Can Oklahoma school districts still make payroll deductions for teacher union dues, given the 2015 statute (62 O.S. § 34.70.1) that bars state agencies from deducting dues for organizations that bargain under federal law?

Plain-English summary

Representative McBride and State Superintendent Walters asked whether 62 O.S. § 34.70.1 prohibits Oklahoma school districts from making payroll deductions for teacher union and other professional organization dues. The Department of Education had taken the position that the answer was yes (interpreting "pursuant to any provision of federal law" broadly to mean any organization that bargains over a topic touched by federal law, like health insurance or FMLA). The Attorney General disagrees.

The legal hinge is the phrase "pursuant to" in § 34.70.1, which forbids state agencies from making payroll deductions for membership in "any public employee association or organization or professional organization that on or after November 1, 2015, collectively bargains on behalf of its membership pursuant to any provision of federal law."

The AG reads "pursuant to" as "in conformance with," "according to," or "as authorized by." That reading aligns with Oklahoma Supreme Court precedent (Fabian, World Publ'g Co.) and the Tenth Circuit (Fruitt v. Astrue). Under this reading:

• Section 34.70.1 prohibits deductions only for organizations that collectively bargain under federal labor law authority, like the Federal Education Association or Federal Service Labor-Management Relations Statute (5 U.S.C. §§ 7101–7154) bargaining units.
• Oklahoma teachers bargain under the state School Code (70 O.S. §§ 509.1–509.10), so § 34.70.1 does not apply to them.
• The School Code's payroll-deduction provision (70 O.S. § 5-139) continues to require school districts to honor employee requests for dues deductions.

The opinion supports this reading with three additional analyses:

1. OMES's longstanding interpretation. Since 2015, OMES (the agency that administers state employee payroll deductions) has consistently interpreted § 34.70.1 as not applying to school districts. OMES even entered an agreed declaratory judgment to that effect in AFT Okla. v. Indep. Sch. Dist. No. 89. Under Oral Roberts Univ. and Peterson, that long-settled administrative construction is entitled to great weight.

2. No repeal by implication. Even if § 34.70.1 were ambiguous, it would not impliedly repeal the School Code. Repeals by implication are disfavored, and the two statutes can be harmonized: § 34.70.1 covers state agency deductions for federal-law-bargaining unions; § 5-139 covers school district deductions for state-law-bargaining (or non-bargaining) organizations.

3. The "elephants in mouseholes" doctrine. Citing Whitman v. American Trucking, the AG observes that the Legislature does not "hide elephants in mouseholes." A wholesale change to teacher payroll deductions, after decades of stable practice under the School Code, would not be hidden in a definitional clause of an entirely different title.

Bottom line: Section 34.70.1 prohibits a narrow category of deductions (federal-law-bargaining organizations). It does not prohibit deductions for the Oklahoma Education Association, AFT Oklahoma, or other state-law-bargaining (or non-bargaining) organizations. School districts must continue to honor employees' written requests for dues deductions.

What this means for you

If you are an Oklahoma teacher

Your right to have professional organization dues deducted from your paycheck remains intact. You can still request payroll deductions for the Oklahoma Education Association, AFT Oklahoma, the Professional Oklahoma Educators, or another professional organization that bargains under the state School Code or does not collectively bargain at all. Your school district must honor your written request under 70 O.S. § 5-139.

The right to opt out remains. Article XXIII, § 1A(B)(3) of the Oklahoma Constitution forbids any requirement that you pay dues as a condition of employment. The deduction must be your written request.

If you are a school district payroll administrator or school board member

Continue making payroll deductions consistent with § 5-139. Section 34.70.1 does not apply to your district as the AG reads it. If a teacher requests a dues deduction, process it.

If your district has paused or stopped deductions in response to State Department of Education guidance, this AG opinion supports resuming them. Document the AG opinion as your authority. The opinion is binding on state officials including the Department of Education.

If you are at the State Department of Education

The opinion is binding on you. Your prior interpretation of "pursuant to" is rejected. Do not promulgate administrative rules under § 34.70.1 that would block school district dues deductions. The Department's general counsel has been informed.

If you are at a teacher union or professional organization

Your local affiliate's deductions through Oklahoma school districts are protected. Watch for any future legislative effort to amend § 34.70.1 or § 5-139 directly to change this framework.

