Can a Tennessee teachers' organization use dues collected by payroll deduction under PECCA to fund political communications, contribute to political-spending groups, or commingle those dues with other funds it uses politically?

Plain-English summary

The Professional Educators Collaborative Conferencing Act of 2011 ("PECCA") replaced Tennessee's prior teacher collective bargaining law with a different framework. Teachers can voluntarily start a "collaborative conferencing" process with their school board, and if they reach agreement on terms, those terms go into a memorandum of understanding (MOU) that becomes binding. PECCA lists subjects that can be covered in collaborative conferencing, including payroll deductions, but expressly bars MOUs from authorizing payroll deductions "for political activities." Tenn. Code Ann. § 49-5-608(a)(7), (b)(6).

A state representative asked four follow-on questions about how that prohibition operates when a professional employees' organization (typically a teachers' association) actually receives dues collected through PECCA-authorized payroll deductions.

The AG's structured answers:

1. Political communications. Dues collected through PECCA payroll deductions cannot be used for political communications (lobbying, ads, candidate-name mentions). The text is direct and binding.
2. Contributions to political-communication entities. If the dues are transferred or allocated to a parent or affiliate that engages in political communications, and that transfer qualifies as a "contribution" (the dictionary meaning: a gift or payment to a common fund or collection), the transfer is barred.
3. Third parties that merely support, but don't directly engage in, political communications. No categorical bar. But many specific arrangements will still violate PECCA depending on how they look in practice. The statute's list of "political activity" is non-exclusive (per Tenn. Code Ann. § 49-5-602(7)), so courts will read it in light of the statute's purposes.
4. Commingling. PECCA does not prescribe specific accounting requirements, but the prohibition still bites. An organization receiving PECCA dues has to either restrict its activities to non-political ones, set up separate accounts, or use itemized accounting to demonstrate the dues are not flowing into political activity.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

PECCA, codified at Tenn. Code Ann. §§ 49-5-601 to -609, defines "collaborative conferencing" as a formal exchange between board representatives and professional employee representatives on "matters relating to the terms and conditions of professional employee service, using the principles and techniques of interest-based collaborative problem-solving." § 49-5-602(2). If agreement is reached, the terms go into a binding memorandum of understanding. § 49-5-609(c).

Section 49-5-608(a) lists permissible topics for the MOU. Section 49-5-608(b) lists prohibited topics. Payroll deductions appear in both: permitted as a topic at (a)(7), prohibited at (b)(6) when the deduction is "for political activities." The legislative history (specifically the Senate floor exchange between Senators Kyle and Johnson on May 20, 2011) confirmed that the legislature intended to allow payroll deductions for union dues generally, but to bar deductions that would route money into political activity.

PECCA defines "political activity" non-exclusively at Tenn. Code Ann. § 49-5-602(7) to include:

(A) Lobbying (cross-reference to Tenn. Code Ann. § 3-6-301)
(B) Contributions to any entity engaged in any form of political communication
(C) Public opinion polling
(D) Political communications (including any mention of a political candidate)
(E) Political advertising
(F) Telephone communications for political purposes
(G) Distribution of political literature
(H) In-kind support to a political candidate

That definition then governs what falls within the (b)(6) ban.

The AG's answers mapped onto the questions like this:

Q1: Political communications. Direct hit. Section 49-5-602(7)(D) ("any form of political communication, including communications which mention the name of a political candidate") is part of "political activity," and dues collected through PECCA payroll deductions cannot be used for it.

Q2: Contributions to political-communication entities. Section 49-5-602(7)(B) prohibits contributions to entities engaged in political communications. The AG borrowed the dictionary definition of "contribution" from In re Estate of Tanner, 295 S.W.3d 610 (Tenn. 2009): "a gift or payment to a common fund or collection." A simple transfer of dues to a parent or affiliate that engages in political communications fits that definition and is therefore barred. But not every flow of money will be a "contribution" in the dictionary sense. Payments for actual services received at fair value, dues paid for ordinary membership in a nonpolitical industry organization, and similar transfers may not qualify. The opinion did not work through every variant.

