The Alaska State Government has taken a huge step toward restoring the First Amendment rights of state employees with the issuance of Administrative Order 312. This order follows recommendations outlined in the Alaska Attorney General’s recent legal opinion on Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31, a U.S. Supreme Court case from last year.
Background
In June of 2018, the U.S. Supreme Court decided on the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. The case was widely known for questioning whether government workers who do not want to unionize have to pay their money to the unions anyway. The Court sided with Mark Janus, a child support specialist working for the Illinois government, and determined that government workers do not have to pay any money to unions whatsoever as a condition of their employment. For more information on Janus v. AFSCME, check out these resources.
Legal Opinion
In August, the Alaska Attorney General published a detailed legal opinion analyzing the Janus ruling and related court precedent. The opinion revealed that the Janus ruling contains two components—in addition to making it clear that union membership cannot be a condition of employment for government workers, the opinion also clearly states that there must be “affirmative consent” and “clear and compelling” evidence that employees who opt to pay dues are not coerced in any way and that they know that paying dues is a waiver of their First Amendment rights.
Currently, unions control the process of obtaining dues authorization for Alaska’s state employees—a process which the legal opinion calls a “black box.” Because the State cannot guarantee that the stipulations in the Supreme Court decision are being followed, the current process was deemed unconstitutional in the opinion.
Administrative Order 312
In response to the analysis from the Attorney General’s office, the Governor issued an administrative order to rectify the unconstitutionality of the current dues deduction process and restore the First Amendment rights of our state employees. Approximately 12,000 state employees will be affected. Here are the main takeaways from Administrative Order 312.
- The purpose of the administrative order is to ensure that when employees choose to pay union dues, they do so with clear, affirmative consent that is freely given prior to any paycheck deductions.
- The Departments of Administration and Law will work together to create a new form and related procedures to verify employees’ identity and intent. The new process to authorize dues deduction will be managed by the Department of Administration.
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The new system will be operational in early December and since it will nullify pre-existing dues deduction authorizations, at that point, all state employees who want to pay union dues will need to use the new form to opt-in.
- Thereafter, employees may opt-in or opt-out at will, with no time constraints. The ten-day window for dues authorization changes that was in place under the Walker administration is no longer valid.
- There is specific language that must be included on the form for it to meet the standards set forth in the Janus ruling, but the State will negotiate with the unions to augment the language if necessary.
- The authorization form will clearly inform employees that opting-in is a waiver of their First Amendment rights. A waiver of rights is not indefinite; employees who want to pay money to a union will have to waive their rights again after a period of time, to be determined in negotiations between the State and the unions.
- The language also spells out that by choosing to pay union dues, state employees are freely associating themselves with their union’s speech activities.
- There will be an electronic version of the form and a paper version for employees with limited internet or computer access. In both instances, the process will require at least two levels of verification of employee identity and intent.
- State employees will not lose any benefits negotiated by their union if they choose not to opt-in. The Commissioner for Administration has informed unions that her department is willing to negotiate contracts and benefits directly with individuals who do not pay union dues.
Alaska Policy Forum commends the Administration on its swift actions to protect the First Amendment rights of all Alaska state employees and restore constitutionality to the process of electing to pay union dues.
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Photo of Commissioner of Administration Kelly Tshibaka at the press conference announcing Administrative Order 312; by Governor Dunleavy, (CC BY-NC-ND 2.0).