                              IN THE
          ARIZONA COURT OF APPEALS
                           DIVISION ONE


WILLIAM R. CHEATHAM and MARCUS HUEY, Plaintiffs/Appellees,

                                 v.

SAL DICICCIO in his official capacity as a member of the Phoenix City
  Council; CITY OF PHOENIX; PHOENIX LAW ENFORCEMENT
              ASSOCIATION, Defendants/Appellants,

                _________________________________

   THOMAS COX; VICTOR ESCOTO; RICHARD V. HARTSON;
  VIVIAN REQUE; and DAVID K. WILSON, Intervenors/Appellants.
            _________________________________

          WILLIAM R. CHEATHAM and MARCUS HUEY,
                      Plaintiffs/Appellees,

                                 v.

         PHOENIX LAW ENFORCEMENT ASSOCIATION,
                    Defendant/Appellant.

              Nos. 1 CA-CV 13-0364; 1 CA-CV 14-0135
                          Consolidated
                         FILED 8-11-2015


        Appeal from the Superior Court in Maricopa County
                       No. CV2011-021634
           The Honorable Katherine M. Cooper, Judge

            AFFIRMED IN PART; VACATED IN PART
                                COUNSEL

Scharf-Norton Center for Constitutional Litigation
at the Goldwater Institute, Phoenix
By Clint Bolick, Jonathan Matthew Riches
Counsel for Plaintiffs/Appellees

Sherman & Howard, LLC, Phoenix
By John Alan Doran, Lori Wright Keffer, Matthew A. Hesketh
Counsel for Defendants/Appellants
Napier, Coury & Baillie, PC, Phoenix
By Michael Napier, Kathryn R.E Baillie
Counsel for Defendants/Appellants Phoenix Law Enforcement Association

Judicial Watch, Inc., Washington, DC
By Paul J. Orfanedes, Chris Fedeli
Counsel for Defendants/Appellants

Gomez & Petitti, PC, Phoenix
By David F. Gomez, Michael J. Petitti Jr.
Counsel for Intervenors/Appellants



                                OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


H O W E, Judge:

¶1            The City of Phoenix (“City”) and the intervenor police officers
and the Phoenix Law Enforcement Association (collectively, “PLEA”)
appeal the trial court’s order enjoining enforcement of “release time”
provisions of the 2012–14 Memorandum of Understanding (“MOU”)
between the City and PLEA. Under this agreement, the City paid PLEA
approximately $1.7 million in release time, which is time police officers are
released from police duties for the City to allow them to perform PLEA
activities and business. The City and PLEA argue that the trial court erred
by finding the release time provisions violated the Arizona Constitution’s
Gift Clause. Because the release time provisions do not require PLEA to
perform any specific duties, however, any benefit the City received from
the release time was grossly disproportionate to the City’s $1.7 million


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                        Opinion of the Court

payments to PLEA. Accordingly, neither the City nor PLEA has shown that
the trial court erred in holding that the release time provisions violated the
Gift Clause. For these reasons, we affirm the trial court’s injunction of the
2012–14 MOU release time provisions and prohibition of the City and PLEA
from having release time provisions in their MOUs, unless mandatory
language obligates PLEA to perform specific duties in exchange for the
release time. We vacate the trial court’s other requirements in that order,
however, because they are not properly part of the consideration analysis.

                 FACTS AND PROCEDURAL HISTORY

¶2           The City of Phoenix’s employees are divided into various
units, with Unit 4 consisting of 2,500 police officers below the rank of
sergeant. PLEA is a labor organization that represents the police officers of
Unit 4. Of Unit 4’s 2,500 members, 2,150—nearly ninety percent—are PLEA
members. Among other things, PLEA advocates for its members by
negotiating contracts with the City and representing members in
administrative, civil, and criminal proceedings.