Q3: Indirect support of political communications by third parties. The AG declined to draw a bright line. The statutory list is non-exclusive (per the text and per Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997), which directs courts confronting non-exclusive lists to look at the statute's policy and at the "characteristics consistent with the legislature's listed examples"). So an activity not on the (7)(A)-(H) list can still violate PECCA if it shares characteristics with listed activities or if barring it serves PECCA's purposes under § 49-5-601(b). For practitioners, this means the right question is not "is the recipient on the list?" but "does this transfer fund, in form or substance, political activity?"

Q4: Commingling. PECCA does not impose any segregation requirement on its face. But that does not mean commingling is safe. If an organization mixes PECCA dues with other funds and then spends on political activities, it has to be able to show that the dues did not pay for the political work. Separate accounts are one common way to do that; well-documented itemized accounting is another. The opinion left the choice of mechanism to the organization, with the caveat that the legal substance (no PECCA dues funding political activity) is what counts.

The opinion's scope is also narrow on a key point: it addressed only payroll deductions agreed to through collaborative conferencing and memorialized in an MOU. PECCA expressly does not modify the general powers of school boards outside that process. Tenn. Code Ann. § 49-5-604(a). A board that voluntarily deducts dues outside any MOU is not necessarily subject to the same constraints, though other statutes and constitutional concerns may apply.

Common questions

Q: I'm a Tennessee teacher. Can my association still take my dues out of my paycheck?
A: Yes, if the deduction is set up through collaborative conferencing and memorialized in an MOU. PECCA permits payroll deduction of dues; it just restricts what the dues can be spent on once collected.

Q: What if I want to donate to my association's political action fund?
A: PECCA bars payroll-deducted dues from funding political activity. It does not bar you from writing a separate check (outside payroll deduction) to a PAC affiliated with your association. The dollar source is what matters.

Q: My association is part of a national parent organization that engages in politics. Can my dues still flow upward?
A: It depends on whether the upward flow is a "contribution" (in the dictionary sense the AG used) to an entity that engages in political communications. If it is, it's barred. Associations have tried to address this with structural separation: a separate political account funded by voluntary contributions, with PECCA dues confined to non-political activities.

Q: Can the association use PECCA dues to pay for general legal counsel, professional development, or member services?
A: Yes. PECCA bans dues for political activity, not for legitimate association functions.

Q: Who enforces this?
A: The opinion did not address enforcement mechanisms. School boards that include payroll-deduction terms in an MOU have a contractual interest in ensuring the recipient organization uses the dues lawfully. Aggrieved teachers and members of the public have brought enforcement claims under similar statutes elsewhere, but the Tennessee enforcement landscape was not before the AG here.

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. §§ 49-5-601 to -609 (PECCA)
• Tenn. Code Ann. § 49-5-601(b) (purposes)
• Tenn. Code Ann. § 49-5-602(2), (7), (9)
• Tenn. Code Ann. § 49-5-604(a)
• Tenn. Code Ann. § 49-5-605(b)(1), (4)
• Tenn. Code Ann. § 49-5-608(a)(7), (b)(6)
• Tenn. Code Ann. § 49-5-609(c)
• Tenn. Code Ann. § 3-6-301 (lobbying)

Cases:

• In re Estate of Tanner, 295 S.W.3d 610 (Tenn. 2009)
• Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997)

Legislative history:

• Sen. Reg. Calendar, Discussion of Conf. Comm. R. on S.B. 113, Senate Session of May 20, 2011 (Kyle/Johnson exchange)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-022.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 8, 2016
Opinion No. 16-22
Tennessee Professional Educators Collaborative Conferencing Act of 2011

Question 1
Does the Tennessee Professional Educators Collaborative Conferencing Act of 2011
("PECCA") prohibit a public professional employees' organization from using member dues
collected through payroll deductions to engage in political communications (e.g., communications
that identify a specific candidate for state office and encourage the recipient to vote for or against
a candidate)?

