Explainer Episode 64 – Union Release Time: Who Should Pay?

In this episode, Jon Riches and James Sherk discuss fundamental questions related to government labor unions and their impact on public policy. They explore the nuances between public and private unions, their influence on public policy, and the concept of release time – its definition, prevalence across federal, state, and local levels, funding sources, legality, and potential policy remedies. Join us as we navigate through these critical questions and discuss real-world examples, including insights into official time at the federal level.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.



Introduction:  Welcome to The Regulatory Transparency Project’s Fourth Branch Podcast series. All expressions of opinion are those of the speaker.


Sarah Bengtsson:  Welcome to The Regulatory Transparency Project’s Fourth Branch Podcast. My name is Sarah Bengtsson, and I’m Deputy Director of RTP. Today, we are delighted to host two stellar experts to discuss public labor unions and release time. We’re joined by Jonathan Riches, Director of National Litigation at the Goldwater Institute, and James Sherk, Director of the Center for American Freedom at America First Policy Institute. Thank you both for being with us today. Our listeners can read the full and impressive bios for both of our speakers at regproject.org. With that, I’ll hand it over to you, James. 


James Sherk:  Thank you, Sarah. Jon, we might start this session by just asking a more fundamental question is what are government unions and why do they exist? Historically, unions were only in the private sector. The idea was that you had businesses which had a profit motive obviously to make as much profit as they could, and that would include holding down wages. And so you’d have unions to sort of counterbalance the business power and help the workers get a share of the profits their labors helped created. 


But the government doesn’t have profits, and for a very long time you had leaders in the union movement and in the progressive movement — Samuel Gompers was famously opposed to the idea of unionizing governments. George Meany, the first president of the combined AFL-CIO, said bargaining collectively is impossible in government. He said that in the 1950s. 


FDR very famously — he’s the one who signed the National Labor Relations Act that gave the private sector unions a ton of power, but he very famously said well, of course you can’t do any of this in the government. The government has a special duty to the public trust. But now we’ve got about half of the union movement is in the government, and could you tell the listeners just what these unions are exactly doing in the government and why they’re there? 


Jonathan Riches:  Yeah. Well, to the best I can. Here’s the problem, I think. I think when most people think about labor unions they think, as you mentioned, James, about labor collectively organizing for a higher piece of wages that they helped create. There’s nothing like that in the government sector, and you have some real public policy concerns that exist with government labor unions that don’t exist with private unions. 


So the first I think real fundamental constitutional problem is this transfer of democratic authority from elected officials to unelected union bosses. When you think about the collective bargaining process, you have a union leader with exclusive access to the government to enter into collective bargaining agreement that has tremendous public policy implications in essentially every area of policy from education to national security. And they’re at the seat in a very special relationship making policy decisions, and no one ever elected them. 


They exist apparently to serve their members’ interests, not those of the general public. And that’s a problem. In fact, this sort of dual fiduciary issue is a problem. Generally, government employees have a fiduciary duty to the tax paying public. Union bosses, presumably, have a fiduciary duty to their members. And you really can’t have both of those at the same time. 


So I think that gets to some of these early people that you wouldn’t think would be opponents of government labor unions like FDR or George Meany where they said you can’t really have this sort of situation in the public sector because you would then have a situation where government union bosses can literally hold the public hostage unless their own private interests are served. And that just shouldn’t be the case. So when people think about labor unions, they should think very, very differently. For all the shortcomings of private sector labor unions and the many abuses that private sector labor unions can and have committed, they’re very different from public labor unions, and they have very different public policy outcomes. 


James Sherk:  Let’s just dive into that a little bit more in that there’s a conflict of interest that sometimes is noted but often is more hidden beneath the surface when you’ve got elected officials negotiating with individuals who are in many cases their largest campaign supporters. In the private sector, labor and management have a fundamental incentive to basically keep each other honest, that their interests — higher wages for the workers means lower profit for the employers. And so the unions and the employers are doing what they can to do right by their members, and everyone’s interests are represented. 