¶3            Every other year, the City and PLEA negotiate a new MOU.
MOUs govern the officers’ wages, hours, and other conditions of
employment. See PHOENIX, ARIZ., CODE art. XVII, §§ 2–209, –210(11), –214,
–215, –218 (1976). A complete MOU is submitted to the Phoenix City
Council for approval. See id. §§ 2–210(12), –215(C). Every MOU since
1977—when the arrangement began—has included provisions for “release
time,” which is “the practice of relieving police officers from police duties
to perform PLEA activities and conduct PLEA business.” The 2010–12 MOU
prescribed four categories of release time. The first category—provided in
§ 1.3.G and Q—authorized six full-time officers to receive full pay and
benefits with 160 hours of overtime per year. The second category—
provided in § 1.3.G—allocated to other officers a bank of 1,583 release time
hours per year for “legitimate association business,” which includes
preparation for negotiations with the City. The third category—provided in
§ 1.3.K—allotted 15 days of paid leave per year for officers to attend PLEA
seminars, lectures, and conventions. The final category—provided in
§ 1.3.I.6—authorized officers to serve as legislative representatives who
received 500 release time hours per year to represent PLEA.

¶4           In 2011, William R. Cheatham and Marcus Huey (collectively,
“Cheatham”) sued the City, challenging the 2010–12 MOU release time
provisions, section 1.3.G, K, and Q, and seeking injunctive and declaratory
relief. Cheatham argued that the release time provisions were
unconstitutional under the Gift Clause. The clause is violated if, when the


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                        Opinion of the Court

government contracts with a private entity to expend funds, the funds are
not used for a public purpose or the government’s expenditure is “grossly
disproportionate” to what it receives in return. Turken v. Gordon, 223 Ariz.
342, 345 ¶ 7, 224 P.2d 158, 161 (2010).

¶5            In June 2012, after an evidentiary hearing on Cheatham’s
application for preliminary injunction, the trial court concluded as a matter
of law that “at least some applications of release time [were] not for a public
purpose,” such as negotiating contracts for members, lobbying for
favorable legislation, and attending PLEA functions. The court also
concluded that PLEA did not provide adequate consideration for the
benefit it received under the agreement because it was not required to
“perform specific service or give anything in return” for the release time. In
doing so, the court found as fact that the “MOU [did] not obligate PLEA to
provide any services to the City in exchange for the compensation and
benefits the City [gave] to PLEA for release time.” The court therefore
preliminarily enjoined the 2010–12 MOU release time provisions.

¶6            A few weeks later, the 2010–12 MOU expired, and the
2012–14 MOU became effective. The 2012–14 MOU largely authorized the
same release provisions as those contested in the 2010–12 MOU, with
certain changes. First, the allocated overtime hours for the six full-time
officers increased from 160 to 960 hours. Second, the bank of release time
for “legitimate association business” increased from 1,583 to 1,859 hours.
Third, the MOU provided an unspecified bank of paid leave time for
officers designated as association representatives to attend meetings and
hearings without losing pay or benefits. Time used for any other purposes,
however, had to be subtracted from the 1,859 release time hours. The
amount the City paid for the release time provisions in the 2012–14 MOU
was approximately $1.7 million.

¶7            Cheatham filed an amended complaint challenging the 2012–
14 MOU release time provisions, section 1-3.B, C, and Q.1 After another
evidentiary hearing, the trial court concluded that these provisions of the
2012–14 MOU violated the Gift Clause. The court determined that release
time did not advance a public purpose. As relevant here, the court also
determined that the exchange lacked consideration, based on its factual
findings that the MOU did “not obligate PLEA to provide any services to

1      In the 2012–14 MOU, section 1-3.B provided for the six full-time
release positions, PLEA representatives, and a bank of 1,859 hours of release
time; section 1-3.C provided for the legislative representatives; and section
1-3.Q provided for the full-time release officers’ 960 hours of overtime.


