How reforming ‘release time’ is an uphill battle
The teachers union in Florida’s Miami-Dade County spent a lot of time and money to make sure Christi Fraga did not get elected to the area school board.
And the district’s taxpayers helped foot the bill.
The reason is a practice called union release time. It allows top officials in public employee unions to be released from their regular government jobs to do union work while still drawing full pay and benefits from the taxpayers. Much of that time gets spent on electioneering to aid union-friendly candidates who, among other things, can be counted on to protect release time when union contracts are up for renewal.
The unions’ efforts did not pay off this time. Fraga handily won the November runoff election against a union-backed career educator.
But as the Florida campaign illustrates, protecting release time becomes a self-perpetuating cycle, according to those who have tried to reform the practice by eliminating it, curtailing it, or at least making it more transparent. The cycle they describe goes like this:
Union money, organization, and endorsements are powerful campaign tools, especially in local races such as city council and school board elections where voter turnout is notoriously low. Release time allows union officials to spend their days getting favored candidates elected. Since their salaries are paid by the taxpayers, the money collected from union dues is freed up to spend on other things, including more electioneering.
Once those union-friendly candidates are in office, they are unlikely to cross the organizations that helped put them there, or to limit the release time they directly benefitted from, said Greg Mourad, vice president of the National Right to Work Committee, an organization that seeks to end laws that compel payment of union dues, even by nonunion members.
“They’ve elected their bosses, and their bosses know they got elected with union resources,” Mourad said of politically influential union officials. “They sit on both sides of the bargaining table and negotiate the absurd contracts.”
Of the politicians beholden to the unions, Mourad added, “The last thing they want to do is cut back on union resources, stop giving taxpayer resources to unions. They are essentially funneling tax dollars through a third party in order to aid their own reelection campaigns.”
In Fraga’s case, public employee unions contributed $12,000 to her opponent. Those are just the direct contributions that must be disclosed by law, said Fraga. The unions also set up phone banks, sent out multiple mailers, and even produced YouTube videos on behalf of her opponent, she said. And, of course, the teachers union’s endorsement comes with the “Teacher Endorsed” placards that get pasted to their favored candidates’ campaign signs.
All told, Fraga estimated the value of all the union activity against her was worth more than $100,000 when she was interviewed shortly before the runoff election. Most of that, including the time spent by union officials on release time, never gets disclosed.
So what does the union get in return for backing union-friendly candidates?
For one thing, the unions in the Miami-Dade School District are granted more than 22,000 hours of paid release time in their various contracts.
The district did not disclose the actual hours and cost of release time. Officials at the union representing the district’s teachers, United Teachers of Dade, would not agree to an interview.
“They have a very big influence in what’s going on in local elections, and they invest heavily in funding as well as time to make sure that their candidates are elected,” Fraga said of the unions. “It’s a big impact for them to invest in a seat that they control. So they invest heavily in ensuring that these seats are (won by) candidates that are going to be beholden to what they need, what they are going to want in their union contracts.”
Fraga does not question the right of the unions to endorse candidates. Nor did she say release time should be eliminated. But if the practice is allowed, it needs be transparent and come with limits to ensure it is not abused.
“It is it ethically or morally wrong?” she said. “Probably yes, it is wrong. It’s something that, if it’s going to be allowed, it should be more transparent so that people know and it’s available for the public to understand where their tax dollars are going. It’s a very difficult fight to fight.”
Difficult is hardly the word.
There have been efforts in a few states to reduce or eliminate union release time in recent years. None has been successful.
At the same time, several states have adopted more union-friendly policies that mandate local governments, including school districts, provide release time.
Last year Oregon passed a law requiring all government employers to grant “reasonable” paid release time to union officials. It does not define what is reasonable, but leaves that up to local jurisdictions to work out in negotiations.
Before the new law was passed, an analysis by legislative staff raised concerns that the open-ended language could prove problematic and make it impossible to predict its cost.
“It is unclear how much ‘release time’ that public employees would demand for conducting union-related activities,” the fiscal analysis states. “The measure includes an expansive list of activities for which employers must grant paid leave, including an ‘other duties’ category. It appears that there is no limit to the volume or frequency of mandated paid leave.”
