodate the collective bargaining agreement and the increase in wages and the exactly what is that argument if that is the argument i'm a little confused by the argument because they refer to the budget as some type of different aspect of the legislative appropriations process in several respects so i'm going to try and touch on each of the ones that you that you think may be relevant to this does does that mean the entire budget if it's large enough somehow to accommodate this the original agencies have to decide which one it may be other things to cut that are not affected by the collective bargaining agreement well if the i'm not sure exactly how to answer that because ultimately you have to go back to what the legislature appropriate you cannot argue that if the legislature appropriated more funds for hospital construction then then then then then somebody thinks was why is that you can just invade that appropriation and use it to pay for wage increases that were the subject of a separate appropriation that's not how the appropriation process works now out of the one thousand nine hundred seventy constitution there was a requirement of great specificity almost gran specificity to the appropriation requirements in this works case law from that era polices that requirement one nine hundred seventy they they did away with that they simply said the legislature can describe where monies shove your procreated and as long as they do so then we will honor those determinations but nothing gives the anybody the power to disregard the boundaries drawn among different propositions and say  long as there is some money elsewhere outside the appropriation for this purpose the it's fair game to grab it and use it for a different purpose i mean then the courts would turn into some type of bankruptcy court where if the plaintiff thesis is correct and the executive branch has this unlimited power to commit the expenditure of public funds without an appropriation the courts we're not going to be transferring the appropriation power to the executive we're going to transfer you to the courts there are going to be figuring out among which of the various contracts that exceed the legislative appropriations who gets a priority and and then they're going to look to among those contracts and see how they rank compared to the statutory entitlements  for food stamps or welfare or medicaid or anything else and then they're going to have to figure out the timing process and out of what account the money comes there's a reason why political accountability for these purposes is vested in the legislature they have to answer to the voters every election why we spent the money we did and why we raised the revenues we did those are critical issues and they should not be ones that get spilled over under a constitutional scheme to the executive branch and ultimately when disputes inevitably arise dumped in the lap of the courts to try and sort out the disagreements about claims that there should be more spent for some purpose than the legislature ultimately appropriate that purpose now of course the even appropriations its exceptions to the federal constitution the provisions of the only constitution that directly require spending for certain purposes we've alluded to those in their briefs we're not disputing that what we're saying is in this case for garden variety contracts the legislature cannot delegate its appropriation power to the executive and it did not do so and the arguments that the public labor relations act actually violates the appropriations clause as opposed to ensuring the preservation of the appropriations was we believe are unconvincing for the reasons we have given in our breeze and less the court has additional questions about the other arguments we made in our brief about allocation by these active was done within the scope of that lump sum appropriation and that is that actually ninety percent of all of the expenditures for those two categories of those that were within those lump sum appropriations mental health and developmental disability goes to people ten percent is left for food medical services lights heat water if another six percent had gone to wage increases what do you do stop feeding the residents turn off the lights cut off the water the governor did the only thing that the governor could do in those circumstances and after the fact to say that no you know the money should have gone to the employees for wage increases we think is convincing on the circumstances of this case thank you rogers thank you attorney general raises in his argument but before i get to those pacific points i think it's important for the court to focus on the paschal aspects of this case this case comes up on review arbitration award the review of an arbitration award even on public policy grounds is a very narrow here and as justice freeman wrote in asked me versus cycle management services almost two decades ago wages and job security of the members represented by the union and the union made concessions in its contract in fact the layoffs that were proposed by the governor would have said the state one hundred fifty million dollars in  and the parties were also able to do some outside the box things because they met in his patient of the declining rep and they were able to make suggestions in institutionalize things that made the state more efficient to run and that is another way that they got to the three hundred million dollars and as part of that initial concessions agreement the state and be union agreed that there would be no layoffs in fiscal  no layoff bill facility was in this kind so by no means in this case you have a situation where the executive discarding of the bargaining table and made her qualified commitments that were outside the bounds of the agreements that state revenue preserve the essential state services and at the same time sort of the job security of our members now this school year twelve came around reason why the footwear is important is that the argument of the state in this case is based upon the authority of the general assembly to set a love up and direction of state spending and and the governor when he signed the budget made two hundred eighty six billion dollars in mandatory dollars that would have been enough to pay for the wage since then and so there was nothing in this agreement that if that entrenched in the n human services it would have had to close their doors before the end of the fiscal year with or without the wage increases everybody to the process knew that they were going to have to come back and negotiate because otherwise you would have had to close the gates to stay away people out a month earlier and the same was true even outside of the incident of the agencies that have large institutions in the department of revenue for example department of revenue was was almost fifty million dollars short it could not have operated so the parties came back and it turned out they allow employees to plan their family budgets because they know that they will have some measure of job security or some measure of a raise that allows the state to play in its budgets to provide essential public services have expressed language about the legislation is wrong yes and those contracts get agreed to and move forward and apparently the parties agree to the term work whatever happens the parties  and that is why if you take a look at the issue of public house and you weigh what's in the public labor relations versus the infringement upon whatever street police to prohibit people stop people from getting into corrections in the first place but there's no evidence in this room at all that these larger priorities are even that these smaller priorities were dish and in full in thirty days so my question i have this from where