Arizona Supreme Court Curbs Union Time on Taxpayers’ Dime

By Jon Riches

Imagine for a moment that your local city council paid city workers not to perform the jobs they were hired to perform, but to work for Walmart instead. That is, the city released firefighters, or police officers, or heavy equipment mechanics from their regular government jobs to work as checkout clerks or Walmart greeters.

That scenario might sound far-fetched, but it’s precisely what many government agencies are doing via a practice called “release time.” Except rather than working for Walmart, these employees are working for government employee labor unions—in many cases full time—all while receiving their taxpayer-funded salaries and benefits. The intended purpose of release time is to make it easier for government employees to participate in union work. But in practice, release time means that taxpayer money is subsidizing private unions, instead of being directed toward the public services that government employees are supposed to be providing.

Time’s Up?

Release time exists at the federal, state and local levels, including in cities, towns and school districts. The federal government alone spends nearly $135 million each year on “official time,” which is the federal government’s term for release time. Local governments likewise grant generous release-time benefits to labor unions. The city of Phoenix spends nearly $3.7 million each year on release time, an amount that eclipses the money unions collect from voluntary dues. And school districts throughout the country regularly pay teachers to leave the classroom and report to union headquarters instead.

Where is all this money going? To union coffers. Government employee union bosses use their taxpayer-funded salaries to engage in political and lobbying activities, attend union conferences and meetings, recruit new members to the union, and do other things that advance the union’s own interests, not those of the public.

The Goldwater Institute, where I work, represented two Phoenix employees and taxpayers in a recent legal challenge to release time under the Arizona Constitution’s gift clause. That provision prohibits the government from giving public resources to private entities. It says, “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…”

In our challenge, we asserted that giving the union $1 million in release-time benefits was an unconstitutional subsidy because the union is the true beneficiary of these expenditures, not the public. And in a unanimous ruling, the Arizona Supreme Court agreed. The court held that “the costs and benefits here are so one-sided that it is difficult to envision how such expansive release time provisions could ever survive” constitutional scrutiny.

That was a watershed decision, and it marks the very first time a state high court has declared release time unconstitutional. It is a decision that will have broad ramifications for taxpayers financing union activities throughout Arizona, but also one that may have a broader national impact. That is because 49 states have state constitutional provisions that place some limits on use of public funds to advance private interests.

Indeed, earlier this summer, while upholding the specific release-time provisions challenged in another case, the Texas Supreme Court expressed considerable skepticism regarding the constitutionality of the practice under that state’s gift clause. Writing for the dissent, Justice Brett Busby was more direct: “The Gift Clauses of the Texas Constitution exist to protect citizens from their government, which our history shows is vulnerable to capture by private special interests who seek to use public funds for their own ends.”

The Bigger Picture

Defenders of release time—mostly the union bosses who benefit from it—contend that release time is necessary to help ensure “labor peace” between unions and government employers. But there is no evidence of this, and in fact the opposite is probably true: Having full-time union officials on the government payroll to take positions against the public interest likely hinders “labor peace” rather than advancing it.

For example, employees on release time often work on collective bargaining cases, grievance proceedings against the government and representing employees in disciplinary cases—all instances in which the labor union and the government employer are on opposing sides. What’s more, release time apologists provide no explanation for how spending taxpayer funds on a union’s political activities advances any public interest whatsoever, nor do they say why the union itself can’t pay for the union’s private activities.

These justifications, in fact, point to a larger problem within government labor relations that makes paying union members with taxpayer funds even more pernicious than the Walmart example.

Government labor unions have a uniquely powerful position when it comes to influencing public policy. When a union is designated as the “exclusive representative” for employees, it gets to negotiate one on one with its government employer. Those negotiations then result in a collective bargaining agreement that has the force and effect of law. These agreements not only have significant financial impacts on taxpayers, including when unions negotiate for things like release time or higher wages and benefits, but they also include provisions that have other broad policy impacts on the public.

As a result, the collective bargaining process transfers decision-making authority over critical government functions from elected policymakers to union officials. Rather than elected officials determining public employees’ wages, benefits and working conditions, or setting broad policies of general applicability, unelected labor leaders do so in bilateral negotiations. No other special interest group has the extraordinary power to sit down with policymakers to unilaterally negotiate policy decisions that can then be enforced in a written agreement.

Some might contend that unions are still democratically accountable because elected officials often approve labor agreements. But that raises a separate problem in light of the enormous political influence that union leaders have in American politics. The two largest teachers’ unions provide illustrative examples. In 2022, the American Federation of Teachers reported spending $24.5 million in partisan elections. Of that total, 99.97% went to Democratic politicians. The National Education Association spent $26.3 million for partisan elections in 2022, of which 99.2% went to Democrats.

When officials from the National Education Association and its local affiliates then sit down with the school district members they helped to elect, is it any wonder they get what they want? The American Federation of State, County and Municipal Employees’ (AFSCME) New York City labor boss, Victor Gotbaum, put the problem succinctly when he said in 1975, “There’s no question about it—we have the ability, in a sense, to elect our own boss.”

Combined with the power of exclusive representation, this pernicious symbiotic relationship helps explain how something like union release time can come to pass. After all, release time isn’t a traditional benefit for all employees, like better wages or more leave. It is a distinct benefit for the labor union itself.

In the Arizona case, AFSCME was the exclusive representative of the bargaining unit. That unit consisted of 1,540 employees. Of those, only 671—less than 44%—were dues-paying members. From the dues that were collected, the union brought in roughly $331,000 per year. Yet the value of the release-time benefits the union negotiated totaled $500,000 per year. Among a whole host of other release-time benefits, this money allowed four city employees to be released full time from their government jobs to do nothing but union work.

In other words, release time generally benefits the union and its leaders, not rank-and-file employees, including employees who opt not to join the union. Additionally, the value of release time to the union is substantial. By virtue of its status as exclusive representative, AFSCME was able to negotiate an enormous perk for itself, and one that dwarfed in value the amount of money that the union brought in through dues payments.

One might expect there to be some democratic check on this taxpayer abuse. Yet, considering the political spending of labor unions, it seems unlikely that the politicians who receive these contributions will be incentivized to cross their union enablers.

Hope for Reform

Even in the face of these political realities, however, there have been some burgeoning policy reforms in this area. In 2022, Arizona passed a statute prohibiting the use of release time for political and lobbying activities. At the federal level, just this year, Sen. Mike Lee (R-Utah) introduced the No Union Time on the Taxpayer’s Dime Act, which would prohibit paying federal employees for union work, although it is unlikely that bill will advance far.

The courts, too, are a critical check on abuses like release time. Judges—at least the good ones—care about what the law says, and they are more insulated from these sorts of political pressures than elected officials.

Release time offends a basic proposition of good government: Taxpayer funds should be spent to advance public purposes, not private special interests. The decision from the Arizona Supreme Court will go a long way toward advancing that intention in Arizona—and hopefully elsewhere. Other courts and policymakers should take notice.

Jon Riches is the vice president for litigation at the Goldwater Institute.