State Supreme Court to Hear City’s Challenge to ‘Evergreen Clause’

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San Antonio Professional Firefighter Association President Chris Steele speaks with then-Councilman Cris Medina (D7) during an event at City Hall.

Scott Ball / Rivard Report

San Antonio Professional Firefighter Association President Chris Steele (center) launched the "San Antonio First" effort to change the city charter.

For the second time during the three-year case, a court ruled Wednesday against the City of San Antonio’s claim that a clause in its contract with the firefighters union violates the Texas Constitution. Mayor Ron Nirenberg said the City will pursue yet another appeal, this time to the Texas Supreme Court, where he is confident the City will find favor.

City Council is expected to weigh in on the appeal during a private session with attorneys Wednesday or later this week. It will be up to the state’s highest court whether it chooses to hear the case.

At issue is a 10-year, so-called “evergreen clause” in the city’s existing collective bargaining agreement (CBA) with the San Antonio Professional Firefighters Association that allows wages, health care, and other key contract elements to remain in effect for 10 years after a CBA expires. The City’s current CBA with the union expired Sept. 30, 2014, and it filed lawsuits against the police and firefighters contracts’ evergreen clauses nearly two months later.

“We recognize and applaud the hard work of our firefighters, who risk their lives to keep our residents safe,” Nirenberg stated in a news release. “The evergreen clause, however, inhibits negotiations for new agreements and forces the City to provide benefits that threaten to overwhelm the City budget. This restricts our ability to provide other important City services. The evergreen clause eliminates any urgency to strike a new deal that is more fair and balanced for all.”

A district court and now the Fourth Court of Appeals have heard the City’s case and ruled in favor of the firefighters union.

“My hope is that cooler heads will prevail and despite differences on specific next steps of the negotiation, we can all agree that a fair, balanced contract is in the best interest of all parties,” Nirenberg told the Rivard Report.

The police union successfully negotiated a contract in September 2016 that included an eight-year evergreen clause. The City dropped its lawsuit challenging the San Antonio Police Officers Association after putting the legal action on pause during final negotiations. The City was in the process of appealing a district court’s ruling in favor of the police union.

Despite its appeal to the state Supreme Court, the City hopes to soon begin contract negotiations with the fire union. However, the two sides have yet to hold an official meeting about the next contract.

“On Wednesday, Aug. 16 – for the ninth time in four years – we again invited the fire union to the bargaining table,” City Manager Sheryl Sculley stated in a news release that outlined City staff’s recommendation to Council to proceed with an appeal. “We remain ready to negotiate with the fire union to reach a balanced contract that is affordable to taxpayers and fair to employees. Progress can only be made when both parties are at the table.”

Negotiators from the City and police union sat down on multiple occasions to hash out a deal, which mostly focused on health care and wages, but they reached an impasse when it came to the evergreen clause. Then-Mayor Ivy Taylor met with police union representatives unofficially to work out a deal that was eventually approved.

San Antonio Police Officers Association President Mike Helle shakes hands with a San Antonio Police Officer following the announcement of an approved contract with the City of San Antonio. Photo by Scott Ball.

Scott Ball / Rivard Report

San Antonio Police Officers Association President Mike Helle shakes hands with a San Antonio Police officer after City Council approved the union’s contract with the City.

“As we promised after our first win in court[,] drop this lawsuit City Manager Sculley[,] and we give you and the citizens of San Antonio our word we will be at the table within 30 days,” stated Fire Union President Chris Steele on the association’s Facebook page. “Your lawsuit is the only thing stalling negotiations.”

The statement echoed the one delivered by the police union to Taylor, but Nirenberg told the Rivard Report he does not plan to negotiate outside of established procedures.

“I will not deviate from the policies we have set in place to govern the City’s position and negotiate a fair, balanced contract,” he said. If such a contract is reached, “the issue about the lawsuit becomes null.”

Nirenberg cast one of two votes as a Council member against the City’s five-year deal with the police union. When discussions began more than five years ago, a 66% threshold for public safety spending out of the General Fund was set. The City’s objective was to better manage its budget by reining in ballooning health care costs for uniformed employees. The police contract does do that to some degree. The City will save an estimated $87.5 million in health care costs over five years.

But the adopted contract is expected to push spending slightly beyond that to 66.3% and 67.6% in years four and five, respectively – that is, if the economy remains stable. That, among other imbalances, led Nirenberg to vote against it.

That increase may not sound like much, Sculley told the Rivard Report, but 1% of the General Fund budget is $12 million, which equates to the cost of employing  approximately 120 police officers.

(From left) Councilwoman Rebecca Viagran (D3), Mayor Ron Nirenberg, Councilman Rey Saldaña (D4), and Councilman Greg Brockhouse (D6) listen to a presentation about equity.

Iris Dimmick / Rivard Report

(From left) Councilwoman Rebecca Viagran (D3), Mayor Ron Nirenberg, Councilman Rey Saldaña (D4), and Councilman Greg Brockhouse (D6) listen to a budget presentation on Aug. 9, 2017.

At least two Council members want to see the City drop its lawsuit and start contract negotiations with the firefighters union.

Councilman Greg Brockhouse (D6), who previously worked as a consultant for both the police and fire unions, said the cyclical ultimatums and arguments between the City and the fire union are “like two little kids fighting for a toy. … And the City keeps barking up a tree looking for someone to give them a yes.”  

The City has spent nearly $1 million on an issue that it has lost three times in court, Brockhouse said. It has spent $973,685 to date on the police and fire lawsuits, according to officials.

But union leadership doesn’t consider the lawsuit a serious threat, Brockhouse said, referring to his experience working with the police union as it negotiated its contract with the previous City Council.

“This leverage [the City] thinks [it is] obtaining … the unions laugh at their alleged leverage,” he said.

That being said, Brockhouse added, he now represents constituents who are “telling me in great numbers: ‘Stop this foolishness.'”

At the very least Brockhouse thinks City Council should vote – in public – on whether to pursue the appeal.

“We shouldn’t be making these momentous decisions behind closed doors,” he said.

State law permits Council to privately discuss legal matters – especially court cases – in closed sessions during which City staff measures Council’s “consensus” on certain actions. Click here to download the Texas Municipal League’s “Texas Open Meetings Act Laws Made Easy” guide.

Whether there is a public vote or not, Councilwoman Shirley Gonzales (D5) told the Rivard Report that the City should drop the lawsuit.

“I have always thought [the lawsuit] was a waste of time and effort,” she said. “We’re not suing our employees, but that’s what it feels like.”

Brockhouse, however, doesn’t separate the contract clause from the uniformed employees that it benefits.

“We don’t sue our own family,” he said.

In January 2015, Gonzales joined Council members Cris Medina (D7), Ray Lopez (D6), Rebecca Viagran (D3), and Alan Warrick (D2) in submitting a council consideration request (CCR) to drop the lawsuit. That consideration never happened because it was tabled by Taylor.

Viagran, the only other current Council member to sign that CCR, could not be reached for comment by deadline.

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