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Appeals court overturns verdict in firefighter pay parity lawsuit

Wow.

An appeals court on Thursday reversed a ruling that declared Houston firefighters’ pay-parity measure unconstitutional, a major win for the fire union and one that could have far-reaching effects on city finances.

The fire union won approval of a charter amendment, known as Proposition B, in 2018 that would have granted them equal pay with police officers of similar rank and seniority. The city and the police officers’ union quickly sued, though, and in 2019 a trial court ruled the referendum unconstitutional because it contradicted state law that governs how cities engage with police officers and firefighters. The voter-approved charter amendment was never implemented.

In its ruling, the Fourteenth Court of Appeals in Houston said that was an error. Justice Meagan Hassan wrote in a 2-1 opinion that the Texas Legislature did not intend to stop cities from enacting such pay measures.

“Preemption is not a conclusion lightly reached — if the Legislature intended to preempt a subject matter normally within a home-rule city’s broad powers, that intent must be evidenced with ‘unmistakable clarity,’” Hassan wrote.

The justices sent the case back to the lower court. Both the city and the police union said they plan to appeal the ruling.

It was not immediately clear when the city would have to implement the pay parity measure.

[…]

Controller Chris Brown, the city’s independently elected fiscal watchdog, said the ruling was disappointing and concerning from a financial perspective. He said the administration and union need to iron out a collective bargaining agreement so the city knows how much it will have to pay if Prop B is upheld and back wages are owed. It could be in the ballpark of $250 million to $350 million, he said, adding the city and union could agree to pay that money over several years instead of all at once.

“We need to have certainty on the ultimate financial impact to the city,” he said. “I have a concern because ultimately, the taxpayers are going to foot this bill… If we do have a big, one-time payment, where’s that money going to come from?”

Good question. See here for the background here for the majority ruling, and here for the dissent. I would imagine this will be put on hold pending appeal to the Supreme Court, so we’re probably looking at another two years or so before this is resolved. It’s possible that the Mayor and the firefighters could hammer out a collective bargaining agreement that would moot this, or perhaps the next Mayor could, if the Supreme Court decides to wait till after the 2023 election to hand down a ruling. I wouldn’t bet on that, but it is theoretically possible.

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13 Comments

  1. David Fagan says:

    “It’s possible that the Mayor and the firefighters could hammer out a collective bargaining agreement that would moot this”?

    Don’t you remember that the constitutionality of collective bargaining is being challenged BY THIS MAYOR in the Supreme Court of Texas? He would have to drop his case and the city would still be in the same situation. Maybe, just MAYBE people should have listened to the firefighters a little closer in 2017, but that’s all ‘supply and demand’ water under the bridge.

    50 days and counting………

  2. Manny says:

    I am glad for the firefighters despite them having people like David Fagan.

    If parity is what they want, what would happen if the city lowers policemen’s pay?

  3. Jason Hochman says:

    This is good to hear. I’ve always said that Mayor Turner and the Democrats have failed to Keep Us Safe. I have no idea why the mayor has no regard for the fire department, which is a professional fire department that will attack fires from the interior and pull ceiling and search for any victims.

  4. Nawfsider says:

    Chris Brown is asking the right question. The writing has been on the wall that eventually the City is eventually going to owe the Firefighters a lot of backpay, out of a failure to bargain in good faith and mediate/arbitrate a contract for 4 years. The time to settle this is now, while we have American Rescue Plan Funds. Kicking the can into the next mayor’s administration by appealing endlessly is is real disservice to Houstonians.

  5. David Fagan says:

    49 days and counting……..

  6. David Fagan says:

    48 days and counting……..

  7. Kibitzer Curiae says:

    SEPARATION OF POWERS AT ISSUE IN SCOTX APPEAL

    Re: “Don’t you remember that the constitutionality of collective bargaining is being challenged BY THIS MAYOR in the Supreme Court of Texas?” (Fegan)

    That case indeed remains pending, though the constitutional challenge is to the delegation of decisonmaking power to the judiciary (district judge) to set compensation in the event collective bargaining and arbitration are not fruitful.

