Similarities in Nevada constitution could mean legal challenges to union pacts here
LAS VEGAS — City and county governments in Nevada frequently use taxpayer dollars to pay the salaries of government-employee union officials who work solely for their union.
In Arizona that practice — called “release time” in bargaining agreements — has just been ruled illegal.
And, says a constitutional law professor, the practice could face a similar legal challenge in Nevada.
“This is the first [such] case I’ve heard of, but if there’s an analogous provision in the Nevada Constitution, then there’s certainly a possibility for a challenge,” said Thomas McAffee, professor of constitutional law at UNLV’s Boyd School of Law.
The provision in question is the gift clause, which in Arizona’s constitution says public money shall not be given to private individuals or corporations, unless the government can prove it receives direct benefits from the gift.
Nevada’s gift clause — Article 8, Section 9 of the Silver State’s constitution — says:
The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.
Government-employee unions, legally, are private associations or non-profit corporations.
The Arizona complaint was filed last December by two Phoenix taxpayers, represented by the Sharf-Norton Center for Constitutional Litigation at the Goldwater Institute, a free-market think tank, against the Phoenix Police Law Enforcement Association (PLEA).
The case was filed three months after Goldwater released a report showing that Phoenix taxpayers were paying about $3.7 million annually for 37,000-plus hours of release time for union officials to perform union-exclusive work.
PLEA, itself, received over $1 million in release time for union activity, including over 31,000 hours, 500 of which are specifically allocated to lobbying.
“Cities must receive direct public benefit of roughly proportional value in exchange for their expenditure of public funds on goods or services,” wrote Clint Bolick, Goldwater’s chief attorney, in the complaint.
“The benefits to PLEA under the MOU [Memorandum of Understanding] serve to promote the union’s purposes, and do not serve a public purpose.”
Last week, after six months of litigation, Judge Katherine Cooper in Maricopa County — where Phoenix is located — ruled in favor of Goldwater and placed a temporary restraining order on PLEA, requiring all officers in a union-specific role to return to a regular patrol position.
“The Court finds at least some applications of release time are not for the public interest, including negotiating contracts for PLEA members, lobbying legislation that benefits police officers, attending PLEA functions, and any activity where the union is the primary beneficiary, direct beneficiary,” wrote Cooper in her ruling.
“Such activities promote the private interests of the PLEA and, as a result, do not constitute public purposes.”
Levi Bolton, a PLEA lobbyist, told Nevada Journal that PLEA plans to appeal the order and pursue further litigation to overturn the ruling.
In a message posted on PLEA’s website, the union states it expects Goldwater will challenge the union’s upcoming bargaining agreement with the City of Phoenix, once approved, even if the new contract contains language redefining the purpose of release time.
“Our contract will sunset on June 30, and if there wasn’t some type of ruling, they [Goldwater] would be on the courthouse steps on July 1 first thing in the morning,” said Bolton. “We disagree with the judge’s interpretation and we plan on having our side heard in court soon.”
Clark County union officials also receive taxpayer dollars earmarked for union activity, and the amounts are comparable to what their Phoenix counterparts receive. A Nevada Journal investigation discovered Clark County taxpayers pay at least $4.6 million a year for at least 70,000 hours of union-related release time.
Union officials of the Las Vegas Police Protective Association, for example, receive over $1 million a year for 15,500 hours of release time.
“Since that [Arizona] case was the first of its kind, at least that I’m aware of, it’s difficult to say whether it will spill over state borders, but it’s certainly possible,” said McAffee.
One justification offered for the release-time practice — that it has always been “standard practice” in collective bargaining agreements — has been made by Clark County Commissioner Chris Giunchigliani and is currently being made by PLEA.
“Since our first contracts in the mid-late 70’s, PLEA and the City have contractually agreed to full time release based on the understanding that it provides a mutual benefit to the rank and file and city government in the form of smoother more efficient operations,” PLEA wrote in a message on its website.
McAffee said the “standard practice” argument may not fly in Nevada.
“If it’s ruled unconstitutional, it’s unconstitutional,” McAffee said, adding that if the Nevada clause is deemed sufficiently similar to Arizona’s, it could be a tough argument for the union to win.
Goldwater didn’t respond before press time to a Nevada Journal inquiry whether it would consider challenging the new PLEA contract.
The new contract is expected to become effective on July 1 and remain in effect until June 30, 2014.