The California Legislature passed similar legislation in 2019, but it was vetoed by Gov. Gavin Newsom, a union-backed Democrat, who said release time should be hashed out in contract negotiations rather than mandated in state law.
Virginia repealed its longstanding ban on collective bargaining with public employee unions in 2020. The new law, which takes effect in 2021, does not directly address release time or compel local jurisdictions to provide it.
Nevada has a particularly convoluted history when it comes to paid release time. In 2015, a new law was approved requiring unions to pay for it, or prove that it was granted in exchange for some other concession during contract negotiations.
The law was well intentioned but ineffective, according to an analysis from the Nevada Policy Research Institute (NPRI), a free market advocacy organization that opposes government-paid release time. The provision allowing paid release time in exchange for other concessions in contract negotiations rendered the law largely moot since both unions and local governments have historically made that argument to justify the practice.
In 2019 the provision was repealed altogether, leaving local governments to decide for themselves how much release time to allot to their unions. That same year, the police department in Clark County, which includes Las Vegas, allowed its police union more than 23,000 hours of release time at a cost of about $2 million, according to NPRI.
Reforming paid release time is particularly tough because of complex partisan loyalties, said Florida state Rep. Jayer Williamson, a Republican who in 2019 introduced a bill to prohibit the practice. At least in Florida, Democrats tend to support union priorities. Republicans are loath to cross police and fire unions, which tend to have the most generous release time provisions. So Williamson said his challenge in trying to rally support for reform was to convince his fellow legislators that his bill was not an attack on police, firefighters, or teachers. It was an attempt to ensure taxpayer money was being spent to protect communities and educate children, not to bolster union payrolls, he said.
“It’s hard to distinguish that sometimes,” Williamson said. “That was why I really had to articulate to the members that were kind of leery that we’re not going after firefighters. We’re not going after teachers. We’re not going after our first responders. We’re simply trying to make sure that the dollars the taxpayers are funding are being used properly and in the most effective and efficient manner.”
Immediately after he filed his bill, Williamson was inundated by phone calls and emails, mostly from union supporters opposing it. He met frequently with union officials and made some changes to address their concerns.
Ultimately his efforts were not enough to save the bill, which died in a House committee. At the time, Republicans controlled both branches of the Legislature and the governor’s office.
Williamson did not reintroduce the bill for the 2020 legislative session. But he is optimistic he will be able to get some reforms passed once the public understands that their tax dollars are being spent to pay public employees to work for their private unions. Particularly troubling is the practice of full-time release in which union officials receive full pay and benefits from their government employers yet do nothing but union work, he said.
“The basis of the bill was to capture those egregious-type things, where people are being paid 100% of their salary, and 100% of their time was being spent on union duties,” he said. “I don’t think it was right then. I don’t think it is right now. And it’s hard for me to understand how anyone could argue differently.”
A study published jointly by the Competitive Enterprise and James Madison institutes in 2018 showed that Florida’s Miami-Dade County alone spent more than $600,000 per year in salaries and benefits for employees on full-time union release.
Two bills to prohibit government-paid release time met a similar fate in Michigan, dying in the waning days of the 2018 legislative session. They would have prohibited local governments from granting paid release time but exempted police, firefighters, and corrections officers.
Neither was passed, and in 2019 the governorship in Michigan changed from a Republican to a Democrat, effectively ending the prospects of a release time reform bill being signed into law.
President Donald Trump issued an executive order in May 2018 to reduce federal union release time by about two-thirds. Unions representing federal employees sued almost immediately thereafter.
While reform efforts have fizzled at the state level, President Trump took sweeping action to curb release time in the federal government when he issued an executive order limiting the practice in May 2018.
Trump’s order did not ban release time, which is set in federal statutes that define the practice as “official time.” It changed the interpretation of what is considered a “reasonable” amount, the only real limitation in the law. The net effect would be to reduce federal union release time by about two-thirds. The order also banned the use of release time for lobbying and other political activities, and ended full-time union release by requiring all employees to spend at least three-quarters of their time in their duty assignments.
Unions representing federal employees sued almost immediately after Trump issued the order. That effectively tied up implementation for more than a year.
