Mediation ordered in Prop B dispute
Judge tells fire union, city to hash out how to implement parity
A state district judge on Thursday ordered the city, the Houston Professional Fire Fighters Association and the Houston Police Officers’ Union to enter into mediation as they seek to resolve lingering differences over the implementation of Proposition B, the measure granting firefighters the same pay as police of corresponding rank and seniority.
Judge Tanya Garrison of the 157th Civil District Court ordered the mediation after hearing arguments in a lawsuit seeking to invalidate the pay parity amendment. During the hearing, Garrison said she would not issue a ruling on the case “any time soon,” concluding it would only set back ongoing negotiations to phase in firefighters’ Prop B-mandated raises.
“If I make a decision on this one way or the other … it will be the equivalent of throwing a bomb in the middle of the attempts to negotiate a resolution,” Garrison said.
The judge gave the parties until noon Monday to agree on a mediator. The court would appoint a mediator if they cannot settle on one.
The mediation is mandatory but not binding.
The mediator may suggest ways to resolve the dispute but cannot impose judgment, according to a list of rules attached to Garrison’s court order. If the parties do not voluntarily agree to a settlement, the issue returns to Garrison.
During mediation, the city and fire union are expected to continue trying to hash out disagree
ments that so far have prevented them from agreeing to phase in Prop B raises over several years, a step Turner has said would eliminate the need for layoffs. City council is scheduled on Wednesday to consider sending 60-day layoff notices to 220 firefighters, which Turner says are necessary to account for the added cost of Prop B.
Turner has estimated Prop B would cost the city $79 million a year if fully implemented at once, requiring layoffs of hundreds of employees, including firefighters. Phasing in the raises over five years, Turner has said, would require no layoffs.
Fire union officials say the mayor is being vindictive and could find a way to avoid the layoffs, while Turner repeatedly has noted that Prop B came without a funding source. The city, already facing a massive deficit, must approve a balanced budget by the end of June.
The city sent Prop B-related pink slips to more than 100 fire cadets and municipal employees earlier this month.
“Though it is non-binding, the city will comply,” Turner said in a statement issued by his office late Thursday. “What is important is that the mediation occur as soon as possible, preferably Monday or Tuesday.”
Thursday’s hearing and subsequent mediation order marked the latest developments in a lawsuit filed Nov. 30 by the police union seeking to strike down Prop B, which voters overwhelmingly approved Nov. 6. City council adopted it into the city charter Nov. 28.
Named as a defendant in the police union’s suit, the city filed a legal claim contending that Prop B conflicts with a section of Texas’ Local Government Code tying compensation for firefighters and police officers to that of comparable private sector employees.
Provision vs. Prop B
The city focused on that argument Thursday, contending that Prop B unconstitutionally violates the private sector pay provision by requiring the city to pay firefighters the same as public sector employees in the police department.
Reagan Brown, an attorney from the Norton Rose Fulbright firm representing the city, contended the state provision preempts Prop B and any contradicting local laws.
The fire union, meanwhile, argued that Prop B does not conflict with the private sector provision, and instead complements the part of the Local Government Code that deals with police and fire employment conditions, known as the Fire and Police Employee Relations Act.
Garrison, who took over the case after winning the bench in the November midterms, at one point asked the union’s lead attorney, Travis Sales, what would happen if firefighters’ comparable private sector hourly pay was $20, while the comparable police rate was $50.
Sales characterized Garrison’s scenario as a “remote hypothetical,” and noted that in a separate lawsuit between the city and fire union, the city argued that “no such private sector standard exists” to compare with city-employed firefighters.
“They are saying that this is contrary to something that they say does not even exist,” Sales said.
Near the end of the hearing, as Garrison weighed how to move forward, the two sides discussed the idea of mediation, which they previously attempted in 2017 before talks broke down. City Attorney Ron Lewis told Garrison the Turner administration does not believe a mediator could resolve the matter.
Financial data
Instead, Lewis suggested Garrison provide a window during which she would agree to not rule on the matter, which he said could act as an incentive for both sides to reach an agreement before that time expired. Troy Blakeney, an attorney for the fire union, generally agreed with the idea.
“I'm not here to say that some time frame as referenced by Ron would be detrimental,” he said.
Blakeney also gave a brief update on the state of negotiations, saying the fire union received financial information from the city Wednesday. The city and union have tussled over the data, which the union repeatedly had requested to verify that Turner’s offer to phase in the raises over several years honors the charter amendment’s terms.
“Last night, we got financial data we've been looking for,” Blakeney said. “It came in yesterday afternoon, or something — some of the data — so that we could try to understand” the city’s position.
After the hearing, Lancton said the data, which was sent around 6 p.m., “was the absolute same regurgitation, the same information we’ve gotten previously that answers none of the questions that we have asked.”
In any case, Garrison made clear that she would make a ruling if it becomes necessary, but for now would prefer the two sides strike a deal outside her courtroom.
‘I just set y’all back’
“Y'all are close,” she said. “And if I rule Prop B is unconstitutional or it’s been preempted, or if I rule that it isn’t, I just set y’all back. I can only make this situation worse.”
At one point, Garrison asked why Prop B did not include language nullifying the law that ties public safety compensation to that of comparable private sector employees.
A bill introduced by state Sen. Carol Alvarado, D-Houston, would do exactly that, stripping the language from the local government code and instead requiring that firefighters and police officers receive pay equal to that of comparable fire and police departments.
The police union’s attorney, Kelly Sandill, contended at Thursday’s hearing that state law ties fire and police compensation to that of private sector employees for the sake of stability, arguing that the provision gives employees an idea of what sort of pay they will receive.
The police union also has contended that Prop B impairs the union’s ability to “bargain freely for the fair compensation of its members,” saying pay parity “undermines and interferes” with the union’s independent meet-and-confer-style salary negotiations.
Fire union officials disagree, saying the two unions still can negotiate on behalf of their constituents because they remain separate bargaining units.