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Sept. 14 — Police officers and other public workers in Arizona can be paid by cities for time spent doing union work, the Arizona Supreme Court ruled 3-2 ( Cheatham v. DiCiccio , Ariz., No. CV-15-0287-PR, 9/13/16 ).
The city of Phoenix and the Phoenix Law Enforcement Association, which represents about 2,500 officers, have had “release time” provisions in their collective bargaining agreements since 1977, Justice Scott Bales wrote. The provisions are “not unusual” in union agreements, and generally allow certain workers to be excused from their usual duties to do union work without having their pay docked, the court said. Release time is generally spent on activities related to labor-management negotiations, representing employees who might face discipline and serving on committees and task forces.
Two Arizona taxpayers sued the city challenging the release time provision. They were backed by the Goldwater Institute, a conservative and libertarian policy think tank. The group argued that the provisions violate the state constitution’s “gift clause,” which bans public entities from making donations or grants to private interests, but the high court disagreed.
“We didn’t see any issue other than [the Goldwater Institute] was just trying to attack labor organizations for that reason and that reason alone,” Marshall Pimental, president of American Federation of State, County and Municipal Employees Local 2384, told Bloomberg BNA Sept. 14. “This had nothing to do with any factual evidence that the police union was cheating or misusing taxpayer money.” Local 2384 represents city electricians, technicians, mechanics, security guards and other blue collar workers.
Representatives at the Goldwater Institute, and the Pacific Legal Foundation—which filed an amicus brief in the case—couldn’t be reached for comment by late Sept. 14. Justice Clint Bolick, who previously worked for the Goldwater Institute, recused himself from the case and was replaced.
Government expenditures survive a gift clause challenge if they serve a public purpose and the government gets something in return that isn’t “grossly disproportionate,” Bales wrote. Additionally, Arizona courts are required to “adopt a ‘panoptic view,’” or a consideration of the whole CBA, when making that determination, the high court explained.
When the collective bargaining agreement is viewed in its entirety, the provision is lawful because it furthers the purpose of obtaining police services for the city, the majority justices ruled.
Additionally, the release time payments are part of the overall $660 million Phoenix budgeted for compensation to the 2,500 officers, and city officials testified that the amount would have been reallocated if a release time provision hadn’t been agreed on. Viewed in the context of the agreement overall, the $1.7 million for release time payments “is not ‘grossly disproportionate’” to the value of what the union and officers agreed to provide in return, the court held.
Justices Ann Timmer and Robert Brutinel argued that the release time provision by itself serves no public purpose, and is essentially a gift because the city has no control over how the union directs officers on release time.
The Pima County, Ariz., attorney’s office also filed an amicus brief in the case, Deputy County Attorney Regina Nassen told Bloomberg BNA Sept. 14. Pima County is currently defending against a lawsuit brought by the Goldwater Institute challenging a transaction it made with a private company, Nassen said.
Nassen said Pima County doesn’t have a position on the release time provision, or the policy involved in the case in general, but intervened because the Goldwater Institute’s lawsuits have caused confusion for local lawmakers.
The high court had established the gift clause standard in 2010—public-private transactions must have a public purpose and must not have grossly disporportionate consideration on either side—but the Goldwater lawsuit called that into question, Nassen said.
“The city council in the PLEA case was entering into an agreement with the union and probably felt like it wasn’t doing anything terribly unusual when it agreed to the clause,” Nassen said. “But the lawsuit creates uncertainty among elected officials as to what’s allowed or not allowed under the gift clause.”
“We filed our brief, essentially, to defend the scope of discretion of the Phoenix City Council,” Nassen told Bloomberg BNA. “Government officials are trying to do economic development deals, and they can’t face this constant specter of being second-guessed on policy decisions by the judiciary.”
“I don’t know the individuals who partnered with Goldwater, but we know of the organization, and they’re very biased against any labor organization,” Pimental told Bloomberg BNA.
“In the end, there’s nothing inappropriate going on, our unions here are very transparent, and we provide a function no different than our counterparts in HR,” Pimental said. “Our business is the city of Phoenix, and we’re taxpayers just like any other taxpayer. It’s disheartening to be attacked because we have a vested interest in our community, as members and employees.”
The city attorney’s office and Sherman & Howard, L.L.C., in Phoenix represented the city.
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