City Attorney Move on Paid Sick Leave Measures Nirenberg’s Power

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Mayor Ron Nirenberg meets with members of the COPS Metro Alliance during a meeting calling for action on his housing policy.

Scott Ball / Rivard Report

Mayor Ron Nirenberg supported implementing the paid sick leave law as scheduled, but the City's lawyers were in court Monday arguing for a delay.

Here’s something you couldn’t imagine under the likes of mayors Henry Cisneros, Phil Hardberger, or Lila Cockrell, and not just because they preceded Twitter.

On Sunday afternoon, after the Rivard Report carried this headline Friday: City Agrees to Delay Enforcement of Paid Sick Leave Ordinance Until December, Mayor Ron Nirenberg tweeted: 

“Citizens have a sacred right to petition their government. More than 140,000 did so, lawfully, for an ordinance to provide earned paid sick leave for San Antonio workers starting August 1st. I stand by their rights and I stand with them.”

On Sunday night, Nirenberg felt the need to state it more forcefully: “To Further clarify: I am calling for no delay in implementing Paid Sick Leave.” Council members Roberto Trevińo (D1) and Ana Sandoval (D7) took the same position.

Yet Monday morning, there were the City’s attorneys in court joining attorneys for a coalition of business interests asking a district judge to move implementation from Aug. 1 to Dec. 1. The business organizations had hired Ricardo Cedillo, one of San Antonio’s top corporate litigators, to file a lawsuit to void the ordinance. 

Leaders of the two community organizations that generated the paid sick leave ordinance last year were not amused. The Texas Organizing Project and MOVE Texas had gathered an impressive 144,000 signatures to put an ordinance on the ballot. With the expectation that voters would overwhelmingly pass a sick leave initiative, Nirenberg and the council passed the ordinance in August 2018 without putting it on the November ballot. 

But Nirenberg never demonstrated great enthusiasm for the ordinance. Immediately after its passage, he set up a commission that included business leaders to try to amend the ordinance to make it more palatable to a very hostile business community. The commission slow-walked it at first.

Based on statements by state Republican leaders, it was assumed that the Legislature would prohibit such ordinances just as it has prohibited cities from approving minimum-wage ordinances. Nirenberg declined to lead City Council in instructing the City’s lobbyists to oppose any bills that would overturn the ordinance. And, in the end, no such bill was passed.

Meanwhile, Austin’s 3rd Court of Appeals overturned the City of Austin’s paid sick leave ordinance on which San Antonio’s was modeled. The appeals court said requiring paid sick leave in effect meant raising the minimum wage.

San Antonio city attorney’s office told council members it agreed to the delay until Dec. 1 in hopes that the local commission would come up with modifications that would make the ordinance different enough from Austin’s that it wouldn’t also be struck down. 

There is some logic to the city attorney’s rationale. But it wasn’t persuasive to the ordinance’s backers. They maintain that the ruling against Austin is wrong, and they are not overly optimistic that the all-Republican Texas Supreme Court will reverse it. Still, there is a feeling that even if the San Antonio ordinance is modified, if it is effective in helping employees, it will eventually be struck down by the State Supreme Court.

Scott Ball / Rivard Report

Attorneys representing the City of San Antonio head to the courtroom of Judge Monique Diaz for an emergency hearing on delaying implementation of the City’s paid sick leave ordinance.

The Legislature’s failure put Nirenberg in a political pickle. His failure to defend it before the Legislature led the Texas Organizing Project and MOVE to decline to endorse him during the first round of the mayor’s race. In the face of the surprising possibility that challenger Greg Brockhouse might win a runoff, the organizations met with Nirenberg and decided to endorse him in the runoff. 

The two organizations spent about $200,000 to help Nirenberg with a get-out-the-vote effort, about what the firefighters union spent helping Brockhouse, but well short of the approximately $320,000 the police union spent for the challenger.

Nirenberg’s narrow runoff victory likely would not have happened without that extra boost. It could also be said that he may have lost without support from the business community, which appears to have been motivated more by fear of Brockhouse and the public safety unions than enthusiasm for Nirenberg.

A victory that close depended on a variety of supporters, but it is clear that Nirenberg owes the Texas Organizing Project and MOVE Texas consideration. Some in the organizations wonder if the mayor was playing games, expressing his support for paid sick leave while allowing the city attorney’s office to undermine it. 

Nirenberg was on a family vacation in California on Monday, but a spokesman said, “Mayor Nirenberg stands 100 percent for the sick leave ordinance as passed and will defend it. Any suggestion otherwise is false.”

The reality is the mayor has no direct control over the city attorney. The City Charter describes a very weak mayor, giving him only one power not available to every other council member. He can call an emergency council meeting. But so can any three council members. What’s more, the charter provides that the city manager selects the city attorney, who is then ratified by the council. 

The charter says the city attorney shall “serve as chief legal advisor to the Council, the City Manager and all city departments, offices and agencies, and the City Attorney shall represent the city in all legal proceedings ….” He or she “shall report to the city manager. …” There is no mention of the mayor.

But the historical record is that more than a few city attorneys have been close to the mayor. Back in the 1970s, Lila Cockrell, the city’s first female mayor, saw to it that we had our first female city attorney, Jane Macon. Mayor Phil Hardberger arranged to have his campaign manager, Michael Bernard, who had also been first assistant district attorney, appointed city attorney. Whatever the charter says, the reality is that the power of San Antonio’s mayors is largely determined by their skill and energy.

Perhaps the single most important reason that Nirenberg nearly lost his re-election bid was that in his first term he did not project himself as the kind of strong leader whom the city attorney’s office would never consider contradicting. Ironically, he was elected mayor because his predecessor had the same problem.

Ivy Taylor was appointed mayor by her fellow council members when Julián Castro went to Washington partly because she promised not to run for the office. But in her first week as interim mayor she boldly killed an unpopular street car project. Based largely on that show of strength, she fended off a field that included a state representative, a state senator, and a county commissioner. 

But in her two-year term after being elected, she had trouble projecting such strength, and that was a major campaign theme for the man who beat her, Ron Nirenberg. 

Nirenberg needs to show some strength, or he could suffer the same fate.

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