Kansas Attorney General Opinion 1992-117

ROBERT T. STEPHAN
ATTORNEY GENERAL
September 4, 1992
ATTORNEY GENERAL OPINION NO. 92- 117
The Honorable Anthony Hensley
State Senator, 19th District
2226 Virginia Avenue
Topeka, Kansas 66605-1357
Re: State Departments; Public Officers and Employees --
Payroll Accounting for State Agencies --
Formulation, Installation and Operation of System
of Payroll Accounting; Payroll Deductions for
Membership Dues
Synopsis: K.S.A. 75-5501 does not authorize members of an
employee organization to designate part of their
payroll deducted monthly dues be contributed by the
state to political action committees. An agreement
between the state and an employee organization to
deduct membership dues from non-members would be
contrary to article 15, section 12 of the Kansas
constitution and K.S.A. 75-5501 unless the employee
has voluntarily signed a written authorization-
assignment. Finally, an "actual direct expense"
for purposes of K.S.A. 75-5501(b)(4) is not limited
to the transaction cost incurred by the state's
computer in taking a specified sum from the check.
Cited herein: K.S.A. 75-4333; 75-4337; 75 - 5501;
Kan. Const., Art. 15, § 12.

Dear Senator Hensley:
You have requested our opinion on various questions concerning
K.S.A 75 - 5501.
K.S.A. 75 - 5501(b) states in relevant part that:
"The director of accounts and reports
shall provide, as a part of the system of
payroll accounting, a plan for the
deduction from the salary or wages of an
amount equal to regular membership dues
for state officers and employees who are
members of the Kansas troopers association
or who are in any employee organization
which has filed an annual report pursuant
to K.S.A. 75-4337 or which has a business
agent registered pursuant to K.S.A.
75-4336. Such plan, in addition to such
provisions as are negotiated by the
director of accounts and reports and the
employee organization, shall provided
for:. . . ." (Emphasis added).
Based on the underscored language of this statute you ask:
"Would K.S.A. 75 - 5501, as it is now written, permit members of
employee organizations to designate that part of their monthly
dues be used to fund affiliated chapters within the
organization or separate organizations such as political
action committees through the dues deduction system the
statute now provides and would the denial of that opportunity
constitute a violation of First Amendment freedoms?"
K.S.A. 75-5501 refers to regular membership dues. Considering
that at one time the provision read "monthly membership dues"
(1974 Senate Sub. for HB 2622, as amended by the Senate
Committee of the Whole) and using the common meaning of the
term membership dues, we believe "regular membership dues"
means whatever amount would constitute a standard membership
in the employee organization. We understand that certain
unions are set up with locals and the standard dues are
distributed by the employee organization. However, we do not
believe K.S.A. 75-5501 was meant to be extended to allow the
officer or employee to require such distribution. If the
officer or employee wishes distribution of his dues to a

specific chapter or a separate organization, he may decline
payroll deduction and pay his dues accordingly.
Furthermore, K.S.A. 75-4333(d) states that "[i]t shall be a
prohibited practice for a public employee organization to
endorse candidates, spend any of its income, directly or
indirectly, for partisan or political purposes or engage in
any kind of activity advocating or opposing the election of
candidates for any public office." The question posed
specifically refers to whether members could designate that
part of their monthly dues be used to fund "separate
organizations such as political action committees" through the
dues deduction system. If the employee and an employee
organization independently agree that a portion of the regular
membership dues would be distributed by the employee
organization to a political action committee, such an
agreement would constitute a prohibited practice. Likewise,
if at the request of the employee organization the state
agreed to directly distribute a portion of employee
organization regular membership dues, or an amount in addition
to the regular dues, to a political action committee under the
auspices of the employee organization membership dues
deduction program, it is likely a prohibited practice would
have been committed by the employee organization. It might
also be possible for another employee organization to charge
that the state had committed a prohibited practice under
K.S.A. 75-4333(b)(2) by virtue of assisting an employee
organization in a prohibited practice which could advantage
that employee organization relative to other employee
organizations.
You raise the applicability of the United States Supreme Court
case, Communications Workers v. Beck, 487 U.S. 735, 101
L.Ed.2d 634, 108 S.Ct. 2641 (1988). You state that based on
this case you believe "members who do authorize the
distribution of their dues to other sources might likewise be
denied their First Amendment rights if such a distribution is
denied."
We do not agree with your analysis. Workers v. Beck
involved a situation where a group of workers who had not
-joined the union filed an action seeking an injunction over
the agreement between the employer and the union which
required all employees in the bargaining unit to pay union
dues which were spent for things other than collective
bargaining, contract administration, and grievance adjustment
activities even if they chose not to join the union. This
case deals with mandating the payment of dues by non-members

