The City of San Antonio filed lawsuits against the police and firefighters unions Friday morning, asking a state district court judge for a declaratory judgment that the Evergreen Clause in both collective bargaining agreements is unconstitutional.
“Today we are asking the court for a legal determination as to whether the police and fire union labor contracts can constitutionally remain in effect for the next decade,” Mayor Ivy Taylor said in a prepared statement. “I look forward to continuing the negotiation process.”
A typical Evergreen Clause serves as an automatic renewal of the contract's provisions, usually for a brief period of time, such as 30 days, while the parties negotiate a new contract. The City's five-year contract with police and firefighters was approved by City Council in 2009 and expired on Sept. 30.
The contract included renewal of an Evergreen Clause that lasts 10 years. The Evergreen Clause itself was first approved in 1988, predating current City staff or officeholders.
"What we have done is file lawsuits seeking a declaratory judgment, we are asking the court to interpret the Evergreen Clause," said Michael Bernard, a partner with Bracewell & Giuliani and a member of the City's bargaining team. "We are essentially asking the court to rule on the constitutionality of the clauses, that is, can a prior City Council from 2009 bind the City through 2024? Other courts in this state and others states have ruled such clauses to be unconstitutional."
Bernard served as City Attorney for eight years before resigning one year ago to enter private practice. He was asked by Mayor Ivy Taylor and City Manager Sheryl Sculley in August to join the City's negotiating team as talks resumed with the police union after several months without any meetings. Robbie Greenblum, the City Attorney who replaced Bernard, has announced plans to resign and go to work in Washington DC with Secretary of Housing and Urban Development Julián Castro. Greenblum served as chief of staff to then-Mayor Castro. He has not served as a member of the City's negotiating team.
Two other outside attorneys, Jeff Londa of Houston and Bettye Lynn of Fort Worth, have led the City's team. Georgetown attorney Ron DeLord represents the police union.
The City filed two companion lawsuits, one against the San Antonio Police Officers Association, and the other against the San Antonio Firefighters Association, which has refused to open bargaining talks with the City, but benefits from the same Evergreen Clause in its contract.
The lawsuit against the police union essentially makes the case that the Evergreen Clause has allowed the union team to bargain in bad faith, unconcerned about reaching a new agreement. It cites DeLord's decision in April shortly after his hiring to unilaterally cancel five bargaining sessions agreed upon by both sides in an effort to agree on a new contract by June 1, a violation of the written bargaining terms the City and police union signed as talks got underway in March. By mid-June, the talks broke down and did not resume until September.
The City's lawsuit against the firefighters union notes that City manager has reaching out repeatedly to union leaders since February in an effort to start talks, but union officials have either declined to meet or ignored her communications.
"These suits don't make any allegations against either union," Bernard said. "They do nothing more than seek a declaration on this one provision because of the escalating health care costs and the start of the new health care budget on Jan. 1. City Council is now faced with making cuts to essential city services in order to fund police and fire health care. That's why we needed to get the suit filed now in state district court. There is no reason why we would not be able to continue negotiations, and it is our hope that negotiations will continue during the pendency of this suit."
That is not likely, according to DeLord.
“The first day I met Jeff and Bettye when I took over negotiations for the police union, they threatened me with the lawsuit, telling me, 'The city manager wants and you have to agree about the Evergreen Clause or we are going to sue.' It's dragged on and on and now that they've billed the City for $6-700,000 they are going to sue us. If they want to reach a deal, why sue us?
"I’ll talk to the team, but that’s like your wife suing you and making you sleep in your car, but she’d still like to have you over for Thanksgiving Dinner."
"Bargaining teams for the City and the San Antonio Police Officers Association last met for a negotiating session on Monday, where talks continued to follow a pattern of one side rejecting the latest offer made by the other, and the two teams disputing the other side's financial assumptions on future health care costs under the different proposals.
The City states in its lawsuits that health care coverage for the police union will cost $38.8 million in 2015 and $$27 million for the firefighters.
