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					                                                                   '',IICHAELJEANES
                                                                             K.
                                                             [ierlt of the Superior  Eourt
                                                                   Sv  CarrieAllen,
                                                                                  Deruiy
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[c! g{-_Norton Center_Lo1Constitutional Litigation at the
GOLDWATER INSTITUTE
ClintBolick(021684)
TaylorEarl(028179)'
Taylor   Earl(028179)'
 r aylor Earl (u2Et 79)
500E. Coroirado Phoenix 85004
500 E. CoronadoRd,.Rd..  ix. AZ
(602) 462-5000 l itieati
\l --/           :
Attorneys Plaint
          for

                       IN THE SUPERIOR COURT OF ARIZONA
                      IN AND FOR THE COUNTY OF MARICOPA
WILLIAM R. CHEATHAM: andMARCUS HUEY.                                     1.0?1634
                                                                  cv::Lj'i
             Plaintiffs.                                    CaseNo.

      vs.

PHIL GORDON, in his official capacityasMayor of             COMPLAINT for Declaratory
the City of Phoenix;THELDA WILLIAMS, in her                 and Injunctive Relief
official capacity memberof the phoenixCity
                  as
Counciland Vice Mayor; JIM WARING, in his                   and
official capacityas memberof the phoenixCiry
Council; BILL GATES, in his official capacityas             APPLICATION FOR
rnember the PhoenixCity Council;TOM
          of                                                ORDER TO SHOW CAUSE
SIMPLOT, in his official capacityas memberof the
PhoenixCity Council;CLAUDE MATTOX, in his
offrcial capacityas memberof the phoenixCity
Council;SAL DICICCIO,in his official capaciry  as
memberof the PhoenixCity Council;MICHAEL
NOWAKOWSKI, in his official capacityas member
of the PhoenixCity Council;MICHAEL JOHNSON,
in his official capacityas mernber the phoenixCiry
                                 of
Council;and DAVID CAVAZOS, in his official
capacityas City Managerof the City of phoenix;
CITY OF PHOENIX; andPHOENIX LAW
ENFORCEMENTASSOCIATION.

             Defendants.
                                      INTRODUCTION

    l.                    2011,the GoldwaterInstituteissueda reportentitled,,Moneyfor
               In September

Nothing:Phoenixtaxpayers
                       foot the bill for union work." The reportrevealed the City of
                                                                       that
Phoenixhadexecuted
                 contracts
                         with sevenpublic laborunionscontainingillegal subsidies.

Thosesubsidies
             wereat their worst in the Cicy'scontractwith the PhoenixLaw Enforcement

Association
          ("PLEA").

   2.         Underthe Memorandum Understanding
                                 of           between City andpLEA, phoenix
                                                     the
is committed,
            amongotherthings,to pay approximately million dollarsfor phoenixpolice
                                                1.5

officersto leavetheir official police dutiesto work on behalfof the union,while still
                                                                                      receiving
full pay andbenefits.Because City receives
                           the           very little from PLEA in return,this grantto

PLEA represents clearviolation of the Arizona Constitution.
              a                                           Plaintiffs in this caseseekto
enforcetheArizona Constitution'sguarantees limit the exercise govemment
                                         that                of       power to
truly publicpu{poses that preventunjustenrichment favoredinterests the detriment
                   and                          of               to            of
the taxpaying
            public

                        PARTTES.JURISDICTION. AND VEI\ruE

  .3.         Plaintiff William R. Cheatham a citizenof the United Statesandaresident
                                           is                                       of
the City of Phoenixin the stateof Arizona. PlaintiffCheathampayspropertytax     andsalestax
in Phoenix.

   4.         Plaintiff MarcusHuey is a citizenof the United States a resident the Cirv of
                                                                  and        of
  Phoenixin the stateof Arizona. Plaintiff Huey paysproperty
                                                            tax and   salestax in phoenix.
     5'         DefendantPhil Gordonis the Mayor of the city of phoenix.and
                                                                           its chief executive
  officer. He is suedin his official capacityonly.

