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.
Whalen and Powers also believe they have been targeted for their outspoken roles.
After 17 years on the force, including the last 10 years as a sergeant, Whalen was suddenly transferred back to the road working nights and weekends, a shift typically reserved for new officers. Whalen says the transfer was ordered by Lieutenant Colonel Charles Warner and, he believes, was done as retribution for filing the lawsuit.
Whalen says his personnel reviews the last four years all exceeded standards. Warner did not return a phone call seeking comment.
"To say that I'm a disgruntled employee and all I want to do is complain, is not true," Whalen says. "I love this department. I think the officers need to have somebody out there looking out for them. But I tell you right now, they are afraid."
Powers also has been subjected to a round of internal investigations, which he says resulted from an unsigned letter alleging a host of improper activities in his role as president of the patrolmen's association.
After a lengthy investigation, the department determined Powers violated DPS rules by using his state car to attend political fund-raising events. Powers, who lives in Tucson, says he would stop at political events in his role as association president while driving back and forth between Phoenix and Tucson on DPS business.
Powers was given five days off without pay and a written reprimand was placed in his personnel file.
"They went looking to see what they could find on me," he says.
Albo was appointed by Symington in January 1995 under a cloud of controversy. New Times reported on the morale problems and other concerns surrounding Albo's tenure as DPS head in "DPS: Department of Political Safety," in January 1997.
Although the state constitution requires the head of DPS to have at least five years of law enforcement experience, Albo was not a certified peace officer. Instead, he had served three terms as the Gila County Attorney prior to working one year as a Symington aide.
The patrolmen's association was opposed to Albo's appointment because of his lack of police experience. Albo has since completed police training and is a certified peace officer.
Soon after his appointment, Albo further aggravated relations with officers when--acting on Symington's request--he promoted Charles Warner from lieutenant to major and then to lieutenant colonel.
Warner had won Symington's favor while serving as the former governor's security detail chief. Warner's promotions came after he failed to pass the captain's examination. His rapid rise has alienated many longtime DPS officers, who believe he is unqualified for the position and got there simply because of his friendship with Symington.
Symington resigned as governor in September 1997 after being convicted on six federal bank fraud charges. He was sentenced to 30 months in prison, but is free pending the outcome of an appeal.
Whalen, for one, says it's time for Hull to clean house at DPS.
"We need a leader and we hope that Governor Hull will give us a leader."
Contact John Dougherty at his online address: [email protected]
