ial fic Un of C ist ric t C ler k l D nie Da is hr C of e ffic O op y 2018-85465 / Court: 157 2. In 2017, the City was presented with a petition that sought to amend the City Charter to require compensation for fire fighters to be ?at least equal? with compensation for police (the ?Pay-Parity Amendment?). As explained herein, the Pay- Parity Amendment was constitutionally infirm and void from the start.1 Nevertheless, in accordance with its ministerial duty, the City submitted the Pay-@ Amendment (2 to voters at the November 6, 2018 election. x) o@ 3. The City estimates that the Pay-Parity Amend will cost between 85 and 98 million dollars a year, requiring drastic cuts Rgty services, including ?rst responders like fire fighters and police. LeadingQ up @he election, interests across the political spectrum, including the Greater Hop Partnership, the Houston Chronicle, Mayor Sylvester Turner, HPOU, the Hous??ealty Business Coalition and the Club of Houston, voiced opposition to the @sure and its projected negative impacts on . . . 1ty serv1ces o@ 4. On election day,@e measure was presented to the voters verbatim as crafted by the any reference to its cost implications. It passed by a vote of 59% to 41%. mt what the voters were asked to pass was never capable of becoming a 5. Q?h?e Houston? voters certainly have the power to amend the City?s charter, that power is not unlimited; it is subject to the restrictions of state law. Article 1 One might wonder why HPOU did not challenge the Pay-Parity Amendment before the election. The answer is simple; Texas law does not permit courts to intervene prior to an election, no matter how in?rm a prospective law. 13.3., City of Cleveland 7). Keep Cleveland Safe, 500 438 (Tex. App.? Beaumont 2016, no pet). Accordingly, HPOU appears before this Court at its first legally available opportunity to challenge the Pay-Parity Amendment. -2- 1101139232199 XI, Sec. 5(a) of the Texas Constitution expressly prohibits home-rule city charters that ?contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State,? whether those provisions be enacted by the municipality itself or by its voters. TEX. CONST. ART. XI, Moreover, the Legislature can, by state law, completely remove certain matters the operative (2 field of the voter initiative process. 6. Pursuant to the Texas Uniform Declaratory <$ments Act, TEX. CIV. PRAC. REM. CODE 37.001 et seq. (the ?Declaratory Ilkents Act?), HPOU seeks a declaration that the Pay-Parity Amendment is invalid?nconstitutionaL and void, for at 6% least four reasons: It directly con?icts with Sec 74.021 of the Texas Local Government Code, which mandates th ?ghter pay in the City of Houston be set by reference to private jobs of similar skill and training, not by reference to other muni@a workers; 0 0 It concerns ma? namely fire fighter compensation - that the Legislature has oved from the operative ?eld of the voter initiative process thro the Fire and Police Employment Relations Act Ame 0 ent to the voters because the underlying petition process failed to with Section 141.043 of the Texas Local Government Code, if not entirely nulli?ed by the FPERA, prescribes the exclusive, $ited means by which voters can petition the City to place a measure on re fighter pay before the voters; and Alterna le, the City lacked authority to submit the Pay-Parity g? The Pay-Parity Amendment violates the public policy of the State of Texas in that it impermissibly burdens the collective bargaining rights of members by forcing their bargaining efforts to encompass ?re fighters. 7. HPOU also seeks a temporary restraining order and temporary and permanent injunctions against the implementation of the Pay-Parity Amendment. Texas law has long recognized the right of property taxpayers to enjoin a prospective illegal expenditure of public funds. Absent injunctive relief, HPOU, which pays property taxes in the City of Houston, will suffer imminent and irreparable harm th?h?3 the unlawful ex enditure of its tax a er dollars to im lement the unco ti utional Pa -Pari 13% Amendment. II. DISCOVERY 0 8. This case should be governed by a Le? 3 discovery plan under Texas 0 Rule of Civil Procedure 190.4. 0@ RULE 9. HPOU seeks solely non-@tary declaratory and injunctive relief. 0 PARTIES 10. HPOU is a non? Texas organization that is the sole and exclusive majority bargaining agent a on behalf of all police officers of the City of Houston Police Department. Asxa property taxpayer in the City of Houston, HPOU has direct standing to of the Pay-Parity Amendment?s unconstitutionality and to enjoin th? from illegally expending public funds. HPOU also has associational standing because its members possess individual standing as City of Houston taxpayers, (ii) its members have suffered particular injuries distinct from those of the general public in that their collective bargaining rights have been improperly burdened by the Pay-Parity Amendment, the interests that HPOU seeks to protect by this suit -4- are germane to purpose, and (iv) neither the claims asserted nor the relief requested herein requires the participation of individual members of HPOU in this lawsuit. 