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                    CHEATHAM/HUEY v. DICICCIO
                        Opinion of the Court

the City in exchange for the compensation and benefits the City [gave] to
PLEA for the release time” and did not “obligate[] PLEA to perform any of
the ‘examples’ [listed in the MOU] or do anything in exchange for release
time with the possible exception of Section 1-3.Q.” Consequently, the court
preliminarily enjoined the 2012–14 MOU release time provisions.

¶8             In January 2014, the trial court held a bench trial on
Cheatham’s request to permanently enjoin the 2012–14 MOU release time
provisions. The City and PLEA argued that the provisions should not be
analyzed under the Gift Clause because release time was a benefit—part of
the officers’ compensation package—not a payment or subsidy. The court
rejected that argument because: (1) the MOU did not classify release time
as compensation; (2) compensation was a mandatory subject of bargaining
in the MOUs, whereas release time was not; (3) the City did not treat release
time as compensation; and (4) city funds for release time were designated
for PLEA, not the officers.

¶9             Incorporating its preliminary injunction orders, the trial court
concluded that the release time provisions violated the Gift Clause. The
court again determined that the provisions did not serve a public purpose.
Noting that “release time is permissible if the duties imposed are
substantial and the cost is modest,” the court then determined that PLEA
did not provide adequate consideration for the City’s payment for release
time because: (1) the 2012–14 MOU imposed no duties on PLEA; (2) the City
had no control over how the release time would be used; and (3) the City
had no system to evaluate the costs versus the benefit of release time.
Further, the court reasoned that the benefits PLEA identified—promising
not to strike, promoting “cooperation, better communication, labor peace,
and good relations”; being “available for stand-by, call-out, and critical
incidents”; and representing officers in disciplinary and grievance
proceedings—were either indirect benefits or preexisting legal obligations
that could not constitute consideration.2



2      The trial court also rejected the City and PLEA’s argument that the
Gift Clause analysis required Cheatham to show that the City Council
abused its discretion in approving the 2012–14 MOU, determining that no
such finding was necessary. The court noted, however, that even if such a
finding was necessary, the City abused its discretion because it approved
the MOU without (1) knowing the cost of the release time; (2) requiring
PLEA to keep written records of its use of release time; and
(3) implementing a system to evaluate the cost and benefit of release time.



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                    CHEATHAM/HUEY v. DICICCIO
                        Opinion of the Court

¶10            Based on these factual findings and conclusions of law, the
trial court permanently enjoined the 2012–14 MOU release time provisions.
It also permanently enjoined the City and PLEA from entering into future
MOUs or agreements with release time, unless the MOU or agreement
provided a public benefit in obligatory language, required PLEA to
reimburse the City for release time that did not directly benefit the City,
implemented an accountability system for the use of release time, instituted
a cost/benefit evaluation mechanism for release time, and prohibited using
release time for lobbying activities.

¶11           The City and PLEA timely appealed. We consolidated the
appeal with an earlier appeal from the preliminary injunction of the 2012–
14 MOU. Because the court subsequently granted the permanent injunction,
the preliminary injunction is moot. See Grupo Mexicano de Desarrollo S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999) (“[A]n appeal from the
grant of a preliminary injunction becomes moot when the trial court enters
a permanent injunction, because the former merges into the latter.”).
Accordingly, this opinion only addresses whether the trial court correctly
granted the permanent injunction.

                               DISCUSSION

¶12           The City and PLEA argue that the trial court erred because
the 2012–14 MOU release time provisions had a public purpose of
developing a harmonious and cooperative relationship between the City
and its employees and because Cheatham did not show that the City
received consideration that was grossly disproportionate to its
expenditure.3 Although the 2012–14 MOU release time provisions are moot
due to the passage of time, we will nonetheless address the constitutionality
of the provisions because of the breadth of the trial court’s permanent
injunction and the issue is clearly capable of repetition—as this case
demonstrates.




3      PLEA contends initially that the Gift Clause is inapplicable because
release time is a benefit that is part of the police officers’ compensation
package. We reject this argument—as did the trial court—because release
time is not part of the compensation package paid to each officer. Because
release time requires the City to expend money on officers who work under
the direction of a private entity, the propriety of the release time provisions
is properly resolved under the Gift Clause.



