The Texas Supreme Court will hear oral arguments this morning in a contentious dispute pitting the Houston Professional Fire Fighters Association against the Houston Police Officers’ Union and the City of Houston.
Houston Professional Fire Fighters Association, et al. v. Houston Police Officers’ Union, City of Houston, et al. (No. 21-0755) resulted from a 2017 charter amendment adopted by Houston voters to equalize firefighter compensation with that of police officers (the pay-parity amendment). The Houston City Council duly incorporated the amendment into the city’s charter by ordinance. Immediately following the election, the Houston Police Officers’ Union sued the Fire Fighters Association (HPFFA) and the City, seeking a declaratory judgment and injunctive relief against the enforcement of the ordinance. The Union argued that the ordinance was pre-empted by state law and unconstitutional under Art. XI, § 5, Texas Constitution (city charter may not conflict with state law). The City joined the Union’s lawsuit. HPFFA asserted counterclaims against the City for breach of contract and sought mandamus against the Mayor and City officials to compel them to pay firefighters in accordance with the pay-parity amendment. Both sides moved for summary judgment. The trial court sided with Union and City, ruling that state law pre-empted the charter amendment and, as such, the amendment was unconstitutional.
On appeal, a divided panel of Houston [14th] Court of Appeals reversed. The issue before the court was whether the Fire and Police Employee Relations Act (FPERA), which was enacted by the Legislature in §§ 174.001-174.253, Local Government Code, pre-empted the pay-parity amendment. FPERA required firefighter compensation to be “substantially equal to” and “based on” comparable private sector employment, which could be enforced either through collective bargaining or judicial order. The majority held that because FPERA and the pay-parity amendment could be harmonized, “the Legislature’s intent to preempt a particular subject matter [i.e., firefighter compensation]” could not “be discerned with ‘unmistakable clarity’” (citations omitted).
How, then, did the court harmonize provisions linking firefighter compensation to distinctly different benchmarks (private sector compensation vs. police officer compensation)? The majority hypothesized that FPERA and the pay-parity amendment could exist side-by-side but apply differently at different times. This analysis required reading FPERA’s comparable private sector employment standard as a “floor,” which the pay-parity amendment’s comparable police officer standard could freely exceed. In the majority’s words, “[B]ecause the pay-parity amendment does not always foreclose the application of [FPERA’s] standards, [FPERA] does not evidence with ‘unmistakable clarity’ the intent to preempt the pay-parity amendment.” By this reasoning, the majority concluded that there was no “actual conflict” between the two provisions and, consequently, no pre-emption.
Justice Wise dissented. He argued that an actual conflict exists between the two provisions. “The majority envisions a hypothetical world in which the fire fighters’ compensation, based on private sector FPERA standards, might exceed the police officers’ compensation, so ‘the pay-parity amendment does not always foreclose the application of [FPERA’s] standards,” he stated. “But the only evidence adduced in this case on the subject matter shows that the City’s police officers are not currently compensated . . . based on prevailing private sector compensation.” In fact, Houston police officers make substantially more money than firefighters can under FPERA (hence the ballot proposition to raise their pay). The problem, according to Justice Wise, is that the two standards can only be harmonized if police officer pay was based on comparable private sector employment. Put another way, the City of Houston can comply with FPERA or with the pay-parity amendment, but under the current compensation structure, it cannot comply with both. An actual conflict thus exists, and FPERA preempts the ordinance.