11. Defendant the City is a home-rule municipality located in all or parts of Harris, Fort Bend, and Montgomery Counties in Texas, With its @cipal place of government located in Harris County. The City may be served ?ugh process by serving its mayor, clerk, secretary, or treasurer in accordance With Seg??1 17.024(b) of the Texas Civil Practice and Remedies Code. 0 12. The City does not possess governme ?s that require the same or similar skills, ability, and training and may @?rformed under the same or similar condi?ons." Id. (emphasis added). 33. The Pay-Parity Am?g?ent poses an irreconcilable con?ict with Section 174.021, because it ties ?re 7 rs? compensation and conditions of employment to those of other public sect??gnployeea namely police officers. As a result, ?re ?ghters? compensation and c$itions of employment are based on the public, not private, sector. The Pay@ Amendment also con?icts with Section 174.021 because police officers? jol? not ?require the same or similar skills, ability, and training? as ?re fighters. 34. Texas law is clear that no city charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State. TEX. CONST. ART. XI, -13- 35. Because Section 174.005 of the FPERA expressly preempts any contrary ordinances, legislation or rules adopted by a home-rule municipality, and because the Pay-Parity Amendment directly con?icts with Section 174.021, the Pay-Parity Amendment is preempted and invalid. See TEX. LOC. CODE 174.005. 36. Likewise, because the Pay-Parity Amendment is with the general laws of the state, it is unconstitutional. See TEX. CONST. ARRQ 37. HPOU respectfully requests that the Court ente??dgment declaring the Pay-Parity Amendment unconstitutional and invalid SECOND CAUSE OF ACTION FOR JUDGMENT THAT THE PAY-PARITY AMENDMENT IS VOID THE FPERA REMOVES FIRE FIGHTER PAY FROM THE OPERATIVE FIE OF THE INITIATIVE PROCESS 38. HPOU hereby incorporates @llega?ons contained in all preceding paragraphs as if fully set forth herein. ?k 39. The setting of compen?fon for fire ?ghters has been withdrawn from the operative field of the initiati?or petition process as a result of the Legislature?s enactment of the FPERA. 40. The initg?kgge process affords direct popular participation in lawmaking where citizens 0&3 Oexercise their rights under initiative provisions become the legislative erQ. of the municipal government. However, the field in which the initiative process is operative is not unlimited and it may be limited by state law, either expressly or by implication. 41. The FPERA makes clear that its statutorily provided remedies ?must be expeditious, effective, and binding? in order to ?maintain the high morale of fire -14- fighters . . . and the efficient operation of the departments in which they serve.? See TEX. LOC. CODE Among those remedies is judicial enforcement of the requirement for pay that is commensurate with the private sector. The Legislature?s provision of this ?expeditious? and ?binding? judicial remedy in order to ?maintain ef?cient opera?ons" of the ?re department impliedly ren@ the setting of firefighter pay from the field in which voters can exercise the initi?qve process. 42. Were voters permitted to legislate fire pay, ther?ould be no way for ?re fighters to obtain the judicial enforcement promised the% the FPERA. A court could not order the voters to ?make the affected employe?vhole as to the employees past Q0 losses,? or ?declare the compensation or other ?ditions of employment required by Section 174.021 for the period, not to e6 one year, as to which the parties are bargaining? or award the ?re ?ghters??reasonable attorney's fees.? TEX. LOC. CODE cg; 43. By providing a St@antive standard for ?re ?ghter pay in the FPERA and prescribing the specific r??ies for a municipality?s failure to meet that standard, which remedies canq?9e enforced against the voters, the Legislature has impliedly removed fire pay from the field in which voters may exercise the initiative process. 44. In addition, a subject can be withdrawn from the initiative process where there is some preliminary duty that has been made a prerequisite to the exercise of legisla?ve power by statute or charter which is impossible to fulfill in an initiative proceeding. In other words, the power of the people to legislate directly does not extend -15- where prerequisites are required prior to the passage of a measure. By requiring the City to bargain collectively before it can set fire fighter compensation a prerequisite that voters cannot ful?ll the Legislature further removed fire ?ghter pay from the field of matters on which voters may have a say. 45. This is not to say that the voters of the City of Houston @ver legislate (2 fire fighter pay. Should they desire to do so, however, the first repeal their prior adoption of the FPERA, as permitted by Section of the Texas Local Government Code. The voters have not done so, and ey do, the FPERA removes firefighter pay from the field of the initiative process? 