By Eric R. Wilson
Attorney at Law, Napier, Baillie, Wilson, Bacon & Tallone, P.C.
Almost everyone in Phoenix has seen the video and/or images of the August 22, 2017, protest and the response measures employed by the Phoenix P.D.’s Tactical Response Unit (TRU), whereby a protester who kicked a gas grenade at a group of officers was shot in the groin by TRU grenadier Officer Turiano with a 40mm impact round. The groin shot went viral and was the catalyst for several legal actions to follow that required our firm to protect PLEA and members’ rights.
The Federal Lawsuit
In the September/October 2022 Phoenix Law Enforcer article titled “Breaking Down the Fourth Amendment’s Role in Administrative Investigations” (pages 18–20), PLEA attorney Cassidy Bacon highlighted our firm’s prevailing efforts to protect Officer Turiano’s Fourth Amendment constitutional rights against the Department’s unlawful search of his imaged personal cell phone data and retaliation for declining to consent to that search. The U.S. District Court of Arizona issued a preliminary injunction, preventing the Department from pursuing any administrative, investigative or disciplinary proceedings against Officer Turiano based on his refusal to consent to the search of his stored personal cell phone data.
Following the Court’s decision, PSB finalized its challenge coin investigation and found no evidence that either Officer Turiano or Officer White had engaged in any misconduct related to the challenge coin. It is noteworthy that at the time the NOI was served, PSB had already concluded that Officer Turiano had not engaged in workplace misconduct related to the coin. There was no evidence that he was in any way involved in the creation or dissemination of the challenge coin. Simply put, Officer Turiano was just the one who fired the shot.
Unfair Labor Practice
Recall that the City hired a third-party law firm, Ballard Spahr, to conduct an administrative investigation into the challenge coin (and similar memorabilia) that commemorated both the protest and Officer Turiano’s groin shot. It is noteworthy that Ballard Spahr was hired to investigate potential misconduct by Unit 4 employees, who are defined under the Phoenix Meet-and-Confer Ordinance as police officers (and detectives) below the rank of sergeant.
This was the first time in the history of the Department that the City hired an outside entity to conduct investigations of Department personnel misconduct. The investigatory process led by the outside entity lacked any meaningful communication regarding the procedure, especially in light of PLEA members’ due process and investigative rights under the MOU and the Police Officers Bill of Rights. Imagine the questions and concerns you would have if an unknown attorney contacted you and tried to question you about anything. It would be disconcerting to anyone in that position.
On March 24, 2021, Officers Turiano and White received letters from Ballard Spahr’s attorneys asking for consent to search personal cell phone data that had been imaged during discovery in the protest lawsuit. Both officers rightfully declined to grant consent. On April 1, 2021, Officers White and Turiano were informed that Ballard Spahr had requested that they answer written questions as part of its investigation. On April 2, 2021, Officers White and Turiano, through counsel, declined to participate because they did not believe the investigation comported with their rights under the MOU.
On April 27, 2021, Officers Turiano and White were informed by their supervisors that their duties were being restricted and that they were no longer able to work as grenadiers for TRU. They were also each provided a notice of investigation (NOI) compelling their involvement in the investigation pursuant to the MOU.
PLEA filed an unfair labor practice (ULP) charge with the Phoenix Employment Relations Board (PERB) based on the information below.
The MOUs between PLEA and the City of Phoenix contained the negotiated provisions regarding wages, hours and working conditions of Unit 4 employees. Specifically, the rights of unit members involved in disciplinary investigations are governed and provided by the MOU, and the parties have agreed that “investigations alleging serious misconduct and/or issues of veracity will be investigated by the Professional Standards Bureau (PSB).”
“The provisions contained in the 1988-90 and subsequent memoranda of understanding are mandatory subjects of bargaining” (2019–2021 MOU Section 1-4. G. 6. Pursuant to Phoenix City Code § 2-215 [A]). PLEA alleged that investigations of Unit 4 employees are mandatory subjects of bargaining that must be negotiated by the City and PLEA.
By compelling Unit 4 employees, specifically charging parties Turiano and White, to participate in an investigation by a third-party law firm, Ballard Spahr, the City unilaterally imposed a new investigation protocol for Unit 4 employees without bargaining with PLEA regarding a mandatory subject of bargaining. PLEA alleged that this constitutes “[r]efusing to meet and confer with an authorized representative of the employees” in violation of Phoenix City Code § 2-220(A)(5) and also interference with employee rights in violation of Phoenix City Code § 2-220(A)(1).
Additionally, PLEA alleged violations of Section 2-220 of the Phoenix City Code, which prohibits the City from “interference with employee rights under th[e] ordinance” and “retaliation against employees for invoking their rights under th[e] ordinance.” Rights under the ordinance necessarily include the rights afforded to employees by the MOU. Therefore, the ordinance protects an employee’s exercise or assertion of rights under the MOU. Ballard Spahr requested that charging parties White and Turiano answer written questions as part of its challenge coin investigation. The officers declined to do so because they did not believe the investigation comported with the MOU and advised Ballard Spahr that they would willingly participate in any investigation that did comport with the MOU. Shortly thereafter, the City served the officers with NOIs and restricted them from performing a significant portion of their job duties, which led to missed overtime opportunities. It was clear that the City was trying to send these officers a message.
On August 15, 2023, after a full hearing, multiple rounds of briefing and multiple oral arguments, PERB issued its final order. PERB did not agree with PLEA that the City was required to meet and confer with PLEA before hiring Ballard Spahr to conduct the challenge coin investigation. However, PERB found that the City did retaliate against Officers Turiano and White after invoking their rights under the ordinance. Accordingly, PERB ordered the City to cease and desist from any further retaliation against Turiano and White. You can find the PERB order on the PLEA bulletin boards at your nearest precinct or Phoenix P.D. facility.
Note: This article should not be construed as legal advice. If a PLEA member finds themselves in a situation in which the Department is seeking to search their personal items or taking action that they believe violates your rights under the MOU, Meet-and-Confer Ordinance, Constitution or any other law, please reach out to PLEA or our office to discuss.