     6'         DefendantTheldaWilliams is a memberof the PhoenixCity
                                                                      Council,which is rhe
 legislativebody for the City of Phoenix,and serves its
                                                   as vice Mayor. Sheis suedin her
 official capacityonly.

     7'         DefendantJim waring is a memberof the PhoenixCity Council,
                                                                          and is suedin his
 official capacityonly.

     8'         DefendantBill Gatesis a memberof the PhoenixCity Council,and
                                                                             is suedin his
 official capacity
                 only.

    I'         DefendantTom Simplot is a memberof the PhoenixCity Council,and
                                                                              is     suedin
his official capaciryonly.

    l0'        DefendantClaudeMattox is a memberof the PhoenixCity Council.
                                                                           and is suedin
his official capacityonly.

    Il'        DefendantSal DiCiccio is a memberof the PhoenixCity Council,
                                                                           and is   suedin
his official capacityonly.

    12'        Defendant
                       Michael Nowakowskiis a memberof the phoenixcity Council,
                                                                               and is
suedin his official capacityonly.

    13'       Defendant
                      MichaelJohnson a member thePhoenix
                                   is       of          City council, andis sued
in his official capacity only.
     14'         Defendant
                         David cavazosis city Managerfor the city of phoenix,
                                                                             and is
 authorized rernitpayments
          to              undercertaincontracts behalf
                                              on                of the City of phoenix. He is
 suedin his official capacityonly.

    15'         Defendant
                        city of Phoenixis a municipalcorporationorganized
                                                                        underthe         laws of
 the Stateof Arizona,

    16'         Defendant
                        PhoenixLaw Enforcement
                                             Associationis a labor union that represents
 Phoenixpolice officers below the rank of Sergeant.

    17'         Jurisdictionover this actionand its claimsand application
                                                                         for orderto show   cause
 is provided A.R.S.$$ l2-123,12-1g31,
           by                       and         l2-l g0r, andAriz. R. civ. p. 6(d).
    18.        Venueis properpursuant A.R.S. 12-401.
                                    to      $



    19'        The PhoenixLaw Enforcement
                                        Association("PLEA")         is a public laborunion with
completeorganizational
                     independence
                                from the City of phoenix,includingits own boardof
trustees,
        staff, and missionstatement.

   20,         PLEA hasthe exclusiveright to serveasthe "meet and
                                                                    confer,,representative
                                                                                         of
all "unit members,"
                  which consistof all Phoenixpolice officers below the rank
                                                                            of sergeant,
includingassignments.
                   (MOU g l-3.A)

   2t.         on March l7th, 2010,Defendant
                                           David Cavazos,
                                                        City Managerfor the City of
           Lori Steward,
                       Labor RelationsAdministratorfor the City of phoenix;and    Mark
Spencer,thenPresident PLEA, executed
                    of                        entitled..Memorandum
                                   an agreement                                 of
                                              -4-
  understanding"
               ("Mou") between city of phoenixandpLEA.
                              the

     22'        Underthe Mou, the city of Phoenixbestowslopsidedbenefitson pLEA. which
 constitute unconstitutionar
          an               subsidyunderthe gift crause.

     23'        While someof thosebenefitsare described
                                                      hereafter,
                                                               othersareunknownto
 Plaintiffsat this time and will be uncovered
                                            during factualdiscovery.
    24'         The city of Phoenixfinancesthe benefitsto PLEA under the
                                                                         Mou throueh citv
 tax revenue.

    25'         Plaintiffs Cheathamand Huey pay properrytax and salestax   in the ciry of
 Phoenix' Because
                their taxesfinancethe City's Mou      with pLEA, they are directly harmedby
 the City's grant of illegal subsidies pLEA in the MOU.
                                     ro

                                     Release Time Hours
    26'         Underthe MoU, the City of PhoenixgrantsPLEA tensof
                                                                   thousands .,release
                                                                           of
time hours."