46. HPOU respectfully requests that tgourt enter a judgment declaring the Pay-Parity Amendment invalid and voidgause its subject matter has been removed from the ?eld of matters on which the v?rs of the City may legislate. THIRD CAUSE OF ACTION DECLARATORY JUDGMENT THAT THE PAY-PARITY AM, MENT IS VOID BECAUSE THE CITY LACKED AUTHORITY TO SUBM MEASURE TO THE VOTERS DUE TO AN HRALID PETITION PROCESS 47. HPOU h@ incorporates the allegations contained in all preceding paragraphs as if fully@ forth herein. 48. In$ alternative to the declarations sought in the preceding paragraphs, HPOU see? declaration that the Pay-Parity Amendment is void because the City lacked authority to submit the Pay-Parity Amendment to the voters. In the event ?re fighter pay has not been completely removed from the operative ?eld of the initiative process, HPOU asserts that the Legislature has strictly limited the process by which ?16? voters may petition the City to increase ?re ?ghter salaries. Because the Pay-Parity Amendment was not submitted to the City in accordance with that prescribed process, the City never had authority to submit it to the voters. 49. Section 141.034 of the Texas Local Government Code states that the qualified voters of a municipality with a population of more than may petition the governing body of the municipality to increase the minimum of each member of the fire or police department. As outlined in Section 1&4, the Legislature has R?y the petitioners and the mandated certain prerequisites that must be ful?lled, governing body of the municipality. 0 50. The petition state the 3%?lt of the proposed minimum salary for each rank, pay grade, or classification?3?xstate the effective date of the proposed salary increase; (3) designate ?ve qual?? voters to act as a committee of petitioners authorized to negotiate with the ?ning body of the municipality under Subsection [of Section 141.034]; and signed by a number of qualified voters equal to at least 25 percent of the vo who voted in the most recent municipal election.? TEX. LOC. CODE The statute?s use of the word ?must? necessarily ?creates or recognizes a xition precedent.? TEX. CODE TEX. LOC. CODE 1.00pting the Code Construction Act as applying to the Local Government Code). 51. Once a proper petition has been ?led under Section 141.034, additional prerequisites arise: ?[T]he governing body shall (1) adopt the proposed minimum salary stated in the petition; (2) offer an alternative minimum salary proposal under -17- Subsection or (3) call an election on the proposed minimum salary as provided by this section.? TEX. LOC. CODE 52. If the governing body chooses to offer an alternative minimum salary proposal, then the ?governing body of the municipality shall confer with the committee of petitioners designated in the petition and offer the alternative sal@posal.? TEX. LOC. CODE If the alternative salary is accepteQDCgen the governing body is not required to call an election. Id. But if an electio? held or an alternative salary proposal is accepted, then a petition for another\tion under Section 141.034 may not be filed for one year. See id. 53. It is undeniable that the interactigrgrequisites of Section 141.034 cannot be completed by the public. The voters submit a petition make a counter proposal to themselves. As a result, the?gislature has clearly withdrawn the subject of increasing the minimum salary fighters from the general initiatory process of Section 9.004 that was used for@ Pay-Parity Amendment. 54. This is cons6Qnt with the Code Construction Act, as applicable to the Local Government C%e See TEX. CODE Ch. 311; TEX. LOC. CODE 1.002. Under the Code \truction Act, where a general and special provision irreconcilably con?ict, the$?1al provision prevails, subject to exceptions that do not apply here. TEX. CODE 311.026. 55. Section 9.004 and Section 141.034 irreconcilably con?ict, as they each address a petition process to be initiated by the voters with the former providing a general process and the latter prescribing a specific process for setting ?re fighter pay. ?18? The general - Section 9.004 - must yield to the specific - Section 141.034. Any other reading would render Section 141.034 super?uous in violation of Texas law. 56. In the event that the FPERA does not completely withdraw ?re ?ghter pay from the initiative process, then Section 141.034 is the only mechanism by which voters can petition the City to increase the minimum salary for R??ghters. It is unquestionable that the Petition supporting the Pay-Parity did not meet the mandatory requirements of Section 141.034. The face ?e Petition and public statements related thereto confirm that it was circulate 9d ?led pursuant to Section 0 9.004. 0 57. Because the Petition failed to co with Section 141.034, the City was without authority to submit the Pay-PariWendment to the voters. As a result, the election is void and the Pay-Parity Ame?lment is invalid. 