BY LINDA BENTLEY | JUNE 13, 2012
Taxpayers prevail as court issues blow to PLEA
However, in issuing that injunction, Cooper noted it covered only the 2010-2012 MOU, which expires June 30, 2012
PHOENIX – Last week, Maricopa County Superior Court Judge Katherine Cooper granted a preliminary injunction, enjoining certain sections of Memorandum of Understanding (MOU) between city of Phoenix and the Phoenix Law Enforcement Association (PLEA) as it pertains to the union’s “release time” provisions.
In December 2011, Attorney Clint Bolick (r) of the Goldwater Institute filed a complaint on behalf of William Cheatham and Marcus Huey, as taxpaying citizens of the city of Phoenix, against the Phoenix mayor and council, city manager, city of Phoenix and PLEA.
The lawsuit was brought after the Goldwater Institute issued a report titled “Money for Nothing: Phoenix taxpayers foot the bill for union work,” which revealed the city had executed contracts with seven labor unions containing illegal subsidies.
Bolick noted the worst of the subsidies was in the MOU between the city of Phoenix and PLEA, which committed paying approximately $1.5 million for police officers to depart from their official duties to perform work on behalf of the union, while receiving full pay and benefits from the city.
According to Bolick, because the city receives little in return from PLEA, this financial grant represented a clear violation of the Arizona Constitution’s gift clause.
Cheatham and Huey sought to enforce the state Constitution’s guarantees that limit the exercise of government power to truly public purposes and prevent unjust enrichment of favored interests at the expense of the taxpaying public.
According to the complaint, the city of Phoenix bestows lopsided benefits on PLEA under the MOU, which it says constitutes an unconstitutional subsidy under the gift clause.
Under the MOU, PLEA is authorized to designate six Phoenix police officers to work full-time for PLEA, while receiving full-time pay and benefits paid by the city of Phoenix and while granted a leave of absence by the chief of police from their ordinary duties as police officers.
Each full-time position receives 4,160 paid release time hours and 320 hours of overtime release hours paid at 1.5 times their regular base pay.
In her ruling, Cooper noted the MOU does not obligate PLEA to provide any services to the city in exchange for the compensation and benefits the city gives to PLEA for release time.
She also pointed out the MOU states release time is for “legitimate Association purposes,” although the MOU does not define what constitutes “legitimate Association purposes.”
Cooper, citing the relevant part of the Arizona Constitution’s gift clause, wrote, “Neither the state, nor any … municipality … shall ever … make any donation or grant, by subsidy or otherwise, to any individual, association or corporation …” and stated the $1 million allocated by the city toward release time was in fact a “donation or grant, by subsidy or otherwise, to … an association” as contemplated by the gift clause.
She stated the city does not oversee the expenditure, other than to track the total number of hours drawn from the hours bank of release time, and no description is required as to how officers use release time.
And because no public ownership or control exists over the benefits allocated to PLEA for release time, Cooper said it is a subsidy subject to the gift clause analysis.
Cooper stated the balance of harms favored an injunction. However, in issuing that injunction, Cooper noted it covered only the 2010-2012 MOU, which expires June 30, 2012, and the 2012-2014 MOU was not before the court at this time.
Bolick stated he would be filing additional briefs to extend the preliminary injunction to the 2012-2014 MOU.
While the ruling is dated June 5, it was not released by the court until June 6, the day after Wisconsin Governor Scott Walker’s recall election victory, which dealt a blow to Wisconsin’s public sector unions.