does the arbitrator drive that a forty two order of the state paid that amount of money secondly the court the trial court had a completely different kind of remedy and had this idea of a continuing obligation some time when the money was available the state should pay and then perhaps another idea out there that place perhaps that part of should've gone back to the bargaining table so can you address certainly most important for me the first point but could you address the other types of remedies that were available so the first question i five billion dollars is a very big number but it's a drop in the pocket you know thirty six billion dollars apartment of corrections personnel budget for a year is eight hundred billion dollars which is a billion thank you your honor so i will refrain from bringing any other amphibians in this case if i can possibly avoid it my distinguished opposing counsel mister makes several points to which i'd like to  respond in essence he is trying to reduce the appropriations power given to the general assembly by the constitution to something that is not recognizable in light of the court's clear precedent in the language of the appropriations itself he says it gives the general simply the general power to determine the level and direction of spending but somehow when he describes the direction of spending it seems to paid not too much attention to the language of the appropriations bills that specifies what purposes public funds shall be used and the trial court may findings of fact that are not shall that the actual appropriations made by the legislature for the purposes that the plaintiffs claim their caboodle are practically fifty three million dollars less than the plaintiffs want to be paid that money would have to come out of some other some other place than the actual appropriations so their argument essentially would while they don't say so explicitly to drive a giant hole that you could run a mack truck through for the appropriations was and in the scope of making these arguments about the general assembly's decisions about not putting enough money into corrections and deciding that they could pass tax reductions for certain corporate purposes during this time period they're inviting an analysis of the wisdom of the general assembly's decisions i think that is the last thing that the courts should be examining for purposes of determining whether there is compliance with the appropriations clause and what the publicly relations act means those decisions about the wisdom of the difficult decisions that the legislature makes belong to the voters at the ballot box and if the legislature makes what are considered to be unwise decisions with respect to public spending the voters should vot them out of office and if they don't those decisions are essentially not subject to review by the courts under some type of bankruptcy court process where there's going to be an evaluation made as to all the contracts that the executive branch agrees to on the theory that oh it doesn't really matter what the legislature appropriated for these purposes this is just in is that the arbitrator's of balance of the various factors with respect to the public  policy concerning the enforcement of his award just the opposite the arbitrator said i'm not a judge i'm making no comment about the public policy issues in this i'm not going to touch them leave the courts to decide what this meaning is of the public labor relations act in the appropriations because that's exactly what judicial review of arbitration decisions does and we're asking this court to decide that question which it is a questionable walk is the enforcement of th appropriation clause of the only constitution passes so to speak for a moment in the language of contract law this is a contract obviously and you agreed that this is not an issue of formation of contract this is not an issue of consideration of this contract but no our our position is that this is well recognized as a part of contract law it also exists in the private sector although in a slightly different context you know there is for example let's take you're a supplier of of batteries to general motors and you say to the person who provides you the acid or something for those batteries i'm going to buy you know acid from you for my batteries subject to the amount of batteries that general motors horsemeat the scope of the obligation is determined by an outside event not between the parties to the contract in this case the executive branch officials are  negotiating and the outside of that is the legislative appropriation process the case law recognizes those contracts as valid where the scope the obligations is determined by that by that event it's sort of like  it's a two key system where it's sort of like the old the poxy glue that came into tubes you know you put one two down and then when the legislature adds the other two then you've got something that sticks to the extent of that but only to that extent does that answer the court's question mr herzog to me ask you this is the logical extension of your position that ashley or others unions that negotiate with c m s should negotiate everything but wages and whole often sit down with the governor in the legislative leaders is that where this is leading i don't think so no i think that historically in the past except for this agreement that has these no layoff clause typically the negotiation over salaries and compensation and sit composition rate is properly conducted by the executive branch and then the extent of the funding to fulfill those is determined by the legislature and the and there may be furloughs or layoffs if it's less than the executive branch hope or to keep everybody working at those levels there's a tradeoff there but even as a rhetoric indicates and the entry or a decision by the pellet or and the legion of other jurisdictions of address this there is essentially a two step process and the one process is you negotiate with the executive but alternately then an effort has to be made to get appropriations by the legislature and what we're seeing in this case is that that maybe something that the union does not prefer as a policy matter but it's necessary to honor the constitutional structure we have in our government and automatically if you can't get the legislature to fund all of your promises you can't circumvent the legislature's responsibility thereby it's just running to the courts i mean i suppose it's like the teenager who asks you know the mother can i borrow dad's car and the mother says well did you ask dad and the answer is yes he said no well if the legislature says no or this is how much money you get you can get around there by simply saying well we struck a negotiation with with the with somebody else who's part of this two step process and i and i want to make it clear that one is accusing the unions of bad faith so i think you know the record is replete with the acknowledgment that they made earnest efforts to try and deal with the fiscal crisis facing the state they negotiated with the governor to try and reduce expenditures and preserve jobs and an income for their members there's nothing wrong with that but it cannot exclude the essential role of the legislature as the body that is vested by the constitution and recognized to to say that even on these sympathetic facts that we can disregard the plain meaning of the stare we can rewrite the appropriations was contrary to existing wants and precedents in the language of it to create an exact on where the the executive branch has this unlimited authority to commit to an expenditure of state funds without an appropriation by the general assembly unless the court has any further questions we urge that the health court's decision be read thank you so much