If you are an Oklahoma legislator

If you want § 34.70.1 to reach state-law-bargaining organizations or to apply to school districts, the AG opinion makes clear you would need to amend the statute. The current text, as construed, does not reach those organizations or districts.

If you want OMES to take responsibility for school district deductions, again, statutory amendment is required. OMES has consistently disclaimed that responsibility, and the AG agrees with OMES.

If you are a parent or community member

The AG opinion does not address whether teachers should be unionized or whether dues should be deducted automatically. It is a statutory interpretation question. The opinion preserves the existing voluntary-deduction system. Teachers retain individual choice; districts retain administrative obligations.

Common questions

Q: What is the Oklahoma School Code framework for collective bargaining?
A: 70 O.S. §§ 509.1–509.10 (the "Negotiation Between School Employees and Districts" article) gives Oklahoma teachers a statutory right to organize and to have a representative organization recognized by their local school board. The Oklahoma Supreme Court confirmed that statutory right in Association of Classroom Tchrs. v. ISD 89 (1975).

Q: How is this different from federal law collective bargaining?
A: Federal labor law (5 U.S.C. §§ 7101–7154) covers federal employees through agencies like the Federal Labor Relations Authority. The National Labor Relations Act (29 U.S.C. § 151 et seq.) covers most private-sector employees. Neither covers Oklahoma public school teachers, who are governed by the state School Code instead.

Q: What organizations would § 34.70.1 actually prohibit?
A: Organizations that bargain under federal law authority. The opinion gives examples: Fraternal Order of Police federal units, Federal Education Association, National Nurses United (when they bargain federally). State-law bargaining organizations like the Oklahoma Education Association are not covered.

Q: Did Oklahoma teachers' bargaining ever happen under federal law?
A: No. Oklahoma teachers have been bargaining under the state School Code since 1971. Federal labor law has never covered them.

Q: Why does OMES's interpretation matter?
A: Under Oral Roberts University v. Oklahoma Tax Commission (1985), the Oklahoma Supreme Court defers to "long-continued construction of a statute by a department of government charged with its execution," especially when "the legislature has convened many times during this period of administrative construction without expressing its disapproval." OMES has interpreted § 34.70.1 the same way since 2015, and the Legislature has not amended it.

Q: What about right-to-work?
A: Oklahoma is a right-to-work state under Article XXIII, § 1A. No employee can be compelled to pay dues. Payroll deductions are voluntary. This opinion preserves voluntary deductions; it does not require any teacher to pay dues.

Q: Did the Department of Education ever issue rules implementing § 34.70.1 against school districts?
A: According to the opinion, the Department was preparing to do so. This opinion forecloses that path.

Q: What about charter schools?
A: The opinion does not directly address charter schools. The Statutory definitions of "school district" and "state agency" in the relevant provisions would need separate analysis. The general thrust of the opinion (§ 34.70.1 reaches only federal-law-bargaining organizations) would likely apply to charter school employees who bargain under state law (if they do at all).

Background and statutory framework

Two parallel payroll deduction regimes have coexisted since the 1970s and 80s:

• School district employees are governed by 70 O.S. § 5-139, enacted in 1977 and amended in 2005 and 2018. School districts must make payroll deductions for professional organization dues at any employee's voluntary written request.
• State agency employees are governed by 62 O.S. § 34.70, enacted in 1984. OMES establishes procedures for nine categories of voluntary deductions including statewide education association dues.

In 2015, the Legislature added § 34.70.1 to address concerns about state employees paying dues to federally-bargaining unions whose dues went out of state. Section 34.70.1's definition of "state agency" includes school districts, which created the question this opinion answers.

The opinion's statutory construction analysis is methodical:

1. Plain language. "Pursuant to" has a settled meaning ("in conformance with," "according to") under Oklahoma Supreme Court and Tenth Circuit precedent. That settled meaning controls.
2. Statutory context. Section 34.70.1 is closely connected to § 34.70, which covers state employee deductions. Reading the two together, § 34.70.1 closes a federal-law-bargaining loophole in the state employee scheme; it is not a sweeping new prohibition on school district deductions.
3. Agency interpretation. OMES has consistently interpreted § 34.70.1 narrowly. That interpretation gets significant deference.
4. Avoidance of repeal by implication. Repeals by implication require irreconcilable conflict. Section 34.70.1 and § 5-139 can be harmonized; one covers federal-law-bargaining state agencies, the other covers school districts.
5. Whitman / "elephants in mouseholes." The Legislature does not bury major policy changes in narrow definitional clauses of unrelated statutes. If the Legislature wanted to overhaul school district dues deductions, it would amend § 5-139 directly.

