Ruling: Cities can pay public employees for doing union business

PHOENIX — The Arizona Supreme Court ruled Tuesday that cities can pay public employees to work on union business.

In a decision with statewide implications, the justices, in a 3-2 ruling, rejected claims by the Goldwater Institute that such deals between governments and unions amounts to an unconstitutional gift of public funds. Justice Scott Bales, writing for the majority, said the deal between the city of Phoenix and the Phoenix Law Enforcement Association benefits both the city and the taxpayers who are footing the bill.

That logic drew a stinging dissent from Justice Ann Scott Timmer.

“No public purpose is served by diverting officers from safeguarding the public to work almost unchecked for PLEA,” she wrote for herself and Justice Robert Brutinel. “The city has no control over how PLEA directs the officers on release time and is not even told what the officers do for PLEA.”

Tuesday’s ruling will have implications beyond Phoenix.

The Goldwater Institute says that in 2011, when it first objected, it found similar contracts in Tucson, Tempe, Mesa, Chandler and Glendale. The high court decision not only ratifies existing contracts but clears the way for new ones in cities that don’t now have them.

This case involves provisions that have been in contracts between Phoenix and the police union since 1977 allowing a certain number of hours of paid release time when officers are excused from their usual duties while they perform activities for PLEA and conduct union business.

After the Goldwater Institute sued, both a trial judge and the state Court of Appeals declared the provision illegal.

Bales acknowledged the Gift Clause of the Arizona Constitution bars cities and other public entities from making any “donation or grant, by subsidy or otherwise, to any individual, association, or corporation.” He said it is designed to keep public entities from getting involved in non-public enterprises and “protecting public funds against use for the purely private or personal interest of any individual.”

But Bales said he finds there is a public purpose in the agreement, formally known as a memorandum of understanding.

“It procures police services for the city,” he wrote. And Bales noted that it gives the city a single entity to deal with all officers, as PLEA is required to represent all police officers in all matters, whether or not they are union members.

“Moreover, the city benefits from more efficient negotiations because it collectively negotiates with PLEA, rather than with individual employees,” Bales wrote.

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Beyond that, Bales rejected arguments that what the city is spending in paid time off is far beyond any benefit to the city.

He said the memorandum of understanding at issue — representing one unit of the police department — costs the city $660 million. And Bales said no one is questioning whether that amount is unfair.

“Viewed in the context of the MOU overall, the $1.7 million in release time payments is not grossly disproportionate to the value of what PLEA and the Unit 4 officers have agreed to provide in return.”

Timmer, in her dissent, said the flaw in all that is there is no evidence that Phoenix would be unable to employ police officers if there were not a release-time provision in the contract. Bales brushed that aside.

“The same could be said about various forms of benefits ranging from vacation time to life insurance,” he wrote. And Bales said the agreement has to be examined in totality, not just one specific expenditure.

The chief justice also found fault with Timmer’s contention that having police officers doing union work means less time protecting the public.

“Had the release time provision been omitted, the officers might have received other benefits under the compensation package, such as personal time or paid vacation time,” Bales wrote.

But Timmer said that’s not necessarily true. She said if the city were not paying for officers to work on union business those dollars could be diverted for other important police services. And Timmer said even if the money for release time would otherwise have been paid to officers, that does not necessarily mean that the release time serves a public purpose as “compensation.”

“Following the majority’s logic, the city could compensate officers by giving money to a private business to establish a coffee house near a police station for the officers’ enjoyment,” she wrote.

While Tuesday’s ruling ends the debate about whether the Gift Clause applies, it may not put the issue to bed.

Bales acknowledged that there may still be a separate claim to be brought under the state’s Right to Work constitutional provisions which specifies that employees who decline to join unions cannot be denied the same rights as those who do.