By JIM BARON

PROVIDENCE — In a lengthy and at times tartly worded decision, Superior Court Judge Patricia Hurst ruled that Gov. Carcieri can withhold increased health insurance co-pays from executive branch employees of Council 94 AFSCME, but his executive order can not reach workers in other parts of government.

While the judge’s order found mostly in favor of Carcieri’s position, it does not preclude the union from contesting the matter before the state Labor Relations Board. And although the administration applauded the ruling, their legal victory came with a tongue-lashing from the bench.
“Reduced to its essence, it is the governor’s contention that he is above the law,” Hurst wrote. “Distilled, it is the governor’s contention that he has the authority to act free of any interference from the legislative and judicial departments, thereby de facto suspending or disregarding the laws of the state when he deems it expedient. The governor is plainly wrong.
“In fact,” she added, “this is precisely the kind of abuse of executive power that our system of government was designed to prevent. Unquestionably, the governor is charged with carrying out the law, and may not act in derogation of it.
“The hard question is whether the governor has any power over the other branches and their respective departments and employees, other than to execute statutory requirements and regulations,” Hurst said. “The answer to that question is no.”
There was more.
“By allowing a deficit-burdened budget to become law while relying upon future revenues that he and the legislature had dubious power to secure, the governor embarked upon a perilous mission, fraught with constitutional and other legal difficulties that, unfortunately, may well cost the state more in time and litigation than it stood to gain,” Hurst’s ruling reads. “Equally as unfortunately, this court finds it necessary to order that Gov. Donald L. Carcieri … is permanently restrained and enjoined from implementing Executive Order No. 08-06 against any state employees employed by governmental departments other than the executive department.”
As for those employees, the judge said, “It is this Court’s conclusion that Council 94 has an adequate administrative remedy (at the Labor Relations Board) for those of its members who are employed by the executive branch and this Court should not grant injunctive relief in the first instance.”
Hurst said the Superior Court lacks jurisdiction to rule on the union’s claims of labor-law violations “and, to the extent Council 94 asks this Court to decide those claims, the claims must be dismissed.”
Those claims are included in Council 94’s unfair labor practice charge against the state, which is currently before the labor board.
Hurst asserted that the 2009 state budget “included a $422 million deficit, which the Rhode Island General Assembly enacted,” but in fact the budget that was passed closed that deficit, at least on paper.  Officials have acknowledged there may have to be a revised budget passed sometime during the fiscal year that ends June 30, 2009.
Hurst said Carcieri “all but blamed the budget deficit on the state’s unions (and) accused them of violating the Constitution for failing to go gently into the night of a pay reduction …”
Despite the judge’s verbiage, Carcieri declared victory after the decision was announced.
In a written statement, the governor noted that “approximately 98 percent of Council 94 members are employed by the executive branch.  The co-share payments will be deducted from employees’ paychecks, retroactive to the Aug. 8 pay period.  
"I am pleased with today's decision,” Carcieri said, “and we are looking forward to advancing our case before the State Labor Relations Board.  I am hopeful union leaders will take the agreement reached with its leadership back to the members for reconsideration.”
Carcieri spokesperson Amy Kempe declined an opportunity to joust with the judge over the language of the ruling, saying, “We are only addressing the decision.”
Council 94 President Michael Downey, on the other hand, said the union will go back to Hurst this morning, asking the judge to stay her own order while Council 94 appeals it to the state Supreme Court.
“We are going to file every appeal and every legal thing that we can to stop the Carcieri administration from taking our money from our members’ paychecks that we did not negotiate,” Downey said. “We may not be successful in this order that came out today, (but) we do think, on the appeal process, and any other place we have to go, we will fight for our members. That’s our job and that’s what we are going to do. When this is all said and done, the law will be on our side.”
As part of an effort to save up to $60 million in personnel costs in the current budget year, the administration met several times in recent months with high-ranking members of key unions and other labor leaders.
The parties discussed universal contract language that would increase the health insurance co-pays deducted from employees’ earnings, and change the way those co-pays are calculated.
An estimated $10 million of the $60 million savings were slated to come from Council 94 members.
A settlement agreement was reached at the end of those talks, and that was taken around to the various unions that represent state employees. Most locals ratified it, but Council 94 and several others rejected it. Union officials said co-pay increases were so large that many members would be making less money after four years in which there were three scheduled pay raises.
The union maintained that those talks were merely discussions, not formal negotiations for purposes of labor law, and that the administration should return to the bargaining table to commence formal negotiations. Carcieri said there would be no further talks with the union.
Meanwhile, the state notified Council 94 in the midst of that process that it was terminating the pact in accordance with language in the contract. The Carcieri administration contends that it no longer has a contract with Council 94.
After Council 94’s rank and file rejected the settlement, Carcieri issued an executive order to impose the conditions of the agreement on those employees.
While Carcieri said he wanted the union to reconsider the no vote, Downey said, “We feel as though we’ve never had an opportunity to negotiate; we never came to an impasse, we haven’t had a mediation. We would like to negotiate, facilitate, mediate and arbitrate. That’s what we want to do.
“I would like nothing better than for the Carcieri administration to call Council 94 and say, look, why don’t we have a negotiation session to see if we can come up with a way to save the taxpayers money, because we have ideas too.”
“This thing is far from over,” Downey declared.
Kempe said the executive order, retroactive to Aug. 8, would be implemented “immediately.” She would not comment on how that might be affected by the union’s request for a stay and its subsequent appeal.