The opinion takes the unusual step of being expressly directed to two requesters (Rep. McBride and Superintendent Walters) because both submitted requests on substantially similar questions.

Citations and references

Statutes:
- 62 O.S. § 34.70 (State employee payroll deductions)
- 62 O.S. § 34.70.1 (Prohibition for federal-law-bargaining organizations)
- 70 O.S. § 5-139 (School district payroll deductions)
- 70 O.S. §§ 509.1–509.10 (School Code negotiation framework)

Cases:
- Association of Classroom Tchrs. v. ISD 89, 1975 OK 118, 540 P.2d 1171 (statutory right to bargain under School Code)
- Fabian & Assocs. v. State, 2004 OK 67, 100 P.3d 703 ("pursuant to" means "in conformance to")
- Oral Roberts Univ. v. OTC, 1985 OK 97, 714 P.2d 1013 (deference to long-settled agency interpretation)
- Peterson v. OTC, 1964 OK 78, 395 P.2d 388 (legislative silence as acquiescence)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) ("elephants in mouseholes")
- Oklahoma Call for Reprod. Just. v. Drummond, 2023 OK 24, 526 P.3d 1123 (repeals by implication disfavored)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-9.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-9_z-14.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-9

The Honorable Mark McBride
Oklahoma House of Representatives, District 53
2300 N. Lincoln Boulevard, Room 452.1
Oklahoma City, OK 73105

June 26, 2023

Dear Representative McBride:

This office has received your request for an Attorney General Opinion in which you ask, in effect, the following question:

Does title 62, section 34.70.1 of the Oklahoma Statutes prohibit Oklahoma school districts from making payroll deductions for membership dues in professional organizations?

I. SUMMARY

The phrase "collectively bargains on behalf of its membership pursuant to any provision of federal law" in title 62, section 34.70.1 of the Oklahoma Statutes means the organization collectively bargains "according to," or "in conformance with," any provision federal law. So defined, section 34.70.1 does not apply to Oklahoma school districts and their employees that either do not collectively bargain or that do so pursuant to the Oklahoma School Code. Further, the Office of Management and Enterprise Services ("OMES")—the agency historically charged with developing procedures for certain payroll deductions for state employees—has also interpreted section 34.70.1 to not apply to school districts and their employee's voluntary payroll deductions. Accordingly, school districts are authorized to make payroll deductions for membership dues in professional organizations that (a) collectively bargain pursuant to state, as opposed to federal, law or (b) do not collectively bargain at all.

II. BACKGROUND

A. Payroll deductions and labor relations in local school districts.

Beginning in 1977, the Legislature placed the following language into the School Code:

School districts shall make payroll deductions for either or both professional organization dues and political contributions at the written request of any school employee and shall transmit deducted funds to the organization designated by the school district employee. Such deductions shall be on a ten-month basis unless otherwise designated by the employee organization.

70 O.S.2021, § 5-139.

Since 1971, Oklahoma school districts and their employees have relied on the provisions of 70 O.S.2021, §§ 509.1–509.10 for collective bargaining. The Oklahoma Supreme Court has interpreted the Act as imposing a legal duty on boards of education and professional educators, as well as granting a "statutory right of professional educators to collectively bargain[.]" Association of Classroom Tchrs. v. Independent Sch. Dist. 89 of Oklahoma Cnty., 1975 OK 118, ¶¶ 9–10, 540 P.2d 1171, 1174.

B. Payroll deductions for state employees.

In 2015, the Oklahoma Legislature enacted, and the Governor signed, House Bill 1749, which is now codified at title 62, section 34.70.1. Section 34.70.1 provides:

A. It shall be unlawful for any state agency to make payroll deductions on behalf of a state employee for membership dues in any public employee association or organization or professional organization that on or after November 1, 2015, collectively bargains on behalf of its membership pursuant to any provision of federal law.

