News Stories Archive Decades-old pay dispute could cost Dallas $1 billion Did referendum fix forever salary differences in ranks? 12:05 AM CDT on Sunday, April 9, 2006 A pay dispute between Dallas and its public safety workers over a referendum passed when Jimmy Carter was president could cost the city more than a billion dollars. The city has lost almost every major court ruling in the dispute. Lawsuits on the matter are on appeal while the Texas Supreme Court weighs sovereign immunity issues, but legal experts say the cases could be a ticking financial time bomb fo! r Dallas. "I think the city is in definite danger," said Ken Molberg, an attorney who helped police and firefighters draft the original language in the referendum but who is not involved in the lawsuits. "The city has a big old target on it," he said. "If they're wrong, that means that you and me are on the hook for a whole lot of money." In 1979, police and firefighters contend, Dallas voters promised that the percentage differences in their pay would stay the same every time the City Council doled out more money. In other words, the salary gap between ranks would remain the same when a raise was approved; for example, if a recently recruited patrol officer got a 5 percent raise, then so should a lieutenant. In the mid-'90s, a group of firefighters filed suit after they claimed the ordinance had not been properly followed and their pay raises had not kept pace with those of higher-ranking personnel. Other lawsuits followed.! At issue is whether the referendum promised the pay diffe! rential for one year or forever. "What truly counts is, what did the voters intend," said City Attorney Tom Perkins. "This referendum was about a one-time 15 percent raise for police officers and firefighters." Were the pay differential honored, attorneys suing the city estimate that Dallas could owe back pay and interest of $1 billion or more to public safety workers. City officials dispute that projection but have provided none of their own. "The city is hoping that the courts will rescue them," said Robert Lyon, a Rowlett attorney representing police and firefighters in two class-action suits. "They're down on bended knee saying please save us from our own stupidity." On the ballot In 1978, frustrated public safety workers took their fight for better pay to voters after the City Council rejected a request for a $40 a month emergency raise for police and firefighters. At the time, federa! l labor statistics showed a Dallas family of four needed to make $15,300 -- $400 more than the annual salary for a veteran police officer or firefighter -- to avoid living in poverty. "We qualified for food stamps," said Bobby Joe Dale, a former Dallas Police Association president. Police and firefighters gathered 80,000 petition signatures and forced a begrudging City Council to call a special election. The pay referendum was the "strong mayor" issue of its time. The debate
focused on the 15 percent pay raise voters were being asked to approve "They went up against the power structure of the city," said Jim Ewell, a former D! allas Morning News reporter and retired Sheriff's Departm! ent spok esman. "Nobody gave them a chance in hell to win." The city commissioned a respected accounting firm to analyze the proposal's impact. The study recommended that the city hire independent legal counsel to interpret the "differential" clause before the election. It does not appear that the city did so. On Jan. 20, 1979, voters decisively approved the referendum. As it required, the City Council soon passed an ordinance to implement the raises -- at least 15 percent for all public safety workers -- and authorize the differential provision. Whether through intent or happenstance, the city largely maintained the differentials for the first few years -- the percentage gap between the salaries of all the ranks remained about the same. But in 1988, police and fire deputy chiefs became angry because the gap between their pay and that of the next lower rank had narrowed. "We wanted them to make it right," said Bobby Moore, a retired deputy fire chi! ef. City management "basically said that's too bad" in a meeting with police deputies, said police Capt. Troy McClain, a deputy chief at the time. "But shortly after that, we got a memo from Jan Hart, stating that they had decided that the differential would be maintained." The city capitulated. An Aug. 1, 1988, memo from Ms. Hart, who was then first assistant city manager and later city manager, stated that the city would fix the pay scale. The city quietly disbursed back pay to some of them. In a deposition years later, Ms. Hart disavowed the 1988 memo, saying that it did not reflect her opinion and claiming it might not have been signed by her. So why did the city pay the deputy chiefs and raise their pay? "It's quite possible it was simply to make some employees happy who were unhappy," she said in the deposition. Again, in 1991, Police Chief Bill Rathburn ordered that nine police executives receive raises based on th! e clause. In an interview, Mr. Rathburn said, "Mary ! Suhm was my senior administrative person, and anything like that that I would have signed would have come from Mary Suhm." She was then a top civilian manager in the Police Department and is now city manager. These were not the only times that city officials acted to correct imbalances citing the 1979 pay referendum as a justification. Mr. Perkins, the current city attorney, said city officials "were mistaken" in those earlier interpretations. In March 1993, firefighter Joe Betzel filed a grievance on behalf of about 250 firefighters who said their raises had not been comparable to those of firefighters with similar ranks. Assistant City Manager Ted Benavides, who later became city manager, denied the grievance, saying there was no significant problem with the pay structure. But records show the city did order small raises for some firefighters and police officers after it determined that the pay referendum required it. On June 30, 1994, the firef! ighters sued, saying Dallas had