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                     CHEATHAM/HUEY v. DICICCIO
                         Opinion of the Court

¶13            We review the granting of a permanent injunction for an
abuse of discretion. Kromko v. City of Tucson, 202 Ariz. 499, 501 ¶ 4, 47 P.3d
1137, 1139 (App. 2002). We defer to the trial court’s factual findings absent
clear error, Clark v. Renaissance West, LLC, 232 Ariz. 510, 515 ¶ 21, 307 P.3d
77, 82 (App. 2013), but review de novo the interpretation and application of
constitutional provisions, Ross v. Bennett, 228 Ariz. 174, 176 ¶ 6, 265 P.3d
356, 358 (2011). As applicable here, we presume that the governmental
enactment is constitutional and will uphold it unless it clearly is not. See
Cave Creek Unified School Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 11, 308 P.3d 1152,
1156 (2013). A party challenging the enactment has the burden of
establishing its unconstitutionality. Eastin v. Broomfield, 116 Ariz. 576, 580,
570 P.2d 744, 748 (1977).

               1. The Gift Clause

¶14            Along with other prohibitions, the Gift Clause provides:

       Neither the state, nor any county, city, town, municipality, or
       other subdivision of the state shall ever give or loan its credit
       in the aid of, or make any donation or grant, by subsidy or
       otherwise, to any individual, association, or corporation.

ARIZ. CONST. art. IX, § 7. The Gift Clause “was designed primarily to
prevent the use of public funds raised by general taxation in aid of
enterprises apparently devoted to quasi public purposes, but actually
engaged in private business.” Turken, 223 Ariz. at 346 ¶ 10, 224 P.3d at 162
(quoting Day v. Buckeye Water Conservation & Drainage Dist., 28 Ariz. 466,
473, 237 P. 636, 638 (1925)). Consistent with its design, Gift Clause cases
generally involve real property or rights that can be and are readily valued
in the marketplace. See, e.g., id. at 345, 224 P.3d at 161 (parking garage
spaces); Arizona Ctr. for Law in Pub. Interest v. Hassell, 172 Ariz. 356, 361, 366,
837 P.2d 158, 163, 168 (App. 1991) (interest in riverbed land); Defenders of
Wildlife v. Hull, 199 Ariz. 411, 415, 18 P.3d 722, 726 (App. 2001) (same);
Kromko v. Ariz. Bd. of Regents, 149 Ariz. 319, 322, 718 P.2d 478, 481 (1986)
(hospital and leased underlying land). The Gift Clause “represents the
reaction of public opinion to the orgies of extravagant dissipation of public
funds by counties, townships, cities, and towns in aid of the construction of
railways, canals, and other like undertakings during the half century
proceeding 1880.” Day, 28 Ariz. at 473, 237 P. at 638 (quoting Thaanum v.
Bynum Irrigation Dist., 232 P. 528, 530 (Mont. 1925)).

¶15          Gift Clause jurisprudence has focused on two general
purposes of the clause: (1) avoiding the “depletion of the public treasury or



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                    CHEATHAM/HUEY v. DICICCIO
                        Opinion of the Court

inflation of public debt by engagement in non-public enterprise” and
(2) ensuring that public funds are not used to foster or promote the purely
“private or personal interest of any individual.” Kromko, 149 Ariz. at 320–
21, 718 P.2d at 479–80 (internal quotation marks and citations omitted). The
Arizona Supreme Court has developed a two-part test from these
principles: the government may not provide public funds to a private entity
unless (1) the expenditure is used for a public purpose and (2) the
consideration received by the government is not “grossly disproportionate”
to the amount paid to the private entity. Turken, 223 Ariz. at 345, 351 ¶¶ 7,
41, 224 P.3d at 161, 167. To comply with the Gift Clause, the expenditure
must pass both prongs of this two-part test. Id. at 348 ¶ 22, 224 P.3d at 164.