   27'         Release
                     time hourspermit PLEA to release
                                                    Phoenixpolice officersfrom        their
official dutiesto perform union dutieswhile still receiving
                                                           full pay, benefits,and insurance
coveragefrom the City.

   28'         In total, the City grantsPLEA 31,556quantifiedrelease
                                                                   rime    hours.
   29'         The city alsograntsa substantial
                                              amountof additionalrelease
                                                                       time      hoursthat are
circumstantialand thus they cannotbe quantified without
                                                        further investigation.
   30'       The breakdown thesehoursunderthe MoU is described
                          of                                 hereafter.
                                      Full-Time Positions
    3l '      PLEA is authorized designate Phoenixpolice officers
                                to       six                     to work on a full-time
 basis behalfofpLEA. (MOU g 1.3-c.l)
      on

    32.       The six officersaregranted leaveof absence the chief
                                        a              by                of police from their
 ordinarypoliceofficer duties. (MOU
                                      $ 1.3-G.2)
    33'      While working on behalfof PLEA, the six officersshall continue
                                                                           to receivefull
 pay and benefitsfrom the city as if theyrverecontinuingto performtheir standard
                                                                               policeduties.
     gg
 (MOU 1.3_c.1,
            c.5)
    34'      Eachfull-tirne positionreceives4J6apaid release
                                                           time hours(40      hoursper week
 for the two yearsof the MOU). (MOU 1.3_e)
                                   $
    35'      Eachpositionalsoreceives hoursof overtimerelease
                                    320                     time          hours,for which
they arepaid 1.5timestheir ordinarybasepay. (MOU       $ I 3_e)
   36'       In total,the City grantsPLEA 26,880hoursof release
                                                              time     hoursfor thesesix
employees,
        1,920 which arepaid at an overtime scale.
             of                          pay



   37       'LEA rnay desig
                          ,^,"":::r-;:::::::,o              sen e aspart_rime
                                                                            union
representatives.
              (MOU $ 1.3_B.l)

   38'      In the eventthe city creates
                                       new bureaus precincts,
                                                 and        PLEA may alsodesignate
up to oneadditionalrepresentative bureau
                                per     and       up to threeadditionalrepresentatives
                                                                                    per
precinct.(MOU $ t.3-8.3)

                                            -6-
     39'      PLEA representatives
                                 continueto engage ordinarypolice dutiesbut
                                                 in                         are
  authorized PLEA to interruptthose
            by                       dutiesro engage union work. (Mou
                                                    in                    $$ 1.3-6,.2,
                                                                                     M)
     40.      Two or threeof the 35 PLEA representatives
                                                       are authorized useas many release
                                                                     to
 tirne hoursasnecessary represent
                       to          unit members any and all ,,grievance
                                                at                      meetings,use of
 ForceBoards,DisciplinaryReviewBoards,
                                          IRP Meetings,andhearingwith department
 representatives hearings
               and         scheduled conducted the civil service
                                     and           by                 Board.,, (Mou $
 1.3-B.2)

    41'      Eachof the 35 PLEA representatives use
                                              may         six hoursof paid release
                                                                                 time to
 becomefamiliar with the termsof the successor
                                             Memorandum understanding a total of
                                                       of            for
 210 release
           time hours. (MOU g 1.3_M)

                               Bank of ReleaseTime Hoars
   42.       In additionto the hoursspecifiedabove,PLEA
                                                          receivesa.,bank,,of 3,166hours
ofpaidreleasetimehourstoassignanymembertoperformunion
                                                              duties.(Mou $ 1.3-I.l)
   43.       PLEA is grantedbroaddiscretionin assigning
                                                         thesehours. (Mou $ 1.3-I)
   44.      Bank release  time ho'rs may be usedfor any unionpurpose
                                                                     so long as it is
dete'ninedto be a..legitimate
                             I'LEA] purpose[].,,(MOU $ 1.3_I.l.b)

