Taxpayer-funded release time is a nationwide practice at all levels of government— federal, state, and local. Although pervasive, release time is rarely the subject of public policy debate because it is not put in place through the legislative process but rather behind closed doors during collective bargaining negotiations. Once identified, however, the practice can be eliminated or curtailed through strategic litigation, legislative reform, or a combination of the two. A successful strategy will depend on a particular state’s jurisprudence and legislative composition.
Release Time Litigation
Perhaps the most direct mechanism to challenge release time is strategic public interest litigation; that is, challenging release time provisions in collective bargaining agreements and the public expenditures made pursuant to those provisions in court. Litigation challenges can be predicated on one of two legal claims, which can be brought separately or together, depending on a state’s particular jurisprudence, standing doctrines, and the characteristics of the plaintiffs.
The Goldwater Institute has brought challenges to release time under state constitution “gift clauses” or “anti-aid clauses” in Arizona, Texas, and New Jersey.
Gift clauses are, put simply, constitutional limitations on the power of government to use public funds to advance private interests. The scope and application of gift clauses vary by state, but a gift clause exists in some form in 49 state constitutions.[i] Generally, state constitutional gift clauses prohibit the expenditure of public funds on activities that promote primarily private interests without adequate consideration or exchange from the private party to the government. Some states also require the government exercise sufficient and continuing control over the public expenditures to ensure that a public purpose is, in fact, accomplished.
The Goldwater Institute brought its first gift clause release time case in 2011, challenging a contract between the city of Phoenix and the Phoenix Law Enforcement Association (PLEA), a labor union that represents Phoenix police officers below the rank of sergeant. The city’s contract allowed for the full-time release of six police officers to perform functions exclusively for PLEA. It also allowed for a bank of hours the union could draw on for other union activities. In total, it was estimated that release time cost the city of Phoenix roughly $1.7 million over the course of the contract in that agreement alone.[ii] The practice cost Phoenix taxpayers $3.7 million per year for all union groups.[iii]
Arizona law allows for robust standing for taxpayers to sue to enjoin unlawful government expenditures.[iv] The Institute represented several Phoenix taxpayers in a public interest challenge to Phoenix’s contract.
The Institute and the taxpayer plaintiffs won an early victory in the trial court, where the judge enjoined the release time provisions and sent the six full-time release officers back to the law enforcement jobs they were originally hired to perform. At the time the injunction was issued, the officers had been on the union job for so long, the city had to send them back to remedial training at the police academy to relearn basic law enforcement skills.[v]
The Arizona Court of Appeals upheld the trial court’s ruling in a statewide decision, finding that because the collective bargaining agreement imposed a “lack of … obligations on PLEA,” there was insufficient consideration to support the public expenditures on release time.[vi] The appellate court then affirmed the injunction against release time.
Unfortunately, the Arizona Supreme Court later reversed this decision, finding that because “release time is part of the negotiated total compensation package” for all unit members, there was sufficient consideration for the release time expenditures.[vii] In other words, the court found that because release time was part of a much larger contract, and because it purportedly provided some benefit to all unit members bound by the contract, including nonunion members, the city of Phoenix received sufficient consideration for the release time expenditures. If it is true, however, that release time is part of total compensation to all employees whether they belong to the union or not, then the court’s rationale raises serious free expression, association, and Right to Work problems, as outlined below.
The Goldwater Institute is also representing New Jersey taxpayers in a challenge to a collective bargaining agreement between the Jersey City School Board and the Jersey City Education Association (JCEA). In that case, two full-time teachers have been released from the job of educating Jersey City’s youth to work entirely for a private labor union.[viii] Here, the school board does not exercise any control, supervision, or oversight over the two release time teachers, who are essentially free to use release time to advance the labor union’s private interests in the release time employees’ sole discretion. In August 2019, the Appellate Division of the Superior Court of New Jersey enjoined the release time provisions, finding that state law does not authorize the school board to expend public funds on release time and holding that the practice is “unenforceable as against public policy.”[ix] The New Jersey Supreme Court granted review in the case and heard arguments on October 13, 2020. A decision is pending in the state Supreme Court.
Similarly, the Institute is representing Texas taxpayers in a challenge to the city of Austin’s collective bargaining agreement with the Austin Firefighters Association (AFA).[x] In that case, the city of Austin pays the AFA president to be released from his position as an assistant fire chief to work full-time for the AFA. The city also allocates the equivalent of three other full-time release positions in a bank of hours that the AFA can use. After a lengthy pretrial process, the case is set for trial in December 2020.
In addition to the gift clause cases, there are also significant federal and state free expression and association as well as Right to Work challenges to release time. As Thomas Jefferson once explained, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” If release time is funded as part of total compensation to all unit employees under a collective bargaining agreement—whether those employees belong to the union or not—then every employee is forced to finance union activities, whether they want to or not.
In 2018, the U.S. Supreme Court decided Janus v. AFSCME. In that case, the Court found that the First Amendment is violated when a government employer takes money from nonconsenting employees to support a public-sector labor union. The Court held that “neither an agency fee nor any other payment may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmative consents to pay.”[xi] In other words, the Court held that the First Amendment is violated if any portion of a nonconsenting worker’s compensation is used to subsidize the private speech of a labor organization, including a labor organization’s political advocacy, collective bargaining, handling of grievances, and other private activities.
As a result of the Janus decision, the Arizona Supreme Court’s rationale for upholding release time under the gift clause in Cheatham is now highly questionable under the First Amendment. Because the Cheatham court found that “release time is part of the negotiated total compensation package” for all unit members,[xii] that means that nonunion members, whose pay and benefits are also governed by the collective bargaining agreement, are now forced to direct part of that pay to union activities performed by release time employees. Because those employees have not provided affirmative consent to do so, financing release time as part of total compensation violates those employees’ First Amendment rights.
