In a 3-2 decision, the State Supreme Court overturned two lower courts, which ruled that the practice of union release time, which allows government employees to perform union work—negotiate contracts, handle grievances, lobby government, and threaten strikes—instead of the government duties they were hired to do at the taxpayer’s expense, violates the state’s constitution.
In 2011, the Goldwater Institute in Phoenix filed a lawsuit on behalf of taxpayer plaintiffs against the release time provisions in the contract between the City of Phoenix and the Phoenix Law Enforcement Association (PLEA), which cost taxpayers approximately $900,000 annually, according to the complaint.
In 2013, the Maricopa County Court held that union release time is unconstitutional and runs afoul of the state’s Gift Clause. As I document in the June issue of Labor Watch:
Maricopa County Court Judge Katherine Cooper used a two-part analysis of public expenditures to examine whether release time aided the private interests of government unions and is therefore illegal under the gift clause.
In Arizona, a public expenditure must promote a public purpose, and the public entity must receive proportionate, quantifiable, and direct benefit for the aid given. The court established that the PLEA uses release time to advance the interests of its members only. Judge Cooper found that release time does not advance a public purpose and “diverts resources away from law enforcement.”
On August 11, 2015, the Arizona Appeals Court also held that release time violated the Arizona state constitution’s Gift Clause, which prohibits use of public funds to benefit private parties. The implication of the ruling was simple — police are being paid to protect the public’s safety, not work on union activities.
Unfortunately, the Arizona Supreme Court uses tortured logic to hold that release time is a valid form of government spending.
In the majority opinion, the justices conclude that release time does serve a public purpose:
It procures police services for the City. Furthermore, the City Council recognized that the MOU [Memorandum of Understanding] identifies PLEA as the authorized representative of Unit 4 officers with whom the City can deal on all labor-related matters; under the MOU and the City’s ordinance, PLEA is obliged to represent and serve all Unit 4 officers, whether or not they are PLEA members. Moreover, the City benefits from more efficient negotiations because it collectively negotiates with PLEA, rather than with individual employees.
It is unclear how the PLEA’s duty of fair representation of all workers in the bargaining unit plays into the gift clause analysis. It seems completely unrelated to the question at hand, and its other argument above is weak. Collective bargaining negotiations are combative by nature and other than saying that release time makes negotiations more efficient, the court does not provide any evidence that efficiencies are actually achieved. Furthermore, 93 percent of the private-sector workforce is not represented by a union and those employers seem to negotiate with individual employees without much of a problem.
Another argument made by the majority:
Federal courts have recognized that employer payments for time spent by employees during working hours on certain union activities, such as handling grievances or negotiating with the employer, are a mandatory subject of collective bargaining because such payments relate to the employees’ “wages, hours, and other terms and conditions of employment.”
This is not entirely true. While the handling of grievances and bargaining in good faith are mandatory subjects of collective bargaining, paying union officials to do so is not. Moreover, paying employees in the private-sector to work as union representatives instead of performing their work duties is illegal in some states. In 2013, the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana and Wisconsin) “held it illegal for employers to pay the full-time salary of union officials who spend their time representing employees rather than working for the employer. Titan Tire v. USW, Case No. 12-1152 (Nov. 1, 2013).”
The majority makes other arguments that similarly fail to hold much water.
The bottom line is that Arizona’s constitution says it is illegal to “make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.” Union release time is a subsidy to the PLEA and one that exclusively benefits them.
In essence, the court ruled that taking police officers away from their duty to protect the public (somehow) serves a public purpose. This reasoning is void of commonsense. It is absurd to think that letting police officers perform union business on the taxpayer’s dime is the best use of public funds, serves a public purpose, or that the public is receiving adequate consideration.
Budgets around the country are tight and there have to be better ways to spend public funds than to subsidize union officials to negotiate contracts, handle grievances or lobby government—union dues should pay for this.