                           Other euantified Release Time Hours

   45.      PLEA may release police officer for 1,000hours
                           a                              to perform union dutiesas a
union lobbyist. (MOU
                       $ 1.3_L6)
   46'      The MoU allowsPLEA a total of 300 release
                                                    time hoursfor its members
                                                                            to      attend
 PLEA seminars,
              lectures,
                      and conventions.
                                     (MOU          $ 1.3-K)
       47'    PLEA may designate unionmembers useup to
                               six          to                    l44release
                                                                           time hoursto sit
 on a labor-management
                    commitree attendits quarterlymeetings.(Mou
                             and
                                                               $$ 2.2)
                          Other Unquantitied ReleaseTime Hoars

       48'    PLEA is permittedonehour of release
                                                time per new police   officer to attemptto
 enrollthe officersinto the union. (MOU g 1.3_L)

       49'    The MoU grantsPLEA the authorityto appointrwo additional
                                                                     police officersro
 servein "stand-by"positions. Thesestand-by
                                          offrcersrespond ,,criticalincidents,,on ..call-
                                                         to                      a
out" basis,
          receivingovertimerelease
                                 time pay. (Mou       $$ r.3-R; 3-2.c;3-zB)

                                  Other Benetits to pLEA
   50'       PLEA is not requiredto account its useof release
                                          for               time    hoursnor is the Citv of
Phoenixgrantedpermission auditpLEA's useof the hours.
                        to

   51'       PLEA may designate
                              representatives performunion
                                           to                    work during City work
hourson a non-paid
                 basis. (MOU $$ 1.3.H,
                                     L5)
   52'       The City must makea "concerted
                                          effort" to release
                                                           officerson shortnoticefrom
regularpolicedutiesto attendinterviews/interrogations
                                                   as union   representatives.
                                                                            (MOU $ t.4-
B.l)                                                                 '

  53'        The city may not unreasonably
                                        wifhhold permissionfrom pLEA     representatives
                                                                                       to
enterwork areas purposes investigating
               for     of            formal grievances
                                                     from its members,(MoU $
r.3.8.2)

                                          -8-
      54.      The city agrees furnishPLEA on a bi-monthly
                             to                            basis,and     at no cost,a list of all
   unit members'names, mailingaddresses,
                                       phonenumbers, assignrnents.
                                                       and               (Mou $ 1.3.B.3)
      55.     The city agrees provide,at no cost,..pertinent
                             to                            colrectivebargaining
  information"and informationregardingspecific
                                              grievances,arbitrationsand civil service
  appeals,(MOU g 1.3.8.2)

     56'      The city agrees
                            that on a monthly basisit wil deductunion dues
                                                                          from the pay of
 its employees behalfof pLEA. (MOU g
             on                      1.3.D)
     57.      The city grants authorityto PLEA to useinter-office
                                                                  mail boxes,bulletin boards.
 andnon-work
           areas city facilities distribute
               in              to         unionmaterials.
                                                        (Mou            $$ 1.3.E,
                                                                                F)
                         Finoncial Volue of euantrlied ReleoseTime

    58.       The following financial estimates provided
                                              are       upon informationand belief.
    59.      The approximate
                           financialvalueof the averagesalaryand benefitspackagefor
 Phoenixpolice officers eligibleto userelease
                                            time   hoursis at least$100"000 year.
                                                                          per
    60.      Full-timehoursfor phoenix
                                     policeofficers 20g0peryear. (Mou
                                                  are                            $ 1.3-e)
   61.       Accordingly, approximate financial
                        the         total     valueof the31,556
                                                              quantified
                                                                       release
time hoursspecified theMou is at least
                  in                 $1,500,000.
   62.         The grantof unquantifiedreleasetirneshoursunderthe Mou hasresulted
                                                                                 in or
will resultin approximatery 4,16e hoursof total release
                                                      time.
   63.      Theretbre, total financialvalue of the unquantified
                     the                                       release
                                                                     time hoursin the
MOU is approximately
                   $200,000.
      64'    upon inforrnation and belief, the total
                                                     financial value of the additional benefits
   granted pLEA in the MOU is
         to                   approximately    g100,000.
      65'       Therefore, approximate
                         the         combinedtotal financialvalueof the benefitsgranted
  to PLEA by the City of phoenix
                                underthe MOU is $1,g00,000.