And, just as the First Amendment prohibits the compulsory payment of wages from a nonconsenting employee to a private labor organization under Janus, the Arizona Constitution’s guarantees of free speech and association likewise prohibit compelling public-sector workers to support a union. Arizona’s Right to Work laws[xiii] also prohibit forced union membership as well as forcing nonunion employees to pay any financial compensation to unions.[xiv]
In October 2019, two city of Phoenix employees represented by the Goldwater Institute filed suit against the city for violating their rights under Arizona’s Constitution and the state’s Right to Work laws. Because the city has directed part of the employees’ compensation to fund release time activities without their consent, the city has violated the employees’ rights to free speech and association as well as Arizona’s Right to Work laws. The case is pending in Maricopa County Superior Court.
Release time raises a number of significant legal issues, which is why several courts have struck down the practice as unconstitutional or unlawful. By directing public resources to private union activities, public entities will continue to be susceptible to legal challenges.
Legislative reforms can also be pursued separate from or in addition to legal challenges. These can be achieved at the state or local level though statutory changes or the passage of local ordinances.
Model legislative policy should prohibit public employers from entering into labor agreements that provide publicly funded compensation for union activities, including paid leave. Those activities—political activities, lobbying, collective bargaining, recruiting union members, filing grievances, etc.—should be laid out and defined in statute. The law can also include a catchall provision to prohibit union activities that primarily benefit private union members rather than the public. Additionally, policy measures should incorporate an enforcement mechanism, including authorizing standing for the state attorney general, county attorney, or aggrieved taxpayers, to bring an action against any public employer that enters into a contract with a labor union that has release time provisions. Finally, if done at the state level, the statute should preempt municipalities because they are generally more susceptible to capture by politically active labor unions, which frequently spend heavily to elect local political leaders. [Download model release time legislation here.]
Legislative reform, of course, is not without obstacles. Because release time is most commonly found in collective bargaining agreements—rather than in statute or ordinance— policymakers are often unaware that the practice exists at all. Reform efforts, therefore, frequently require providing research and analysis to lawmakers on the practice about its costs to taxpayers, workers, and other government priorities. Additionally, public employee labor unions often exercise tremendous influence with policymakers at the state and local level, so legislative efforts should be pursued with an understanding of this opposition.
In states or localities where the elimination of release time is not probable because of these obstacles, policymakers should at a minimum put in place accountability and transparency measures regarding release time. For example, any public entity that provides release time should also be required to meticulously track its use and maintain an accounting of that use. This information should be publicly disclosed or available for public disclosure upon request.
Release time is an issue of statewide concern that involves good government, taxpayer protection, and the rights of public employees, among other concerns. As such, it is an appropriate topic for legislative action. Lawmakers at all levels should pursue policy reforms that prohibit public expenditures on activities that advance private special interests, including those of private labor unions.
[i] Matthew Mitchell, Jonathan Riches, Veronica Thorson, and Anne Philpot, Outlawing Favoritism: The Economics, History, and Law of Anti-Aid Provisions in State Constitutions, Mercatus Center, George Mason University, March 20, 2020, https://www.mercatus.org/publications/corporate-welfare/outlawing-favoritism-economics-history-and-law-anti-aid-provisions.
[ii] Goldwater Institute, “Cheatam v. Diciccio,” April 24, 2014, https://www.goldwaterinstitute.org/cheatham-v-diciccio/.
[iii] Mark Flatten, Money for Nothing: Phoenix Taxpayers Foot the Bill for Union Work, Goldwater Institute, September 21, 2011, https://www.goldwaterinstitute.org/article/money-nothing-phoenix-taxpayers-foot-bill-union-work/.
[iv] See Ethington v. Wright, 66 Ariz. 382, 386, 189 P.2d 209, 212 (1948) (“The right to maintain such suits is based upon the taxpayers’ equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.”).
[v] Goldwater Institute, “Goldwater Institute Seeks Second Preliminary Injunction in Release Time Case,” October 30, 2014, https://www.goldwaterinstitute.org/article/goldwater-institute-seeks-second-preliminary-injun/.
[vi] Cheatham v. Diciccio, 238 Ariz. 69, 76, 356 P.3d 814, 821 (Ct. App. 2015), vacated, 240 Ariz. 314, 379 P.3d 211 (2016).
[vii] Cheatham v. DiCiccio, 240 Ariz. 314, 319, 379 P.3d 211, 216 (2016).
[viii] Goldwater Institute, “Fighting Union Cronyism: Rozenblit v. Jersey City School District,” July 16, 2017, https://www.goldwaterinstitute.org/rozenblit-v-jersey-city-school-district/.
[ix] Rozenblit v. Lyles, 461 N.J. Super. 20, 23, 218 A.3d 320, 322 (App. Div. 2019).
[x] Goldwater Institute, “Eliminating an Egregious Taxpayer Abuse: Wiley. V. Austin,” September 7, 2015, https://www.goldwaterinstitute.org/pulliam-v-austin/.
[xi] 138 S.Ct. 2448, 2486 (2018) (emphasis added).
[xii] Cheatham, 240 Ariz. at 319.
[xiii] A.R.S. §§ 23-1301-1307; 23-352
[xiv] See American Fed’n of State, Cnty. & Mun. Emps., AFL-CIO, Local 2384 v. City of Phoenix, 213 Ariz. 358, 367, 142 P.3d 234, 243 (App. 2006) (“It is clear that the populace, through constitutional amendment and legislation, intended to forbid both management and labor from imposing, as a condition of employment, the requirement that any person participate in any form or design of union membership.”).