But in government, you’ve got in many cases the government officials negotiating with their largest campaign supporters. I’m reminded of former New Jersey Governor Corzine appearing at a rally with one of the state public employee unions going up with the union president — by the way, this union’s one of his major supporters in both of his races for governor — going up on the campaign podium and saying we’re going to fight for a fair contract. Who was he talking about? Who is he fighting, himself? 


You’ve got in essence the unions can elect their own bosses, and when they elect politicians who are beholden to their campaign support, they control both sides of the negotiating table. And you’ve got a conflict of interest in that no one is speaking for the public, for the taxpayers, for the recipients of government services. If you could analyze, how do we see that playing out in the state and local governments. 


Jonathan Riches:  It’s particularly bad at the state and local level. You do have this sort of dangerous symbiotic relationship where public labor unions will shower elected officials at the city and state level with generous campaign contributions and then turn around and sit down with them as an exclusive bargaining representative. And then the politicians will return the favor by showering lavish gifts on their union supporters in collective bargaining agreements. And nowhere as you indicated — nowhere in this discussion are taxpayers represented. 


And I guess that raises another issue too about unions and the tremendous, extraordinary political impact that they have. And it’s usually — when we’re talking about government labor unions, it’s usually only on one side of the political aisle. They pour hundreds of millions of dollars into elections generally only for one political party. 98, 99 percent of the teachers’ unions, for example, funding have gone to support the Democratic Party, and then those very same union officials that are providing these campaign contributions sit down and turn to contract negotiations. And it creates the exact problem you were talking about. 


James Sherk:  On that point, I recently saw a study that came out taking a look at just the four biggest government unions and finding in the past two election cycles those unions had spent a combined $700 million on politics and lobbying. They’re a political juggernaut, and in many cases politicians who want to remain in public office feel a lot of pressure to give the unions what they want. So let’s discuss some of those things they want and one in particular this issue of release time or, as it’s known at the federal level and the federal government, official time. What exactly is release time, and why is it something that the public should care about? 


Jonathan Riches:  Release time generally speaking is when a government employee is hired to perform a public function, whether it’s public safety, blue collar work, white collar work, you name it. But rather than perform the job they were hired to perform and for which they receive taxpayer funded salaries, they’re released, in many cases full-time, to work exclusively for government labor unions. And what that means is they don’t do any public function at that point. 


They don’t report to city hall if we’re talking about the local level. They report to union headquarters. While they’re on release time, they do political activities, lobbying activities. They recruit new members to the union. They file costly grievances against their government employer. They engage in union conferences, union meetings, political action committee meetings, all of this while receiving their government funded salaries, including things like overtime and pension benefits and all of that. 


So it’s an extraordinary situation. Think about if you were in a situation where the city of Denver, Los Angeles or New York released city workers to go work for Walmart, and Walmart gets to direct all their activities and tell them they can be checkout clerks or greeters or whatever. But they’re going to receive their city-funded salaries. It’s really no different than that, and in many ways it’s far more pernicious because of the government labor unions’ tremendous political power and the fact that when they sit down with their government employers they’re only always asking for more government, more intrusion into individual liberties. And it helps consolidate their political power base when taxpayers are offsetting some of their other costs and (CROSSTALK). 


James Sherk:  To be clear, what we have is a situation where government employees are on the clock being paid by the taxpayers, and yet they are working for a private organization, performing business of interest to the private organization that in many cases is adversarial to the interests of the public and to the government agency that’s paying their salaries. 


Jonathan Riches:  Yup. You got it, and it’s happening —


James Sherk:  Where does this come from? This seems like totally insane. 


Jonathan Riches:  It really does, and it exists at every level. You’re more familiar than anybody about the practice at the federal level. They call it official time at the federal level, and hopefully we’ll get a chance to talk about some of the things you did to address the problem of official time. But the feds spend upwards of $200 million a year on official time. It exists at the state level and is really particularly bad at the local level where government labor unions exercise so much political power. 