                                         Additional MO{I Notes
     66.        The Mou doesnot imposesubstantial tangibre
                                                    or                   uponpLEA in
                                                               obrigations
  exchange the tremendous
            for               benefitsprovidedby the city. Indeed, city,s
                                                                  the      residents
                                                                                   suffer
  from the diversionof scarceporiceresources union activities.
                                            to
     67'       The MoU remains"in full force and effect
                                                        . . . up to the beginningof   the first
 regularpay period commencingin July      2012,andthereafter
                                                           shallcontinuein effectyear-by-year
 unless
      one of the partiesnotifiesthe otherin
                                              writing no laterthan NovemberI of its request
                                                                                          to
meetandconferregardinga new Memorandum.,,
                                                (MOU $ 6-6.,{)
   68.      The practice of providing rereasetime to unions is widespread contracts
                                                                         in
between  municipalgovemments unionsand is present
                               and                      in all sevencontracts
                                                                            between the
City of Phoenixand employee  unionsin the City.
    69'       Because the limited durationof the Mou
                     of                              andthe commonpracticeof release
time,the situationpresented
                          hereis capabre repetitionyet evadingreview.
                                       of

                                    Count One-Gift Clause
   70'       As Phoenixtaxpayers,
                                Plaintiffsareresponsible payingand/or
                                                       for           remittingsales,
property'and other taxes,and will
                                    beara shareof the burdenfor replenishing
                                                                            the   coffers of the
                                              -10-
   city of Phoenixfor revenues
                             lost from        the benefitsgrantedto pLEA pursuant the Mou.
                                                                                to
      7l '       Article 9, $ 7 of the Anzonaconstitution
                                                         providesthat neitherthe statenor
                                                                                          any
   city "shall evergive or loan its credit
                                             in the aid of, or makeany donationor grant,
                                                                                        by subsidyor
  otherwise, any individuat,association
           to                         or corporation. , .,,
                                                    .
      72'      A paymentby the state or a subdivision
                                                     is properunderthe gift clauseonly if ..(l)
  the agreementserves public purposeand(2) thereis neither
                      a
                                                            donationnar subsidyto a private
  association."Vfistuber paradise
                        v,        Valley(.tnifiedSch. Dist., I4I Ari2.346,34g, 6g7 p.2d 354,
  3s6(1984).

     73'        A "subsidy" is "a grant of fundsor property
                                                           from a government, a private
                                                                            to
 personor conpany to assistin
                              the establishment supportof an enterprise
                                              or                      deemed
 advantageous the public." state
            to                   Tax comm'n v. Miami copper co., 74
                                                                    Ariz. 234, 241, 246
 P.2d871,s76(tgs2).

    74'        cities must receivedirectpublic benefits
                                                       of roughly proportionate
                                                                              value in
exchange their expenditure
       for               ofpublic fundson goodsand services.
                                                            Indeed, Arizona
                                                                  the
Supreme
      court hasreiteratedthat indirectpublic              benefits not satiss the Gift clause.
                                                                  do                           Turken
v. Gordon,
         223 Ariz. 342,224p.3d        I 5g (2010).
   75'        The benefitsto PLEA underthe Mou serve
                                                    to promotethe union,spurposes,
                                                                                 and
do not servea public pu{pose.

