Arizona Court of Appeals Curbs Public-Sector Union ‘Release Time’

union-privilegeConducting union business and performing employment duties are two activities that don’t, and shouldn’t, overlap. Yet in a number of jurisdictions, taxpayers are being forced to pay for both. In Arizona, at least, this trend has hit a detour. This August, the Arizona Court of Appeals, affirming a lower court decision, ruled that a Memorandum of Understanding forcing the City of Phoenix to compensate local cops for union activity, while not necessarily violating the state constitution’s Gift Clause, imposed grossly excessive costs. This was a significant, if incomplete victory for public accountability. And further pushback against release time clauses is occurring in courts and legislatures across the nation.

Public-sector unions are private organizations. Their activity does not serve a public purpose. While government workers have the right to form or join a labor organization, there is no reasonable justification for allowing them to forcibly enlisting the general public to pay for union meetings, rallies, retreats, lobbying, get-out-the-vote drives and other partisan activity. Public-sector unions should pay for such activities out of their own pockets or, failing that, reimburse government. Yet with increasing regularity, they have persuaded their corresponding agencies to bear the costs. At the federal level, as Union Corruption Update noted at the time, a late-2012 study by the U.S. Office of Personnel Management, leaked to the press, estimated that federal workers in Fiscal Year 2011 spent 3.4 million working hours conducting union business at a public cost of $155 million. These figures represented respective increases of 11 percent and 13 percent over the figures for Fiscal 2010. The situation prompted Reps. Phil Gingrey, R-Ga., and Dennis Ross, R-Fla., to complain in writing to then-OPM Director John Berry. More recently, this March, Rep. Jody Hice, R-Ga., unveiled the Federal Employee Accountability Act (H.R. 1658) to bar unionized federal workers from engaging in collective bargaining or arbitration while on the agency clock.

It is at the state and local levels, however, where public-sector labor chieftains have gone furthest in corralling government agencies into underwriting the costs of doing union business. This March, the Washington, D.C.-based Competitive Enterprise Institute (CEI) released a study, “A Remedy for Taxpayer Giveaway to Unions,” revealing how state and local agencies in Missouri subsidize unions during working hours without any reductions in member pay. Despite extensive noncooperation by various agencies, the author, CEI labor policy analyst Trey Kovacs, found a number of cases of this insidious form of employee double-dipping. In an interview, Kovacs expressed his disdain for what clearly had been agency-union collusion. “Union release time is a plague on local, state and federal government finances,” he said. “The practice of allowing public employees to perform union business only benefits the labor union and serves no public purpose.”

Missouri is in good company. Consider the recent evidence from elsewhere:

Texas. In a July 23, 2015 report, “A Remedy for the Lone Star State’s Taxpayer Giveaway to Unions,” CEI’s Kovacs summarized his group’s probe of release time practices in Texas. The San Antonio Police Department, for example, during Fiscal Year 2012 granted 7,941 hours of release time at a public cost of $252,581, sums that increased, respectively, to 8,301 hours and $272,244 during Fiscal Year 2013. In Austin, cumulative release time for the Police, Fire, and Emergency Medical Services departments in Fiscal Year 2012 came to 10,857 hours, a figure that jumped dramatically to 16,963 hours in Fiscal Year 2013. The respective costs for these years (where salary data were available) were $227,530 and $593,783. Austin Fireman Bob Nicks, a union dissenter who heads International Association of Fire Fighters Local 975, told how local governments and unions work in tandem to protect this privilege. “I’ve been fighting to be put back to work at our fire department,” he said. “The chief wouldn’t allow it. How much they have fought against me was crazy.”

Michigan. The Mackinac Institute, a Midland, Mich.-based free-market think tank, recently issued a study of release time in Michigan public school districts. Researchers found that 70 of the Michigan’s 548 conventional school districts offered some form of official time. About 40 of those 70 districts provided compensation to the union employees. In more than a dozen districts, unionized employees performed no school functions at all. The direct cost to Michigan taxpayers: $3 million. That sum would be even higher by including indirect costs such as employee benefits, payroll taxes, and the cost of hiring extra persons to perform actual school duties. Mackinac Institute Research Director Michael Van Beek puts it this way: “Union officials on a school’s payroll are essentially ghost teachers. Taxpayers think they’re paying for teachers, but they’re getting union officials doing union business.”

Fairfax County, Virginia. The Center on National Labor Policy, a Springfield, Va.-based 501(c)(3) research group, concluded from data it had obtained via the Freedom of Information Act (FOIA) that the already-approved Fiscal Year 2016 school budget for suburban Washington, D.C. Fairfax County contains $5.8 million in compensation for substitute teachers who cover for regular teachers out on union business. This represents 132,529 hours of work time. The practice of release time, which began in the county in 1986, now applies to a wide range of employees, not just those hired by the school system. It amounts to subsidized political activism. The report notes: “In essence, these Fairfax County boards hire labor unions as vendors to provide grievance representation for a member-only class of government employees, to provide government training as labor union operatives, to provide union political training, to provide policy consultations, and to lobby the Board and other government officials.”