And here’s what happens. When labor unions sit down during the collective bargaining process, they’re the ones doing the negotiating. Even for people who don’t want to be part of the union and aren’t part of the union, they get to negotiate the contract, and if you’re in that seat and you’re the labor boss, one thing that you might want to negotiate is a really nice carveout for yourself where you don’t have to go to work for the city that hire you. Instead, you get to go work full-time for the labor union, whether it adversely affects all the other union employees or all the other government employees or the public or not. 


James Sherk:  I’ll just give you one example from the federal government. So for the listeners who aren’t aware, I served in the Trump administration on the White House Domestic Policy Council with a focus on labor policy and federal service issues. And so this issue of federal unions and release time was in sort of both areas of my portfolio, the civil service and labor policy. And some of the information we were given by the agencies about what was happening on release time was absolutely insane. 


The Department of Veterans Affairs, for example, pretty famously has some issues with quality of patient care. It was a high priority for President Trump to turn around operations there. But they’ve had longstanding waitlists for access to care, a big scandal in the Obama administration of veterans dying for care. And one of the things they had was they had about 500 VA employees on 100 percent official time, including doctors and nurses and other medical personnel who would do nothing — they’re paid as a doctor. 


Their job title in the agency is doctor such and such or a dentist or a licensed practical nurse or a registered nurse or whatever the case may be. They’re paid as a medical professional, which is a pretty good salary, but they don’t do any work taking care of veterans. 500 employees, many of whom are medical personnel, whose sole job is to actually make the agency less efficient by filing grievances against the agency. It’s insane, and worse than that, even if some of the union leaders wanted to do medical work — there’s a situation I was briefed on by officials at Veterans Affairs where there was a VA clinic where it was the height of flu season. 


And a number of the regular respiratory — I forget the exact job title but the people who administer the flu shots were out sick because they’d come down with the flu. So you can’t have them coming in and here’s your flu vaccine, and also by the way, we just gave you the flu; right? You can’t do that. So they had to be out sick, and the clinic was shorthanded. 


And the local union president was in fact trained to — or at least her job title said she was trained and qualified to do this. And so they said hey, we’ve got an issue here; we’re shorthanded. Could you help us? And she said no, I can’t do that. And it wasn’t because she was a jerk or didn’t care about veterans. For all I know, she’s a perfectly fine individual, but she’d been on official time for so long that her medical competencies had expired. She hadn’t seen a patient in years, and she was no longer legally allowed to perform the work for which VA was paying her to perform. 


So there are just some horrific abuses of this practice that make the government at the federal level just much less efficient and effective. And we spent about maybe $200 million a year, although it seems like — and this is at the federal level — $200 million a year although the recordkeeping is not great. And my strong suspicion is that it’s a lot higher. But it’s at least $200 million a year. So let’s — go ahead. 


Jonathan Riches:  No, I was just going to piggyback on the VA comment. That one hits close to home here. You probably remember a few years ago there was a big scandal at the Phoenix VA where veterans were waiting and, in some cases, dying while they were waiting for care here at the Phoenix VA. And then we did some research, and we uncovered that nurses, doctors were on full-time release at the Phoenix VA while they were experiencing all these problems with veterans’ care. And it’s extraordinary. 


That was interesting, that example you gave, about how their medical competencies had expired. We litigated a release time case against the city of Phoenix many years ago. I know we’ll talk about some of the more recent litigation. But in that case, we filed a case against the city with its police union. They had six full-time police officers who were hired to perform law enforcement functions, and in some cases, some of those union officials were on full-time release for so long—in one case it was over 15 years—they had forgotten to perform basic law enforcement functions. So when we got an injunction early on in the litigation, the police department had to send them back to the police academy to relearn basic law enforcement skills so they could actually do the job they were hired to perform. 


James Sherk:  That sounds disturbingly familiar. It was a case — maybe we’ll get to it a bit later, but President Trump took a number of actions to crack down on official time abuses and just ran into these costs. And there was a case where there was a union president, longtime union president, in the Social Security Administration who had been on 100 percent official time. And under the new requirements, he could spend no more than a quarter of his time on official time, and he resigned. And he told the reporters very publicly I can’t do my job. I haven’t seen the inside of these claims processing offices in a lot of years. I’d have to be totally retrained. I’m not going to do that. I’m out of here. 