¶16           In resolving whether the release time provisions violate the
Gift Clause, we do not need to determine whether the expenditure for
release time serves a public purpose because our resolution of the
consideration prong is dispositive. As discussed below, assuming a proper
public purpose, neither the City nor PLEA has shown that the trial court
erred in finding that the City’s expenditure for the release time was grossly
disproportionate to what it received in return, given the lack of obligation
imposed on PLEA in the 2012–14 MOU release time provisions.

¶17           The government receives adequate consideration if it does not
pay a “grossly disproportionate” amount for what it receives in return.4 See
generally Turken, 223 Ariz. at 349–52 ¶¶ 30–49, 224 P.3d at 165–68.
Consideration “has a settled meaning in contract law. . . . [It] is what one
party to a contract obligates itself to do (or to forbear from doing) in return
for the promise of the other contracting party.” Id. at 349 ¶ 31, 224 P.3d at
165. Courts do not ordinarily examine the proportionality of consideration
between parties contracting at arm’s length. Id. at ¶ 32. Analysis of
consideration under the Gift Clause, however, differs in that it focuses on
the adequacy of consideration “because paying far too much for something

4      Contrary to the trial court’s analysis, Kromko and Hassell do not
support the notions that the consideration analysis also requires examining
how the government controls the resources that are used and whether the
government has a mechanism to evaluate the costs versus benefits,
respectively. See generally Kromko, 149 Ariz. at 320–21, 718 P.3d at 479–80
(discussing consideration, but not holding that retention of control over the
use of government funds factored into the consideration analysis); Hassell,
172 Ariz. at 368–69, 837 P.2d at 170–71 (discussing consideration, but not
holding that the general Gift Clause analysis—involving cases not within
the purview of the Public Trust Doctrine—required conducting a line-item,
cost-benefit analysis).


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                     CHEATHAM/HUEY v. DICICCIO
                         Opinion of the Court

effectively creates a subsidy from the public to the seller.” Id. at 350 ¶¶ 32–
33, 224 P.3d at 166. The private entity must provide the government with
bargained-for consideration focusing on the “objective fair market value”
of what the private party has promised to provide in return for the public
funds expended. See id. The sufficiency of such consideration must be
judged at the time of the transaction. See id. at ¶¶ 32–39 (treating
consideration as part of the bargaining process).

¶18            In addressing the adequacy of consideration under the Gift
Clause, we analyze whether a contract obligates a private entity to perform
specific duties in exchange for the expenditure. In Wistuber v. Paradise Valley
Unified School District, the Arizona Supreme Court upheld a release time
provision, as relevant here, where the contract (a collective bargaining
agreement) expressly obligated a teacher’s association president to perform
specific duties in relation to the school district. 141 Ariz. 346, 687 P.2d 354
(1984). In the contract, the district released the association’s president from
teaching duties, but continued to pay a portion of her salary in return for
her performing activities and duties inuring to the benefit of the district. Id.
at 348, 687 P.2d at 356. The contract expressly stated that the association
president “agrees [with the District] to” undertake ten specific, quantifiable,
and verifiable obligations and specified the amount of time in hours she
was required to spend on district, as opposed to union, work. Id. at 348 n.3,
687 P.2d at 356 n.3. Although acknowledging many of the president’s
obligations were duties that “she might have performed in any event” as
association president, id. at 349–50, 687 P.2d at 357–58, the Court
nonetheless found that the consideration was not grossly disproportionate
to the expenditure, id. at 350, 687 P.2d at 358.