    It’s another version of a separation-of-powers argument that also features prominently in the Dems’ suit over the Abbott veto. The latter, however, is an original mandamus proceeding commenced directly in the SCOTX (like Paxton’s suit against the election clerks over mail-voting based on COVID risk last year), rather than an appeal.  

    The specific argument in CITY OF HOUSTON v. HOUSTON PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION LOCAL, 341 in the Texas Supreme Court (No. 21-0518) is that Sections 174.021 and 174.252 of the Local Government Code unconstitutionally delegate legislative power to the judiciary without prescribing sufficient standards to guide the discretion conferred.

    There is also a second argument that’s not a constitutional challenge: That the court of appeals “erred in determining that Chapter 174 does not require good faith collective bargaining with respect to prevailing compensation and other conditions of employment in the private sector.”

    The SCOTX has requested a response to the City’s petition, which is due Aug. 23.
    See docket here:
    https://search.txcourts.gov/Case.aspx?cn=21-0518&coa=cossup

    That doesn’t necessarily mean that the Court will ultimately exercise discretionary review to revisit the disposition of the Court of Appeals in Houston (Hassan wrote the opinion), but for now it will go forward. It only takes 1 vote to take a petition off the “conveyor belt” which would result in automatic denial within 30 days.

    As for the most recent decision from the Houston Court of Appeals, it basically involves a disagreement over statutory construction/application and — as is often the case — there are reasonable arguments on both sides. That gives room for nonlegal factors to come into play, which increases the chances of a party-line vote. So here we have 2 Dems making up the majority on the panel (Hassan and Spain), and 1 Republican (Wise) dissenting on the preemption issue as follows:

    “Because the pay-parity amendment ties fire fighters’ compensation to a standard that is not based on prevailing private sector compensation, under the uncontroverted evidence in this case, the amendment is contrary to FPERA. The trial court did not err by granting summary judgment to the Appellees.”

    The conflict (“contrary to FPERA”, the state law in question) is pivotal to the determination of whether preemption applies.

    The SCOTX currently has 8 Republicans and 0 Democrats. So there.

    FPERA = Fire and Police Employee Relations Act.

    FPERA provides that fire fighters’ compensation and conditions of employment shall be “substantially equal to” and “based on” comparable private sector employment. Tex. Loc. Gov’t Code § 174.021. Compliance with these guidelines may be secured through collective bargaining or, if necessary, through judicial enforcement. See id. §§ 174.023, 174.251. The judicial enforcement mechanism is being challenged in the case pending in the SCOTX. The City had lost both in the trial court and in the court of appeals, which affirmed the trial court’s order denying the City’s plea to the jurisdiction and rejected the City’s constitutional challenge. 

  8. David Fagan says:

    47 days and counting……..

  9. Kibitzer Curiae says:

    LEGAL VS. FACTUAL and LEGAL VS. POLITICAL ANALYSIS

    Re: “Appeals court overturns verdict [SIC] in firefighter pay parity lawsuit”

    Oh, on a point that is important to the legal treatment of the City-FF Union dispute (as distinguished from the politics of it all), this appeal isn’t from a trial (not to mention a jury trial), but from a judgment entered on cross-motions for summary judgment.

    So, what’s at issue on appeal are legal questions only, not disputed issues of fact. For the same reason, the term “verdict” is technically not accurate, though it is loosely refers to any type of judgment in common nonlegal usage.

    In Texas courts, the term VERDICT is mostly used for the jury’s answers to the question they were charged to decide. In a case tried to the bench (i.e., the judge only), however, the judge acts as fact finder. The equivalent of the jury’s verdict in a case tried to the bench (i.e., without a jury) are FINDINGS OF FACTS. This is a document separate and distinct from the judgment that must be specifically requested from the judge that tried the case to properly support an appeal. But not in this case. Here, the issues being litigated involve competing arguments as to whether the pay-parity charter amendment conflicts with state law, and the trial court – a Democrat, by the way — answered it with the following declarations:

    1. Proposition B, which amends and adds Section 24 to Article IX of the Houston City Charter, is preempted in its entirety by Chapter 174 of the Texas Local Government Code.