III. DISCUSSION

A. The School Code, not title 62, section 34.70.1, governs payroll deductions by school districts.

1. Section 34.70.1 permits Oklahoma school districts to honor their employees' payroll deductions for organizations that either do not collectively bargain or do so pursuant to state, not federal law.

The cause of this request is that the Department purportedly intends to rely on section 34.70.1 to advance administrative rules prohibiting Oklahoma educators from making voluntary payroll deductions for membership dues in employee labor organizations. According to the Department, the phrase "collectively bargains . . . pursuant to any provision of federal law" likely means collectively bargains on the topic(s) of a benefit in federal law. This office respectfully disagrees.

The term "pursuant to" is a prepositional phrase meaning "in conformance to or in agreement with; or according to a standard." Fabian & Assocs., P.C., v. State, ex rel., Dep't. of Public Safety, 2004 OK 67, ¶ 18 n.4, 100 P.3d 703, 706–7 n.4. Applying these constructions of "pursuant to" in the context of section 34.70.1, the prohibition on payroll deductions is only effective as to deductions for membership in an organization that collectively bargains according to, or in conformance with, federal law. If the organization collectively bargains pursuant to an authorization in state law only, or if the organization does not collectively bargain at all on behalf of its members, section 34.70.1 does not apply.

For example, the Fraternal Order of Police, Federal Education Association and National Nurses United collectively bargain pursuant to federal laws, namely those at title 5, sections 7101–7154 of the United States Code. Accordingly, section 34.70.1 prohibits a state agency from making a payroll deduction on behalf of a state employee for membership dues to the national Fraternal Order of Police, Federal Education Association or National Nurses United for purposes of their collective bargaining pursuant to federal law. Section 34.70.1 does not prohibit dues to an organization, or a local affiliate thereof, if either of the following are true: 1) the organization does not collectively bargain; or 2) if it does collectively bargain, that it is done pursuant to state or local law.

It would be curious indeed for the Legislature to mark such a transformation in the School Code and the negotiations within local school districts through a definition in an entirely different title. As the United States Supreme Court has observed, a legislature "does not alter fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001).

2. OMES has interpreted section 34.70.1 as not applicable to local school districts.

Since 2015, OMES has consistently interpreted section 34.70.1 as not applying to public school districts and their employees. OMES even entered a stipulated and agreed Declaratory Judgment, providing in part:

1. OMES does not believe, and will not assert, that section 34.70.1 makes it responsible for the administration of payroll deductions for employees of school districts.
2. OMES does not believe that section 34.70.1 imposes on it any legal duty to manage payroll deductions for local school districts and their employees.

The Oklahoma Supreme Court has previously deferred to the interpretation of a statute by the agency charged with its administration, particularly "when the administrative construction is definitely settled and uniformly applied for a number of years." Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 9, 714 P.2d 1013, 1015.

3. Neither title 62, section 34.70.1 nor title 70, section 5-139 repeal the other.

Repeals by implication are not favored and all statutory provisions must be given effect if possible. Nothing short of irreconcilable conflict between statutes effectuates a repeal by implication. There are notable differences between the two statutory provisions such that they are reconcilable, and no implicit repeal has occurred.

It is, therefore, the official Opinion of the Attorney General that:

1. The use of "collectively bargains on behalf of its membership 'pursuant to' any provision of federal law" in title 62, section 34.70.1 of the Oklahoma Statutes means that the organization collectively bargains in accordance with, or under an authorization in, federal law.

2. OMES, as the agency charged with developing procedures relating to "state employee" payroll deductions pursuant to title 62, section 34.70, has interpreted section 34.70.1 to not apply to local school districts' payroll deductions on behalf of district employees. This interpretation controls.

3. Title 62, section 34.70.1 and the School Code do not expressly or implicitly repeal each other, as they are reconcilable and can be harmonized to give their effect, as intended.

Accordingly, title 62, section 34.70.1 does not prohibit public school districts from making payroll deductions for membership dues in professional organizations that either do not collectively bargain or that collectively bargain pursuant to state or local law.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

BRAD CLARK
DEPUTY ATTORNEY GENERAL