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Houston improperly electioneering against firefighters’ pay measure, judge says

August 2, 2018

A state district judge on Tuesday ordered the city of Houston to remove from its website the video of a recent public council committee hearing at which city officials, police union heads and business leaders raised concerns about the cost of a proposal to grant firefighters “parity” in pay with police of corresponding rank and seniority.

Judge Kyle Carter agreed with the Houston fire union’s argument that the city council’s July 26 budget committee meeting constituted an act of illegal electioneering against the proposal and that public resources, essentially, had been used to present and post a political advertisement. The Houston Professional Fire Fighters Association sued Mayor Sylvester Turner and Councilman Dave Martin, who chairs the budget committee, over the issue on Monday.

“There is a fair way to go about voicing your opposition and creating a campaign against a certain resolution and then there’s an unfair way,” Carter said in delivering his Tuesday morning decision. “Much of the hearing, I thought, was informative and served its purpose. However, there was a good portion of the hearing that … went beyond the pale.”

He did not elaborate on what comments he thought went too far.

Carter ordered attorneys for the city and the fire union to discuss what portions of the tape could be returned to the city website after the offending portions were redacted. The order, as issued, is valid through Aug. 14.

The temporary restraining order was a validation for the firefighters, who have been outraged at Turner’s handling of the issue since they first launched a petition drive to place the pay parity item on the ballot a year ago. The city did not verify the petition until this past May, after fire union leaders had sued and won to force the signatures they had gathered to be counted.

“We have now been in front of a judge two times to force the city to do what is the process under state law,” union president Marty Lancton said. “The mayor is not a king and the mayor should be held to a standard, and even he must follow the rules and procedures.”

At last week’s committee hearing, city officials estimated the pay parity measure effectively would give firefighters, on average, a 25 percent pay raise and cost Houston $98 million a year, forcing layoffs. Turner reiterated those figures in an appearance on the KUHF radio show “Houston Matters” on Tuesday, adding he believes Carter erred in his ruling.

“Those are the facts. That’s not electioneering. That’s not saying yea or nay. People have a right to know what the costs are,” Turner said. “City council members have a right to say, ‘This is good policy,’ or, ‘This is bad policy.’ It’s not electioneering because you’re speaking for or against what somebody wants.”

The firefighters’ suit also had targeted comments Turner made about the parity proposal during and after last Wednesday’s regularly scheduled council meeting, but Carter did not address those.

Buck Wood, an Austin-based public law attorney who helped pass Texas’ first open meetings and open records laws in 1973, said he had never heard of such a ruling in his 50 years of practice.

“Making your position known in a public forum is the essence of what the open meetings law is all about. Not only that, assuming it gets filmed by the city, it’s an open record and you can go get it under the public information act. That’s the whole idea,” Wood said. “The fact that they don’t like what the mayor and the council are saying doesn’t make any difference. That’s content censorship. I never heard of such a thing.”

Joe Larsen, a Houston lawyer with 25 years of experience in open meetings and open records law, agreed. Larsen said he can see such a committee discussion being problematic if its agenda was not posted properly or if the issue being discussed was irrelevant to the committee’s focus, but he said he cannot otherwise envision a way in which such a hearing could constitute electioneering.

“I don’t see how it could be,” he said. “What’s wrong about people taking a public position? How do you restrict your public officials on what they’re going to discuss? That can’t be the right result.”

Both Councilman Martin and city attorneys who spoke in court Tuesday morning noted that Lancton had declined an invitation to present his views at the committee hearing. The union’s attorney, Cris Feldman, dismissed that argument, saying the meeting was an illegitimate “ruse.”

“What this was, was an unnecessary meeting set up to actually get a political message across on a measure - that is a violation of Texas Election Law,” Feldman said. “It was set up specifically for the purpose of disparaging (the proposal) and encouraging people not to vote for it.”

A quartet of city attorneys argued before Carter on Tuesday that the law allows public officials to speak for or against proposals so long as they do not, in their official capacity, urge the public at large to back their positions. Public resources, the attorneys said, had been used only to prepare and present information about the cost of the parity proposal and then post a video of the resulting discussion on a city website.

Martin said he was surprised at the ruling.

“My role as a city council member is to inform my constituents of the financial implications of this pay parity issue, and that’s what we did,” Martin said. “It will be up to the voters to decide whether they want to implement a $100 million-a-year budget increase or not.”

Frustrated by the lack of a clear timeline for placing the item before the voters, five council members earlier this month triggered a seldom-used charter provision while Turner was out of the country to call a special meeting. Their hope was to pass a resolution pushing Turner to let the council schedule the item for a vote, but no action was taken because too few members attended to reach a quorum.

Turner has said council is to decide at its Aug. 8 meeting whether to place the question on the November general election ballot or at a later date.

Firefighters have received just a 3 percent raise since 2011, while taking deep cuts to their pension benefits. The union declared an impasse with the Turner administration and sued the city over its contract last year. That case is pending.

mike.morris@chron.com

twitter.com/mmorris011

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