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Despite settlement, city and firefighters remain at odds over hiring

Wednesday, May 7, 2014 by Michael Kanin

In a letter penned April 29 to Shayna Bloom with the U.S. Justice Department’s Civil Rights Division, Austin Firefighters Association attorney B. Craig Deats reports that the firefighter applicant at the center of a recent hiring discrimination case has settled with the City of Austin.


Still, according to Deats, the federal Equal Employment Opportunity Commission remains in discussions with the association over the issues that led to applicant Steven Brown’s complaint.


The claim comes as Deats offers an assessment of the current situation as he sees it. “Although the mediation conducted in early March was not successful, there appeared to be a good deal of common ground between those involved concerning a possible resolution to the DOJ’s concerns about the 2012 and 2013 hiring processes,” writes Deats.


“Since that time, it is my understanding that negotiations between the DOJ/CRD and the City of Austin (COA) have continued. At the same time, the Austin Firefighters Association (AFA) has continued a dialogue with the EEOC, which professes to retain an interest despite the settlement between Steven Brown, the individual claimant and COA, in which Mr. Brown released his claims against both COA and the AFA.”


Meanwhile, Austin Firefighters Association officials told the Austin Monitor Tuesday evening that they believe Austin City Council members will be asked for an up or down vote on a potential consent decree from the U.S. Department of Justice in relation to ongoing hiring concerns between the union and city management May 15.


Asked to comment, Mayor Lee Leffingwell said Council has received a confidential memo on the subject from the Law Department. “I don’t know that it’s going to be next week but I anticipate that there will be a vote on a consent agreement in the near future,” he said.


Regardless of the firefighters’ feelings, Leffingwell said, “the city has to make the best decision for the taxpayers of Austin. At the end of the day the Council has to make that decision…it doesn’t necessarily have to be tied to an agreement with the firefighters association.” He added, “This is serious business and it involves a lot of money potentially to the city and it involves being able to get on with the business” of hiring new firefighters.


However, the lawyer for the firefighters, Deats, tells Bloom that they are attempting to “re-start a dialogue concerning potential solutions that would be in line with DOJ’s goals.”


In an email to the Monitor also sent Tuesday evening, AFA representative Brianna McKinney summed up the concerns of the organization. “The AFA does not support a consent decree for 2013 and beyond,” she writes. “There is no lawful means for a consent decree – and the AFA does not support the concept of Washington, DC managing the affairs and local tax dollars of Austin’s residents.”


“The City of Austin needs only to make amends with regard to the administrative mistakes made in the 2012 process and ensure that the 2013 process, which not only corrected the 2012 issues, but also greatly improved the validity and job predictability of the firefighter cadet hiring process while being fair and inclusive to all groups, remains the process that is used going forward.”


She proposes that the city use the 2013 hiring process – an effort union officials say is clearly superior to that of the 2012 attempt – to select from 750 2012 candidates.


The second step would “use the 2013 eligibility list to hire up to the top 175 candidates on that list.” According to McKinney, “(t)he collective bargaining agreement would provide a legal basis for use of the 2013 eligibility list, which currently cannot be used since it violates the hiring requirements of the Fire and Police Civil Service Act.”


Union officials have told the Monitor that a vendor they preferred conducted the 2013 process. Another vendor conducted the 2012 process.


Deats concludes, “Negotiations at the mediation appear to have broken down due to COA’s insistence that hiring procedures not be subject to the collective bargaining process with the AFA. While COA may well have that right, it is equally true that, absent collective bargaining or contested litigation, COA is statutorily prohibited from using a hiring process other than that authorized by the Civil Service Act.”


He continues on to cite what he sees as flaws in the city’s efforts: “COA’s aversion to a bargained solution seems even less supportable given the evidence in this case that clarifies problems in the 2012 process were largely, if not wholly caused, by COA’s implementation rather than bargained requirements.”

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