Time Bandits in Uniform?
APD officers question whether union 'leave time' deal violates their contract
Just after 4am on May 10, Austin Police Sgt. Todd Harrison – who is not only a board member of the Austin Police Association, the local officers' union, but also currently serves as president of the Combined Law Enforcement Associations of Texas, a statewide umbrella organization of unions to which the APA belongs – sent a brief email to the administrative assistant for Austin Police Department Assistant Chief Sean Mannix. "My time for this week is 40hrs ABL Tues thru Sat 8 hrs each day," he wrote. "I am out of state. Thanks."
According to a subsequent CLEAT newsletter, Harrison had indeed been out of state – in Washington, D.C., where he and his wife "represented CLEAT at various events" during the weeklong national remembrance that is National Law Enforcement Week.
The newsletter reported that the week's events, sponsored in part by CLEAT, included a White House ceremony. Undoubtedly it was quite an honor, but in the weeks since, some of Harrison's fellow APD officers have been asking: Who paid for Harrison to be there? The official answers have caused disagreements among some APA members, raised additional questions at City Hall – and, says one former APD officer, helped lead to his termination from his job at CLEAT.
Time for Sale
According to his early morning email, Harrison's trip to D.C. was time on the clock for his day job and paid for by the city of Austin. Indeed, the "40 hrs ABL" Harrison mentions is shorthand for a full workweek taken as "association business leave," a pool of time funded by the city of Austin out of sick leave contributions from Austin police officers, in order to pay the salaries of local union officials whenever they are off the beat but attending to the business of the APA, a union of some 1,600 members. (Sunday's Statesman bannered a front-page story initially claiming that the city annually gives the union 7,000 hours of leave time for union business; you'll need to read far into the jump to learn that, in fact, no giving was involved – under the current collective-bargaining agreement between the union and the city, "officers agreed to earn a half-day less in sick time in exchange" for the ABL time to be used for union business.)
The question remains: Should Harrison be using the city-funded ABL – through which the city pays his $101,200 salary plus benefits – while he is not actually doing any work for the city or for the Austin union but is in fact representing the statewide group CLEAT?
Late last month two officers, Cpls. John Coffey and George Jackoskie, filed a grievance with the APA, arguing that the full-time ABL leave given to Harrison since he was elected CLEAT president in 2009 violates the terms of the meet-and-confer contract negotiated in 2008 between the city and the police union. "It is the understanding of members that [Harrison] is on ABL while fulfilling his duties as the elected president of CLEAT on a full-time basis," the officers wrote. "This has been occurring for all of 2010 and 2011 up to the present. Working at CLEAT is not APA business and the only time specifically permitted to be used for any function at CLEAT is [when APA members attend] CLEAT's state convention."
Beyond that complaint, the officers' grievance takes exception to a $50,000 deal made between CLEAT and the APA that was, in theory, supposed to offset the cost of sending Harrison on CLEAT business. That payment amounts to selling city time, the officers allege, which is an explicit violation of the contract – which provides that ABL time has no cash value, meaning it can't be exchanged for money if it isn't used.
Indeed, according to the contract, the ABL pool "shall be created for the purpose of conducting ASSOCIATION business," and the APA president – currently Sgt. Wayne Vincent – is the only member designated as eligible for full-time (2,080 hours per year) ABL. Other APA board members and committee chairs "may each be authorized to utilize up to" 300 hours of ABL per year (and no more than 150 of those hours may be used "for legislative and/or political activities"). However, the APA president may request of the police chief (currently Art Acevedo) permission to use ABL time for additional association members to help attend to union business.
In short, according to the grievance, since assuming the top spot of the statewide police union, Harrison has been working exclusively on CLEAT business and therefore (under the contract) should not be paid by the city via the ABL pool. Moreover, the union should not be allowed to benefit twice from the arrangement – first by having the city cover Harrison's salary, and then by taking a $50,000 "donation" from CLEAT, in theory offsetting the use of city ABL time – which in the final analysis is funded by taxpayers.
