Union Release Time on the Ropes

Over two years ago, 16 NYPD officers were charged in a widespread ticket-fixing scam. And the criminal cases against the officers are still ongoing.

However, yesterday, according to a report from the New York Daily News:

The city doesn’t have to pay three NYPD cops who were arrested in the 2011 Bronx ticket fixing scandal for their full-time union work.

That was the ruling Tuesday from the Manhattan Appellate Division which determined that the city had a right to stop giving the indicted union officials their regular pay on a “release time” basis while they worked full time for the Patrolman’s Benevolent Association.

For those unfamiliar, union release time is a common provision in collective bargaining agreements and it allows unionized government workers to perform union duties unrelated to their jobs while still being paid their government salary. Worse, union release time occurs in nearly every state, and the federal government. Some estimate union release time (at the local, state, and federal levels) costs taxpayers more than $1 billion annually.

Fortunately, due to the excellent legal work of the Goldwater Institute, union release time in almost all 50 states could become a taxpayer subsidy of the past.

In 2011, the Goldwater Institute filed a complaint on behalf of two Arizona taxpayers against the City of Phoenix over its compensating the Phoenix Law Enforcement Association (PLEA) for union release time, which costs Phoenix taxpayers over a million dollars per year.

Goldwater’s lawsuit (Cheatham v. DiCiccio) challenged the union subsidy under Arizona’s constitutional provision known as the “Gift Clause,” which provides that no state or local government “shall make any donation or grant, by subsidy or otherwise, to any individual, association or corporation.” It is important to note that nearly every state constitution contains a Gift Clause.

In determining whether public expenditures violate the Gift Clause, both components of a two-part analysis must be satisfied:

  1. The expenditures of public funds must promote a public purpose
  2. The public entity must receive proportionate, quantifiable and direct benefit for the aid given to a private entity

In May 2012, Judge Katherine Cooper of the Maricopa County Superior Court ruled union release time is an illegal subsidy and granted a preliminary injunction. In the decision, Cooper said of release time, “Such activities promote the private interests of PLEA and, as a result, do not constitute public purposes. It is a subsidy and subject to gift clause analysis.”

Unfortunately, the court’s injunction applied only to the PLEA’s current contract, which expired on June 30, 2012. And, worse, the PLEA and Phoenix elected officials agreed to resurrect union release time in the next collective bargaining agreement.

Then in April 2013, the Maricopa County Superior Court granted another preliminary injunction, which struck down for a second time the union official time provisions agreed upon between the City of Phoenix and the PLEA.

After years of litigation, a full decision is expected to be announced whether union release time violates Arizona’s Gift Clause in the next few weeks. Luckily, Clint Bolick, Goldwater’s lead attorney, said in an interview that he “is confident that the judge will rule in their favor.”

With a win, the expectation is that other states with Gift Clauses can use the legal precedent to end union release time. Because even though the wasteful subsidy of union release time is found in almost every state, so is the Gift Clause.