Austin Can’t Pay Unions to Bargain Against the Taxpayers’ Interest

pa href=https://www.cato.org/people/thomas-berry hreflang=undThomas A. Berry/a and a href=https://www.cato.org/people/nicholas-debenedetto hreflang=enNicholas DeBenedetto/a
/p

pIn October 2017, the City of Austin, Texas agreed to anbsp;new collective bargaining agreement with the local firefighters’ union. One controversial part of that agreement established what is known as Association Business Leave (ABL), anbsp;form of paid time off given to members of the firefighters’ union for the sole purpose of conducting union business. ABL lets union members receive anbsp;salary from Austin taxpayers for time spent on union business, including collective bargaining negotiations. In total, ABL can pay for up to 5,600nbsp;hours per year of union activity./p
pSeveral Austin taxpayers, represented by the Goldwater Institute, brought anbsp;lawsuit challenging ABL under multiple provisions in the Texas Constitution collectively known as the “Gift Clauses.” These provisions of the Texas Constitution forbid the government from using taxpayer money to grant gratuitous gifts to private entities. The taxpayers argued that ABL is an unlawful grant of public money to anbsp;private entity (the union) for non‐​public purposes in violation of the Gift Clauses./p
pIn response, the union moved to dismiss the taxpayers’ complaint under the Texas Citizens Participation Act (TCPA), anbsp;statute designed to identify and dismiss frivolous, non‐​meritorious lawsuits brought with the intention to chill First Amendment rights. The trial court held that ABL did not violate the Gift Clauses, and the court also granted the union’s TCPA motion. The court not only awarded statutorily mandated attorneys’ fees of $115,250, it also imposed punitive sanctions on the taxpayer‐​plaintiffs of $75,000./p
pThe taxpayers appealed to anbsp;Texas appeals court, which affirmed the trial court. The appeals court held that ABL is just one part of the bargained‐​for compensation provided in the collective bargaining agreement, and thus not anbsp;gratuitous grant of public funds. The appeals court also affirmed the award of attorneys’ fees and sanctions. The taxpayers have now petitioned the Supreme Court of Texas for review, and Cato has filed an a href=https://www.cato.org/sites/cato.org/files/2023-03/borgett-v-city-of-austin.pdfemamicus brief/em/a supporting that petition./p
pIn the brief, we emphasize that this case presents several important issues arising under not only the Gift Clauses of the Texas Constitution but also the First Amendment to the U.S. Constitution. First, the appeals court’s conclusion that ABL is one part of the compensation for emall/em firefighters (including non‐​union firefighters) would mean that ABL conflicts with the U.S. Supreme Court’s decision in ema href=https://www.cato.org/legal-briefs/janus-v-american-federation-state-county-municipal-employees rel=noopener noreferrer target=_blankJanus v. AFSCME/a /em(2018). If ABL came at the expense of other benefits that all Austin firefighters emwould /emhave received in the CBA, then ABL effectively takes anbsp;portion of non‐​consenting firefighters’ compensation to support the Union’s private speech. Further ABL also takes emtaxpayer/em money to support union speech, another First Amendment violation./p
pSecond, the award of attorneys’ fees and sanctions violates the First Amendment right of the taxpayer‐​plaintiffs’ to participate in public‐​interest litigation. The appeals court justified this exorbitant award, in large part, by referencing the taxpayer‐​plaintiffs’ desire to advance anbsp;particular anti‐​collective bargaining cause in this litigation. But the U.S. Supreme Court explicitly held in emNAACP v. Button/em (1963) and emIn re Primus /em(1978) that advancing anbsp;cause through good‐​faith public‐​interest litigation is an important First Amendment right. The appeals court thus essentially punished the taxpayer‐​plaintiffs for exercising their First Amendment freedoms, potentially chilling future litigation./p
pFinally, this case presents the opportunity to clarify the definition of a “public benefit” under the Supreme Court of Texas’s Gift Clauses precedents. Here, the union is anbsp;private entity whose main objective is to increase its members’ salary and thus increase the cost of local government at the taxpayers’ expense. Our brief urges that the costs of public‐​sector unions should be seriously considered in determining whether it is in the “public interest” for Austin to pay people to pursue objectives averse to the taxpayers’ interests./p
pIf allowed to stand, the appeals court’s opinion would invite public sector unions to undermine key First Amendment precedents, chill legitimate public‐​interest litigation, and diminish the Texas Constitution’s guarantees of limited government. The Supreme Court of Texas should take the case, correct these errors, and end this taxpayer abuse./p