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Attorney General Opinion "Flat Wrong" on School Employee Payroll Deductions

May 17, 2010

CONTACT: Rob D'Amico
Cell: 512-627-1343

Bad advice:  Texas AG ignores legislative history, claims law bars school employees' voluntary deductions for their own political fund

Are Charitable Deductions Next?

On May 14 Texas Attorney General Greg Abbott issued an advisory opinion taking the novel stance that current state law prohibits the longstanding practice of payroll deduction of voluntary contributions from school employees to their organization's political action committee.  The AG contends that because state law does not expressly authorize this practice, and because it is not "necessary" to the operation of school districts, the practice is prohibited.

If the view stated in this advisory opinion were enforced, it would interfere significantly with long-established local practices and with the ability of teachers and school support staff to pool their resources and make their voice heard in the political process through their unions' political action committees.

"Texas AFT believes the attorney general's opinion is flat wrong on state law in every respect. For instance, he completely ignores the broad grant of local control to school boards enacted by the legislature in the 1995 rewrite of the Education Code," said Linda Bridges, president of Texas AFT, the 64,000-member state affiliate of the American Federation of Teachers. "This opinion is an instrument of a political attack, both on the authority of districts to manage their own affairs, and on the right of employees to pool their resources and have their say in the electoral process."

"The AG claims incorrectly that local school boards have no authority to do anything unless the legislature specifically grants it," Bridges said. "In fact, the opposite is true.  As the lead author of the 1995 legislation, then-Sen. Bill Ratliff, said when the current Code was enacted: 'We make it clear in the very essence of this Code--in fact, we state over and over--any power or authority not specifically given to the State Board of Education or the Commissioner is in fact reserved to the local boards. So what we're trying to do is to shift the focus and say, anything that is not prohibited by some power given to the state is reserved to the local board.' The legislature accordingly said in statute that all powers not specifically given to a state agency were 'reserved for the trustees' on the local school board."

Added Bridges:  "The AG's misinterpretation threatens not only school employees' voluntary political deductions but also their charitable deductions. Many school districts actively promote charitable deductions by their employees.  It defies belief that the legislature would prohibit these deductions. Yet the effect of the attorney general opinion would be to outlaw them, too, because they are not expressly authorized. Clearly, the attorney general's misinterpretation would nullify rather than uphold legislative intent.

"It is not surprising that an anti-union state legislator—Leo Berman—bent on minimizing the political strength of teachers, would solicit such an opinion from the attorney general. But it is shocking that the state's top lawyer would issue such a legally deficient advisory opinion in support of that political agenda," Bridges said.

"Berman has used the attorney general as an end-run around his fellow legislators, since there have been attempts at legislation to prohibit payroll deductions for these purposes, and those attempts have failed," she added.

Bridges also pointed out that the attorney general opinion has nothing to do with government expenditures. "Districts are simply allowing employees to decide what to do with their own earnings, and the districts are free to charge the actual administrative cost—which is miniscule—to the employee organization for these deductions, just as they can for dues deductions," she said.

"Fortunately, this advisory opinion is not the last word on the subject," Bridges noted. "It is a non-binding interpretation. School districts would be extremely unwise to follow this bad advice from the AG, which would nullify their local control over management of school-district operations affirmed by the legislature in 1995 and would put an end to long-established local practices that are by law theirs alone to decide."

Texas AFT represents more than 64,000 teachers, paraprofessionals, support personnel, and higher-education employees across the state. Texas AFT is affiliated with the 1.4-million-member American Federation of Teachers.