Jan. 12, 2005 - Whether Oro Valley police officers should be paid to carry pagers has been creeping its way through the court system for more than two years, and the amount the cops are seeking in back pay continues to grow with each passing day.
According to Phil Flemming, the Phoenix-based attorney representing 38 Oro Valley police officers in this case, the amount due to the officers for carrying the pagers has climbed to $953,344 as of last week.
That's up from $313,344 the officers were asking for when a notice of claim was first filed with the town in August 2002.
In November, the town's attempt to put a stop to the case, via a motion for summary judgment filed in July, was denied by Judge Charles S. Sabalos in Pima County Superior Court.
A motion for summary judgment can be requested when a party believes there is no issue of material fact to be tried. It asks that a decision be made based on statements and evidence presented for the record, without a trial.
In December the town filed a motion asking the court to reconsider its request for summary judgment. Acting Town Attorney Tobin Sidles said that is because a higher court case decidedly affects how courts are supposed to look at such motions and the town believes it would be in its interest to try that avenue again.
Sidles declined to comment about the town's position regarding the suit.
According to the motion for reconsideration, the town is asking the court to deny the officer's claim to be paid for carrying the pagers.
"The town does so because it is undisputed that the town never promised to pay or had a policy of paying the money that the officers demand," according to the statement. According to Orfaly v. The Tucson Symphony Society, the precedent setting case the town cites, any claim for wages, in addition to hourly pay, must be "promised" to employees and must show that the employer has a "policy or practice of making such payments."
The town maintains that the officers had no reasonable expectation of being paid the amount they claim and that the town never promised to pay those amounts, a point the officers do not contend.
However, according to the ruling denying summary judgment, an explanation as to how the police department applies the town policy "is not fully clear for the record."
"The evidence shows that officers who are not in one of these designated "call-in" positions still must respond to the pages - they are not free to decline to answer even if they are not available to work - and have been disciplined if they have failed to answer a page."
According to testimony, officers are sometimes expected to report for duty when they answer a page and one officer described carrying the pager as "having a weight anchored to my waist most of the time."
However, officers also testified that they knew an approved on-call list was part of the department's policy for pager pay and that those who had been placed on the list had been paid for their duty. Officers also stated that they had taken vacation, had drinks and were free to take outside work during their off time, despite having the pagers.
Police department management stated, for the record, that the pagers are a "mutual convenience" that aid in communication.
The town maintains that the officers do not qualify to be paid under the town's policy, because, by their own admission, they were not placed on an approved call-in list.
While the court denied the town's request for summary judgment, it also ruled the officers could not seek triple damages, which they were originally looking for, up to three times the amount of the calculated back pay. They are still seeking wages for carrying the pagers in the amount of $1 for each hour "on call," however, and that amount continues to accrue.
Flemming said he and his clients are "pleased" with the judge's ruling to allow the case to proceed to trial, but still are hopeful that the issue can be worked out between the two parties.
In the meantime, Flemming said the case continues to move through the court, and is now in the discovery process.
The lawsuit stems from a policy adopted by the town council March 7, 2001 providing $1 an hour for all nonexempt or hourly paid law enforcement employees for the period during which they were on call and required to be prepared to work during nonregular hours.
The original claim was filed by the Fraternal Order of Police Lodge #53 and 38 member officers from Oro Valley, and stated that the officers believe they are entitled to $128 a week per officer for the 72 weeks they were on call up to the time of the filing of the union claim.
The town's human resources department has stated that the on-call pay policy in Oro Valley applies only to about a dozen employees townwide who are selected by their department heads and approved by the town manager.
Those on the assigned list must be able to be at an assigned incident scene within 45 minutes of the page.
FOP President Herb Williams said while the FOP still is pursuing back pay, he hopes this litigation results in the town taking a look at the current policies it has in place regarding pagers.
"We want this to be resolved as soon as possible," he said. "Right now, we are in the hands of the lawyers."
Meanwhile, the Oro Valley Police Officers Association has since taken the reins as the representative group of the police department employees, after passage of a meet and confer ordinance in October by the town council, which gave police employees the right to elect one group to represent them in negotiations with the town.
The first contract proposal for the department was submitted by employees to the town Jan. 7, according to OVPOA President Dan Krueger.
The town will now have 30 days to review the proposal before sitting down to negotiate.
Krueger said he could not comment about whether pager pay was an issue that the union is seeking to address through negotiations.
Krueger said the union was told before that the town would not be willing to discuss pager assignments until the pending litigation is resolved.
While he could not give specific details of the proposal, he said the union will not be "pressing for anything different" from the benefits the employees currently have.
He said the main goal was to get the work conditions they have now in writing so that they will have "a baseline" from which to work in future negotiations.
For example, he said that while the federal law requires overtime payment for hours exceeding 40 in one week, Oro Valley currently pays police employees for hours worked after exceeding eight in any given day.
"We would like to get that in writing," Krueger said. "Not that we have any indication that they might change that, just because you don't know what might happen down the road."