OPINION: Dunleavy administration throws more money away on anti-union obsession

Late last month, the Alaska Supreme Court unanimously ruled that the state of Alaska breached the collective bargaining agreement it signed with the Alaska State Employees Association, all while violating the Public Employment Relations Act. It concluded that the state had evinced a decidedly anti-union animus in its interactions with ASEA.

What were the issues? Well, what was a completely straightforward and uncomplicated holding — a decision from the U.S. Supreme Court called Janus v. AFSCME — was made needlessly complex by the governor’s, and his attorneys general’s, tortured reading of Janus. In the Janus case, Justice Samuel Alito, one of the most conservative justices in modern American history, ruled that public employees working in bargaining units who decided against joining their public employee union couldn’t be charged a fair share for benefits they received through that union’s efforts. Was this fair to those who are paying for that representation? Most certainly not. In fact, it meets the definition of selfishness. But, there it is. That’s the ruling. End of story, right? No. Not for this administration.

Instead, the administration has taken what was a 2018 management “win” in the Janus case, and somehow sees in it an insufficient holding that deprived the state of Alaska of the opportunity to sufficiently undermine its public employee unions.

The administration, claiming it was reading between the lines of Janus, suddenly declared that all public employee union members must reenroll immediately in their unions. Further, the state insisted that it should have a hand in writing the enrollment application and be allowed to issue stern admonishments to applicants about not surrendering their First Amendment rights to their unions. If they were fully informed, they couldn’t possibly want to reenroll, right?

The state went even further. It actually argued that enrollees undergo the equivalent of being advised of their rights upon their arrest. Unbelievably, the state told the court that the constitutional issues at play in joining a union were akin to those at stake when the police handcuffed you and hauled you away. Recall the police advisement when detaining someone for purposes of arrest: “You have a right to remain silent and refuse to answer questions … anything you say can and will be used against you in a court of law.” Somehow, though no one can make the connection, the administration equates that loss of liberty with joining a public employee union?

So, purportedly, the state’s concern was a righteous one, protecting employees’ First Amendment rights, correct? But this is the same administration that worked to undermine those very same rights through constitutionally violative, swear and affirm allegiance mandates in late 2018-19, issued to every exempt and partially exempt state worker. Remember that federal district court Judge John Sedwick spoke to those violations specifically in the circumstance where two state psychiatrists refused to swear their absolute fealty to the administration, a loyalty pledge the state had demanded.

There is irony here, and not a little.

Once again, this whole matter should have been disposed of but now we learn that the Alaska attorney general, having summarily lost in Alaska’s courts, will appeal to the U.S. Supreme Court. Note that this isn’t done for free: The state has already been ordered to pay damages to ASEA and has paid hundreds of thousands of dollars to a firm called Consovoy McCarthy in Virginia to throw a hand grenade under this non-dispute in the federal courts.

To the credit of the Alaska Legislature, it didn’t just futilely watch this wasteful exercise happen. For two successive fiscal years, 2020-21, the Legislature created an appropriation structure that should have made it illegal for the state to spend money on this misguided theory of what the law should be — but is not. The attorney general ignored that structure.

In fairness, the AGs had their own arguments against the structure, namely that the state’s attorney can never be constrained in whatever legal direction it wishes to go, even if the Legislature — the appropriators — deemed it absurd. Importantly, the Legislature only sought to constrain contract legal expenses on the state’s novel legal theories, not the AG’s use of his own Alaska public employee attorneys. Theoretically, the Legislature could have sued over this appropriations dispute. Instead, an audit will soon be released reflecting how much has been spent by the Department of Law — not just on the state’s losses and damages to ASEA, but also its payments for outside counsel at $600 per billable hour. All this, again, to throw dynamite under the Janus decision, a closed case, and try to blow it up in the federal courts.

Sadly, anyone who watches legislative committee hearings in Juneau or tunes into Gavel to Gavel coverage of the session has repeatedly heard that virtually every agency in government — there are 17 departments — cannot fill its vacancies. So, public employment is not the career path it once was. As a reminder, the governor issued an administrative order removing degree completion requirements for many posted jobs. Undermining public employee unions, especially in this context and especially where every court in the land has archived the Janus file, is not a prudent path forward.

If you don’t question the absurdity of this litigation, consider the following, Justice Alito’s significant footnote 27 in Janus. The Supreme Court’s decision, Justice Alito wrote, does not: “… require an extensive legislative response. States can keep their labor-relations systems exactly as they are — only they cannot force nonmembers to subsidize public-sector unions. In this way, these states can follow the model of the federal government and 28 other States.”

A more unambiguous statement from a Supreme Court decision would be hard to find.

Janus is on no court’s docket, and on no judge’s calendar. The U.S. Supreme Court has moved on. Case closed, as they say. But not for Alaska’s attorneys general. There are more windmills to chase and rabbit holes to dig.

Rep. Andy Josephson was elected to the Alaska State House of Representatives in 2012 and represents residents in South Midtown, Taku-Campbell and East Sand Lake.

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