Why Oklahoma’s attempt to ban teacher payroll deductions may not be enforceable (Capitol Updates)

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol. You can sign up on his website to receive the Capitol Updates newsletter by email.

There’s an interesting legal battle brewing over whether HB 1749 by Rep. Tom Newell (R-Seminole) and Sen. Nathan Dahm (R-Tulsa) can actually be enforced once it goes into effect on November 1st.  A law firm that represents a majority of the school districts in the state is advising the districts that the law was written in such a way as to make it unenforceable.  The legal department of the Oklahoma Education Association, the state’s largest teacher association, apparently agrees.

HB 1749 is the new law that prohibits school districts from withholding payroll deductions for membership dues of organizations that collectively bargain with the districts under federal law.  The law was passed on the theory that the state shouldn’t assist organizations that represent their members in bargaining with the districts for better salaries, benefits or employment conditions.  Current state law, which was not repealed in the new law, provides that “School districts shall make payroll deductions for either or both professional organization dues and political contributions upon the request of any school employee and shall transmit deducted funds to the organization designated by the school district employee.”

According to the attorneys, the legislature may have made two mistakes in passing this bill.  First, the organization to which the teachers belong, and to which they direct their dues, is the statewide organization, either the OEA or the AFT.  However, the entity that bargains and contracts with the school district is the local teacher or support personnel organization, not the statewide organization.  If the legislature intended to cut off dues to the statewide organization they didn’t do it by preventing dues to be withheld and directed to an organization that “collectively bargains” with the school district.  Second, the bill prohibits withholding dues for “an organization that collectively bargains on behalf of its membership pursuant to any provision of federal law.”  Federal law may grant unions certain protections, but the authority for school districts to bargain is granted by state law, not federal law.

Of course, the Attorney General has yet to weigh in on the issue so it’s hard to predict whether this will end up in litigation.  The districts may just follow the legal advice of their attorneys and wait to see what the legislature does next year to fix the law.  The House author, Rep. Newell, has already said he’ll introduce legislation to fix it if the new law cannot be enforced as written.  However, the bill passed on a strictly partisan Republican vote in both houses.  Despite large Republican majorities, it only received 2 extra votes in the Senate and 8 extra votes in the House.  It may be easier said than done to fix it next year.