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Point Austin: Fire 'At Will'

Extending 'just cause' protections to all city workers

By Michael King, Fri., Aug. 3, 2012

Marc Ott
Marc Ott
Photo by John Anderson

There is no shortage of controversial items on the City Council agenda today (Thursday). Folks will get exercised about water conservation, geographic districting, the potential November bond package, and – most notoriously of all at the moment – commercial short-term rentals. Bring your popcorn.

But one item that didn't hit the radar until this week is another charter revision proposal (they sprout like jalapeño peppers). Sponsored by Coun­cil Member Laura Morrison, the proposal would place on the ballot a charter amendment that, if approved by the voters, would extend some basic civil service protections to all city employees. As Morrison explained it this week, the central goal would be to move city employees from an "at will" employment system to a "just cause" system. That is, employees could not be fired or disciplined without a just cause, and with a council-appointed civil service commission as the final arbiter of employee appeals. (Public safety employees already enjoy more extensive civil service protections.)

"It's a fundamental issue for me," Mor­ri­son told me. "That our employees are at-will is not something I can support. It doesn't mean that you can never fire somebody – it just means you can't fire someone unless there's a just cause. I think that's just a fair way to run the system."

For those of us who have spent a lifetime as at-will employees, often for capricious bosses, it would seem to be a moderate step toward basic equity and fairness. That such a policy requires a charter amendment is a testament to the poor state of workers' rights in Texas. But if it's going to happen this year, it needs to be on the November ballot for voter approval.

Panic Upstairs

But when the initial proposal was brought forth by staff union AFSCME, City Manager Marc Ott reacted in the all-too-traditional managerial fashion: The peasants are revolting. Ott spent a month putting together a 30-page report on why the change is a bad idea. He grouses about the short lead time, he insists that current personnel policies are just fine, he says it will take months to design a new system, and – most dramatically – he comes up with a cost estimate that would threaten to bankrupt the city.

Presuming that the change would require matching and equalizing all employee pay to state public safety standards (although there is nothing in the draft to suggest such a requirement), Ott estimates that the new system would require "$591,000 to $741,000" in the first year, "with an initial recurring annual cost thereafter between $31.5 million and $82.4 million."

Those are headline numbers that make council members (and voters) stand at attention. Unfortunately, they seem to have been pulled by Ott and his staff out of thin air. As Morrison put it (politely): "There are some assumptions in his response that are simply not accurate. ... We just completed a market study, and our staff is being paid what the market bears, and I really didn't understand where those numbers came from."

AFSCME General Manager Greg Powell called Ott's cost numbers "absolutely ludicrous." "Those numbers are wholly manufactured," he continued. "None of that is based on any fact. It was simply a fabricated attempt to just slam our proposal."

The union responded with its own (much briefer) memo, calling Ott's report not just "factually incorrect," but "a bad faith maneuver." The union response emphasizes fairness in hiring, promotion, and disciplinary decisions, arguing: "An 'at-will' employment philosophy fosters arbitrary and capricious decisions, prevents due accountability for bad decisions, squanders precious tax dollars, and leads to bad government."

Powell said the genesis of the proposal had been discussions with employees in the city auditor's and clerk's offices, faced with the possibility of new personnel policies under a charter proposal that would move their offices out of city manager purview. He also recounted a persistent pattern of disputes in the current grievance procedure, when successful employee appeals have been overturned by upper management. Civil service protections – for all employees – seemed the best alternative.

Powell says he believes Ott's response has a simple explanation. "In my estimation, the whole reaction is about usurping what he considers to be the city manager's authority in regards to managing the work force. The notion that his decisions on matters of personnel are not final is just abhorrent to him, as it is to most city managers."

The Campaign

Cooler heads are likely to prevail. Powell said he believes council will vote to endorse the proposal today, after a meeting of the two sides arranged by Morrison (her co-sponsors are Mike Martinez and Bill Spel­man). Powell said he intended to strike any provisions that staff could somehow demonstrate would create these alleged high costs. But he continued, "We will not back off the just-cause portion of the ordinance."

Powell also believes he can convince Aus­tin voters to support the change. "We don't believe at-will employment has any place in government," he said. "Taxpayers should have an expectation that we're hiring the best-qualified employees, that we're promoting the best-qualified employees, and that we're not discharging employees ... for political or other considerations. That's the message we'll have to bring forward to the public, to try to win hearts and minds."


Posted here are: (1) City Manager Marc Ott's Memorandum to the Mayor and City Council on the Civil Service Charter Proposal, and (2) AFSCME's memorandum responding to the Ott memo.


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