Dispute in defending sick leave law
Mayor, others on council disagree with staff on delay
The lawsuit against San Antonio’s paid sick leave law has exposed a rift between city staff and some elected leaders about how best to defend the ordinance.
City Attorney Andy Segovia’s office announced late Friday that it had reached a deal with businesses challenging the ordinance. Under the agreement, the city would delay enforcing the law from Aug. 1 to Dec. 1. The move angered advocates of the ordinance, who already feared that city leaders were backing away from the hard-fought policy.
Segovia’s office decided on the delaying tactic after conferring with City Manager Erik Walsh and briefing the City Council. Segovia believes it gives the city the best chance to preserve the ordinance.
But over the weekend, Mayor Ron Nirenberg and at least two council members made clear they did not approve of that strategy.
“I am calling for no delay in implementing Paid Sick Leave,” Nirenberg said in a tweet Sunday night, less than 12 hours before attorneys planned to present the deal to a judge.
Councilman Roberto Treviño said San Antonians expected to benefit from the policy “cannot wait any longer,” and Councilwoman Ana Sandoval said they “deserve better.”
Despite the objections, Segovia planned to support the delay at a hearing in state District Court on Monday. That hearing was delayed because of a lack of notice to the policy advocates. It’s now scheduled for Wednesday.
Segovia said his office will continue pursuing the agreement with the businesses.
“I’m not going to get into discussions I’ve had with clients, but it’s my job to defend the city ordinances, which is what I feel I’m doing,” Segovia said. “The charter gives me a lot of authority and
flexibility to manage litigation, and although I do get input from council, at the end of the day, I have to make the calls when it comes to litigation.”
On Monday, Nirenberg stood by the convictions he expressed over the weekend.
“City attorney’s staff acted in the manner they thought would best defend the ordinance,” he said. “We share the same goal but not the same strategy. I remain firm in my opposition to a delay in implementing the earned paid sick leave ordinance.”
Nirenberg was not available for further comment.
The city charter prohibits any member of the council from giving “orders to any subordinates of the city manager, either publicly or privately.” Segovia reports to Walsh, not Nirenberg.
Making a change
Still, there are other things the mayor can do to influence city staff, said Charles Cotrell, a political expert and former president of St. Mary’s University.
The mayor could use his bully pulpit to try to change the outcome, which Cotrell said he might have been trying to do with the tweet. But he questioned its effectiveness.
“Saying it that way is really a sign of weakness,” Cotrell said, adding that it sounds as if the mayor is saying “Gosh, I wish I could help you, but I just can’t.”
“The question that comes up with his supporters is, ‘Why don’t you do something about this?’”
The mayor’s office said Nirenberg voiced his disagreement to city staff. It’s unclear if that occurred before or after city attorneys agreed to the delay.
Former Mayor Henry Cisneros, who said he’s a “big fan” of Nirenberg, said the mayor could also potentially call the council together and, equipped with a majority, direct the attorney to switch course.
“The mayor has every right to state his position. It’s just not the city of San Antonio’s policy until five council members join him to create a majority,” Cisneros said. “The City Council makes the policy, and if they decide we want a different direction in regard to a legal matter, they can do that, they have that authority in my opinion.”
The mayor doesn’t appear likely to do so, and it’s unclear if a majority of the council agrees with him.
While Treviño and Sandoval took similar positions, council members Adriana Rocha Garcia, Manny Peláez and John Courage said they don’t oppose a delay. Councilman Clayton Perry said he stands by his position that the council shouldn’t have passed the paid sick leave policy in the first place.
The council is on its summer break; its next meeting isn’t until next month, but Nirenberg could call a special session.
Asked what would happen if the council did meet and voted to change attorneys’ strategy, Segovia said he “wouldn’t even want to cross that bridge theoretically or at all.”
Different defenses
San Antonio’s ordinance requires employers to give their workers a minimum amount of paid sick leave, depending on the size of the business.
The business groups, which filed the lawsuit last week, are arguing that the ordinance violates Texas’ minimum wage law because it requires employers to provide benefits above those prescribed in the statute.
The law, they note, explicitly forbids local governments from passing higher requirements. The argument mirrors one used against a similar ordinance in Austin, which the 3rd Court of Appeals declared unconstitutional.
The difference in how to defend the policy is strategic. Progressive groups — Texas Organizing Project and MOVE Texas — intervening in the case want to defend the ordinance and assert its constitutionality now. Nirenberg, Treviño and Sandoval apparently agree with that approach.
The city attorney’s office believes that the most likely outcome of that hearing would be a judge striking down the law, as the appeals court did in Austin. A court order could also potentially block future work of the city’s paid sick leave commission, the 13-member group reviewing changes to the ordinance, according to Segovia.
Segovia’s office believes that it would be better to distinguish the ordinance from the one in Austin so that San Antonio could more strongly argue that its ordinance is valid.
“We don’t want to go ahead and have this fight on Wednesday over this ordinance in its present form,” Barry Snell, another lawyer representing the city, told the judge at Monday’s hearing.
“We share their goal of getting the ordinance. We just disagree with them on the best method to get there,” Snell said, referring to ordinance advocates. “We would rather fight the fight with an ordinance that we think is better situated to be sustainable than the present one.”
The other view
Ryan Cox, a Texas Civil Rights Project lawyer, is representing TOP and MOVE Texas in the case. They intervened in the businesses’ lawsuit last week; the businesses are seeking to strike them from the case.
Cox said the city won’t be able to make changes to skirt the constitutional question that has stopped Austin’s ordinance. If San Antonio is requiring any kind of paid sick leave, the logic deployed by the judges in Austin would still strike it down as requiring benefits above the minimum wage law.
For that reason, Cox argued, the city is just caving in to the business groups’ demands before the case is even brought to court. He said the city should defend the constitutionality and instead challenge the logic used in the Austin ruling.
For their part, leaders of TOP and MOVE Texas, who led the petition drive that resulted in the ordinance, are exerting political pressure on elected officials to try to stave off delaying the policy. Volunteers with the two organizations filled the benches of the courtrooms Monday, and they’ve been reaching out to council members to try to stop the plan.
State District Judge Monique Diaz’s ruling Monday to move the hearing to Wednesday represented a victory — at least temporarily — for the policy’s advocates, giving them more time to prepare for the proceedings.
“Today, the people of San Antonio are still in this fight,” said Joleen Garcia, a TOP organizer. “We’re ready to continue and defend paid sick days, and what happened today in the courtroom was a showing that we do belong at the table.”
Ricardo Cedillo, the attorney representing the business groups, was confident that the deal would prevail Wednesday.
“This just buys them two days,” he said. “It’s immaterial to me whether we do it today or tomorrow or Wednesday. We’ll do it on Wednesday, and we’ll move forward.”