On Thursday, Aug. 4, in response to the grievance, Acevedo recalled Harrison to full-time APD duty effective Aug. 7 and is asking his staff to outline a new procedure for accounting for ABL time. (After Acevedo issued his directive, Assistant City Manager Mike McDonald also weighed in, directing Acevedo to do what the chief had already pledged to do.) On Aug. 5, the union board voted to reject the grievance – apparently it wasn't filed on time – but that has not ended the controversy, nor has it answered the question of whether Harrison's activities were in fact a proper use of city resources. (The move prompted CLEAT to take the matter to Travis County District Court on Aug. 8, it won a 14-day temporary restraining order, keeping Harris on full-time union duty until the parties can resolve the matter or a full hearing will be held at a date to be set by Judge Tim Sulak.)
One Hand Washes the Other
CLEAT, as an organization of Texas police unions, engages in various union-related activities: lobbying at the state and national levels, providing training to police statewide, advocating for professional standards, and helping cop shops organize and bargain for wages and benefits. Importantly, it also gives the officers in its member unions access to legal representation during internal investigations and disciplinary proceedings. In many ways, argues APA President Vincent, CLEAT and the APA have a mutually beneficial relationship: When CLEAT is successful in lobbying for stronger workers' compensation protection for police across the state, for example, that is a direct benefit to all Austin police.
When Harrison was elected president of CLEAT in 2009 by a vote of all member unions, it was a feather in the APD's cap – in part because the high-profile position helps set the agenda for cops at the state and national levels. "The huge benefit to the Austin police officers is [that] when Todd Harrison is at the table in Washington, D.C., or in high-level statewide meetings, he is speaking from the perspective of the Austin police officer. Those are invaluable benefits to the Austin Police Association," says Vincent. "From my position as the president of the police association, it absolutely has a benefit to have one of our members at the top seat in CLEAT, absolutely. And if you ask other local presidents, they'd say the same thing – they'd give their eyeteeth to have one of theirs as CLEAT president." While the union and APD management don't always agree, on this point Vincent and Acevedo are in accord. "It is in [the APA's] best interest to have a member as CLEAT president," Acevedo said last week. "CLEAT has tremendous influence at the Legislature and on Capitol Hill."
Given the high-profile nature of the presidency, Vincent says he knew that Harrison would need to be off the job in order to handle his CLEAT responsibilities, and Vincent assumed the city would work with CLEAT to figure out how that would work. Indeed, the previous CLEAT president was an El Paso officer, and his city and CLEAT worked out a deal whereby CLEAT would cover the president's salary and benefits during his tenure at the union. But Vincent says he was told by McDonald that Austin would not be able to enter into such an agreement because it would not pass legal muster. Acevedo said he proposed a similar arrangement to the city's legal department, also without success. "I asked city legal and told them my preference would be to do a contract between the two [entities], and I was told no," he recalled, and that the issue was "between the two associations" and did not involve the city.
Lee Crawford, the city attorney in charge of the legal department's Employment and Public Safety Division, was unavailable for comment. But McDonald says that when he was asked by Vincent about the city and CLEAT working out a deal to pay for Harrison's salary, he refused to consider the deal. "I was opposed to it," he said. In past union negotiations, McDonald has held firm in his belief that APA members should not be allowed full-time leave from their city jobs while being paid their full-time city salaries to tend to union business. Under the current contract, Vincent, as president, is allowed full-time ABL status, but McDonald says he has never wanted to allow additional officers to avail themselves of lengthy leave from the city. However, he said that he told Vincent that because he understands the "overlap" in APA and CLEAT business – as a former cop who rose to the rank of assistant chief before retiring and moving to City Hall to take on his assistant city manager job – he would be agreeable to some ABL leave periodically being afforded to Harrison when it could be demonstrated that the CLEAT work would also directly benefit the APA. "What they took that and turned it into," says McDonald, "is a full-time position" working for the union.