Opinion 1
Yes, if the dues deduction was obtained through collaborative conferencing. If the payroll
deduction was made pursuant to a memorandum of understanding reached between professional
employees and the relevant board of education, the funds may not be used for political
communications.

Question 2
Does PECCA prohibit a public professional employees' organization from allocating or
transferring member dues collected through payroll deductions to organizations, such as parent or
affiliate associations, that engage in political communications?

Opinion 2
Yes, if the deduction was obtained through collaborative conferencing, and with some
exceptions. If the payroll deduction was made pursuant to a memorandum of understanding
reached between professional employees and the relevant board of education and if the allocation
or transfer is a "contribution" under PECCA, the transfer or allocation is an impermissible use of
funds.

Question 3
Does PECCA prohibit a public professional employees' organization from directing
member dues collected through payroll deductions to a third party that directly or indirectly
financially supports political communications?

Opinion 3
There is no categorical bar on directing dues obtained through PECCA payroll deductions
to third parties that merely support, but do not engage in, political communications. Many specific
situations that fall within this description may nevertheless be prohibited by the general ban on use
of PECCA payroll deductions in political activity, depending on the details of the individual case.

Question 4
Does PECCA prohibit a public professional employees' organization from commingling
member dues collected through payroll deductions with other funds that are used directly or
indirectly to support political activities?

Opinion 4
Although PECCA does not prescribe any particular requirements for separating funds
obtained via payroll deductions from other funds, individual employees' organizations must select
appropriate mechanisms for maintaining funds to ensure compliance with PECCA's ban on use of
payroll deductions for political activities.

ANALYSIS

1. The Professional Educators Collaborative Conferencing Act of 2011 ("PECCA"), Tenn.
   Code Ann. §§ 49-5-601 to -609, provides that professional employees of local boards of education
   may, voluntarily and with the support of a threshold percentage of their peers, initiate
   "collaborative conferencing" with representatives of that board. A professional employees'
   organization is "any organization with membership open to professional employees . . . in which
   the professional employees participate and that exists for the purpose of promoting the professional
   status and growth of educators and the welfare of students." Id. § 49-5-602(9).

Collaborative conferencing is a formal process by which representatives of the board and
representatives of the professional employees may "confer, consult and discuss and . . . exchange
information, opinions and proposals on matters relating to the terms and conditions of professional
employee service, using the principles and techniques of interest-based collaborative problem-
solving." Id. § 49-5-602(2). If representatives of the professional employees and representatives
of the board are able to reach an agreement on terms through collaborative conferencing, those
terms are then memorialized in a memorandum of understanding that, upon approval by the board
of education, is binding upon the parties.

PECCA limits the scope of collaborative conferencing to certain specified employment-related
topics, including "[p]ayroll deductions," and expressly provides that collaborative conferencing
shall not include any provisions permitting "[p]ayroll deductions for political activities." Id.
§ 49-5-608(a)(7), (b)(6). The threshold question is whether "payroll deductions" includes a
voluntary deduction of dues for membership in a professional employees' organization. "Payroll
deduction" is not defined or limited in the statute, and the term is broad enough to encompass
deductions for membership dues. Moreover, the legislative history supports the conclusion that
the term "payroll deduction" was intended to include voluntary deduction of dues for membership
in employees' professional organizations.

Accordingly, PECCA likely permits the voluntary deduction of dues for membership in a
professional employees' organization. But those deductions are not without restrictions. PECCA
forbids a local board of education and its professional employees from agreeing, through
collaborative conferencing, to a system of payroll deductions for the purpose of "[e]ngaging in or
paying for any form of political communication, including communications which mention the
name of a political candidate." Tenn. Code Ann. §§ 49-5-608(a)(7) & (b)(6), -602(7)(D).

