Legal Challenge Looms in Houston Pay Parity

Nov. 27 -- Mayor Sylvester Turner will ask Houston city council Wednesday to hire a law firm to advise the city on possible litigation related to the firefighter pay parity measure, setting in motion a potential court challenge to the item approved by voters earlier this month.

While the firefighters union has urged the city to return to the negotiating table, Turner has questioned whether the city could preempt the ballot measure approved by voters, suggesting a judge should settle the question first.

Firefighters and labor attorneys contend the mayor does not need to seek a judge’s opinion, saying Texas’ collective bargaining laws preempt the city charter.

The city still has not sought a legal opinion on the matter.

The mayor initially had planned to ask council to hire the law firm on Nov. 7, the day after the election, but delayed the vote over concerns it would appear the city was moving to reject the will of voters.

Council’s consideration of the law firm contract comes a day after the Houston Civil Service Commission approved a request from the Turner administration to combine the fire department’s four civil service classifications — fire suppression, fire prevention, fire alarm and maintenance — into a single “fire service” class.

Each classification has its own promotion tests, Fire Chief Samuel Peña said, hampering lateral transfers and increasing costs. The proposed consolidation, he said, would allow the department to offer five promotional tests instead of 17, and develop employees with a broader set of skills. It would not change pay, the number of firefighters, or adjust any employees currently assigned to each division, the chief said.

“It’s not going to bridge the gap to pay for pay parity, but it’s an incremental change that will allow us to reinvest small amounts of money back into the organization to pay for professional development, health and safety, equipment, assets and so forth,” Peña said.

Turner has said the parity measure, if implemented immediately, would amount to a 29 percent pay raise for firefighters and would cost the city an additional $100 million a year.

In a social media post, the fire union on Tuesday cast the commission’s approval as a retaliatory measure by Turner, who appoints the commission and has instructed Peña to restructure HFD, including layoffs, to find the money to pay firefighters more. It also contended that civil service classifications are enshrined in the city charter and can only be modified via referendum or a collective bargaining contract.

Council Wednesday also is set to adopt the charter amendment as an ordinance, something of a formality as it will not not affect the deadline to implement Proposition B, which Turner has said is Jan. 1.

Public safety officials continue to warn of dire consequences if the parity measure known as Proposition B is fully implemented immediately, and say the city would have to lay off hundreds of firefighters and police officers to absorb the additional costs imposed by the ballot measure. Shortly after the election Turner asked Peña to come up with an updated staffing plan to reflect the necessary cuts. Peña, in turn, has warned he may have to lay off as many as 850 firefighters and civilianize the city’s emergency medical services to meet that mandate.

Police Chief Art Acevedo has voiced similar concerns, saying the layoffs of hundreds of police officers would lead to an “absolute, visible reduction” in response times, particularly for lower priority calls.

The fire union and the city had trouble at the negotiating table after Turner took office, with the firefighters initially requesting a 20 percent pay raise over three years. After the city countered with a 4 percent raise over two years, the union declared an impasse and requested arbitration in May 2017. The city rejected the request, saying both sides “had not made every reasonable effort to reach an agreement.” The following month, the city and fire union entered mediation but again failed to reach an agreement, after which the firefighters orchestrated a petition drive that ultimately led to Proposition B.

In a letter sent to Turner Monday, Houston Professional Fire Fighters Association President Marty Lancton again called for a return to the negotiating table.

“The election season is over,” the letter said. “We hope you agree it's time to end the divisiveness of the campaign and the related retribution against firefighters. Like you, Houston firefighters want what's best for the city.”

The mayor, who instructed each city department in September to submit plans for reducing their respective budgets by 3.4 to 5.2 percent, has remained tight-lipped about how he plans to make the cuts he has warned are needed to square the city’s budget.

The Chronicle submitted a public information request seeking copies of the departments’ budget-cutting memos, but the city has sought an opinion from the Texas Attorney General on whether the documents can be exempted from disclosure.

Several city departments — including the Administration of Regulatory Affairs, the Solid Waste Department, and Public Works and Engineering — declined to say how Prop B-related cuts would impact their services and referred all questions to the mayor’s office. Alan Bernstein, a mayoral spokesman, referred the Chronicle to the months-old memo asking departments to submit “reduction scenarios.”

In the months leading up to Election Day, Turner repeatedly warned the parity measure, if approved, would require mass layoffs. He also hinted at the possibility of a protracted legal battle over the initiative's implementation, on election night citing “vague and ambiguous” ballot wording. That may not be the only legal battle firefighters face to get their raises. The Houston Police Officers Union has said it also is considering potential litigation over the implementation of Prop B.

___ (c)2018 the Houston Chronicle Visit the Houston Chronicle at www.chron.com Distributed by Tribune Content Agency, LLC.