Vincent disputes McDonald's recollection – it appears McDonald has amnesia, he said. He says McDonald had said no to a contract deal but did approve the idea of using ABL to support Harrison's new role. As a consequence, Vincent says, he came up with an alternate plan. The city, via the union, would provide Harrison with full-time ABL, and in return, CLEAT would make a $50,000 donation to the APA – money to cover "membership services," says Vincent, like "barbecuing events and buying equipment" that would serve the members. "And that is how that agreement came to be." On the surface, it appears to be a hybrid variation of the El Paso arrangement. But it's not clear whether the arrangement is actually permitted under the union contract, which forbids a cash exchange for the time.
Coffey and Jackoskie believe the arrangement violates the contract. So does Mike Sheffield, the former APD detective who served as APA president for nine years. Put simply, the contract expressly does not allow for that time to be sold, nor does it allow for APD officers to be on ABL for any other purpose than to do work that directly benefits the APA – and a lot of CLEAT work simply doesn't fit the bill. Sheffield ought to know; until last month, he was employed by the statewide union as a training instructor and organizer.
Sheffield contends that he was terminated from his job in part because he raised the issue of whether the APA/CLEAT deal was proper with his boss, CLEAT Executive Director John Burpo. "I explained to him what I perceived as a conflict about the use of the ABL and how the ABL is set up," Sheffield recalled. "That's not right for the members of the APA; we're taking from them more than we should be, and we should not be taking it for CLEAT business." Sheffield says he raised the issue on several occasions but was rebuffed by Burpo. Burpo first reprimanded him in a July 6 memo, directing that he was not to discuss any APA matters with media, to "communicate or meet with any current or past leaders of the APA without first discussing the matter with me and receiving approval," or to talk to any APD officers except those "assigned to training with whom you must interact." Thirteen days later, Burpo terminated Sheffield's employment, saying that Sheffield had failed to abide by those instructions. (For example, Sheffield asked whether he could attend a function with APD officer friends, cc'ing on the email to Burpo one of those officers; Burpo wrote that in so doing Sheffield had "revealed CLEAT confidential information" and that the communication was an "obvious unauthorized disclosure.")
Sheffield believes his termination was a case of shooting the messenger, because he had brought to Burpo concerns about the APA/CLEAT relationship that had been raised to him by APD officers. "They're somehow believing that I'm the guy fomenting all of this," he says, but he insists that's not so. Rather, as increasing complaints came to him, he said he simply anticipated what was coming and accordingly approached Burpo.
Contacted by the Chronicle, Burpo said he was "not going to get into Mike Sheffield" and that he would allow the result of a pending arbitration matter related to Sheffield's firing to "speak for itself." However, Burpo did say that he believes the entire ABL issue is a nonissue. "It's just much ado about nothing," he said. "There's nothing there."
Vincent says he does not believe the arrangement violates the contract because the statewide and national exposure that Harrison gives APD is invaluable, and therefore of direct service to the APA. He says that while the contract provides specifically that ABL time is to be used for meet-and-confer negotiations, for settling grievances, for attending board and other APA meetings, and for attending the annual statewide CLEAT conference, it also implies that time is allowable for other uses – including working at the Legislature on issues "regarding officer safety." Therefore, he contends, the time is implicitly not limited to four specific areas of association business. Under past presidencies, he notes, ABL time has been used to send members to other conferences, including meetings of the Hispanic, black, and women's police officers groups. "You can look at that and say, well, what was the direct benefit to the Austin police officer" of those uses of city time, he says. "The point being, there are intangible benefits" to many of these uses of time.
