A December 2 Denver Post editorial and November 30 and December 1 articles in the Rocky Mountain News omitted key information about a November 29 opinion by Colorado Attorney General John Suthers (R) regarding Gov. Bill Ritter's (D) November 2 executive order, “Authorizing Partnership Agreements with State Employees.” According to the Post, despite a no-strike provision in Ritter's order, “Republican Attorney General John Suthers issued a formal opinion Thursday saying state workers do, in fact, have the right to strike.” Similarly, the News reported that Suthers' opinion concluded that Ritter's executive order “can't preclude [Colorado state] workers from striking” and “did not take that right to strike away, despite its no-strike provision.”

Both newspapers, however, omitted Suthers' acknowledgment that, assuming the no-strike provision in Ritter's order is “enforceable,” the terms of the order may prohibit state employees who enter into the partnership agreements from striking. Both papers also omitted Suthers' explanation that, under current law, state employees' right to strike is contingent on whether the director of the state's Division of Labor exercises jurisdiction over the labor dispute. As Suthers wrote in his opinion, if the director does exercise jurisdiction, "[T]he relationship between employer and employee is preserved, the status quo is maintained, and a strike is not allowed."

The Post editorial, “Cleaning up the governor's mess,” stated that when Ritter “issued his disastrous order giving state workers collective bargaining rights, the governor assured Coloradans that state workers couldn't strike. After all, he said, it's right there in his order.” The editorial continued:

But executive orders can't trump state law, much less Colorado Supreme Court decisions -- no matter how many times Ritter and his supporters say so. It was either deceit or ignorance. Take your pick, but neither bodes well for Colorado.

Republican Attorney General John Suthers issued a formal opinion Thursday saying state workers do, in fact, have the right to strike.

They have had that right for quite some time. But until Ritter gave thousands of state employees the ability to form unions that must be recognized by the state, they didn't really have the apparatus or ability to do so.

Similarly, the November 30 News article, by Chris Barge, stated, “Gov. Bill Ritter's executive order giving unions a larger role in state government can't preclude workers from striking, Colorado Attorney General John Suthers said in a legal opinion Thursday,” further reporting that “state employees already have a right to strike under a 1915 law, and the legislature would have to pass a new law to reverse it, Suthers wrote.” But the News article cited none of the details of Suthers' opinion.

In addition, after reporting that in 1915, “the state legislature passed the Industrial Relations Act, which 'implicitly vests all employees in the public sector with a conditional, legislatively created right to strike, identical to the private sector,' according to a written opinion issued this week by Republican Attorney General John Suthers,” the December 1 News article -- also by Barge -- asserted:

Gov. Bill Ritter's executive order of Nov. 2 giving unions a louder voice in state government did not take that right to strike away, despite its no-strike provision, Suthers argued. In order to do that, the legislature and governor would have to sign off on new legislation.

However, the Post editorial and the November 30 News article failed to include Suthers' explanation of how state employees' right to strike is limited; all three pieces ignored some of the points in the “Discussion” section of Suthers' opinion that expressed uncertainty as to whether the no-strike provision in Ritter's executive order could be overturned by the courts.

For example, in Section II of the “Discussion” section of his opinion, Suthers stated that "[t]he Director [of the Division of Labor] has the statutory discretion to take jurisdiction over disputes with public employees," and that "[d]uring such time the Director chooses to exert jurisdiction, the relationship between employer and employee is preserved, the status quo is maintained, and a strike is not allowed." Further, while Suthers wrote in Section III of the “Discussion” section that Ritter's “Executive Order may provide further limits on certain state employees' ability to strike but cannot override the legislatively-created right to strike for all state employees granted under the Industrial Relief Act and relevant case law,” he also wrote, “Assuming that this provision is enforceable, it would mean that once a Partnership Agreement is agreed upon, the Certified Employee Organization and its dues paying members would be bound by their agreement not to strike”:

III. The Executive Order may provide further limits on certain state employees' ability to strike but cannot override the legislatively-created right to strike for all state employees granted under the Industrial Relief Act and relevant case law.

A. The Executive Order may limit certain state employees' ability to strike by requiring any Partnership Agreement negotiated under the Executive Order to contain an agreement not to strike.

The Executive Order states in Section III. F., titled “No Strike or Work Stoppage”:

Partnership Agreements negotiated pursuant to this Executive Order shall contain an agreement not to strike.¹⁵

Given the decision in Martin [v. Montezuma-Cortez Sch. Dist. RE-1], it is not certain that Colorado courts would give effect to an agreement where certain state employees contractually waive this statutory right to strike. Assuming that this provision is enforceable, it would mean that once a Partnership Agreement is agreed upon, the Certified Employee Organization and its dues paying members would be bound by their agreement not to strike. Should they breach that agreement by striking or by engaging in, or threatening to engage in, a behavior that effectuates the same result as a strike, presumably the state entity that agreed to the Partnership Agreement could terminate the agreement and likely pursue legal options for breach of contract.

However, these agreements not to strike may be applicable only to dues paying members of the Certified Employee Organization that have entered into the Partnership Agreement. The agreement to forego an individual's statutory right to strike may not be binding upon the following three classes of state employees: 1) state employees who are not dues paying members of the union selected as the Certified Employee Organization, 2) state employees who are members of a different union than the Certified Employee Organization, or 3) state employees exempted from the Executive Order and therefore not covered by any provision. [emphasis in original]

In contrast to the Post and the News, a November 30 article in The Gazette of Colorado Springs specifically addressed that section of Suthers' opinion:

Ritter spokesman Evan Dreyer noted that Ritter's order dealt specifically with a ban on strikes by unions that have reached agreements with the state government. Assuming this agreement is enforceable, it could bind the unionized public employees from striking, Suthers confirmed.

But the wording of the order leaves open the possibility of strikes before an agreement is reached or after an agreement expires and hints that employees who are not members of the union are not bound by any agreement, Suthers wrote. He concluded that the only way to ban such strikes is to amend the Industrial Relations Act.