¶19           As noted more recently in Turken, the basis for that conclusion
in Wistuber was that “the duties imposed on the union president under the
challenged agreement were ‘substantial, and the relatively modest sums
required to be paid by the District not so disproportionate as to invoke the
constitutional prohibition’” of the Gift Clause. Turken, 223 Ariz. at 347 ¶ 18,
224 P.3d at 163 (quoting Wistuber, 141 Ariz. at 350, 687 P.2d at 358). In
Turken, the Arizona Supreme Court made plain that the proper focus in
assessing the adequacy of consideration is what the private entity “has
promised to provide in return” for payments by the government. Id. at 350
¶ 35, 224 P.3d at 166. Accordingly, in Turken, the Court rejected the
argument that indirect benefits, such as projected sales tax revenue,
constituted adequate consideration. Id. at ¶ 38. The contract there did not
obligate the developer to produce the tax revenue for the City’s benefit. Id.
The only benefit the City objectively bargained for was exclusive use of 200
parking spaces, of 3,180 total. Id. at 351 ¶ 42, 224 P.3d at 167. The Court


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                    CHEATHAM/HUEY v. DICICCIO
                        Opinion of the Court

observed—because the trial court did not separately address the value of
the parking spaces—that $97.4 million was “quite likely” a grossly
disproportionate amount to pay for the benefit of only 200 parking spaces.
Id. at ¶ 43.

¶20           As applied, the question is whether the trial court erred in
determining that the City’s payment to PLEA—$1.7 million over the course
of two years for release time—was grossly disproportionate to what the
2012–14 MOU obligated PLEA to provide to the City in return—staffing
PLEA with police officers to perform labor-relations functions. Although
listing examples of uses for release time, the 2012–14 MOU release time
provisions do not obligate PLEA to perform any specific duty or give
anything in return for the release time, meaning the City receives no
consideration “for Wistuber purposes” for its expenditure. Id. at ¶ 41. In
other words, the City does not receive a staffed union in exchange for the
release time. Unlike the detailed, mandatory contractual provisions upheld
in Wistuber that specified in an enforceable manner what the association
president was required to do, the 2012–14 MOU release time provisions do
not require that officers in the full-time release positions perform any
specific duties. Instead, the provisions provide examples about what
release hours may be used for, see 2012–14 MOU § 1-3.B, B.3, and what
PLEA representatives may do, see id. § 1-3.B.2.1. Unlike in Wistuber, no
enforceable duties are specified for such efforts in the 2012–14 MOU.

¶21             One possible exception is § 1-3.Q, which states that the “full-
time release positions agree to participate” in unspecified “citywide task
committees” and in exchange “the City agrees to provide” a bank of 960
hours of overtime. That provision, however, is located in the portion of the
2012–14 MOU defining PLEA’s rights, not its obligations or duties. See
generally id. § 1.3. Neither the City nor PLEA has shown how a declaration
of PLEA’s rights properly could be used to define PLEA’s duties. Nor does
the delineation of the City’s rights in the 2012–14 MOU specify obligations
or duties about the release time provisions or even mention the release time
provisions. Regardless, for the full-time release positions, the 2012–14 MOU
simply provides a list of “[e]xamples of work performed by the release
positions,” see id. § 1-3.B, with no language limiting the use of release time
to these “examples” and no binding contractual language attached to these
examples, such as “shall,” “must,” or “promises,” otherwise obligating
PLEA to perform them in exchange for the release time.

¶22          The 2012–14 MOU terms describing the PLEA
representatives’ duties also are permissive and non-binding. They state that
PLEA “may designate up to forty-two (42)” representatives, id. § 1-3.B.2


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                    CHEATHAM/HUEY v. DICICCIO
                        Opinion of the Court

(emphasis added), and “[u]p to two PLEA representatives may . . . attend”
meetings and hearings and “may attend hearings with the department
representative,” id. § 1-3.B.2 (emphasis added). Like the other release
positions, the 2012–14 MOU includes only “[e]xamples of how these hours
are used by [PLEA],” with no binding contractual language for the bank of
release hours. See id. § 1-3.B.3. Finally, the 2012–14 MOU assigns no duties
to the legislative representative. See id. § 1-3.C. Consequently, the record
supports the trial court’s findings, and neither the City nor PLEA has shown
that the court’s findings are erroneous. See In re U.S. Currency in the Amount
of $2,390, 229 Ariz. 514, 516 ¶ 5, 277 P.3d 219, 221 (App. 2012) (providing
that an appellate court will not disturb the trial court’s factual findings
unless they are clearly erroneous). Accordingly, the trial court correctly
enjoined § 1-3.B, C, and Q of the 2012–14 MOU after finding that those
release time provisions did not obligate PLEA to provide any specific duty
in exchange for the release time.

