Austin firefighters sued for allegedly spending time on union activities instead of answering emergency calls have filed their response to the lawsuit that seeks to halt the practice.
These activities of union members are part of a nationwide trend for public sector unions to negotiate deals in collective bargaining agreements that allow for “release time” which is then used to spend on political activities.
The Austin Firefighters Association, Local 975 (union) allege that under the facts pleaded by the plaintiffs, there is no basis under the Texas Constitution for suing them. They argue that Association Business Leave “is not gratuitously granted to members of the AFA” and therefore does not trigger the Texas constitutional provision against using public funds for a private purpose. The union claims it is a contractual obligation owed them in exchange for the services they render the City of Austin and “clearly it is a valid exercise of the legislative power.”
The union also urges in the alternative that even if the Association Business Leave was “gratuitously granted,” which they deny, their union activity “serves a legitimate public purpose” and “affords a clear public benefit received in return.” The Local 975 pleads that the lawsuit must be dismissed because it relates to the exercise of their rights under the Texas Citizens Participation Act (TCPA).
The City of Austin, Texas has a collective bargaining agreement (CBA) with the Local 975 Union which gives firefighters pay to take time off to conduct union political business. The Texas Attorney General says that the CBA “places few restrictions on what Union officials may do during release time, and expressly permits Union politicking.”
Attorney General Ken Paxton filed an intervention on Tuesday, the day after the Local 975 filed their answer urging, among other things, that the State of Texas “has an interest in prohibiting the use of public funds for private political activity.” Moreover, “The Texas Constitution prohibits gratuitous gifts of public funds to private political organizations.”
The City gives the union 5,600 taxpayer-funded release time hours annually. This pool of hours can increase up to 6,600 hours. To put this in perspective, the AG wrote, “Thus, the taxpayers pay approximately three full-time firefighters each year to do nothing but engage in Union business, including partisan political activity.” He said that even worse, the City requires little accounting of how union members use release time; thus, they are not being held accountable for their use of public funds. There is no showing if this use of time benefits the citizens or the public as a whole, he adds.
The AG cites provisions in the Texas Constitution that prohibits the collection or expenditure of public money for anything other than public purposes. Article III, section 6 of that document says that “No appropriation for private or individual purposes shall be made unless authorized by this Constitution.” Sections 50 to 52 of Article III provides that the Texas Legislature has no power to give or lend, or to authorize the giving or lending, of any public monies for any private individual, association or corporation. Under a test used by the Texas Supreme Court to determine whether a governmental action “accomplishes a public purpose,” General Paxton argues that “A public purpose or benefit does not include political activity by a private organization.”
The Texas Attorney General urges that the Collective Bargaining Agreement gives union members release time to conduct political activities. This activity does not serve a benefit to all of the citizens of Austin and the CBA does not retain public control over the partisan activities of the union. The union is a political organization that protects the interests of its members. Moreover, the CBA specifically provides, “It is specifically understood and agreed that [release time] shall not be utilized for legislative and/or political activities at the State or National level, unless those activities relate to the wages, rates of pay, hours of employment, or conditions of work affecting the members of the bargaining unit. At the local level, the use of [release time] for legislative and/or political activities shall be limited to raising concerns regarding firefighter safety.”
The AG calls “suspect” any concept of a municipality giving public employees any release time to work on any union activities. He argues that the City’s release time agreement with the union violates the provisions of the Texas Constitution that prohibits giving public money to a private political organization “without adequate controls or any requirement that the City or Union demonstrate the release time benefits the public as a whole.” If the release is “an unconstitutional gift under the Texas Constitution,” the State’s top lawyer asks the Travis County district court judge to enter a permanent injunction prohibiting the City, its officials, and the Union from enforcing the CBA “until such time as a proper release time scheme is implemented.”
“The City of Austin has abused its taxing power and with it the public trust,” Attorney General Paxton said in a statement obtained by Breitbart Texas. “The City is siphoning money that should go to vital emergency services and redirecting it towards a labor union’s political activity. It is a basic tenet of democratic government that tax money be oriented towards a common good. An agreement that enriches a private organization at the cost of Austin residents’ health and safety cannot be allowed to stand.”
As reported by Breitbart Texas in early October, the Texas Public Policy Foundation and the Goldwater Institute filed the suit on behalf of Austin taxpayers Jay Wiley and Mark Pulliam. The cost of living in the popular city has soared and is expected to increase dramatically under a new budget and anticipated tax increases. The plaintiffs sued the union, the City of Austin, and the city manager in his official capacity.
Texas Public Policy Foundation’s Robert Henneke told Breitbart Texas on Tuesday, “The City of Austin’s illegal release time agreement with the firefighters’ union hurts all citizens. By choosing to fund private political activities, the City diverts these resources from public safety services for Austin residents. As this practice negatively impacts the public as a whole, Plaintiffs applaud the Attorney General to intervene into this lawsuit in order to represent the interests of all Texans.”
Henneke serves as General Counsel and Director for the Center for the American Future at the Texas Public Policy Foundation.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.
Texas Attorney General Plea in Intervention