Arizona’s anti-AEA ballot measure could ban police, firefighter union bargaining, critics warn

Buried in a proposed constitutional amendment intended to destroy the state’s largest teachers union is language that advocates fear could ban all public sector labor unions in Arizona, including those that represent police officers and firefighters, from negotiating employment terms.

And if voters in November add the language to the Arizona Constitution, they say it could invalidate all existing labor agreements between public employees and the government, not just those for teachers and other school employees.

“It’s either disingenuous or deceptive,” said Joe Clure, the executive director of the Arizona Police Association, which opposed the measure. “We can’t take the chance that it might include all of labor, including public safety.”

The legislation targeting the Arizona Education Association was first introduced in February, as an amendment in the House of Representatives Education Committee, to punish the state’s largest teachers union because it was mounting a ballot initiative campaign to overhaul the state’s universal school voucher program.

As it was initially drafted, and as it passed the House in March, House Concurrent Resolution 2040 was focused solely on pushing union activity out of Arizona schools: It would bar teachers from using school email, printing flyers in school libraries or gathering in classrooms during school hours to discuss union goals or recruit new members.

Most concerning for the AEA, however, was a provision that sought to defund the union by outlawing school districts from deducting union membership fees from employee paychecks — even though doing so is at the employee’s request.

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But Republicans in the Senate added sweeping language to the proposal that appears to go far beyond punishing public school teachers for organizing to reform the voucher program. In addition to including a provision making it illegal for teachers and other school district employees to strike — something they did effectively during the Red for Ed protests in 2018 that led to their receiving pay raises — GOP senators amended the new constitutional language to bar any level of government in Arizona from negotiating terms of employment with a labor union.

When the Senate Government Committee was done with the anti-AEA measure, its final substantive subsection stated that “this state or any political subdivision of this state” — boilerplate language commonly used in legislation intended to comprehensively ban governments from doing something — “may not negotiate with a labor organization an exclusive representation agreement, collective bargaining agreement, memorandum of understanding, contract or other agreement regarding the terms and conditions of employment.” 

Attorney Jim Barton, whose clients include labor organizations, said the way the constitutional amendment is constructed leaves the apparent statewide ban on public sector bargaining up for debate. Because it would be adding a section to the Arizona Constitution with a title that applies to “school districts,” he said a legal argument could be made that the proper way to interpret the wording is in the context of schools and their employees.

And that was the view that labor groups held as the measure was working its way through the legislative process. John Loredo, the executive director of Arizona Labor Unity Table, said he believes that the provision is limited to applying only to school districts because HCR2040 creates a new section of the Arizona Constitution that deals with labor activities in Arizona schools, though he acknowledged that organized labor groups are “looking at” the possibility that it could apply outside of the K-12 school system.

But that doesn’t account for why lawmakers deliberately chose language that is used elsewhere in both the state constitution and state law to impose statewide bans. For instance, in the anti-immigrant SB1070, its provisions outlawing so-called “sanctuary cities” uses nearly identical wording. And voters added the same language to the constitution in 2014 when they approved an amendment banning Arizona governments from using resources to enforce unconstitutional federal mandates.

Barton said it’s important that GOP legislators deviated in HCR2040 from language that is strictly limited to school districts or school district employees to include broad-based wording because different words have different meanings, and courts recognize that lawmakers know how to limit the scope of legislation when they intend for it to be limited.

At the end of the day, he said, it would be difficult to argue in court that GOP lawmakers meant for “this state or any political subdivision of this state” to be synonymous with school districts.

“I suspect the broader reading would probably carry the day,” Barton said.

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The expansive anti-union language is not new: It closely tracks legislation from 2012 that was openly aimed at stripping Arizona governments from negotiating employee pay, benefits and more with unions. That proposal, drafted by the conservative Goldwater Institute, would have stripped “any state agency or political subdivision of this state” of its authority to recognize a union as a bargaining agent, to enter “any employment bargain,” or even to meet and confer with a union. That bill failed.

The Goldwater Institute backed HCR2040, and a spokesman said it partnered with the Freedom Foundation to write the bill and “send this important reform to the Arizona voters.” 

The Freedom Foundation is a think tank based in Washington state that exists to combat what it calls “the entrenched power of left-wing government union bosses who represent a permanent lobby for bigger government, higher taxes, and radical social agendas.”

In a series of essays, Freedom Foundation CEO Aaron White says that “government unions are a root cause of every growing national dysfunction in America.”

Rusty Brown, the director of special projects for Freedom Foundation, told the Arizona Mirror that the constitutional measure is designed to only apply to school districts. But, he said, they used the broad-based language in that section to guard against workarounds.

“It was an attempt to head off potential loopholes,” he said. 

In Arizona, school employees are hired at a local level by school districts, not by the state or cities. Brown could not give an example of what kind of “loophole” the drafters sought to preemptively block.

Likewise, the author of the Senate amendment to HCR2040, Sen. Jake Hoffman, said it would be “wrong” to view the language as a statewide ban on union representation that would affect police and fire. 

“It is limited to school districts only,” he said in a text message. Hoffman did not respond to a follow-up question about why his amendment was written to include the standard wording for a statewide ban. 

Brown said unions for government workers outside of the public school system have no reason to worry.

“If a local entity tried to apply this in that way, I think it would be a slam dunk lawsuit,” he said. “I’m confident the courts would see it that way.” 

What HCR2040 leaves out is also noteworthy. When lawmakers in 2022 succeeded in enacting an anti-union law, it was narrower — and it specifically exempted municipal police officers and firefighters, both of whom have politically powerful unions. But the ballot referral’s provision contains no such carve-out and instead matches the all-encompassing 2012 model, which applied to every governmental entity in Arizona.

At the end of the day, Clure, the head of the police union, said the confusion is because the measure is “one of the worst-written bills I’ve ever seen” come out of the Legislature. On top of that, he said, it’s terrible public policy to single out one group of employees and punish them because the teachers union engaged in the political process in a way that GOP lawmakers didn’t like.

“It’s very un-American,” he said.