In 2019, the U.S. Court of Appeals for the District of Columbia rejected the union’s challenge on jurisdictional grounds. The U.S. Office of Personnel Management subsequently sent guidance to federal agencies directing them to implement new release time practices consistent with the president’s order.
In the 2019 fiscal year, federal agencies allowed 2.6 million hours of paid official time at a cost of about $135 million. That is a decline from 2016, the last time the numbers had been previously updated, when the federal government allowed 3.63 million hours at a cost of $177.2 million.
Mourad of the National Right to Work Committee said he expects President-elect Joe Biden will repeal the Trump order soon after taking office in January. In fact, Biden is likely to direct his agencies to be even more generous with union release time than they were in the past, he said.
“Big labor bought him the election,” Mourad said. “Biden and most of the rest of the Democrats very well understand that their entire party has been bought and paid for by big labor and forced union dues. They are going to do everything they can to repay that debt by helping big labor collect taxpayer money.”
President-elect Joe Biden is expected to repeal Trump’s order restricting federal union release time soon after taking office in January 2021.
There really was no downside for Trump in issuing his executive order to limit release time, said Mourad. Public employee unions do not support Trump in particular or Republicans in general, so there was little political risk.
In the 2020 election cycle, unions spent about $188 million on federal elections, according to data through October 23 published by the Center for Responsive Politics. That includes about $67.5 million that went directly to candidates and political parties, with the rest spent on independent expenditures to aid their favored candidates. Of the direct contributions to candidates and parties, 87% went to Democrats.
Among public sector unions that represent federal, state, and local government workers, a total of about $66 million was contributed to federal electioneering. Of the $18.1 million in direct contributions to candidates and political parties, 89% went to Democrats.
There is no way to know how much time and money public employee unions spent at the state and local level to get their favored candidates elected. Of the roughly 7 million government workers in the U.S. who are union members, more than 6 million of them work for state and local governments, according to the most recent data from the U.S. Bureau of Labor Statistics.
About half of all union members work for the government. The overall unionization rate for government employees is about 33.6%, compared to about 6.2% in the private sector.
With numbers like those, reforming release time at the state and local level through legislation will always be tough, said Mourad. The fact that so many governments allow it speaks to the political power of public employee unions. Add to that the fact that many jurisdictions actually pay union lobbyists through release time, and the job of curbing it legislatively is that much tougher.
“I attribute it primarily to the inordinate political power that government unions have,” he said. “Politicians, generally speaking, they’ve got enough controversy on their hands and they’re not looking to pick another fight.
“Every other private organization in the country has to pay their own staff to do their own work. The unions are not the government as much as they would like us all to believe they are. And they absolutely should be paying their own staff to do their own work, just like the rest of us have to.”
Taxpayers are not the only ones paying for release time. Teachers, firefighters, police officers, and other public employees who chose not to join their unions are also helping to foot the bill through lower wages and benefits, at least according to the justifications the unions have historically used.
They claim that the cost of release time is just part of the overall compensation and benefits package that gets thrown into contract negotiations. So even if release time is eliminated, taxpayers would not save any money because it would be spent on other things like salary increases for all employees, regardless of whether they are union members.
That’s a problem, said Jonathan Riches, national litigation director of the Goldwater Institute, which has brought several lawsuits challenging government-paid union release time at the local level, including one filed against the city of Phoenix last year.
A 2018 U.S. Supreme Court decision, Janus v. the American Federation of State, County and Municipal Employees, held that forcing nonunion public employees to pay union dues violated their First Amendment free speech rights by compelling them to fund an organization they do not support.
The same holds true for release time, Riches said. If nonunion government employees are forced to accept lower wages or benefits to pay for release time, that is a violation of their free speech rights and, like compelled union dues, is unconstitutional.
“If a government agency negotiates release time as part of ‘overall compensation’ to all employees, whether they belong to the union or not, then there is a First Amendment problem,” Riches said. “The Supreme Court has been clear that no public employee should be forced to pay for union activities, particularly those with which they may sincerely disagree. Directing part of nonunion member compensation to union activities without consent is compelled speech, and is unlawful.”
Note: The Goldwater Institute filed a lawsuit in 2019 challenging the practice of release time in the city of Phoenix. That case is pending.