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Law Department muzzles public information on ballot propositions

Friday, September 21, 2012 by Michael Kanin

Confusion over provisions of Proposition 10, a charter amendment that would enroll much of the City of Austin‘s workforce in a civil service system, has been compounded in recent days by the reluctance of officials in the city’s Law Department to clarify its operative portions. That hesitance has been telegraphed down to Austin’s Public Information Office, where repeated attempts to collect more information were met by redirections to the ordinance itself.


City spokesperson Samatha Park said she had been advised by the Law Department to refer reporters to the ballot language for the amendment and the related ordinance Council approved.


“Because this is a ballot item, there are strict limitations on what (the legal department) can say,” her colleague, Roxanne Evans, told In Fact Daily in response to a request to speak with a lawyer who could explain the amendment.


In contrast, the city has designed a brochure about the seven bond propositions on the Nov. 6 ballot. Some city staff members have even been tasked with making public appearances to explain the ballot items. This is apparently allowed because those speakers are not considered advocates.


Some members of the City Council still appear unclear about – if still supportive of – the idea to implement a civil service system for city employees not currently covered by such protections. (City police officers and fire fighters already have a civil service system.) Austin Mayor Lee Leffingwell points out that he was not a sponsor of the civil service item. Then he registered some post-vote “concerns about the process.”


“I wish I knew more about it, but I don’t,” Leffingwell said when he was asked to explain the part of the ordinance referring to hiring and promotions. Leffingwell has made no secret of his support for the civil service law.  


Council members approved the ordinance by unanimous vote on Aug. 2 with Council Members Bill Spelman off the dais. It was originally approved on consent, but recalled later for a brief discussion. City voters will give it the thumbs up or down on Election Day, Nov. 6.


If approved, the measure would set up a five-member Civil Service Commission, and instruct the head of human resources, Mark Washington, to deliver a set of civil service rules for commission approval. Those rules would also have to be approved by Council.


According to the ordinance, the civil service rules must, “at a minimum” contain provisions that would direct such items as “initial appointments, promotions, and lateral transfers, all of which should be based on merit and fitness” and “disciplinary probation or suspension, involuntary demotion, denial of promotion, and discharge, all of which, in the case of non-probationary employees, must be for cause.”


Washington issued a memo on Aug. 23 that instructed city employees about how to relate to items, such as the civil service amendment, that appear on the Nov. 6 ballot. In it, Washington noted that “[a] number of questions have arisen about the proposed City Charter amendment approved by the Council on August 2, 2012, that would provide a civil service system for general municipal employees.”


Washington goes on to write that “[i]t is also important to remind you that City employees are prohibited by law and city policy from using or authorizing the use of City resources to advocate for or against any ballot measure.” He then outlined a few practical applications of this rule, including holding or attending meetings on city premises or doing anything to advocate for or against any of the items while employees are on the clock.


Even members of the city’s Human Rights Commission are prohibited from using anything that could be construed as “city resources” to advocate for the proposal. According to a memo from Assistant City Attorney Sabine Romero to Council, “At its August 27 meeting the HRC heard a presentation on the civil service Charter amendment ballot item and then voted to affirm its support for the ballot item. Because the HRC members (like City employees and officials) are prohibited from using City resources to advocate for or against any ballot measure, that action should not have occurred.” 


Though Washington does leave room for employees to deliver personal comments on ballot items, city policy may well have had a chilling effect on any comment from city employees interested in weighing in on the merits – or shortcomings – of the Civil Service proposal. Indeed, Council Member Kathie Tovo was extremely reluctant to discuss the issue with In Fact Daily now that it’s made its way to the ballot.


Tovo noted that she could not give us any opinion about the proposed civil service measure. However, unlike the law department, Tovo was willing to offer us her interpretation of the ordinance. “My understanding is that it was primarily about grievances or any other kind of disciplinary actions,” she said. “So that other needs to be sort of fleshed out … probably the makers of the resolution would be in a better position to explain what that was.”


The resolution was brought forward by Council Member Laura Morrison. Her cosponsors were Council Members Mike Martinez and Bill Spelman.


Morrison told In Fact Daily that her priority with the ordinance was to set-up a “just-cause” employment system for city personnel. “My priority was to change the system so that any kind of discipline – termination, suspension – would be based on a reason – just cause – and there would be a process for an independent appeal,” she said. “For me, the fact that we don’t have that right now is truly a systemic wrong.”


Martinez did not respond to a request for comment. Spelman suggested that the measure would codify requirements for hiring and firing that are based on merit and fitness, and said he believes that such rules could be tailored to each department under a new civil service system.


Mayor Pro Tem Sheryl Cole told In Fact Daily that she felt the ordinance would give “voters a choice about expanding the employee grievance process.”


Members of AFSCME, the city employees union, are actively supporting passage of Proposition 10 and a number of local Democratic clubs have endorsed it. 


Separately, Austin EMS employees are also asking to be included in the civil service system. That amendment is Proposition 11.

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