Washington Education Ass'n v. Smith , 96 Wash. 2d 601 ( 1981 )

Dore, J.

(dissenting) — I dissent because I find payroll deductions for political activities by state employees are clearly related to their employment and, therefore, I would authorize employee payroll deductions for union contributions. The majority holds that the activities for which employee deductions are contributed do not impact the employees' bargaining position. I disagree.

RCW 41.04.230 provides:

Deductions from salaries and wages of public officers and employees other than those enumerated in this section or by other law, may be authorized by the director of financial management for purposes clearly related to state employment or goals and objectives of the agency.

(Italics mine.)

The primary role of the court in construing this statute is to determine the intent of the legislature, and to give effect to that intent. Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). To this end, the statute must be read as a whole; intent is not to be determined by a single sentence (or, in this case, the single phrase "clearly related to state employment"). State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977). RCW 41.04.230 provides specifically for payroll deductions for credit unions, parking fees, United States savings bonds, board, lodging and uniform fees, professional and union dues, accident and casualty premiums, insurance contributions and health maintenance payments. The legislature also provided for any payroll deductions for purposes " clearly related to state employment or goals and objectives of the agency".

The majority used a vacuum of legislative history as affirmative evidence that the legislature intended to prohibit deductions for political purposes. In my opinion, this analysis is totally unjustified. Footnote 3 of the majority opinion, on page 605, specifically notes that union dues may be used to finance legislative lobbying, collective bargaining and other political activity, as long as each employee is afforded the opportunity to refuse to contribute to a specific activity.⁵ Abood v. Detroit Bd. of Educ., 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977); Association of Capitol Powerhouse Eng'rs v. State, 89 Wn.2d 177, 188-89, 570 P.2d 1042 (1977). The majority's contention that political deductions should not be allowed because there is no specific provision for their deductions is unfounded. The legislature provided for payroll deductions to be added later with its "catchall" provision, RCW 41.04.230. The history of the legislation does not indicate that deductions for political purposes are excluded. I would argue that on this record political contributions are more related to state government than the specifically enumerated allowances for United States savings bonds, charitable organizations, and accident and casualty premiums.

The majority at page 608 sees the invasion of the union members' First Amendment rights of association and free speech as mere "tangential infringements". Yet, without the allowance of payroll deductions for these political activity funds, teacher unions and their associated political action groups will be restricted in securing minimum benefits for their members. The majority cites Local 995, Int'l Ass'n of Firefighters v. Richmond, 415 F. Supp. 325 (E.D. Va. 1976) as legal authority for its position. In Richmond, however, the court found that the absence of " check-offs" did not significantly impair the union's ability to organize and provide services for its members because there were viable alternative methods available. This is simply not true in the present case. Affidavits show that physical solicitations at employee work sites or on state property are prohibited. Admittedly it is extremely difficult, if not impossible, to coordinate solicitation and receipt of cash contributions in a manner wherein members do not have easy access to union representatives. Affidavits further show that direct mail solicitation has proved ineffective and costly. Pleas in monthly newsletters are a waste of money. Alternative methods to the payroll deduction system are ineffective.⁶ The importance of the payroll deduction method to the participation of teachers in these political action groups is illustrated by the immediate reduction of membership upon the discontinuation of payroll deductions.⁷ The majority fails to recognize the realistic result of not allowing these payroll deductions: without this method of contribution, the survival of these political action organizations is threatened and state employees' rights to freely associate and speak regarding their employment concerns and needs will be lessened.

The majority claims that teacher payroll deductions are not clearly related to state employment because there is no guaranty that the funds will be spent exclusively on state elections. The language of RCW 41.04.230, however, requires only clear, not exclusive, relation to state employment. It is true that some of the funds are contributed to candidates for federal offices who have little to do with establishing teacher employment terms. The majority of the money withheld, however, is used to finance legislative lobbying, collective bargaining and political activities designed to further political impact of the involved unions.

The majority mistakenly relies upon the opinion of the Attorney General, which concludes that teacher political deductions are unauthorized. Attorney General Opinion, Oct. 26, 1978. Attorney General opinions should be considered when interpreting an ambiguous statute. Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958). But such an opinion is not controlling, and this court has frequently declined to follow opinions of the Attorney General. Kasper v. Edmonds, 69 Wn.2d 799, 420 P.2d 346 (1966) and cases cited therein; Davis v. County of King, 77 Wn.2d 930, 468 P.2d 679 (1970).' The subject Attorney General opinion is conclusory on the issue of whether political deductions are related to state employment, stating at page 8:

[T]o the extent that state property may be used at all in connection with the solicitation or making of political contributions, it is hedged with very careful restraints. See, for instance, RCW 42.17.130 [forbids use of public offices and agency facilities in political campaigns]; also, RCW 41.06.250(1) [forbids compulsory assessments or involuntary political contributions and prohibits solicitation on state property for partisan, political purposes]. Accordingly, while payroll deductions for political contributions might not clearly conflict with either of those expressed purposes, we can find no basis for holding that this type of deduction would satisfy the express statutory requirement that it must be "clearly related."

The statutes cited are not applicable. The opinion admits that teacher payroll deductions do not conflict with the general provision statute. In the absence of any affirmative rationale for denying payroll deductions for political union activities, the Attorney General opinion is of little value.

In recent days, this court has denied a state school request for a temporary injunction to prevent a wholesale 10.1 percent reduction of common school appropriations.⁸ Teachers claim that the 1981-83 appropriations for schools constitute minimum support for "basic education" of our children throughout the state. They argue that if a cut of such magnitude is effectuated, hundreds of teachers will become unemployed. A special session of the legislature has been called to address our economic situation including the threatened cut in school funding. It is clear that if the subject payroll deductions had been in effect for the past 2 years, these funds would now be available to use as a public relations mechanism to disseminate information as to what impact these suggested school cuts will have on basic education and the number of teachers that will be terminated in the event large cuts are mandated. Such monies also could be made available to hire lobbyists, for travel and expense money for teachers to go to the special session and converse with legislators, and for political contributions to individual legislators.

This unexpected and dramatic calling of the special session highlights the importance of these political contributions and how closely they are related to state government and the continued employment and welfare of teachers. The majority states at page 607 that "the legislature did not intend to include political contributions within the limited general classification of activity 'clearly related' to state employment". The pending school crisis strongly emphasizes the degree to which these payroll deductions are related to their status as state employees.

Conclusion

The majority's denial of payroll deductions will seriously restrict the ability of our teachers to actively participate in the political process which determines their working conditions. In addition, its decision continues to mandate a drastic dwindling of teacher political action groups, as is illustrated by the sharp decline in membership already experienced.

I would hold that the language of RCW 41.04.230 permits payroll deductions for political purposes, including candidate contributions, by state teachers. I would reverse.

Rosellini and Williams, JJ., concur with Dore, J.

5 Neither party denies that these payroll deductions to political action groups are entirely voluntary, and the individual employee is free to refuse authorization of this deduction.

6 See Affidavit of Michael Sayan, Clerk's Papers, at 40-42; Affidavit of Carol Coe, Clerk's Papers, at 43-45.

7 During the 1977-78 year, in which payroll deductions were allowed, PULSE boasted a total of 905 members. When the payroll deductions were discontinued late in 1978, PULSE membership dropped to 801 for the 1978-79 year. And during the 1979-80 year, PULSE membership dropped to an all-time low of 124 members.

8 The constitutionality of pending 1981-82 school appropriation cuts is currently before this court in the case of Seattle School District No. 1 of King County v. State, cause No. 47947-0.