The notion that you have employees who are paid to do a job and whose skills have atrophied because they haven’t performed these jobs in years or in many cases decades just strikes me as insane. And the immediate question is how is any of this legal? Unfortunately, at the federal level there’s a law they passed that allows the unions and the agencies to barter over this, and there’s ways that that can be curtailed. 


But the unions get some amount of this by federal law, but state and local governments are a bit different. They’re not operating under the federal collective bargaining law. And so how is any of this legal in the states? 


Jonathan Riches:  We don’t think a lot of it is. The Goldwater Institute where I work has brought a number of legal challenges to the practice. One of the primary challenges — and we just litigated in fact just last week a case before the Texas Supreme Court on this issue, and then the week before that we litigated a case before the Arizona Supreme Court on this issue. We brought a challenge under the state constitution’s gift clause or anti-subsidy provision. So virtually every state constitution has a clause in it called a gift clause or an anti-subsidy clause that prohibits using public funding for private activities. And of course when we’re talking about release time you have publicly funded private union activities. 


So we’ve brought various challenges representing taxpayers that assert that the whole practice of release time by transferring these public dollars to a private labor organization to use as that labor organization sees fit with no direction, control, or oversight from their city employers violates the state constitution. So both of those state high courts in Arizona and Texas just heard argument on that issue, and we’ll expect to see some decisions in the next handful of months. 


James Sherk:  So how do you — can you give the listeners — what was your sense of how the Texas Supreme Court justices — how receptive were they to this argument and just any sense of where you think the decision might be going or how the argument went? 


Jonathan Riches:  I think both arguments went very well. The panels understood the issue. In Texas and in Arizona, they seemed very keyed into a lot of the problems that we’ve discussed with conflicts of interest, with these being self-interested political actors. Why are they receiving taxpayer financing. Both of these courts have shown an interest in enforcing the contours of their state constitutions in ways that protect liberty where either the federal courts haven’t or the federal courts can’t because they don’t have an analogous gift clause provision in the United States Constitution. So I think it went really well. 


There’s also another sort of separate legal issue surrounding this problem of release time. Oftentimes, when these collective bargaining agreements are negotiated, the unions will say, oh, well, release time is just meant as just another benefit to all the government employees whether they’re union members or not. And this is just part of their whole compensation package just like any other type of benefit like vacation leave or sick leave or whatever would be part of their compensation package. They try to make that argument many times to avoid a subsidy problem. 


The issue with that argument is that, well, okay, if release time is then just compensation like any other type of compensation, although we know it’s not because it goes directly to the union—it doesn’t go to individual employees—but even accepting their argument for a moment at face value, well, then we run into a compelled speech problem because if this is compensation to all government employees, that means that nonunion members are now being forced to direct part of their compensation to union activities that they don’t want to support. And that raises compelled speech Janus problem. 


James Sherk:  So were both issues before the Supreme Court — or the Texas court the compelled speech and the gift clause? And do you think they’re going to reach both issues? 


Jonathan Riches:  Both of the issues were before the Arizona Supreme Court, and the reason for that was because of a prior decision from the Arizona Supreme Court. So that court had really a decision. The one thing that everybody knew to be true in that case is that the union wasn’t paying for release time, so that leaves either two options. Either taxpayers are paying for it, or if you believe the city’s argument, then other government employees are paying for it. 


And either case is unconstitutional. It’s either unconstitutional under the gift clause, or it’s unconstitutional as a free expression, compelled speech problem. The Texas court just looked at the gift clause issue. The union kind of tried to raise that issue, the compensation piece, but the only one that was before the Texas Supreme Court was the gift clause. 


James Sherk:  Okay. So litigation is great insofar as it goes. It seems like at least from what I’ve seen at the federal level if you had a federal version of the gift clause, the official time would surely qualify. Right? This is just a gift to the unions to subsidize their operations, and in many cases, they’re using it for things that are completely antithetical to the efficient operations of the agency. 


