Point Austin: Fixing What Ain't Broke

In an extraordinary display of public solidarity last Thursday, several hundred Austin firefighters and their supporters showed up at the City Council meeting to view the deliberations over the proposed U.S. Department of Justice consent decree, which would govern the hiring of new cadets. There were enough people on hand and registered for a potential five hours of witness testimony, although a sidebar agreement whittled that down to about an hour. An overwhelming majority of the witnesses, led by Bob Nicks, president of the Austin Firefighters Assoc­i­ation, testified against accepting the decree, which nevertheless was eventually approved by Council, 5-2. If the decree is indeed imposed by a federal court, the DOJ will assume overall responsibility for AFD hiring for the next four to eight years.

As we've reported over the years ("The Color of Fire," May 13, 2011), like far too many U.S. fire departments, the AFD has had problems creating and maintaining a diverse and just work force. Indeed, it was only a previous DOJ consent decree, lasting from 1977 to 1982, that successfully integrated the department for a previous generation. But that generation has retired or is entering retirement, and the current hiring process has been stalled by a collective bargaining impasse between city management and the AFA.

Enter the DOJ, which began a review a year ago. It included an unsuccessful mediation between the city and the union, during which the two sides couldn't even meet in the same room – the mediator moved from room to room, trying and failing to find common ground. The nominal issue pits hiring "standards" against cadet "diversity" – but in fact, the union charges, the city has essentially used the excuse of the hiring disagreement to look for ways to cut the union out of collective bargaining altogether.

The Sky Might Fall

Indeed, that's where we are now, with no contract in place and the department proceeding under civil service rules. The union has fought to get back to the table; city management has waited for the DOJ response to determine its next move.

The consent decree found the 2012 hiring process – which employed a poorly designed and badly administered test – seriously flawed, and all parties agreed that a consent decree covering the 2012 test would be acceptable. But the union balked at the same solution covering the 2013 process – which had received considerable AFA input, showed no "adverse impact" on minorities in the hiring range, and would have resulted in a cadet class with substantial improvement in minority hiring.

Without getting too far into the weeds, the Council debate last week eventually turned on a motion by CM Chris Riley, initially seconded by CM Bill Spelman, to delay the vote one week while asking the DOJ to consider splitting the decree and allowing hiring to proceed under the 2013 standards – which produced minority numbers that would in fact match what the DOJ would require. Riley noted that such tacking-and-trimming is commonplace in legal negotiations; city attorneys (ever cautious or ever misleading) said they couldn't predict the DOJ response, but suspected that, absent Austin's consent, the DOJ would simply take its next option – suing the city in federal court. That would not just leave already much-delayed AFD hiring indefinitely in limbo, but potentially expose the city to much greater costs and back-pay liabilities.

Even motion-seconder Spelman was persuaded by what Nicks would later call, in a note to AFA members, "the city attorney's 'chicken little the sky is falling speech,'" and Council voted to accept the decree – via a substitute motion by Mayor Pro Tem Sheryl Cole, which would only request that the DOJ "mitigate" the decree after the fact.

See You in Court

That's hardly the end of the matter, and what all parties most feared – continuing delay in hiring new firefighters – remains as likely as it was before Council voted. CM (and former AFA president) Mike Martinez, who was left to join Riley in a 5-2 dissent, was stunned by Council's circular dance with legal counsel, and by his colleagues' refusal to consider even a one-week delay for negotiation. "We will not be moving forward by approving this ­consent decree," Martinez warned. "We will be moving very far backwards, I promise you."

Nicks has vowed to seek intervenor status at federal court, with the intention of fighting the decree for what may be several years. City management may be counting on the AFA failing to achieve intervenor status – and could buckle back into negotiations if the union succeeds. But considering the city's intransigence on contract negotiations, it's a better-than-even bet that the entire process will now be litigated for several more years.

Indeed, it's difficult to tell if city management's higher priority is not really to establish greater equity at AFD – but rather to wrest all hiring input from the union's hands. Promoting the consent decree before the Council vote, the hardcore company men on the Statesman's editorial board stated their position clearly: "As the employer, the fire chief should be responsible for hiring procedures." Since it was management's bungling that scuppered the 2012 process, and largely the union's influence that made the 2013 process successful – the city's priority also seems painfully obvious.