For some cops, getting overtime is no work at all

Former Philly Police Commissioner John Timoney: "Overtime isn't a right. It's a privilege."
Former Philly Police Commissioner John Timoney: "Overtime isn't a right. It's a privilege."
Posted: February 04, 2011

IN ANY OTHER JOB, when a worker steals, he gets the boot. When you're a Philadelphia police officer, you get the booty - cash, that is.

Take the case of Officer John Mouzon. He admitted that he stole 3 1/2 hours of overtime - worth about $100 - when he lied about his hours spent in court.

The Police Department suspended Mouzon for 10 days without pay and transferred him from his plum assignment with the elite Narcotics Field Unit to a patrol beat.

Mouzon challenged his punishment, arguing that the discipline was too harsh. An arbitrator agreed and ordered the city in 2008 to credit Mouzon for more than 2,000 hours in overtime estimated that he would have worked during the 2 1/2 years that he was transferred.

The city paid him a lump-sum of nearly $83,000 - on top of his $56,500 yearly salary, according to the police Labor Relations Unit.

"It's nuts, it's crazy," Police Commissioner Charles Ramsey said last week. "If anything, you should be paying money back to the city. If you are caught stealing overtime, you should be terminated.

"To reward someone for doing wrong makes no sense. It's not right. . . . The whole [arbitration] system has so many flaws. It makes the process of discipline a joke," Ramsey said.

Thomas W. Jennings, the attorney for the Fraternal Order of Police who successfully argued Mouzon's case, said his client had been the victim of a "gross overreaction" by the city.

Mouzon didn't "steal" overtime, the lawyer said, but simply allowed another officer to punch him in when Mouzon was twice late for court. He is a good cop who had "a momentary lapse in perfect judgment," Jennings said.

"In the real world, it's a rare case where my guy did nothing," Jennings said. "The question is, did his conduct merit what [the Police Department] did to him? . . . Do you forfeit everything that you ever worked for because you make a mistake?"

Theoretical overtime

Philadelphia's arbitration system is an anomaly. Other major cities - New York, Miami, Los Angeles - don't pay officers overtime for hours they didn't work. In Chicago, an officer can sometimes win lost overtime if he can prove that he'd been previously scheduled to work extra hours.

Philly cops - some accused of theft, assault, fraud, playing hooky and other misdeeds - don't have to meet that bar. They can win overtime pay based on a hypothetical, arguing that they would have earned a certain amount of overtime if they hadn't been wrongfully fired, suspended or transferred.

"I think to get paid for something you didn't do is ridiculous," said former Philadelphia Police Commissioner John Timoney, who also headed Miami's police force.

"Overtime isn't a right. It's a privilege. The bottom line is, it's not a guarantee, not something you're entitled to," Timoney said.

Jennings, the FOP attorney, said that once an arbitrator rules that an officer has been wronged by the city, the arbitrator has "a duty and an obligation to make the victim whole."

"I've never put a single nickel in the pocket of a single person that I could not prove would have earned that money. There is no windfall," Jennings said.

From 2008 to June 2010, the latest figures available, arbitrators ordered the city to pay more than $2.4 million in back pay and theoretical lost overtime to 24 fired officers who got reinstated.

And that is just for the fired officers. The city Solicitor's Office said it did not know the amount of theoretical overtime money paid to the many more officers, like Mouzon, whose punishment fell short of firing.

Mayor Nutter tried unsuccessfully to eliminate this costly practice during 2008 police-contract negotiations.

The Daily News reviewed 199 arbitration decisions and found numerous examples of officers who had received unworked overtime pay.

"The city may not like paying - no doubt about it," Jennings said. "I guess the city shouldn't have violated the contract to begin with."

Jennings said the overtime calculations aren't "speculative." To come up with the amount of lost overtime owed to an officer, the Police Department looks at how much overtime that particular officer earned in the years prior to his wrongful discipline. Then the department looks at the amount of overtime earned by "similarly assigned officers" during the officer's absence.

"It's fairly mathematical," Jennings said.

But Ramsey argues that the math is based on fantasy.

"Just because in the past an officer makes overtime, it doesn't mean he will in the future," Ramsey said. "Budgets are strained. We're cutting back tremendously on overtime. But go to arbitration and you can get it."

Huge lump sums

In at least eight cases reviewed by the Daily News, officers filed grievances complaining that their supervisors deprived them of the opportunity to earn overtime. In each case, the arbitrator agreed and awarded them overtime pay.

Because arbitration cases sometimes languish for years, some officers win tens of thousands of dollars because the final award is based on years of potential lost overtime.

For example, Mouzon, the officer who admitted pocketing 3 1/2 hours in overtime, received $82,653.45 for missed OT opportunities from June 2005 to January 2008, during the time he was exiled to the 12th District in Southwest Philly.

Arbitrator Ralph Colflesh Jr. ruled that the 10-day unpaid suspension meted out by the city was punishment enough. That suspension cost Mouzon about $2,000. Colflesh noted that Mouzon's captain considered him an outstanding narcotics officer with an otherwise unblemished record.