not abided by the 1979 referendum. It soon spawned related lawsuits covering virtually every police officer and firefighter. "They called our bluff, and they lost," Mr. Betzel said. Early on in court filings, the city did not contest the idea that the differential clause had lasting implications. Instead, Dallas officials contended that the referendum prohibited the city from decreasing the pay gap but not from increasing it. The city also countersued in 1995, claiming that if the plaintiff's argument was correct -- that the city had failed to follow the terms of the referendum -- then no raises since the referendum were valid. Therefore, they argued, the city had overpaid firefighters and should be repaid. In 1997, a state district judge found the ordinance did require the city to maintain the percentage pay differentials. He ordered the city to "bring itself into compliance." The following year, t! he City Council approved a resolution to retroactively fix th! e pay sc ales for police and firefighters for each fiscal year back to 1990 to meet the referendum's requirements. "The purpose of this action is to adjust salary schedules for those employees to ensure compliance with the referendum," Ms. Suhm, who was then an assistant city manager, wrote in a memo to the City Council. State District Judge Robert Dry threw out the retroactive parts of the pay scales, saying the city's action violated the Texas Constitution. In 1999, he ruled the city had been given enough time to fix the problem but had failed to do so. The judge also ordered that the city pay 16 firefighters, including Mr. Betzel, a total of about $2 million in back pay and interest. Those 16 firefighters had been separated from the original lawsuit, although the original suit was also winding its way through court. After the judge's ruling, city officials requested a new trial. In their motion, they contended that the referendum was a ! one-time pay raise and, in any case, didn't apply to the salaries of deputy chiefs and above because they are executives, a turnabout from earlier practice. In June 2002, a Dallas state appeals court reversed Judge Dry's order to pay those firefighters. The court ruled that the ordinance was ambiguous and ordered a trial to determine what it meant. Legal limbo That case and the others remain in legal limbo, awaiting long-anticipated rulings from the Texas Supreme Court that could determine whether the city can use sovereign immunity to get the cases dismissed. "The city is basically saying that the police and firefighters didn't have its permission to sue," said Bill Boyd, an attorney representing police and firefighters in several of the lawsuits. Both sides are awaiting a ruling on a case involving a water main break in 2000 that flooded the downtown Santa Fe Terminal Lofts. In the afterm! ath, Reata Construction sued Dallas, contending the city gave! them fa ulty information about the main's location, leading it to accidentally puncture the main. At question in the Reata case -- and in the pay lawsuits -- is whether the city waived its right to sovereign immunity when it countersued. "When you take your little happy rear-end to the courthouse and say, 'Hey, judge I want you to help me,' it seems patently unfair" to ask for help, and then claim that the city can't be sued, said Michael Shaunessy, an Austin lawyer who is an expert on sovereign immunity issues. The Texas Supreme Court ruled against the city in the Reata case in April 2004. The city asked the court to reconsider but also dropped its counterclaims in the pay lawsuits that contended that public safety workers owed the city money. "We were trying to take it back," said James Pinson, an assistant city attorney handling the pay lawsuits. The court has yet to rule in the rehearing of the Reata case. Attorneys for the public saf! ety workers say it is only a matter of time before the courts rule in their favor. City officials are also confident of victory. Meanwhile, the pay lawsuits have created a kind of organizational inertia. City officials say the legal complications mean that while they await the final outcome they must be cautious about how salaries are raised. It has been 18 months since public safety officers received raises. "There's a problem with the way the pay is structured across the board and that needs to be dealt with, but it can't be dealt with in the context of the legal environment," Ms. Suhm said. The manpower-strapped Police Department has a tough time filling its vacancies, in part, because its low pay can't compete with better-paying suburbs. "They're talking out of both sides of their mouth," Mr. Boyd said. "If they really believed the referendum was a one-time deal, they'd go ahead and give the entry level people a raise." E-mail! teiserer@dallasnews! .com A billion dollars? The pay lawsuits center on the following referendum, approved by voters in 1979: "The current percentage pay differential between grades in the sworn ranks of the Dallas Police Force and the Fire Fighter and Rescue Force shall be maintained." No one knows exactly how much the lawsuits could cost the city if it loses, but a trial court in 1999 awarded each of 16 firefighters involved an average of about $130,000 in back pay and interest. That case is under appeal. Extrapolate that amount across at least 7,300 current and former public safety workers who would be affected if all the lawsuits went against the city, and the tab quickly approaches $1 billion. With interest still accruing, plaintiffs' attorneys say, the final cost easily could exceed $1 billon. The ci! ty disagrees but offers no projections of its own. ------------------------------------------------------- City settles former Task Force officer's 'whistleblower' lawsuit An out-of-court settlement has been reached in a "whistleblower" lawsuit filed against the City of Henderson by a former police and drug task force officer. In December 2003, Blaine Shavers filed the lawsuit, claiming he had been discharged from the Henderson Police Department and the Northeast Texas Narcotics Task Force (NTNTF) because he had filed complaints on his superiors in the task force. The Shavers lawsuit stated, in part, "In 2001 and no later than 2002, Plaintiff became aware of numerous violations of state law and/or departmental rules, by Commander Jack Tully." Shavers claimed that when he notified administrators in the police department and state government officials of his allegations against Tully, his employment was terminated. After almost a year of mediation between Shavers' attorney, Bob Gorsky of Dallas, and the city's attorney, Lance Vincent of Tyler, the parties have announced a settlement with Shavers' receiving an undisclosed amount of money. "I am very happy with the amount paid and, more importantly, the city's action in paying damages should vindicate me and clear my good name and reputation," Shavers said. "It is unfortunate when a law enforcement officer is forced to resort to the court system in order to protect his legal rights." Among Shavers' allegations, he said that Tully's violations included driving a vehicle which was the subject of a pending seizure case; used and/or purchased a generator with task force and city funds; unauthorized use of task force and city funds to repair property; unauthorized use of task force and city property, manpower and funds to haul wood on city/task force time; unauthorized personal use of task force facilities of task force facilities for a party for his wife; falsification of task force time records; racial discrimination, harassment and use of racial slurs toward Shavers; and falsification of task force records by instructing two employees to purchase whisky for him in exchange for removal of a reprimand from a personnel file of one employee and deletion of the other from the duty roster. He said that after he complained to the state and to his superiors, he was fired for allegedly failing to lock seized drug evidence in an office cabinet. Tully, who is now self-employed as a private investigator in Henderson, said he was not willing to comment on the case. "I have no comment," Tully told the Henderson Daily News. "They settled with him so they wouldn't have the expense of going to court, from what I understand." The settlement amount was not available early this morning. Phone calls to the City of Henderson for comment were referred to Vincent, who had not returned phone calls from the Henderson Daily News before press time. ------------------------------------------------------- Dallas Morning News, The (TX) Transfer policies divide officers Whites, minorities cite favoritism in filling posts on Dallas force Author: MICHAEL GRABELL; Staff Writer On the outside, they're all blue. But inside the Dallas Police Department, old wounds are frequently reopened with transfer policies that sharply divide black, Hispanic and white police officers. Internal memos and interviews with dozens within the department, from patrol officers to assistant chiefs, reveal a culture of distrust, brought on by a legacy of racial tension, doubts about leadership and frequent exceptions to the department's transfer policy. Black and Hispanic officers complain that diversity is stifled by old-fashioned opinions, and white officers accuse the department of rampant favoritism under a veil of diversity. Dallas Police Chief David Kunkle said transfers were "the No. 1 point of contention" during his first meetings with police associations after taking over in late June. "I think the majority of officers at this point in time felt that top-level management interjected themselves too much in making individual transfer decisions," he said. The controversy revolves around whether several assistant and deputy chiefs are acting properly when they directly choose candidates for coveted investigative positions. Sergeants and lieutenants said that the interference of chiefs has often left them interviewing candidates and checking personnel records in vain, only to have their recommendations overruled by their commanders. Complaints and lawsuits about racial discrimination have become expected after promotion ceremonies and transfers: *In May, employee associations publicly accused Assistant Chief Randy Hampton of playing favorites after he put two recently disciplined officers in choice assignments, investigating auto thefts and registering sex offenders. *In July, seven officers sued the city for millions of dollars, claiming they were denied transfers and overly disciplined because they were white or did not speak Spanish. The number of internal grievances related to transfers has nearly tripled. In 2003, 13 of 48 grievances filed were over transfers. In the first eight months of 2004, at least 17 had been filed over transfers - more than 70 percent of the total grievances. From 1998 to 2002, the number of grievances related to transfers had been fairly steady at about seven per year. 'Something is wrong' Numerous officers repeatedly pointed to transfers by assistant or deputy chiefs where the selected candidate didn't properly understand investigative procedure, would have been "the last one we would have selected" or had failed basic skills tests. "When you look at everything, it just doesn't pass the smell test, and something is wrong and something is very unfair," said Bob Gorsky, an attorney for the Dallas Police Association, which represents more than 85 percent of the department's officers, including the vast majority of white officers. His firm is representing the seven officers suing the city. But leaders of minority police associations say assistant and deputy chiefs have been forced to intervene because sergeants and lieutenants have failed to meet department diversity goals. "You still have these ... front-line supervisors that are not ready to make these decisions," said Senior Cpl. George Aranda, president of the Latino Peace Officers Association. "The associations have to go to these one-star [chiefs] and two-stars to make them look at diversity." They rattle off names of investigative squads that have never had a minority officer and point to heavily Hispanic areas of Dallas that