Judge blocks implementation of Prop B after police union sues

HFD firefighters bring support signs to the poll at the Fiesta Mart on Kirby Drive and Old Spanish Trail to advocate for Prop B on Election Day on Tuesday, Nov. 6, 2018, in Houston. HFD firefighters bring support signs to the poll at the Fiesta Mart on Kirby Drive and Old Spanish Trail to advocate for Prop B on Election Day on Tuesday, Nov. 6, 2018, in Houston. Photo: Yi-Chin Lee, Houston Chronicle / Staff Photographer Photo: Yi-Chin Lee, Houston Chronicle / Staff Photographer Image 1 of / 26 Caption Close Judge blocks implementation of Prop B after police union sues 1 / 26 Back to Gallery

A state district judge Friday evening granted a temporary restraining order blocking the implementation of a voter-approved charter amendment requiring the city of Houston to grant its firefighters “pay parity” with police officers of similar rank and experience.

State District Judge Kristen Brauchle Hawkins granted the TRO Friday night at the request of the Houston Police Officers Union, which filed a lawsuit earlier in the day against the city and the Houston Professional Fire Fighters Association. The judge set a hearing for Dec. 14.

The fire union opposed the TRO request, but lawyers for the city did not.

The HPOU lawsuit seeks to block “Proposition B,” arguing it amounts to an unconstitutional amendment to Houston’s charter and was void from the start.

“Despite dire warnings that the amendment would cost the city between $85 and $100 million, requiring drastic cuts to city services, including fire fighters and police, the measure passed,” HPOU attorney Kelly Sandill told the judge. The police union’s lawyer also said firefighters do not have the same skill set as police, and they should not be lumped into the same pool, adding “there’s nothing fair and equitable about the pay-parity amendment.”

The 25-page lawsuit argues the charter amendment is unconstitutional because it directly conflicts with state law requiring firefighters be paid comparable to private sector employees. It also contends that the measure conflicts with state law because it ties firefighter compensation to those of other public sector employees, and notes that policing and firefighting do not require “the same or similar skills, ability, and training.”

The measure “undermines and interferes with HPOU’s right to collectively bargain, because both HPOU and the City are forced to consider the economic effect of a third-party’s interjecting interests,” the lawsuit states. It also argues the requirements of Prop B put the HPOU in the position of representing firefighters who had not chosen the union to represent them and who do not have the same responsibilities as police.

The suit also claims Prop B runs contrary to Local Government Code mandates that say police and fire departments are “separate collective bargaining units unless they voluntarily join together” for collective bargaining with a public employer.

“We would have preferred to address these issues in court prior to Proposition B being voted on, but under state law, this is the earliest opportunity we have had to assert these claims,” HPOU President Joe Gamaldi said in an emailed statement. “Regardless, we believe that it is critical to stop the implementation of Proposition B. Its sudden and drastic financial impact puts all essential city services at risk, including fire and police protection.”

In response to the lawsuit and TRO, the firefighters union issued a statement blasting Mayor Sylvester Turner and the HPOU.

“This throw-down lawsuit by the Houston Police Officers Union proves again that it is a willing political pawn of a vindictive mayor,” said HPFFA President Marty Lancton. “Sylvester Turner simply refuses to respect the will of the voters and now the HPOU is forcing its members into costly litigation that follows their expensive, failed anti-Prop B campaign.”

The fire union’s statement notes that earlier this week, city council approved $500,000 for outside lawyers to advise the city on legal issues surrounding Prop B after saying the city attorney’s office did not have the resources.

“In court today, the city had at least six staff attorneys on hand, along with outside counsel, to ‘defend’ the HPOU litigation,” it said. “This cynical, Sylvester Turner-orchestrated legal play proves that the mayor, the eight city council members that voted to spend taxpayer funds on this wasteful litigation, and HPOU President Joe Gamaldi apparently will do almost anything to defy the will of the voters.”

After voters approved the parity measure Nov. 6, the fire union and Lancton publicly have urged Turner and the city to return to the negotiating table to work out a contract that could phase in the firefighter raises. Turner has rejected the idea, saying the city needed a judge to decide whether a collective bargaining agreement could supersede a voter-approved charter amendment.

The fire union and some legal experts say it can.

Cris Feldman, the firefighter union’s attorney, called the lawsuit “a ruse.”

“It’s not a real lawsuit,” he said. “It’s an attempt to circumvent the true adversarial process that the courts are in place for and for the city to flop once the police sue over this charter amendment. This was an utter waste of taxpayer money.”

Friday’s court proceedings were delayed for several hours after 234th District Judge Wesley Ward interrupted HPOU’s attorney mid-argument to “make a phone call” and then indicated he would have to withdraw from the case. Ward, a Republican who lost his reelection bid Nov. 6, reportedly told attorneys in his chambers that he had a conflict of interest because he planned to join the law firm where a lawyer representing the city in the case works.

Hawkins replaced Ward, and ruled in HPOU’s favor following about an hour of arguments.

The Turner administration says the pay parity referendum, which passed decisively after a bitter campaign that pitted Turner and the HPOU against the fire union, will cost the city an additional $100 million a year to bring firefighter salaries in line with those paid to police of corresponding rank and seniority.

The police union was among the most vocal opponents of Prop B, pouring thousands of dollars into political ads urging voters to reject the measure.

RELATED: Mayor Turner seeks law firm to advise on possible Prop B litigation

For months, Turner has warned that the city would need to lay off hundreds of employees, including firefighters, if voters approved the measure. It passed with 59 percent of the vote.

In the wake of the amendment’s passage, Turner announced HFD would hire no new firefighters and ordered Fire Chief Sam Peña to draft a plan to move the department from four shifts to three, perhaps eliminating hundreds of positions.

In a statement issued by the mayor’s office Friday, Turner reiterated the possibility of layoffs.

“Let me remind everyone there is at least a $100 (million) cost every year to the passage of Prop B, which the city cannot afford,” Turner said. “It would lead to significant layoffs and a reduction of services. Some of those layoffs could involved police officers and firefighters.

“The city cannot afford to lose one first responder for public safety purposes,” he continued. “I believe people understand that. Placing the matter in court will clear up the issue of whether state law makes the proposition invalid.”

gabrielle.banks@chron.com

st.john.smith@chron.com

brian.rogers@chron.com