Thus, a professional organization receiving funds pursuant to payroll deductions secured
through collaborative conferencing cannot use those funds to engage in political communications.

2. A PECCA memorandum of understanding may not provide for payroll deductions for
   the purpose of "[m]aking contributions to any entity which engages in any form of political
   communication, including communications which mention the name of a political candidate." Id.
   § 49-5-608(a)(7) & (b)(6), -602(7)(B). Accordingly, an allocation or transfer of member dues to
   an entity engaged in political communication is impermissible under a PECCA memorandum of
   understanding if that allocation or transfer is a "contribution."

PECCA does not define "contribution." When a statute does not define a term, courts may
look to the term's ordinary dictionary definition to assist in construing the statute. See In re Estate
of Tanner, 295 S.W.3d 610, 626 (Tenn. 2009). The ordinary dictionary definition of "contribution"
is "a gift or payment to a common fund or collection." New Oxford American Dictionary 378 (3rd
ed. 2010). Thus, a transfer or allocation of the dues is impermissible if it meets this definition and
the recipient is an entity engaged in political communication.

3. As explained in response to Questions 1 and 2, member dues, if deducted under a PECCA
   memorandum of understanding, may not be used to engage in or pay for political activity,
   including political communications, nor may they be used as contributions to an entity that engages
   in political activity. Tenn. Code Ann. § 49-5-608(a)(7) & (b)(6). "Political activity" under PECCA
   includes, but is not limited to:

(A) Lobbying as defined in [Tenn. Code Ann.] § 3-6-301;
(B) Making contributions to any entity which engages in any form of political
communication, including communications which mention the name of a political
candidate;
(C) Engaging in or paying for public opinion polling;
(D) Engaging in or paying for any form of political communication, including
communications which mention the name of a political candidate;
(E) Engaging in or paying for any type of political advertising in any medium;
(F) Telephone communication for any political purpose;
(G) Distributing political literature of any type; or
(H) Providing any type of in-kind help or support to or for a political candidate[.]

Tenn. Code Ann. § 49-5-602(7).

Because PECCA's list of political activities is expressly nonexclusive, the statute's silence
on an activity does not necessarily mean that the activity is a permissible use of deducted member
dues. When a statute provides a nonexclusive list of items it encompasses, courts will look to the
policy of the statute as a whole as well as the "characteristics consistent with the legislature's listed
examples" to determine whether an unenumerated item falls within the statute's scope. Bean v.
McWherter, 953 S.W.2d 197, 200 (1997).

It is beyond the scope of this Opinion to predict how courts will apply PECCA to every
activity that could be described as providing direct or indirect support to political communication.
But, generally speaking, if an activity falls within the express prohibitions of PECCA, it is barred.
If an activity is not on the list of expressly proscribed "political activity," it will likely nevertheless
be barred if the activity shares characteristics with the expressly barred activities or if barring the
activity would be consistent with and in furtherance of PECCA's purposes. See Tenn. Code Ann.
§ 49-5-601(b).

4. The fourth question is, generally, whether a professional employees' organization that
   receives dues through a payroll deduction secured via collaborative conference may commingle
   those dues with funds, obtained through some other means and used for purposes that would be an
   impermissible use of the dues under PECCA. PECCA makes no mention of "commingling," nor
   does it posit any particular accounting or asset management requirements for professional
   employees' organizations. Nevertheless, in order to comply with PECCA, an organization
   receiving payroll deductions under a memorandum of understanding must, by implication, either
   engage only in activities for which use of the dues would be permissible or take some other steps
   to ensure that dues are not spent improperly. Use of separate accounts, i.e., avoidance of
   "commingling," would be one way to achieve that objective. Nothing in the text of PECCA,
   however, appears to preclude other appropriate mechanisms for maintaining separation of and
   accounting for funds, such as through ordinary itemized accounting.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Tilman Goins
State Representative
207 War Memorial Building
Nashville, Tennessee 37243