have nearly zero Spanish-speaking deployment officers, who are used for special enforcements. "You name the unit, and I'll tell you it lacks diversity across the board," said Lt. Malik Aziz, head of the Texas Peace Officers Association. Deputy Chief Floyd Simpson, who chairs the grievance committee, said many of the department's transfer issues come down to a lack of communication. "Clearly, the division commanders that are making the decisions have the right to choose who they want to choose," he said. "But the issue is that communication as to why or why not that person did not get selected." This spring, as acting chief of police, Chief Hampton became the target of transfer complaints when he laterally transferred two black officers who had been suspended or reprimanded. They did not interview for the new jobs he gave them. "I'm not a big believer in making light of exceptions to the policy," he said. "My intent was to cut down on some of those. I think we did. But I also realize that it happens more than you probably would like to admit that there are some things that are going to be better handled one way instead of trying to go through the step-by-step that's laid out there." Crossing lines While many grievances hinge on race, complaints of unfairness cross white-nonwhite lines. When Chief Hampton moved the two black officers, he came under fire from the Latino Peace Officers Association and the mostly black Texas Peace Officers Association, a group he used to head. Two Hispanic sergeants and a white sergeant filed a grievance, saying, "We believe that [the sergeant] was afforded preferential treatment based on his race and we were denied the opportunity to apply because we are not African-American." Their grievance was rejected. The department's general orders outline the transfer policy as so: Unit commanders, or lieutenants, will conduct interviews and recommend officers for transfer. While assistant chiefs must sign off on recommendations, they are not supposed to be involved in the interview and selection process unless they believe there is an overriding reason, such as diversity or an immediate need to fill a vacancy. In those cases, they must obtain approval from the personnel department. But internal memos show that the exception often became the rule. In one e-mail, Assistant Chief Dora Saucedo-Falls reminded Deputy Chief June Kim-Edwards - who commanded the youth division until being demoted to sergeant in July - that the only information she wanted before filling a gang unit position was "a listing of all personnel that interviewed for the position on a blank sheet of paper," split into "acceptable" and "unacceptable" with a brief explanation of why the officer was unacceptable. "I do not want them in any specific order, alphabetically is just fine," she wrote. Mr. Gorsky said this instruction contrasted with the usual practice in the gang unit, in which sergeants would rank the officers based on interviews, commendations, internal affairs complaints, driving records and special skills, such as being bilingual. Chief Saucedo-Falls said she could not comment about her transfer decisions because of the lawsuit by the seven officers. Instead, she spoke generally about transfers, saying that Chief Kunkle is working to address complaints. "For years people have always been unhappy with the methods that are used if they don't get their job," she said. Cpl. Aranda defended Chief Saucedo-Falls, saying like other chiefs, she had to become involved in transfer decisions because her front-line supervisors were picking friends and denying opportunities to blacks and Hispanics. "She is the only one that did what Chief Kunkle wants to do now." Chief's vow Chief Kunkle has vowed to restore fairness and credibility to the department's transfer system. He said he monitors transfers to ensure they meet three goals - fairness, diversity and ensuring that those selected have needed skills. "I think generally the best practice is for those people who've done the interviews who have firsthand knowledge of the candidates to make the selections," he said. "One of the department goals we have to achieve is diversity, and if that's not occurring, then management needs to intervene to make sure there is equity." He said the cooperation of employee associations to examine the transfer process was promising. "I wasn't at all sure they'd even sit down and talk to each other, and they've done that and that's encouraging," he said. "The first meeting, you could almost hear the roar from the room. "There seemed to be a fair amount of tension and accusations made, and now they seem more able to discuss and problem-solve." The new chief has told his command staff to leave transfer decisions to sergeants and lieutenants. "It's a throwback to the old system and without accountability, that system is bound to fail again," Lt. Aziz said. "That's what created the lack of diversity across the department." Chief Kunkle has also convened a panel of police association leaders to hatch a plan viewed as fair by everyone while meeting the department's diversity goals. But he is already being accused of allowing cronyism to thrive after he vowed to prevent it. Grumbling increased after a departmentwide reorganization and transfers of lieutenants, with some officers claiming that top commanders were allowed to pick their friends for promotions. Officer Michael Walton, president of the Fraternal Order of Police, said Chief Kunkle allowed assistant chiefs to personally select seven lieutenants, who were promoted to deputy chiefs in July. Chief Kunkle says he asked for advice, but the final decisions were his. But Officer Walton said they were chosen because they cozied up to chiefs by participating on special committees. He expressed despair that the Police Department never seems to change, even under the command of a new chief. "The sun rises in the east. The sun sets in the west," he said. "The Dallas Police Department is broken and is going to continue to be broken. That's just the way life is." Copyright 2004 The Dallas Morning News |