"True enough, the offense involved dishonesty," Colflesh wrote in his December 2007 decision. "Cheating of the city out of any pay, even less than six hours, is deplorable. But the 80-hour suspension imposed on Officer Mouzon more than made up for that loss."

Mouzon wasn't the only officer in the Narcotics Field Unit who stole overtime, then won theoretical overtime pay when his punishment was overturned by an arbitrator.

Officer Mario Cruz was late for court six times in April and May 2002, although he accepted $284.90 in overtime pay for seven hours he wasn't in court. Cruz was suspended for 15 days and transferred to the 22nd District in North Philly from June 2005 until January 2008.

As part of a settlement agreement, an arbitrator ruled that the city had no just cause for the transfer. Cruz received $41,606.10: $40,070.40 for 1,000 hours in lost overtime and $1,535.70 for "stress," according to a 2008 arbitration award.

"Any time an award or a settlement is given, stress pay is calculated into the pay," a police spokesman wrote in response to Daily News' questions.

Of the decisions on Mouzon and Cruz, Timoney said: "If that doesn't sum up the arbitration system in Philadelphia, nothing does. It's like something out of a Kafka novel. You wouldn't believe it. It's beyond the pale. . . . That should enrage citizens in Philadelphia, especially given the tough economic times."

Other cases in which arbitrators awarded lost overtime to officers include:

* In 2001, Officer Anthony Jackson's supervisor at the Narcotics Field Unit told him he was "being removed from street duty due to an ongoing Internal Affairs investigation." Jackson was reassigned to Family Court, where he sat for four years without any information about the nature of the investigation.

Jackson complained that without the ability to earn overtime, his annual earnings dropped from about $80,000 to $45,000.

Arbitrator Ira Jaffe found that Jackson's effective "transfer" to Family Court violated the police contract. In 2005, Jaffe ordered the city to return Jackson to the field unit and pay him lost overtime.

In 2005, the city awarded Jackson more than $140,000 in lost earnings, payroll records show.

Jennings, the FOP attorney, said Internal Affairs "forgot" to tell Jackson's superiors that its investigation was long over, with no finding of misconduct.

In an unrelated case, however, Jackson got a 30-day suspension for falsely recording that officers Mouzon and Cruz were on time for Family Court when they were late. Jackson was in charge of court timekeeping.

* A female officer accused J.H. (the city withheld the name of the male officer) of attempted sexual assault. In 2003, then-Police Commissioner Sylvester Johnson suspended J.H. for 15 days and transferred him out of the elite Narcotics Strike Force to the 18th District in West Philly.

In 2005, arbitrator Jeffrey Tener concluded that the female officer's testimony wasn't credible and overturned the discipline. Tener ordered the city to transfer J.H. back to the strike force and compensate him for lost overtime.

The city calculated J.H.'s award based on the amount paid to the top five overtime earners in J.H.'s squad.

But J.H. said that calculation was unfair. He argued that since he had been the "top" overtime earner in his squad, his payout should be compared to other top earners in the entire Narcotics Strike Force, not just to those in his squad.

Tener agreed and ordered the city to compensate J.H. for 942.3 hours of missed overtime from 2003 to 2005. In 2009, J.H. received a lump sum of $47,832.59 on top of his $58,610 annual salary and the $26,162.83 of overtime he earned in 2009 while working in the 18th District, city payroll records show.

* In September 2002, Officer Brian J. Zaleski was fired after his ex-fiancee accused him of assaulting her and prosecutors charged him with more than a dozen criminal counts. At a preliminary hearing, a judge threw out all but one simple-assault charge, dismissing the others as nonsense.

Zaleski said he shares a daughter with the woman and she leveled the allegations against him after he broke off their engagement.

Prosecutors withdrew the remaining charge in July 2005.

"I sat without a job for four years," Zaleski said yesterday. "They basically ruined my life for a long time."

Arbitrator Tener ordered the city to reinstate Zaleski and award back pay, lost overtime and health-insurance contributions dating back to 2002.

The city paid Zaleski $186,105.05 in lost earnings, 2007 payroll records show.

"I know that it looks like a large payment, but after taxes and paying off all my debt and bills, there was barely anything left," Zaleski said. "When you're unemployed, bills pile up, and I had to pay child support. I had to borrow a lot from people, and I made sure I paid everyone back."

Zaleski quit the force in 2006. "I was very bitter," he said.

* Sgt. Laverne Vann was suspended for two days and transferred from the Narcotics Strike Force to the 16th District in West Philly after supervisors alleged that she played hooky at an auto auction for most of her shift in February 2003.

In May 2006, Arbitrator Thomas McConnell Jr. reduced Vann's two-day suspension to a reprimand, concluding that the city had failed to prove that Vann was at the auto auction for a prolonged period.

McConnell also overturned Vann's transfer and ordered the city to pay her "the loss of overtime [that] accompanied the transfer."

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