March 8, 2001

A legal backgrounder on why the

Meet and Confer Agreement can override state and local laws

The Austin City Council has been told by their City Manager, the police chief and the officers’ union that certain portions of the Police Oversight Focus Group proposals were “illegal.” That analysis fails to take into account the primary reason this proposal went through the labor contract process in the first place: Austin’s Meet & Confer Agreement basically supersedes and preempts all other state and local law.

It is not illegal for the Austin City Council to make the Police Oversight Process do anything the Austin City Council chooses to make it do in this contract!!

· If you want the Monitor to report with specifics to City Council -- it is not illegal.

· If you want to leave open the potential for you to amend the process -- it is not illegal.

· If you want Council to choose the Panel members -- it is not illegal.

· If you want to make certain information public -- it is not illegal.

The "Civil Service Code" that applies in Austin is: Texas Local Government Code, Chapter 143. The legislation was carried by Austin State Senator Gonzalo Barrientos, and its language concerning a Meet and Confer contract overriding other state laws is sweepingly broad.

The Civil Service Code's Meet & Confer section 143.307:

(a) An agreement under this subchapter supersedes a previous statute concerning wages, salaries, rates of pay, hours of work, or other terms and conditions of employment to the extent of any conflict with the statute.

(b) An agreement under this subchapter preempts any contrary statute, executive order, local ordinance, or rule adopted by the state or a political subdivision or agent of the state, including a personnel board, a civil service commission, or a home-rule municipality. (emphasis added.)

Texas Local Government Code §143.307(a) and (b).

The existing Meet & Confer Agreement, page 36:

To the extent that any provision of this article conflicts with or changes Chapter 143 or any other statute, Executive Order, local ordinance, or rule, this Agreement shall supersede such provisions, as authorized by Section 143.307 of the Texas Local Government Code. . . . . The provisions of this Agreement shall supersede the provisions of any statute, Executive Order, local ordinance, or rule, which are in conflict herewith, including for example and not by way of limitation, the contrary provisions of Chapter 143; the City Charter of the City of Austin, Texas; Ordinances of the City of Austin, Texas; and Rules and Regulations of the Police Officers' Civil Service Commission for the City of Austin, Texas (emphasis added).

The proposed Meet & Confer Agreement, on page 42:

The provisions of this Agreement shall supersede the provisions of any statute, Executive Order, local ordinance, or rule, which are in conflict herewith, including for example and not by way of limitation, the contrary provisions of Chapter 143; the City Charter of the City of Austin, Texas; Ordinances of the City of Austin, Texas; and Rules and Regulations of the Police Officers' Civil Service Commission for the City of Austin, Texas. Section 2. Preemption. This preemption provision is authorized by Section 143.307 of the Texas Local Government Code, and the parties have expressly agreed that each and every provision involving or creating such a conflict shall have the effect of superceding the statutory standard or result which would otherwise obtain, in the absence of this agreement. This provision is of the essence to the bargain and agreement which has been reached. (emphasis added, see 143.307 above)

These sweeping exemptions from the confines of statutes that otherwise restrict police oversight were the only reason the ACLU, Sunshine Project and NAACP agreed to participate in the whole POFG/Meet and Confer process in the first place. That’s why the union was included in the process to develop an oversight system in public – so they would have already signed off (APA President Mike Sheffield’s signature is on both the POFG and Meet and Confer contract documents) and the agreement could be amended to the Meet and Confer labor contract. Otherwise, there was no reason for police union officials to have a contingent on the POFG if the union automatically got a “second bite at the apple” in secret negotiations later on.

Reject the city manager’s arguments that the POFG recommendations are “illegal.” If he or his attorneys held that opinion, they should have voiced it during the ten-month public process during which the POFG was deliberated.