While there may be an argument for some of these activities – including Harrison's May trip to D.C. – there are other uses of ABL that have a more tenuous connection to APA work. For example, according to another email from Harrison to department officials, dated Jan. 11, he notes that he is "out of town," but is recording 40 hours of ABL time for the week. According to a CLEAT newsletter, at least some of that week was spent in the Rio Grande Valley, where CLEAT was opening a new office. That week too was apparently on city ABL time, but its benefit to APA – whatever it might be, perhaps good public relations – appears quite intangible.
Acevedo says he was aware that Harrison was using ABL time for CLEAT business – in part because he knew the city had declined to find another way to pay Harrison's salary during his tenure at CLEAT – but he also said that if Harrison was using ABL time to "work on something special" that would directly benefit another union local, not the APA, that would not be an appropriate use of the time.
For his part, Harrison says he's confused by the current controversy. First and foremost, he says, he has never done anything to undermine the union, like taking advantage of leave time. In fact, he says he never considered that the arrangement for his ABL might be a contract violation because he was under the impression that the city had signed off on the arrangement, including the $50,000 donation to APA, both of which he says were approved by the APA's board of directors. He asserts that every bit of CLEAT work – whether meeting President Barack Obama in D.C. or opening a new union office in the Valley – directly benefits all Texas police officers, including those at APD. "I think it is a benefit to the association to have a board member ... invited to the White House Rose Garden to meet with the president and the vice president," he said. "I think that's kind of beneficial."
A Fine Mess
Another problem, however, is that the system of accounting for ABL time – for the city to know exactly how it is being used – has been weak at best. Acevedo and Assistant Chief Sean Mannix say that the department in the past has proposed a system for more strict accounting, but as Mannix recalls, "attorneys on both sides of the equation were concerned" that requiring too much accounting might make it appear that the department was meddling, micromanaging, and ultimately infringing on the union's autonomy. Given the institutional overlap between APA and CLEAT, however, figuring out how much of that time is spent working on issues that benefit the APA and those that strictly redound to the benefit of CLEAT or another local union is a vexing question. "The short answer to that is," Mannix said, "we don't really know."
Perhaps that's about to change. Acevedo says he's already directed his staff to come up with a better way to account for ABL time, and in an Aug. 4 memo, McDonald reiterated this, directing Acevedo to "ensure that by August 12 you have in place a formal procedure to manage the administration of ABL in accord with the meet and confer agreement."
Vincent, however, says that McDonald's position is frustrating; he says he spoke with McDonald before the start of Harrison's tenure as CLEAT president and asked that a contract be arranged to have the city and CLEAT deal directly on the issue of paying Harrison's salary. Vincent says that according to McDonald, it couldn't be done without a change to the City Charter.
It does appear there was at least one other possibility that, for whatever reason, went unexplored: reopening the police contract with the city in order to insert a provision that would permit CLEAT to reimburse the city for salary and benefits for any APA member elected to lead the statewide organization. (That's essentially how it worked in El Paso.) Vincent says he'd like to see that done now, but McDonald maintains that he is "philosophically opposed" to creating any additional leave time for officers doing union work. McDonald says it is simply a matter of effective management of resources and accounting for taxpayer dollars. But it's worth reiterating that the ABL time effectively belongs no longer to the city, but to those officers who have earned and then donated it, as permitted under the contract.
Despite the union's decision to reject the grievance on this matter, the question of whether the union improperly used ABL funds to pay Harrison's salary while accepting money from CLEAT to offset that cost remains unresolved. In their grievance, Coffey and Jackoskie have requested restitution. The officers ask the city to "require the APA to repay to the ABL pool [money] equivalent to the value of the amount of time ... Harrison has used while working at CLEAT in violation of the contract." And they want the city to notify "the membership of the APA in writing as to the final resolution of this grievance."
Posted here are 1) the current Austin Police Association contract with the city of Austin (Association Business Leave is addressed in Article 11), and 2) the grievance against the current APA/CLEAT practice filed by Cpls. Jackoskie and Coffey (rejected by the APA board for lack of timeliness).