This brings us to Phoenix. Back in 2011, a free-market think tank, the Goldwater Institute, filed suit in Maricopa County Court on behalf of two taxpayer-plaintiffs, William Cheatham and Marcus Huey. The pair sought to invalidate release time provisions contained in an active, multiyear collective bargaining agreement between the City of Phoenix and the Phoenix Law Enforcement Association (PLEA). The complaint estimated that these provisions were costing local taxpayers $900,000 annually. Even more central, argued the institute, the expenditures were unconstitutional under the Gift Clause of the Arizona Constitution. The clause reads: “Neither the state, nor any county, city, town, municipality or other subdivision of the state shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.”

For the release time provisions to be legal, they had to meet two criteria: 1) release time must be used to promote a public purpose; and 2) the relevant public agency must receive proportionate, quantifiable and direct benefits for the aid given. In neither case, concluded Maricopa County Superior Court Judge Katherine Cooper in January 2014, did the Phoenix Law Enforcement Association’s use of release time pass constitutional muster. Such usage, she wrote, does not advance a public purpose and it “diverts resources away from law enforcement.” The benefits accrued to police department employees rather than the general public, with little, if any, accountability as to how release time was spent. The court then enjoined further use of the practice and urged similar action with other area public unions.

The City of Phoenix and the PLEA appealed. On August 11, the Arizona Court of Appeals issued a ruling that for the most part affirmed the lower court decision. Limiting its consideration to the full-time employee release provisions in the 2012-14 contract (as did the lower court), the Court ruled that the $1.7 million in expenditures was far out of proportion to benefits. At the same time, the Court left undecided the constitutionality of the practice, believing that the case could be resolved on non-constitutional grounds:

In resolving whether the release time provisions violate the Gift Clause, we do not need to determine whether the expenditure for release time serves a public purpose because our resolution of the consideration prong is dispositive…Assuming a proper public purpose, neither the City nor the PLEA has shown that the trial court erred in finding that the City’s expenditure for the release time was grossly disproportionate to what it received in return, given the lack of obligation imposed on PLEA in the 2012-14 MOU (Memorandum of Understanding) release time provisions…We leave the constitutionality of such an MOU or other release time agreement for another day.

While the ruling was an incomplete victory for public accountability, it was a victory notwithstanding. And it provides potential replication. Lawsuits challenging release time provisions, in fact, have been filed in Idaho, Michigan and Pennsylvania. The Pennsylvania case, for one, came about several months ago when the Fairness Center, a Harrisburg, Pa.-based free legal service that represents dissenting public-sector union employees, filed suit in the Philadelphia Court of Common Pleas to bar the Philadelphia Federation of Teachers, an affiliate of the American Federation of Teachers, from assigning members to conduct union business during working hours. Release time is written into the union contract, allowing up to 63 Philadelphia teachers a year to leave their classroom duties for union business. This ‘ghost teacher’ arrangement, which (unlike in Pittsburgh) doesn’t even require reimbursement by the union, is not cheap. At least 18 no-show public school teachers last year raked in more than $1.7 million from the city school system, or about $100,000 per teacher. And since 2003, release time has cost the district another $1 million in pension payments. “Schools should be paying for education, not for union work,” said Fairness Center Assistant General Counsel Nate Bohlander.

State legislatures also have begun to show resistance. Lawmakers in Maine, Michigan, Nevada and Washington State have sponsored bills to ban taxpayer-funded release time. The Michigan measure, Senate Bill 280, introduced this April by Sen. Marty Knollenberg, R-Troy, for example, would invalidate public employee contracts that pay union officials for conducting union business while on the job. “Each dollar these school districts spend on union lobbyists is a dollar taken from classrooms,” noted Knollenberg in a news release. “The last thing parents and taxpayers should have to worry about is whether money is being siphoned out of classrooms to pay for lobbyists.”

It cannot be emphasized enough that government employee unions are intensely political organizations. That they represent public employees should not be taken to mean that they represent a larger public interest. The primary loyalty of these unions is to their members. And like their employers, they have a stake in expanding government. Each side plays for the same team. This arrangement is harmful to the prospects for limited government, democracy and even public safety. At one point during the Phoenix battle, the Goldwater Institute discovered that cops were using release time to threaten strikes and slowdowns. They also urged city council candidates to fire the police chief. Institute Vice President for Litigation Clint Bolick recalls: “Not only were taxpayers being forced to fund private labor activity, it was activity that was purposely aimed at undermining the safety of Phoenix residents and the operations of the police department.” The outcome of this case shows that it is possible to fight City Hall – and allied unions.


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