   76'      The benefitsderivedfrom the Mou by
                                                  the city of phoenix,if any.are not
equivalent the benefitsthe city
         to                     hasobligateditserfto maketo pLEA, and
                                                                         areso inequitabre
                                                  -l l-
 andunreasonable to amount
               as         to an abuseof discretion the part
                                                  on           of Defendants.
    77'       For all thosereasons, benefits
                                    the         the city hasgrantedto pLEA underthe
                                                                                    MoU.
 includingreleasetirnehoursto furtherthe mission
                                                   and organizational
                                                                    existence pLEA,
                                                                            of
constitute subsidyand an impermissible
          a                              gift to an association,
                                                               which exceedsDefendants,
lawfut powersin violation of
                             Ariz. Const.Art, 9, $ 7.



   78.      As set forth above,Defendants
                                        areprohibitedfrorn spendingpubric fundsto
subsidize
        PLEA through grantof release
                        the                 timeandotherbenefits.
                                                                Accordingly,
                                                                           pursuantto
Rule6(d)'Ariz' R' civ' P', it is appropriate
                                          andproper this court to issue order
                                                    for               an      to show
Cause therequesfed
     why                reliefshould begranted.
                                      not




                                        -t2-
                                     UESTF9R RELIEF
   For their relief, Plaintiffs request
                                      that this court take the following
                                                               acrions:
A' Declarethat Mou is unconstitutional
                                     andprelirninarilyand permanently
                                                                    enjoin its
   further effect;

B' Award costsand attorneyfees
                                pursuant A.R.s. gg r2-341, l2-34g,and
                                       to
                                                                     the private
   attorneygeneraldoctrine; and

c' Award suchotherand further
                             reriefasmay bejust       and equitabre.




  R-EsPEcrFULLy .'BMITTED
                          this7thda' of December,
                                               201r by:




                            Clint Bolick (021
                            Taylor Eart (025/79)
                            Scharf-Norton        r for Constitutional Litigation
                            atthe GOLDWATERINSTITUTE
                            500E. Coronado phoenix,
                                          Rd.,    eZilSOO+
                            (602)462-sa00
                                           d
                            Attorneys plaintffi
                                    for




                                       -t3-
      hnsuaatbfuizoaaRulcofcivil hrocodrrre willia,tr
                                         s0(i),       R.cbcathaedcclares
                                                                       as
frllows:
  1. I aft anindividrrat
                       plaintitrin drisactiorr-

  2. I havereadihe forqoing andtarow
                                    theconrcnsrhcreof
  3' Tto statemcds mafiers
                   rnd         all€g€xt trueof my onmpasonar
                                      arre                  knowrcdge, exacpt tro
                                                                            as
     thoscmattersstated rrponinfomra$ou boliesandasn suoh
                                        and                raattcrs, rcosonably
                                                                   I
     believethcmto bc tnre.
 4. The stateineots matt€f,s
                 and       a$eged
                                showcawefqr theglantiqgofan Onder
                                                                to Shoc,,
    Car.rse.

    I declare
            rmdcrpenatty
                       ofperjul' \st to thBbsstofmy knowledgs
                                                            &c foregoing eue
                                                                        is
 andcorreot



Dated:
     /€$*frptl            _




                                         -14-
     PurcuantbArizoua Rule of civil Prooodrre
                                              80(i), Marcrx Huuy dcclarcs asfolloqrs:
 l. I am an individual ptaintiffin this action.

2' I havercad the forcgoing and kns$, the conte,nts
                                                  thereof.
     'I
3'        he satemenlqand maftersallegedare tnre of
                                                      my owo personallcnowledge,
                                                                               ercoept to
                                                                                     as
     thoseltrattent stat€dupon inforraation nnd belief,
                                                          md as !o such mattcrs,I rcasonably
     bolievethcm to be true.

4' The statemenFand maftersallegedshow
                                       caure          for the grantingof an orrdcr to show
     Cause.

            I declareunder ponalg ofperjury that to thc
                                                        bestofmy knowtedge.theforqgoing
i.r true and oorrect


              .A
Dat€d:NP-*4**               A 2J il

				
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