Extracting coerced payments from workers as a condition of employment, public-employee unions have enjoyed explosive growth and exerted enormous political influence, even as their private-sector counterparts decline in size and power. They faced a setback this year, though, when the Supreme Court ruled in Janus v. AFSCME that collecting mandatory “agency fees” from non-members is unconstitutional. Stung by the Janus decision, unions representing government employees are desperate to discourage legal challenges to taxpayer subsidies, such as the little-known but widespread practice of putting union bosses on the government payroll.
Two years ago, I wrote in City Journal about a taxpayer lawsuit filed in Travis County, Texas challenging the practice of “release time” in a contract between the city of Austin and the union representing the city’s firefighters, Austin Firefighters Association, Local 975. The lawsuit contends that a contractual provision requiring the city to pay up to 5,600 hours a year in “release time” to officers of AFA Local 975 to engage in union business constitutes a “gift of taxpayer funds,” in violation of the Texas Constitution. (I am one of the plaintiffs in that case, represented by attorneys from the Phoenix-based Goldwater Institute and the Texas Public Policy Foundation.) The release-time practice, in Austin and other municipalities, costs Texas taxpayers upward of $1 million each year.
“Release time,” “official time,” or “association business leave” provisions, common in public-employee union contracts (both state and federal), allow government employees who also serve as union officers to receive their full salaries at taxpayer expense, even if they exclusively perform union business, including union politicking. Thus, taxpayers are compelled to finance union bosses’ political efforts—including lobbying and contract negotiation—even when those interests may conflict with theirs. The total amount of taxpayer subsidies of union payrolls (at the federal, state, and local levels) approaches $1 billion a year, according to some estimates.
Release time has gone largely unchallenged so far, but unions are worried about losing this income stream, if taxpayers successfully contest it. Opponents of the practice believe that public-employee unions should pay their officers’ salaries with union dues, not taxpayer funds, and that release time violates the Texas Constitution. That’s the basis for the pending lawsuit against AFA Local 975. In 2011, the Goldwater Institute brought a similar challenge under the Arizona Constitution to a release-time provision in the contract between the city of Phoenix and its police union. In 2016, after winning in the trial court and the intermediate court of appeals, the challenge lost in the Arizona Supreme Court by a 3-2 vote. Unions are eager to stop the legal campaign against release time in other states before it gathers steam. AFA Local 975 has responded to the Texas lawsuit aggressively, calling it a “union-busting move” and “a state-wide attack on all public sector employee groups, not just the AFA.”
When the AFA took my deposition recently, I expected questions about the property and sales taxes that I paid to the city of Austin—the basis for my “standing” as a taxpayer to challenge release time as a gift. Instead, the AFA’s lawyer asked me about my net worth, the amount of equity in my home, the value of my retirement plan, and other personal financial matters. (I was also asked about my City Journal article and other writings, on my blog and elsewhere.) I was asked, “Are you aware that there’s a pending motion for attorneys’ fees and costs filed by the AFA seeking fees from you and your co-plaintiff in the case?”
The AFA has filed a motion claiming more than $100,000 in attorneys’ fees and costs, plus “appropriately stringent” sanctions amounting to twice the attorneys’ fees sought. The union asserts that it is entitled to recover hundreds of thousands of dollars from the plaintiffs—including me—on grounds that it is immune from lawsuit under the Texas Citizens Participation Act, an anti-SLAPP statute passed by the Texas legislature in 2011. SLAPP is an acronym for Strategic Lawsuits against Public Participation, which refers to a civil claim or counterclaim that attempts to infringe on a citizen’s right to speak freely, associate freely, and petition freely. The firefighters’ union—claiming to be the target of such an action—is using the TCPA to intimidate a citizen exercising his rights under the state constitution to challenge an unlawful taxpayer subsidy, and threatening to bankrupt him if he continues his litigation.
The firefighters’ union managed to convince the trial court to adopt this through-the-looking-glass reading of the TCPA. Austin, the progressive capital city where the lawsuit is pending, is a friendly venue for labor unions. The AFA also contends that the Goldwater Institute is precluded from challenging release time under the Texas Constitution because it did not prevail in the Arizona case under that state’s constitution.
Firefighters rightfully enjoy public esteem and respect as first-responders who expose themselves to daunting workplace hazards—sometimes risking their lives. Unions representing government employees—public-safety officers and otherwise—forfeit that goodwill, though, when they threaten taxpayers in an attempt to bully challengers of unlawful subsidies. Such intimidation has no place in civil society. Threats of reprisal, whether made in a darkened alley or in a legal proceeding, are equally reprehensible.
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