Cop Time

Department of Public Safety officers will receive back pay for forced time off

Nearly 300 rank-and-file Department of Public Safety officers have won a major court victory in a bitter, three-year struggle with DPS managers over overtime pay.

In a decision that likely will cost the state millions of dollars, Maricopa County Superior Court Judge Jeffrey S. Cates ruled last month that DPS managers violated the Fair Labor Standards Act by forcing officers to accept compensatory time off in lieu of cash for overtime. Cates also said DPS violated the law by forcing officers to take compensatory time off against their will.

The Associated Highway Patrolmen of Arizona--an employee association for DPS officers--is using the ruling to pressure Governor Jane Dee Hull into replacing DPS Director Joe Albo, whose appointment in January, 1995 by former governor J. Fife Symington III angered many DPS officers.

Patrolmen association president Tom Powers says the ruling highlights Albo's mismanagement of the department that has sent morale plummeting at the 1,700-member statewide police force since Albo became director.

"These are examples of the abuses and inequities that are occurring in the agency that have the members so upset," Powers says.

The settlement, which must still be negotiated, will not come out of the DPS budget, but instead, from the state's self-insurance fund. Other issues in the suit are pending, and could go to trial later next year.

Powers says the pay issue never needed to go to court. But, he says, officers were forced to take legal action after Albo said in a July 8, 1995 staff meeting that he was aware DPS pay policies appeared to be illegal and took no steps to rectify the problems.

"I'm disappointed we had to take the court route," Powers says. "We tried to handle this in-house, but we were forced to go outside the agency."

Albo didn't return a phone call seeking comment. DPS spokesman Bob Stein said the department had no comment on the litigation.

Officers complained that DPS managers arbitrarily forced them to take time off once they accumulated more than 120 hours of overtime. Requests to receive overtime pay, rather than taking days off, were arbitrarily denied, officers alleged in the lawsuit.

Some officers, the lawsuit alleged, were paid large lump sums in overtime pay rather than being forced to take time off. Among those typically receiving cash were officers attached to the governor's security detail, says Sergeant Willard Whalen, the lead plaintiff in the lawsuit.

"There is no rationale, no logical reason as to who gets paid and who doesn't get paid," Whalen says. "It's a good way to fuck officers around and hurt morale."

While many officers have been denied overtime pay and forced to take time off against their will, the department's deputy director, Colonel Robert Aguilera, has received more than $12,000 in overtime pay this year, DPS records obtained by New Times indicate.

Aguilera, who didn't return a phone call seeking comment, accumulated 280 hours of overtime more than a decade ago when he was a DPS sergeant. Aguilera managed to keep the overtime, even though DPS general orders prevent officers from accumulating more than 120 hours of overtime. Once an officer goes over 120 hours, the officer is required to receive cash or compensatory time off.

Powers says Aguilera earned the overtime when his pay was about $15 an hour. During the last year, however, Aguilera has been paid 265 hours in overtime at a pay rate of approximately $48 an hour, Powers says.

"Aguilera was one of the people ordering officers home at 120 hours," says Powers. "But he was also one of the people never adhering to that rule."

DPS spokesman Stein acknowledges that Aguilera's case is unusual, but claims that any officer would be eligible for similar treatment.

The requirement that officers' overtime not exceed 120 hours is something "not necessarily adhered to strictly throughout the entire department because of budget constraints and manpower shortages," Stein says.

Aguilera, Stein says, asked to have his overtime reduced to 120 hours when he was promoted from sergeant to lieutenant, but that request was denied. Instead, Aguilera was allowed to maintain the 280 hours of overtime, even though, as a ranking officer, he was no longer eligible to accumulate additional overtime, Stein says.

Aguilera is also breaking new ground with the way he's applying his overtime, Stein says. As part of Aguilera's retirement planning, the department is allowing him to boost his weekly salary by adding a portion of his accumulated overtime to each check.

Retirement pay is based on the average of the three highest years of pay. Aguilera's $99,000 annual salary is being boosted to more than $110,000 by the overtime pay.

If Aguilera had received the overtime pay as a lump sum settlement upon retirement--which is the way nearly all officers typically receive the pay--that payment would not be considered in determining retirement pay.

"Any officer can request this," Stein says.
But few, if any, ever have.
"I don't know if anybody has ever done it before," Stein says. "Aguilera is the first one that I know of to do it in recent times."

Whalen says Aguilera's overtime pay is well known throughout the department and is contributing to the poor morale.

"They are playing favorites and paying overtime to certain people and it's taken its toll," Whalen says.

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