Texas Court of Appeals Upholds Union Time-Off as Constitutional

The Texas Court of Appeals has ruled in favor of Austin Firefighters IAFF Local 975 in a suit brought by self-proclaimed government “watchdogs” who alleged that granting union officials paid time off violates the Texas Constitution. The suit was brought in 2016 by two Austin residents, Mark Pulliam and Jay Wiley, with the support of two watchdog groups, the Texas Public Policy Foundation and the Goldwater Institute.

The suit alleged that provisions in the collective bargaining agreement creating a bank of shared leave for union business violates a prohibition in the state constitution of taxpayer-funded gifts. The case had a complicated procedural history with Roger Borgelt joining the suit as a Plaintiff, and the State of Texas intervening as a co-plaintiff against the city only (not the union). Travis County District Court ruled the paid time off provision was legal and sanctioned Pulliam and Wiley under the Texas anti-SLAPP law (the Texas Citizens Participation Act), prompting the appeal.

In upholding the trial court’s ruling the Court of Appeals reasoned as follows:

  • Appellants present two issues on appeal. First, Borgelt and the State assert that the trial court erred by determining that they were not entitled to relief on their claims against the City because the Gift Clauses prohibit the Association Leave Provision.
  • Second, appellees Pulliam and Wiley (who nonsuited their remaining claims against the City) assert that the trial court erred by granting the Association’s TCPA motion to dismiss against them and by awarding sanctions under the TCPA. We address each of these issues in turn.
  • In their first issue, Borgelt and the State assert that the trial court erred by granting judgment in the City’s favor, based on their contention that the Gift Clauses prohibit the City from paying City employees to work for the Association “when the City does not control the activities of those employees, when those employees are not obligated to provide services to the City, and when those employees work primarily to advance the private interests of the [Association], not the public interests of the City.”
  • As an initial matter, we note that although Borgelt and the State characterize Association Leave as a gratuitous grant of funds to the Association, no funds are ever paid directly to the Association.
  • Instead, the Association Leave Provision establishes a mechanism by which firefighters are permitted to have paid time off to conduct Association business under the conditions specified in the Agreement.
  • “Texas courts have long held that the performance of employment duties is consideration for the payment of benefits to employees under the terms of a contract, and therefore such payments are not unconstitutional gratuities.”
  • Here, in addition to the fire-protection services that the City receives in return for the compensation terms of the Agreement, including the compensation provided by the Association Leave Provision, the trial court had before it evidence both at summary judgment and at trial that the City receives additional consideration in the form of concessions by the Association.
  • These concessions result in changes favorable to the City on matters otherwise governed by the civil-service provisions.
  • These matters include hiring, promotions, disciplinary investigations, disciplinary appeals, allowing for differences in base wages based upon seniority, longevity pay, required certifications, required education, specialized assignments, the designation of personnel in certain positions with certain leave and pay levels, drug testing, and the ability to merge the Austin Fire Department with Travis County Emergency Services Districts.
  • These terms favorable to the City are incorporated into the Agreement. In addition, as the trial court states in unchallenged finding of fact (FOF) number seven, “The [Association] pledged in the [Agreement] to support the service and mission of the AFD, to constructively support the goals and objectives of the AFD, and to abide by the statutorily imposed no strike or work slowdown obligations placed on it.”
  • Finally, there was uncontroverted evidence before the trial court that as part of the collective-bargaining process in 2009, the City agreed to the current method of allowing up to 5,600 hours per year of Association Leave in exchange for a change in the treatment of sick leave from “productive leave” that counted toward employees’ hours worked for purposes of calculating overtime to “nonproductive leave” that did not count towards employees’ hours worked. [IAFF Local 925 President Bob] Nicks estimated that this change saved the City between $500,000 to $600,000 per year, while the cost of Association Leave is approximately $200,000 per year.
  • We conclude that the Association Leave Provision’s “predominant purpose is to accomplish a public purpose” because it facilitates the Association’s ability to carry out its business of supporting the Fire Department’s mission and maintaining good labor relations between the City and its public-servant firefighters.
  • Borgelt and the State contend that the Association Leave Provision violates the Gift Clauses because the City failed to establish that it maintains any control—either in the language of the Agreement or in its implementation—over the public funds used to provide Association Leave.
  • We disagree that the City lacks sufficient control over the Association President and his use of Association Leave.
  • The Agreement itself sets forth the parameters of what constitutes Association business activities for which Association Leave may be used. For the Association President, the Agreement provides that he may use up to 2,080 hours of Association Leave per year from the 5,600 hours in the Association Leave pool “for any lawful Association business activities consistent with the Association’s purposes.”
  • The Agreement further states that the Association President “shall be assigned to a 40 hour work week. The Association President shall account for all leave time taken under such status through the Fire Chiefs office and such time shall be subtracted from the Association leave pool.”
  • Furthermore, “[a]t the end of his/her term, the Association President will be allowed to return to the assignment s/he occupied before commencing [Association Leave] to perform duties as Association President.”
  • Thus, the Association President remains a City employee who returns to his previous City position whenever his term as Association President ends.
  • In addition, the Agreement contemplates that the Association President may be required to return to duty at any time if an emergency situation exists and further provides that the Association President may also be assigned to special projects at the Fire Chief’s discretion.
  • Assistant Fire Chief Aaron Woolverton, a member of AFD management, testified that the Association President is supervised by someone in the executive staff rather than a shift commander partly because the Association President works a more traditional schedule (40 hours from Monday through Thursday) than a shift commander who comes in only every third day and partly because of the difference in his job duties.
  • The Agreement limits the use of Association Leave for “legislative and/or political activities at the State or National level” to activities that “relate to the wages, rates of pay, hours of employment, or conditions of work affecting the members of the bargaining unit” and at the local level “to raising concerns regarding firefighter safety.” The Agreement prohibits the use of Association Leave for “legislative and/or political activities that are sponsored or supported by the Association(s) Political Action Committee(s)”; “for legislative and/or political activities at the local, state, or national levels that are contrary to the City’s adopted legislative program”; and for activities prohibited by Texas Local Government Code Section 143.086 (governing political activities) or by the Texas Ethics Commission.
  • The Agreement gives the City the right to specify in Departmental policy the “[a]dministrative procedures and details regarding the implementation of” Association Leave. The Agreement requires that the Authorized Association Representatives request Association Leave in writing and submit their requests to AFD headquarters support staff at least three days in advance.
  • Having examined the record and arguments de novo, we conclude that the trial court did not err in reaching [the conclusion that] “[t]he [Agreement], including the [Association Leave] article and the City’s implementation of [Association Leave] under the [Agreement], permits the City to maintain sufficient public control over City funds to ensure they accomplish a public purpose and the public’s investment is protected.” 
  • Pulliam and Wiley argue that the TCPA order and the order granting attorneys’ fees and sanctions against them violates their and their attorneys’ First and Fourteenth Amendment rights and “upends the purpose of the TCPA.”
  • The TCPA’s stated purpose is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
  • The provision establishing a mandatory award of fees and sanctions is not imposed on parties before they may institute litigation, nor is it imposed on them if they meet their TCPA burden of establishing by “clear and specific evidence” the elements of their prima facie case so that they may avoid dismissal.
  • Instead, after resolution of the motion to dismiss, the TCPA “shifts litigation costs from the prevailing party (who met its burden to show by a preponderance of the evidence that the legal action is based on, related to, or is in response to that party’s exercise of protected rights) to the party that failed to meet its burden.”
  • Having overruled the appellants’ issues, we affirm the trial court’s final judgment.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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