One of the things the unions — you typically get to do on release time is lobbying, so they get to go to Congress and lobby for their preferred policies, which oftentimes are not in the interest of effective and efficient government. Another thing that they’ll do at the federal level is use of grievances. And so you might wonder if you ever spend much time taking a look at some of these federal grievances, you just see some ridiculous grievances getting filed over just Mickey Mouse stuff where the arbitrators or in some cases the Federal Labor Relations Authority just laugh it out of their courtroom. 


There was one case I saw a few years back where you had an employee who’s the union president in a minimum security federal prison in West Virginia, and you had a dress code of minimal attire that you had to wear in the prison, which makes sense. It’s a law enforcement environment. And you had the union president just come in and blatantly violating the dress code and just not even wearing clothing that was up to code. 


And so the warden said no, could you go home and change and then come back? And the union president was [inaudible 00:22:15] with this and brought a grievance, and the grievance went nowhere. And ultimately the arbitrator said what are you smoking? You violated the policies. Goodbye. 


But that process, like the initial stage is everything up until you bring it to an arbitrator. The arbitrator, the unions and the agencies typically split the cost 50/50. But everything up to that point where you’ve got these exhaustive agency proceedings trying to resolve the grievance is all paid for, both sides of it — the taxpayers are paying for the agency side obviously, but they’re also paying for the union side. It costs them nothing. And so if you’ve got a union president who is torqued off at someone at an agency and just wants to tweak them or basically show that he can make their life miserable, he can file these complete Mickey Mouse grievances, and we are paying them to do it. It’s absolutely insane. 


So that being the case litigation is great, especially if you win, but it’s also a fairly expensive process to find plaintiffs and bring charges. And litigation’s not cheap, and it’s also in some ways a bit less democratic than just having the legislative bodies say this is a bad policy. We the people decide not to waste money on ridiculous things. 


Now, I know that there’s been some state legislative activity. I know there’s also a bit of a furor right now in Utah where House Bill 285 got passed out of committee that among other things would just completely ban all release time and require the unions to pay their own freight. And you might be shocked to know the government unions are up in arms about this and declaring that this is just the end of all that is good and true and beautiful and the worst thing since unsliced bread. But you’ve probably been following this more closely than I have. Where else have we been seeing action on the state level to rein in some of these fairly abusive, in my mind, subsidies? 


Jonathan Riches:  Arizona, where the Goldwater Institute is headquartered. The legislature passed a statute here a couple years ago that prohibited release time, but just for specific political and lobbying activities, so some of the worst release time abuses. I know Washington State has introduced legislation. I don’t think it got too far, but they’ve got problems out there, some pretty serious problems with government labor unions. A handful of other states have introduced legislation. 


Frankly, this is also an issue for executives, governors and in your case, James, President Trump, to rein in some of the more egregious release time abuses. What you did and what President Trump did during your time in the White House to address this problem I think is a good model for other executives who are concerned that government employees are being released from the jobs they were hired to perform to essentially advocate against the public’s interest. I think our listeners might be interested to hear about some of those reforms. 


James Sherk:  Yeah. President Trump showed very great leadership on this issue. Obviously, he cares a lot about patient care and veterans’ affairs. That was a top, top priority for him, and in general he cares about cracking down on a lot of these wasteful practices. He came from the private sector. He was a businessman. He wanted the government to operate more efficiently, and his directives were to rein the stuff in. 


And one of the things he did was sign Executive Order 13837. This came out in May of 2018, and what the order did is pretty comprehensive look at the federal labor statute which said yes, the unions can bargain over official time. But the unions can’t bargain over things that conflict with government-wide rules. And so the President said all right. The statute says you get some. You can get some. There’s certain purposes of the law that says we have to give it to you for such as negotiating a contract. Fine, you get that. But why are we spending $200 million a year on this? Let’s operate a lot more efficiently. And why do we have employees who can’t even perform the job that they were being paid to do? 