¶23            The City and PLEA counter that the trial court erred because
it failed to consider eleven other “direct, tangible promises made by PLEA
in the 2012–14 MOU.” These provisions, however, do not obligate PLEA to
perform any duties in exchange for the release time. For example, PLEA has
agreed that it “will have two (2) PLEA positions . . . on continuous paid
stand-by,” 2012–14 MOU § 1-3.N, and that it “will have the most readily
available unit” representative available in situations where a unit member
requests individual representation, id. § 1-4.B.1. But these and other
provisions the City and PLEA rely on are obligations unique to PLEA as an
organization; they are not duties PLEA has obligated itself to perform to the
City in a bargained-for exchange for the release time. In fact, nothing in the
2012–14 MOU states that these provisions apply to the categories of release
time at issue.

¶24            To further support their argument, the City and PLEA rely on
the City’s 37-year history of choosing to use release time to improve
employer-employee relations and provide for an enduring framework for
addressing employer-employee concerns. At the evidentiary hearing before
the trial court, they presented evidence that release time officers viewed the
permissive and non-binding aspects of the MOU discussed above as
obligations and accordingly used the release time to provide representation
and protect officers’ rights and interests in the employer-employee
relationship. But the City and PLEA have not shown that such course of
dealing evidence can be used to establish consideration “for Wistuber
purposes” or contradict express contract terms for such purposes. Turken,
223 Ariz. at 351 ¶ 41, 224 P.3d. at 167; see also Keith Equipment Co. v. Casa
Grande Cotton Finance Co., 187 Ariz. 259, 262, 928 P.2d 683, 686 (App. 1996)


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                     CHEATHAM/HUEY v. DICICCIO
                         Opinion of the Court

(noting “[c]ourse of dealing does not . . . create a contract”) (citing cases).
Here, the record supports the trial court’s finding that the express terms of
the 2012–14 MOU release time provisions do not obligate PLEA to perform
any duties in exchange for the release time.

¶25           On the record presented—including the unique aspects of the
2012–14 MOU described above—the City and PLEA have not shown that
the trial court erred in finding that the City’s expenditure for the release
time was grossly disproportionate to what it received in return, given the
lack of obligation imposed on PLEA in the 2012–14 MOU release time
provisions. Because of the lack of such obligations on PLEA in the 2012–14
MOU, we need not address whether, if the obligations existed, they would
be constitutional. See State v. Rios, 225 Ariz. 292, 296 ¶ 12, 237 P.3d 1052,
1056 (App. 2010) (“To the extent possible, [the court avoids] deciding
constitutional issues if the case can be resolved on non-constitutional
grounds.”). We leave the constitutionality of such an MOU or other release
time agreement for another day.

              2. Attorneys’ Fees and Costs on Appeal

¶26           Cheatham requests an award of costs pursuant to A.R.S.
§ 12–341 and attorneys’ fees pursuant to the “private attorney general
doctrine.” See Hassell, 172 Ariz. at 371, 837 P.2d at 173. In our discretion, we
deny Cheatham’s request for attorneys’ fees on appeal. Cheatham is,
however, awarded taxable costs on appeal contingent upon compliance
with Arizona Rule of Civil Appellate Procedure 21.

                               CONCLUSION

¶27           For the foregoing reasons, we affirm the trial court’s order to
the extent that it enjoins the 2012–14 MOU release time provisions and to
the extent that it enjoins the City and PLEA from entering into future MOUs
or agreements with release time, unless they imposed upon PLEA binding
obligations. We vacate the rest of the court’s order.




                                   :RT



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