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Firefighters threaten suit over naming of assistant chiefs

Monday, June 15, 2009 by Charles Boisseau

Austin firefighters are considering filing a suit over Fire Chief Rhoda Mae Kerr’s appointment of more assistant fire chiefs than they say the law allows.


On Thursday, City Council granted Chief Kerr’s request to appoint two more assistant chiefs, giving her a total of four. Kerr then immediately promoted two new assistant chiefs: Lt. Matt Orta and Lt. Richard Davis. Orta, who is Hispanic and has 17 years service, and Davis, an African American with 16 years experience, will be paid assistant chief annual salaries of $124,548.


Kerr has said the appointments will help improve the diversity of the department’s work force — a goal she said she was given when City Manager Marc Ott hired her.


But Stephen Truesdell, president of the Austin Firefighters Association, said the local union expects to file a suit in state district court over the appointments because they violate the state’s civil service law.


Assistant City Manager Mike McDonald said the city is aware of the firefighters’ arguments and disagrees. He told In Fact Daily Sunday, “I’ve heard about that. Our legal staff has told us that what they’re basing their premise on is unfounded.”


Truesdell contends that the appointments are illegal. “The legislative history shows that the intent was that you had to bargain for (the number of chiefs),” Truesdell said. “It had to be a part of negotiations.”


Truesdell believes the appointments show bad faith at a time that the firefighters are operating without a labor contract. Austin firefighters rejected a new labor contract in 2008, and so are operating under civil service law, which he said sets a formula for how many assistant chiefs a fire chief can appoint without going through the formal promotional examination process.


A city the size of Austin, with about 1,000 fire fighters, that has given its firefighters the right to collective bargaining can have only three assistants, unless more are provided in a labor contract, according to the statute approved by the state Legislature in 1993, said Mike Higgins, chief of staff of the Texas State Association of Fire Fighters. The association represents 157 locals with about 15,000 members statewide, including Austin firefighters.


“For some reason they think they are above the law and that’s what has the firefighters in an uproar,” Higgins said. “We would support the lawsuit and help pay for the lawsuit and as I understand it they would use our attorney.” Austin labor lawyer Craig Deats is general counsel for the state association.


Some Austin firefighters have previously criticized the appointments because they are being made during the city’s current budget crisis and because Kerr reached into lower ranks for the hires. By bringing up the lieutenants, Kerr’s new assistant chiefs leapfrogged four ranks — past dozens of higher-ranking captains, battalion chiefs and deputy chiefs.


But Truesdell said the firefighters are more concerned about the way the appointments were made.


Higgins agreed.


“It isn’t really who she is promoting and why. It’s the process,” Higgins said. “They want the city to come to the bargaining table and appoint people and to do it at the bargaining table.”


Higgins, who has worked for the state association for 30 years, said he cannot recall a local fire fighters’ group ever filing a suit against a city over such a matter.


“They will probably file a lawsuit and it will cost the firefighters and the city some money,” Higgins said. “There are very few cities that are just flagrant about doing this and violating the statute.”


McDonald said the city plans to begin negotiations with the firefighters in the latter part of July.

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