And so the order said things like look, we’re not going to pay you to do official time on lobbying. No lobbying on official time. You also have to spend 75 percent of your duty hours doing your actually agency jobs. You can spend up to a quarter of your time, which in my mind is pretty generous, doing this union business, but the other three quarters have to be on performing agency business. Other things like we’re not going to pay you to file a grievance against us. Do the grievances on your own money. 


It also set a target of reducing government-wide official time expenditures down to basically — agency uses of official time down to the levels of the most efficient agencies. So some of the agencies like Defense and State and Interior were using about one hour of official time per employee, but government wide the average was about three hours. So he said look, when you renegotiate these bargaining agreements, bring it down to about one hour. We’ve seen that the unions operate fine in Defense. They can make do with [inaudible 00:27:05] there. 


The unions reacted like someone had declared global thermonuclear war on the United States. They just had this apocalyptic rhetoric that this is the end of democracy. This is a direct attack on democracy. You’re getting these ridiculous subsidies. We’re just trying to rein them in some so that veterans can get better care. And the unions just had this over the top rhetoric. 


You’ll be shocked to know that they raced to court. Interestingly, they filed a number of lawsuits, some of which, one in particular, came in the Eastern District of Virginia before a Reagan appointee. The unions dropped that lawsuit. Another lawsuit came into a D.C. District Court before then Judge Ketanji Brown Jackson, and that one they stuck with. She ultimately issued an injunction on the EO that then got appealed up to the Appeals Court where the Appeals Court panel unanimously said that she had no jurisdiction to issue that order. 


The unions appealed to the full en banc circuit, and not a single judge in the D.C. Circuit, which as our listeners are probably aware is a very liberal circuit — not a single judge on the D.C. Circuit thought that Ketanji Brown Jackson had any jurisdiction. The unions then ran around to the district court in New York and got the same answer, no jurisdiction. The appealed up to the Second Circuit, again, a bipartisan panel, mostly Dem appointees, said no jurisdiction. They ran to Maryland in the Fourth Circuit and got the same answer from another district judge. 


So in total, 17 federal judges heard challenges to this Executive Order, and of those 17 — they were smart. They were form shopping, and when they got the more conservative appointees, they dropped that lawsuit and joined a lawsuit filed by another union. So I think it was 12 of those 17 judges were appointed by Democratic presidents. So not exactly conservative leaning judges here. And of those 17, the only single judge to believe that there was any jurisdiction to enjoin the order was Ketanji Brown Jackson. 


So that’s a bit of the history. Eventually, as I said, the injunction was lifted, and agencies were able to start implementing it. The President also found unique authority in the Department of Veterans Affairs for the Title 38 medical personnel. That’s not all of their medical personnel, but Congress has put some limitations on what the unions can bargain over in Title 38 personnel’s activities. And we realized that actually this would cover you not doing any patient business because you’re on official time. 


And so for those Title 38 medical personnel, even while that injunction was pending, we were able to basically say hey, look. You’re either getting retrained, or if your competencies are active, you’re going back to treat patients. But we’re not allowing these long patient waiting lists while you’ve got fully trained medical personnel not seeing patients. It’s just insane. And so it’d shock you to know that all those directives got rescinded within days of Biden taking office, but the authority’s still there. And so a future president could easily reissue those directives. 


Jonathan Riches:  When you were walking through that, James, it just sort of shocked me. When you think about the Executive, that is the person with responsibility to control and supervise and monitor and oversee and direct government employees. And the fact that you have these labor union bosses with this tremendous amount of authority form shopping, going from federal court to federal court, who’s really in control there? And that’s a real — if the unions want to talk about a threat to “democracy,” the fact that public employers and the Executive who should have oversight authority over these government employees in many ways doesn’t. That’s a true threat. 


James Sherk:  I agree completely. The unions have tremendous authority over agency operations. Once a collective bargaining agreement is entered into, the agency can’t change anything in that CBA for the life of the contract. And in almost all cases they contain these continuance clauses. So it’s not just the life of the contract but until you negotiate a new one. 


