Full-Time Release Under Fire

“The Goldwater Institute is claiming a victory, but if you read the decision, they did not win the case or accomplish their objective which was to have the court rule release time as unconstitutional.” – Ken Crane, Incoming President, Phoenix Law Enforcement Association

There is a well-funded national effort to have the courts rule that paying officers who work full time for the union by the state, city, or county is unconstitutional. Phoenix has been dealing with the issue for years.

by Cynthia Brown
Site Administrator
PubSecAlliance

The Phoenix Law Enforcement Association (PLEA) has been engaged in a four year battle in the courts to retain their right to have officers who work full time for the union paid by the city.

The trouble started back in 2011 when the Goldwater Institute, a conservative think tank, filed a lawsuit claiming that release time is a violation of the state Constitution’s Gift Clause, which requires that the public benefits from any public money the government spends. The lawsuit was just one component of a broader effort to dismantle public employee unions in the state and beyond. But the latest battle fought in the Arizona Court of Appeals, turned out to be a victory of sorts.

“A week ago the Arizona Court of Appeals refused to declare release time unconstitutional,” noted Ken Crane, the new president of PLEA. “The Goldwater Institute, which filed the original lawsuit back in 2011 and has funded all the subsequent legal action against us, is claiming a victory, but if you read the decision, they did not win the case or accomplish their objective which was to have the court rule release time as unconstitutional.”

Crane noted that this is one of those cases where neither side achieved a decisive victory.

“We believe we came out better than they did but they are acting like they had a total victory,” Crane explained. “The only explanation is that they are pandering to their donors who are likely to send them more money if they win these lawsuits.”

Here are the facts: On Tuesday August 11, 2015, Division 1 of the Arizona State Court of Appeals issued its decision in the case of the Goldwater Institute’s lawsuit against PLEA and the City of Phoenix with regard to the Phoenix Law Enforcement Association’s full-time release positions.

The decision rendered by the court was bifurcated in that neither side can claim a complete victory. This will be readily apparent to anyone reading the court’s ruling, despite Goldwater’s claim that full time release has been ruled unconstitutional.

This is blatantly false. Paragraph 25 on page 12 of the court’s opinion states the following: “(‘To the extent possible, [the court avoids] deciding constitutional issues if the case can be resolved on non-constitutional grounds.’) We leave the constitutionality of such an MOU or other release time agreement for another day.”

The court limited its ruling to the full time release provisions in the 2012-2014 contract. The court also said that the obligations for PLEA were inadequately spelled out and went on to say that release time is allowable for purposes of adequate consideration in exchange for the release time if obligations are included in the contract.

In other words, contrary to granting Goldwater’s wishes to have release time ruled unconstitutional, the court essentially stated release time is permissible as long as there are very clear parameters in place outlining the Association’s obligations in exchange for said release time.

“The court even recognized that PLEA performed services with the use of release time,” Crane said, “but still, and here is an example of form over substance, the court required that what the city gets for release time be put in writing. Then the court stopped, refusing to decide that release time violated the gift clause because it served no public purpose. If the court had decided that there was no public purpose to release time, game over and Goldwater wins. The court dodged the ultimate issue as to whether release time, once the obligations were spelled out, served a public purpose and therefore did not violate the gift clause, thereby constitutional.”

Attorney Michael Napier represented PLEA in the lawsuit. Here’s what he had to say about the decision:

” What this court decided is that the Release time arrangement violated the gift clause on the basis of insufficient consideration, requiring that the contract set out the obligations to be performed in exchange for the release.

“The court even recognized that PLEA performed services with the use of release time, but still, and here is an example of form over substance, the court required that what the city gets for release time be put in writing, like Wistuber. Then the court stopped, refusing to decide, as No doubt to Goldwater’s dismay, that release time violated the gift clause because it served no public purpose.

“If the court had decided that there was no public purpose to release time, game over and Goldwater wins. We can fix the consideration deficiency-easily. There would be no fix to losing on the public purpose prong.

“In hindsight, Goldwater should have confined their argument to public purpose, forcing a ruling with finality. They didn’t, so if they really want to get rid of release time and we apply the consideration fix, rather than a total remodel, they have to begin again.

“For us, yes, we could have fixed the 2012-2014 MOU, but the city failed to cooperate by refusing include meeting and conferring, the core of the ordinance, as an obligation and thereby a release time activity. In sum, the court, while observing that it would not decide the constitutionality of an activity if the matter can be decided on a non constitutional basis, actually decided that the MOU did violate the gift clause-a constitutional issue.

“The court simply dodged the ultimate issue, still out there, as to whether release time, once the obligations were spelled out, served a public purpose and therefore did not violate the gift clause, thereby constitutional.”

CLICK HERE to view a copy of the Appeals court decision. http://azplea.com/wp-content/uploads/2015/08/1-CA-CV-13-0364.pdf

CLICK HERE to read about the original lawsuit filed by the Goldwater Institute against the Phoenix Law Enforcement Association back in 2011.

The Phoenix Law Enforcement Association is an official member of PubSecAlliance.