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4/26/2013 10:28:00 AM
Judge rules cops cannot work on union pursuits during work hours

Howard Fischer
Capitol Media Services

PHOENIX -- Contracts that allow public employees to work on union activities on the taxpayer's dime are illegal, a Maricopa County Superior Court judge has ruled.

Judge Katherine Cooper has barred Phoenix from paying the salaries of members of the Phoenix Law Enforcement Association who are not doing work for the city. In her 11-page ruling filed with the court clerk on Tuesday, Cooper said the provision, part of a contract between PLEA and the city, violates a constitutional provision forbidding the use of public funds for gifts.

Cooper acknowledged that the overall contract does serve some public purpose. But she said the release time provision does not.

"It diverts resources away from the mission of the Phoenix Police Department, which is the safety of the community,' she wrote. "It applies those resources to the interests of a single group of city employees.'

And Cooper said blocking the release time "will see the return of six officers to law enforcement that it desperately needs.'

Cooper's ruling sets no legal precedent beyond this specific case. But her extensive analysis suggests that similar arrangements in other cities would meet a similar fate if challenged.

Attorney Clint Bolick of the Goldwater Institute, which brought the lawsuit, said there was testimony during the trial that most other cities have some similar provisions, and not only for police unions.

He said all of those contracts are not necessarily illegal. For example, Bolick said, cities are entitled to provide time off for union representatives who are engaged in training.

"What's missing in this contract is any contractual obligation to perform services for the city,' Bolick said. "It's literally union time.'

Bolick said future lawsuits are up in the air.

"We have been looking to a legislative solution to this,' he said, citing repeated measures to specifically outlaw release time provisions in contracts. So far, though, most lawmakers are unwilling to go along.

The problem, he said, is political.

"We are told that police unions are Republican unions,' he said, with many GOP lawmakers loath to poke their fingers in the eyes of groups that have provided financial support for their elections. "We think that's a bad basis to make public policy.'

An aide to Phoenix Mayor Greg Stanton said he had not been briefed on the ruling and would not comment.

Central to the debate is the gift clause. Cooper said that requires two thirds when public funds are spent.

First, the funds must have a public purpose. Second, there has to be "adequacy of consideration,' meaning that the public has to get something equivalent in return.

In this case, the judge said, the PLEA officers being paid by the city are meeting the obligations of the union's membership. That includes representing them in disciplinary and grievance proceedings, advocating for better pay and benefits and lobbying for favorable legislation.

The contract includes release time totaling $852,000 a year.

Cooper also said it is PLEA and not the city who decides who uses release time and for what, with the city not even tracking it other than the number of hours used.

And she said it has been used for "foster an adversarial relationship with the city,' with union leadership using release time "to openly and publicly criticize the chief of police' and "to lobby in favor of legislation the city opposed.'

"Such conduct undermines any public purpose that might be served,' Cooper wrote.

She also dismissed the arguments by both PLEA and the city that the release-time provision promotes labor peace, improved communications and cooperative union employees. Cooper said, though, there is no mechanism to determine the value to taxpayers of the provision.

Cooper also said if union members want their officers working on union business, they can fund it themselves. She said the cost would amount to just $322 per year per member.

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