The Texas Supreme Court Shuts Down San Antonio's ‘Evergreen’ Lawsuit Against the Fire Union

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Editor's Note: The following is Their Town, a column of opinion and analysis.

Since late 2014, City Manager Sheryl Sculley, two mayors and most of the members of two city councils clung to a legal strategy they believed would get them out of a costly provision in the firefighters’ labor contract – the evergreen clause.

To hijack a line from T.S. Eliot, the city’s legal challenge effectively ended last week not with a bang but a whimper. The Texas Supreme Court, where city officials believed they would get their most sympathetic hearing, declined to hear their case.

Here’s what Sculley and company accomplished by suing the San Antonio Professional Firefighters Association in November 2014, nearly two months after the firefighters’ contract expired: They radicalized an already combative fire union, they ran up more than $1.2 million in legal bills – and that’s about it.

In the meantime, the union won at state court and again on appeal. The response from city officials boiled down to “whatever.” Losses in the lower courts weren’t surprising, they said. From the beginning, their strategy depended on conservative supreme court justices saying “screw you” to organized labor and striking down the evergreen clause.

Who knows? Maybe that’s what the justices would’ve said if they’d considered the city’s lawsuit worthy of their time.

Anyway, it seemed like a good idea at the time both to city officials and their friends in San Antonio’s chambers of commerce.

When the news broke late last week, the city fired off a news release in which Sculley tried to salvage something out of what was clearly a huge defeat.

“The union has used the 10-year evergreen clause to avoid having the conversation about whether their benefits are sustainable and affordable to taxpayers,” she said. “Now that the legal challenge is over, there is no reason for the union not to come to the table. We remain ready and willing to negotiate.”

In late May, Sculley told the Current: “If the city loses, we have what we have now: a 10-year evergreen clause that continues the union’s unsustainable benefits.”

A quick recap: The evergreen clause keeps firefighters’ labor contract in effect for 10 years after its expiration – so through 2024. The city’s legal argument was that the clause drives up costs for the city, in effect creating a public debt and violating the Texas constitution. The budget argument is that firefighters’ rich compensation package – they don’t pay premiums for their health insurance, for example – will eventually crowd out other the city’s other basic services such as street repairs and parks.

It was a complicated argument to begin with. In fact, to anyone not used to legal contortions, it looked like a stretch. But it became just plain awkward three years ago when, with then-Mayor Ivy Taylor pressing for a deal with the police union, the city reached an agreement with the San Antonio Police Officers Association that preserved – after trimming – the cops’ evergreen clause, also the target of a city lawsuit.

To any outsider paying attention, it looked like the city was OK with the police union’s evergreen clause even as it shouted that the same deal for the firefighters violated the Texas constitution.

But the city largely shrugged off this inconsistency and stuck to its hardline, refusing to waver or to use the lawsuit as a bargaining chip with the union. The city’s stance pumped more toxins into a political environment already poisoned by the union’s attacks on Sculley.

With the bad blood flowing in both directions, the fire union officials spent part of the winter and early spring collecting signatures for three bad city charter amendments. They succeeded, and the proposals will go on the November ballot.

One proposed amendment would require the city to take labor-contract disputes to arbitration instead of court. Another would make it easier to put city ordinances to a public referendum. The third would cap how much the city managers who follow Sculley can earn and force them to step down after eight years.

In the run-up to election day, expect to hear a lot from the union about the city’s failed lawsuit and all the taxpayers’ money spent on lawyers.

And who knows when the union, its leaders still angry and their members’ current level of benefit safe through 2024, will make their way to the bargaining table.

As a trusted political observer told me last week, “The city has lost leverage, and [the firefighters] are now driving the bus.”

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