Houston FF Pay Parity Amendment 'Invalid,' City Says

The City of Houston has alleged in a legal claim that the voter-approved charter amendment granting firefighters equal pay to police officers is unconstitutional and preempted by Texas’ local government code, echoing a similar contention from the Houston Police Officers’ Union.

The claim, filed in state district court as part of the police union’s lawsuit against the Houston Professional Fire Firefighters Association and the city, comes 10 days after a judge issued a temporary restraining order blocking implementation of Proposition B, which passed with 59 percent of the vote last month. A hearing on the matter is scheduled for Friday.

In its argument, the city contends that the pay parity amendment, which applies to firefighters and police officers of corresponding status, “directly conflicts with the collective bargaining process and guidelines for firefighter compensation” laid out in the Texas Local Government Code, meaning it is “expressly preempted” and “therefore invalid.”

The city filed the claim against both the fire and police unions because it is listed as a defendant in the police union’s suit. An attorney for the fire union initially called the lawsuit a “ruse,” predicting the city would “flop once the police sue over this charter amendment.”

It is a fairly common legal maneuver to bring suit against someone on your side in order to involve them in the lawsuit, said Jay Kumar Aiyer, an assistant professor of public policy at Texas Southern University. In this case, it made sense for the police union to file the suit, he said, because it is raising the argument that the charter amendment ties the unions’ contract negotiating processes together.

“You have this sort of odd situation where a defendant and the plaintiff are on the same side,” Aiyer said. “Strategically, it was a smart way of being able to sort of control the process.”

Amid the developing legal battle, fire union president Marty Lancton has urged Mayor Sylvester Turner to work out a contract that Lancton says would supersede the amendment. Turner has refused, saying a judge first should settle a number of legal questions surrounding the issue, namely whether state law preempts the amendment. Lancton has argued that a “legally negotiated contract with firefighters would settle this issue, once and for all.”

The city’s claim further includes a previous legal argument that the amendment is “unconstitutionally vague,” in part because it does not lay out the “amount of compensation for each firefighter.” Separately, it says the ballot item failed to meet the requirement of the Local Government Code section that says the referendum needed to include a “proposed minimum salary for each firefighter” rank.

Lancton previously noted that the city was tasked with drawing up the ballot language; a mayoral spokesperson said the city used the wording included on the union petitions seeking to put the charter amendment to voters.

Turner, who recently received city council approval to hire an outside law firm to handle Prop B matters, has made the same arguments included in Monday’s counterclaim. In a statement, he said that any salary negotiations requested by the union are “nothing more than a distraction and an attempt to confuse the issue.”

Lancton has said the union sought to negotiate with Turner for “more than a year,” and its offer to meet “any place, any time, remains open.” On Tuesday, he took issue with Turner’s use of the outside firm, Norton Rose Fulbright, to file a claim against the fire union. In a statement, he accused the mayor of using his “army of city and corporate lawyers” to defy the voters’ will.

“The mayor’s million-dollar demand for taxpayer-funded legal fees to ‘defend’ Prop B litigation was just a phony pretext to fund his continuing political and legal war against Houston firefighter families,” Lancton said, contending the legal battle is a waste of taxpayer funds.

City council last month approved a $500,000 contract with Norton Rose, roughly half Turner’s initial request.

Aside from arguments about the local government code, the city’s counterclaim states that if the amendment is implemented, “the city will suffer particularized injury, such as severely reduced staff, loss of essential city services, and erosion of the city’s credit outlook.”

Turner has said passage of the parity measure would results in the layoff of as many as 1,000 city employees, including firefighters and police.

Lancton called warnings a scare tactic, arguing it is possible to implement parity without slashing staff. Fitch Ratings last month downgraded Houston’s credit outlook following Prop B’s passage.

Houston attorney Tony Buzbee, who announced in late October that he would run for mayor next year because he was disappointed in Turner’s performance, has offered to mediate the Prop B feud, an offer the mayor is unlikely to accept. Buzbee appeared to side with the fire union when he said in a joint statement with Lancton that the city should “equally value our police and fire first responders.”

Hanging over the ongoing legal battle is the prospect of mass layoffs of city employees, which Turner has said would be necessary due to the cost of implementing pay parity. The mayor and Controller Chris Brown have said the amendment would cost nearly $100 million a year, and Turner instructed each city department in September to submit budget reduction plans.

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