Alaska AG Clarkson legal opinion on union dues recommends annual 'opt-in'
Alaska's attorney general says the state is not in compliance with a 2018 U.S. Supreme Court decision and state employees' First Amendment rights are not adequately protected.
State Attorney General Kevin G. Clarkson said in a 12-page legal opinion Tuesday the state needs to take more steps to protect First Amendment rights to free speech.
The case, Janus v. American Federation of State, County and Municipal Employees Council 31, was decided in June 2018. The question was whether public sector employees should be forced to pay the fees to unions.
CBS News reported at the time:
"The nine-member court ruled 5-4 that such payments, often called 'fair-share fees,' clash with individual rights. The fees violate 'the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,' the majority wrote in its decision in the case, Janus v. AFSCME.
The report states the decision was likely to devastate funding for public sector unions, including those representing teachers, police officers and municipal workers.
Clarkson said Tuesday that workers should not be coerced into union participation.
"Forcing State employees through state law to pay union dues that will be used for political purposes and speech they may not agree with has created an unconstitutional restriction of free speech," Clarkson said in a release. "The nation's highest court has ruled repeatedly that freedom of speech also means the right to refrain from speaking at all. In order to comply with the highest court's ruling and the U.S. Constitution, the State has to determine that an employee must have freely and knowingly consented to have dues deducted from their paychecks."
Clarkson says in order to bring the state into compliance with the Janus decision, the state will need to drastically change payroll processing by obtaining, "clear and compelling evidence it has the employee's consent before deducting union due and fees."
On the final page of the opinion, Clarkson said the state should provide an annual opt-in period.
Gov. Mike Dunleavy weighed in on Clarkson's opinion saying Clarkson's opinion made plain the fact the state was not in compliance.
“In the coming days and weeks, my administration will be working to ensure the State is in full compliance of the law and that Alaskans are informed of their rights,” Dunleavy stated.
A release from the governor's office stated Dunleavy asked the attorney general to review the case upon taking office.
Union leaders balked at the announcement, saying it constituted "unneccesary and a clear overreach," and that the current process already has a provision for employees to join of their own volition. In a statement in response to the legal opinion, both Vince Beltrami, president of the Alaska AFL-CIO, and Jake Metcalfe, executive director of Alaska State Employees Association, called the action by the state an attack on public workers.
It's unclear what steps the state will make to remedy the current payroll process.
In an interview, Senior Assistant Attorney General Cori Mills said the Clarkson lined out what needs to be done from a legal standpoint, but it's up to the state to decide what that will look like. The state has to prove each employee knowingly gave consent and signed a waiver deciding to pay union dues to be in compliance with the Janus Decision.
Mills said in terms of what's next for the state is that it will need to provide clear and compelling evidence it maintains this legal standard.
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