THE ATTORNEY GENERAL OF TEXAS
Ken Paxton

Attorney General Ken Paxton: Union Deal Breaks Public Trust

Thursday, November 3, 2016 – Austin

From as far back as Thomas Aquinas, we have understood the rule of law to mean that government actions must be “ordered to the common good.” Anything less implies that the public trust has been co-opted for the purposes of greed and self-enrichment.

Earlier this month, I had my office join a lawsuit against the city of Austin to combat a policy that ignores this bedrock principle of good government.

The city of Austin, as part of its collective bargaining agreement, bestows upon the Austin Firefighters Association up to 6,600 annual hours of so-called “release time,” during which members may carry out union business at the taxpayers’ expense.

Even worse, the agreement expressly extends the definition to include “legislative and/or political activities.” As a result, much of what lands on the taxpayer’s back is not merely administrative tasks, but rather a partisan agenda with which many members of the public may vociferously disagree. Calculated out, that is the equivalent of paying three full-time firefighters each year to do nothing but lobby on behalf of the union.

Not only is this agreement bad policy, but the free hours given to the union violates the state constitution in a rather blatant fashion.

According to the Texas Constitution’s anti-gift clauses, the state, cities, counties, and other political subdivisions may not confer tax money to a private party, except where the grant clearly advances a public purpose. Indeed, this charge is so intrinsic to good government that the city of Austin would have been bound to follow it even if it were not so plainly laid out in the Constitution. Its inclusion in our Constitution simply means that taxpayers and other arms of government, namely the Attorney General’s office, have an ability and obligation to bring transgressors to task.

Release time does not skirt the line dividing public and private benefits. It runs across that partition at full tilt. The Texas Supreme Court has announced a three prong test to determine whether an expenditure runs into conflict with the anti-gift clauses. Failure to surmount any one prong of this test indicates that the policy violates the Constitution. Austin’s collective bargaining agreement runs afoul of all three.

The problem is one of both form and substance. Starting with the policy’s most glaring defect, Austin residents do not receive a discernable benefit for the hours spent on the union’s political activity. They, in fact, emerge from the deal worse off.

Through the agreement, the Austin Firefighters Association may tap into public funds to subsidize their contract negotiations as well as their push for higher wages and improved hours. There is just one hitch. Members of the firefighters union are city employees. Any advantage won at the negotiation table is wrest from the city budget.

Austin taxpayers, in other words, are literally funding both sides of a political debate. They pay union lobbyists for the privilege of being persuaded to spend more money. How is that in their financial interests?

What is more, the agreement lacks the typical oversight mechanisms which would have let the city observe and control how the union managed their release time. The city therefore has no method of ensuring that these public resources are used pursuant to a public good and in accordance with the anti-gift clauses.

The Texas Supreme Court has specifically stressed the need for the public to retain control over monetary grants. Its absence here sends a strong signal that the “common good” was never really the policy’s target.  Release time instead is about benefiting the union and its members—any gains made by the public are merely a happy coincidence.  

Release time enriches a private organization at the cost of Austin resident’s health and safety. It siphons money that would otherwise go to vital emergency services and redirects it towards a labor union’s political activity.

Texans granted the city of Austin the power to collect public revenue but only on the condition that Austin act as a responsible steward of the public’s trust. The city does not meet that prerequisite when it allocates money solely for the benefit of a private party.

The decision to intervene in local affairs is never made lightly, but the responsibilities of my office—and the calling each and every Texan has to defend the rule of law—demands corrective action when a Texas city abuses its power and ignores the distinction that separates taxation from theft.