And the contract supersedes presidential executive orders and government-wide regulations until it expires, and so you literally have these cases—and we’ve uncovered some of these confrontations with the Freedom of Information Act requests—where you’ve got agencies like the Department of Veterans’ Affairs that want to do something with the working conditions that they think will benefit patient care. And you see these emails where they’re basically emailing the union leaders, on official time of course, and saying hey, can we do this? Will you give us permission to do this? We need a call. We need a decision on these decisions about, let’s say, promotion policies or who’s going to get what assignment. 


You’d think that in a democracy it’s the people and the elected representatives and ultimately the president who’s making those decisions, and he’s accountable. But what you actually see, the reality is the agency officials are saying mother, may I with the unions. And sometimes the answer is yes. Sometimes, as we’ve seen with these return-to-work directives, the answer is no. 


All the federal employees got to go home and work remotely during COVID, and the unions decided they rather liked that. And so Biden has said, look, it’s safe to go back, and federal employees are going back in the office. His chief of staff thinks it’s incredibly important to have federal employees back in the office because you need it to sort of have that esprit de corps and just those watercooler conversations, that camaraderie, that sort of sense of we’re together as a team, and the exchanges that will happen randomly. You can’t plan for Teams call to have it, but you’ll have insights. And a lot of agency decisions get inspired by things like that, and this is a top priority for the president. 


He and his chief of staff have reiterated it time and again, and the office space in Washington, D.C., is still three-quarters vacant. Why? Because the federal unions speaking for their members don’t want to go back to the office. They like working from home. I can’t say I blame them. I understand that, but who do you think gets to make that call? Is it the elected president, or is it the union officers? 


In a democracy the answer should be pretty clear, but the actual answer, at least as it’s playing out right now, is well, you know, you’ve got to come to terms with the union leaders. And we kind of like working from home, so maybe we’ll agree to a contract that says we only have to come into the office once a week. But we won’t give you any more than that. 


Jonathan Riches:  Right, right. 


James Sherk:  That’s a real contract at the Equal Employment Opportunity Commission. Their new contract says they get to work from home eight days a week. 


Jonathan Riches:  Extraordinary. 


James Sherk:  Eight days a pay period. There’s two weeks in a pay period, so four days a week on average. 


Jonathan Riches:  Well, you know, James, I think people are just surprised that these very basic concepts of accountability, transparency, not having a conflict of interest with your employer advocating for the public interest if you’re receiving a taxpayer funded salary — just in so many areas that just doesn’t exist when we’re talking about government labor unions. And release time is one of the worst examples of that abuse, so I’m glad that there’s solutions out there. There’s litigation solutions. There’s policy solutions, and there’s Executive solutions. And policymakers and others should be looking at this issue really hard to try and get back to an appropriate chain of accountability and a system that protects taxpayers and the broader public rather than the private interests of union bosses. 


James Sherk:  I totally agree. It’s one thing to ask taxpayers to pay for public services that benefit the general public or even welfare programs that are benefiting folks in need. But to take organizations that at the federal level have incomes of hundreds of millions of dollars and say hey, guess what? We’re just going to give you federal resources because we like you, and you’re actually going to be impairing the operations of agencies with this money. And you’re going to be making federal employees incapable of performing the jobs they’re paid to do because their skills are going to fade away, but so what? 


There’s no public good there. There’s no public benefit there. It’s just a pure handout to special interest that have the clout under Jimmy Carter to get this subsidy negotiated into law as part of the price of union support for the Civil Service Reform Act, and it’s long outlived its usefulness. And it needs to be reined in massively. 


Jonathan Riches:  Yeah. Exactly. Well, James, it was great talking with you. Sarah, why don’t we turn it back over to you? 


Sarah Bengtsson:  Absolutely. Thank you, Jon, and thank you, James, to both of you for sharing your time and expertise with us today. And we want to thank our listeners as well for tuning in. We will wrap it there. 


Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch Podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at regproject.org. That’s R-E-G project.org. 


Jon Riches

Vice President for Litigation

Goldwater Institute

James Sherk


Center for American Freedom, America First Policy Institute

State & Local

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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