Both sides are using health care benefits consultants, but the City is subjecting all of its financial data to independent actuaries. An actuary is a person who compiles and analyzes statistics and uses them to calculate insurance risks and premiums and the likely future cost of any given plan. The police union's health care consultant has not been submitting his financial assumptions to an actuary, but as the Monday session ended, DeLord agreed to have the police union hire its own actuary. No date has been set for the next bargaining session, but the two sides did agree to have their respective actuaries meet and review both sides financial assumptions.
"What we actually ultimately agreed to do is have the police union hire its own actuaries and then their actuaries would talk to our actuaries," Bernard said Friday.
Since Castro appointed a Heath Care and Retirement Benefits Task Force in 2013, the City has been seeking to address runaway health car costs in the police and firefighter contracts, which have risen by 45% over the last two years. Click here to read the task force's final report and recommendations. For more than 25 years the two unions have benefitted from an unusually rich benefits package that includes insurance coverage without premium payments for members or their dependents, minimal co-pays for physician visits and prescriptions, and minimal out-of-pocket expenses.
There also are other non-standard perks in the contract, such as unlimited tuition reimbursement for education courses unrelated to police or firefighter work, and a legal fund that costs the City more than $1 million a year that covers any criminal or civil legal expenses that members incur in their private lives.
City Manager Sculley has been warning City Council for years of the escalating costs of the contract. Public safety costs now account for 66% of the City's $1.05 billion General Budget, the highest percentage in the state. Police and firefighters in SAn Antonio say the rich benefits package was own in lieu of higher wages over the years, but the task force report showed they are among the highest compensated police and firefighters in the state. She and other City officials believe the Evergreen Clause is allowing the unions to avoid reaching anew agreement.
“The city and the police union have met since January without reaching an agreement," Sculley said the City's prepared statement released along with news of the lawsuit filings. "The fire union has refused to come to the table to bargain. Both public safety contracts expired on Sept. 30 but contain a clause that extends the Collective Bargaining Agreements until 2024. We believe that a perpetual contract is unconstitutional and infringes on City Council's fiscal responsibility to provide city services to the taxpayers. Elimination of the 'evergreen clause' levels the playing field for collective bargaining.”
Sculley issued a letter to community leaders Friday that detailed the City's efforts to reach a new agreement with the unions and the decision to seek a declaratory judgment to eliminate then Evergreen Clause and bring the unions to the table to bargain in good faith. Click here to download Sculley's letter.
City Council approved the 2015 Operating and capital Budget in September for the coming fiscal year, which began on Oct. 1. It also set a new per capita rate of $10,000 health care spending for the City's nearly 4,000 police and firefighters so that public safety costs would not exceed that 66% figure. health care costs for union members costs $14,400 in 2014, while the plan covering the City's civilian workers cost only $7,300 and is not escalating.
Unless the City can reach new terms with the unions, or win the legal right to impose new terms by canceling the Evergreen Clause, it will begin to run a $1.6 monthly deficit in January. The City Charter requires the City Council to operate with a balanced budget, which means cuts would have to be made to other essential services starting Jan. 1.
DeLord said the disagreement with the city over the financial assumptions extends also to what he called the City's "fear mongering over a non-existent budget crisis."
"The City is not losing $1.6 million a month staring Jan. 1," DeLord said. "It's true the City budgeted less money than they need to meet their contractual obligations, but they have enough money in the budget at least until July. Until that $10,00o for each member is exhausted, they are not over budget.
"Every item in the budget is an educated guess, no one actually knows exactly what will happen," DeLord said. "Spreading this fear that they have to act now is part of the messaging the (city) manager is so good at. The whole 66% argument is nothing but a shell game."
DeLord said the City moved 157 park police and their annual cost of $13 million into the budget in 2012, causing the public safety spending to increase by that sum to 66%, but that the actual cost of the San Antonio Police Department, excluding other police and firefighters is only 30% of the General Budget.
City budget officers say public safety spending is what it is, whether it's spread through several department budgets or consolidated.
No date has been set yet for a hearing on the City's request for a declaratory judgment.
*Featured/top: Co-counsel for the City Bettye Lynn of Fort Worth (left) describes various contract adjustments to police union representatives with (from left) Laurie Steward, former City Attorney Michael Bernard, and First City Attorney Martha Sepeda. Photo by Iris Dimmick.
See all stories related to the current contract negotiations here.