58. HPOU respectfully ts that the Court enter a judgment declaring the Pay-Parity Amendment invalic?d void on these grounds. FOURTH CAUSE OF I FOR DECLARATORY JUDGMENT THAT THE PAY-PARITY AMEN NT IS VOID BECAUSE IT VIOLATES PUBLIC POLICY 59. incorporates the allegations contained in all preceding 0 paragraphs as i?ly set forth herein. 60. $he words of the Texas Legislature: The policy of this state is that ?re ?ghters and police of?cers, like employees in the private sector, should have the right to organize for collective bargaining, as collective bargaining is a fair and practical method for determining compensation and other conditions of employment. Denying ?re fighters and police of?cers the right to organize -19- and bargain collectively would lead to strife and unrest, consequently injuring the health, safety, and welfare of the public. TEX. LOC. CODE There is nothing ?fair and practical? about the Pay- Parity Amendment. 61. The voters of the City have given police officers, as represegitgd by HPOU, the right to meet and confer independently with the City oaslters relating to wages, salaries, and rates of pay, among other terms of for police. See generally TEX. LOC. CODE Ch. 143. 62. The Pay-Parity Amendment undermine??nd interferes with right to collectively bargain, because both HPOU City are forced to consider the economic effect of a third-party?s interjecting?terests. This burdens the police-City collective bargaining process with outsideQa/Ectors that inherently increase the economic impact of any bene?t HPOU seeks O@Qhalf of its membership. Police effectively lose their ?fair and practical? methodsk of irreparable harm for which there is no adequate remedy at law. 71. HPOU has joined or indispensable parties in accordance with Texas Rule of Civil Procec? 39. 72. HPOU is w' and able to post a reasonable bond, as ordered by the (2 Court. 0@ B. Request for @orary Injunction 73. paragraphs as if fully set forth herein. hereby incorporates the allegations contained in all preceding 74. HPOU requests that the Court set its application for temporary injunction for hearing, and after hearing the application, issue a temporary injunction against the -22- City based on the foregoing information as well as any additional information or evidence as may be properly submitted to the Court for consideration. 75. HPOU asks that the temporary injunction enjoin the City to the same extent as the temporary restraining order sought herein. S6 C. Request for Permanent Injunction 76. HPOU hereby incorporates the allegations contaigjg? in all preceding 0@ paragraphs as if fully set forth herein. 0@ 77. HPOU also asks the Court to set its reques\a permanent injunction for a full trial, and after the trial, issue a permanent inju?on against the City to the same 0 extent as the temporary restraining order sought?ein. 1x. C) WHEREFORE, Plaintiff HPOU?espectfully prays that the Court enter a temporary restraining order proh ng the City from expending public funds to implement the Pay-Parity Ame?nt HPOU further reque?Q%l1at upon hearing, a temporary injunction be issued, and that upon final dispoxig?h of this matter a permanent injunction against the City be issued, all to the as the temporary restraining order sought herein. prays that upon the final disposition of this matter, HPOU be awarded a j?gment declaring that: The Pay-Parity Amendment is invalid and unconstitutional because it directly con?icts with Section 174.021 of the Texas Local Government Code; -23- The Pay-Parity Amendment is void because its subject matter has been removed from the operative field of the voter initiative process by the Legislature through the 0 Alternatively, the Pay-Parity Amendment is void because the City lacked authority to submit the Pay-Parity Amendment to the voters due to the use of an invalid petition process; and The Pay-Parity Amendment 15 void because it violates @ublic policy of this State. HPOU further prays that it be awarded such other apixQ?irther relief, whether special or general, at law or in equity, to which HPOU entitled. Respectfully s?itte? KURTH LLP OR @8111] Sandill @9113] Sandill State Bar No. 24033094 0 Ashley S. Lewis State Bar No. 24079415 Ashleyiezvisi??huntortillacom Leah Buenik 0 State Bar No. 24101573 600 Travis, Suite 4200 Houston, Texas 77002 (713) 220-4181 (713) 220-4285 (Fax) QQ ATTORNEYS FOR PLAINTIFF HOUSTON POLICE UNION -24- 1101139232199 STATE (.01: 125? HARRIS 131111111113 1.1111, the 11.111191511111911 11011-1117, 1.111. this day 11911111111111}? 31.111111321171111. 1111.19 1.11.1 (311111511111, the: 1111111111, 111111119 1111 entity is k11111-1?r11 11.1 11:19. Aft131 1 11111111111 .1111 1111 oath, as 111111.111?5: 11111311011111, 11131?1111?3?111311111 11111111111111.1011 ?1117 1111;131:1119 relief The 51 Stated 11111111111 1111-: My 112.11.11.13 1:21 jgseph Gamaldi. 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