rather than the situation you raise which involves the refusal
to allow employees to contribute to entities or organizations
other than recognized public employee organizations through
payroll deductions. We cannot deem such a practice to violate
any First Amendment rights since the employee can voluntarily
make such contributions through avenues other than payroll
deduction.
Your second question is:
"Does K.S.A. 75-5501(b) provide authority through payroll
deduction for a recognized employee organization to obtain
reimbursement from nonmembers represented by that organization
in a bargaining unit for collective bargaining services and
grievance representation?"
As stated in Attorney General Opinion No. 92-42:
"Article 15, section 12 of the Kansas
constitution has been interpreted as
'prohibiting compulsory membership in a
labor organization as a condition of
employment or continued employment,
includ[ing] by necessary implication a
prohibition against forced payment of
initiation fees, union dues and
assessment, or the equivalent, by a worker
to a labor organization as a condition of
employment or continued employment.'
Higgins v. Cardinal Manufacturing Co.,
188 Kan. 11, 23 (1961). (Emphasis added).
"Furthermore, K.S.A. 44-803, while
allowing employees to join labor
organizations, also spells out that such
employees 'shall also have the right to
refrain from any or all such activities'
and no person shall be allowed to use
means to 'coerce or intimidate any
employee in the enjoyment of his or her
legal rights (K.S.A. 44-809).'
"These provisions and the case law
interpreting them emphasize that article
15, section 12 of the Kansas constitution
and K.S.A. 44-801 et seq. were drafted
so as to prohibit 'agency shops' and

therefore allow employees the right to
work without being forced into the
membership of the union."
Furthermore, K.S.A. 75-5501(b) requires that payroll
deductions for dues be authorized in writing by the employee.
Therefore, an agreement between the state and an employee
organization to deduct membership dues from non-members would
be contrary to K.S.A. 75-5501 unless the employee has signed a
written authorization-assignment.
It should also be noted that Attorney General Opinion No.
78-328 stated:
"[T]he authorized dues deduction plan for
members of employee organizations provides
for the deduction of dues for all members
of such organizations who are state
officers and employees, including those
members for whom the organization is not
the certified or recognized employee
organization under K.S.A. 75-4327 and
including members for whom another
employee organization is the certified or
recognized organization thereunder."
Therefore, K.S.A. 75-5501(b) does not infer that employees of
a unit represented by a recognized employee organization are
automatically in that employee organization.
You also infer that a distinction is made in K.S.A. 75-5501(b)
between members of the Kansas troopers association and those
who are in other employee organizations. This is not borne
out by the legislative history. As originally enacted, K.S.A.
75-5501(b) did not include the reference to the troopers
association. When this section was amended in 1981 it was
added in order to "allow state troopers to have dues for the
Kansas Troopers Association deducted from their paychecks the
same as other public employees." (Emphasis added). (See
Minutes, Senate Committee on Federal and State Affairs,
February 12, 1981, p. 2.) Therefore, in our opinion, there is
no basis for inferring an intended distinction between
troopers and other state employees.
We note that pursuant to K.S.A. 75-4337, an employee
organization with less than 100 members can still be
recognized as the representative of a unit. Furthermore, just

because an employee organization has a business agent does not
mean the employee organization must be recognized as the
representative of the unit.
Finally, you ask whether labor costs constitute an "actual
direct expense" for purposes of K.S.A. 75-5501(b)(4).
K.S.A. 75-5501(b)(4) authorizes the director of accounts and
reports to provide for:
"payment of all moneys deducted each
payroll period pursuant to this section to
the employee organization less the amount
of actual direct expenses incurred by the
state for the membership dues deduction."
You state that actual, direct expenses should be limited to
the transaction cost incurred by the state's computer
apparatus in taking a specified sum from the check. You also
state that it is your understanding that was the practice of
the department of administration until last year when the
department began including prorated labor costs.
The department of administration has informed our office that
approximately 65-70 hours a month is spent by various staff to
operate the dues deduction program. Without the staff's work
the dues deduction program would not be feasible or
productive. Therefore, it seems unreasonable to allow for
computer expenses but not for the necessary manpower
expenses. The department of administration does not charge
for such things as salaries and wages of any staff who
supervise or provide administrative support or space rental
charges since these would appear to be "indirect costs." We
are told that the transaction fee as originally established
included labor costs. However, it has been approximately 10
years since the amount had been adjusted, thus possibly giving
the impression that labor was not included in the fee.
In conclusion, K.S.A. 75-5501 does not authorize members of an
employee organization to designate part of their payroll
deducted monthly dues be dispersed to political action
committees. An agreement between the state and an employee
organization to deduct a fair share service fee from
non-members would be contrary to the Kansas constitution and
K.S.A. 75-5501 unless the employee has signed a written
authorization-assignment. Finally, an "actual direct expense"
for purposes of K.S.A. 75-5501(b)(4) is not limited to the

transaction cost incurred by the state's computer in taking a
specified sum from the check.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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