    2. Proposition B, which amends and adds Section 24 to Article IX of the Houston City Charter, is unconstitutional and void in its entirety because it violates article XI, section 5 of the Texas Constitution.

    A summary judgment is inappropriate when there are disputed issues of material fact. That leaves only issues of law (such as statutory construction or constitutionality, or the proper application of judicial precedents to undisputed facts), or – alternatively – an argument that summary judgment should not have been granted because there were genuine issues of material fact (typically shown with conflicts in relevant evidence) that could not be decided summarily, and instead required a trial on the merits, or that the summary judgment standard was not met.

    Houston Professional Firefighters’ Association IAFF Local 341 et al v. Houston Police Officers’ Union, City of Houston, Mayor Sylvester Turner, et al. NO. 14-19-00427-CV (Tex.App.-Houston [14th Dist.] July 29, 2021, no pet. h.)

    POLITICS OF PREEMPTION WITH A TWIST

    From a political-science perspective, one might expect that the Texas Supreme Court would rule against the fire fighters union not only because they are, like the dissenting judge in the Court of Appeals, Republicans and reliably anti-labor, but because they generally favor preemption of local law by state law. That, after all, means that Republicans will have considerable control over Democrat-run local governments as long as they control the Legislature and can pass laws as they see fit. Preemption is useful doctrine because it allows the Lege and the SCOTX countermand local policymaking. For the same reason, it is useful to apply the doctrine liberally when there is uncertainty.

    Remember the plastic bag ordinance that was nixed, to mention just one example.

    What’s intriguing in this dispute is that an expected SCOTX ruling in favor of preemption of local law by state law would vindicate the City of Houston and Democrat Mayor Sylvester Turner in this particular legal dispute, rather than diminishing his power. But that’s because the policy at issue was adopted by the voters, rather than the mayor or the local governmental body. That makes this case different from others involving the state-local balance of power and State (GOP) supremacy.

    BOTTOM LINE: The FF Union’s win in the Fourteenth Court of Appeals seems tenuous.

    What remains to be seen is what happens next. Will the City file an en banc motion or head straight to the SCOTX? Justice Randy Wilson sat on the case initially in the trial court and would presumably be recused, so that would leave even more Democrats for a second opinion on the merit of the reversal by Justices Hassan and Spain, both Democrats.

    But party affiliation isn’t everything here. The district judge that signed the summary judgment is also a Democrat and Justice Ken Wise, a Republican, didn’t dissent in the case that’s already in the SCOTX. See Tex. No. 21-0518.

    Cite for COA opinion in that case: City of Houston v. Houston Professional Fire Fighters’ Ass’n, Local 341, No. 14-18-00976-CV (consolidated with No.
    14-18-00990-CV), 2021 WL 1807311 (Tex. App.—Houston [14th Dist.] May 6, 2021, pet. filed)(court of appeals panel consisting of Justices Hassan, Spain, and Wise affirmed trial court’s order denying City’s plea to the jurisdiction and
    denying the City’s constitutional challenge to sections 174.021 and 174.252).

    It’s the same panel in the Houston Court of Appeals in both cases.

  10. David Fagan says:

    If the mayor’s lawsuit about the constitutionality of collective bargaining = A

    And

    If Prop B = B
    Then,
    If A lawsuit unconstitutional, B lawsuit is constitutional
    If B lawsuit is unconstitutional, A lawsuit is constitutional

    There is not a scenario where both lawsuits are unconstitutional, since B lawsuit depends on the constitutionality of Collective bargaining (which is challenged by A lawsuit)

    There is, apparently, a situation where both lawsuits can rule in FF’S favor.

    46 days and counting……..

  11. C.L. says:

    Snooze.

  12. David Fagan says:

    45 days and counting……..

  13. Susu says:

    Fight on HFD you deserve every dime