San Marcos Mercury | Local News from San Marcos and Hays County, Texas

October 8th, 2008
Kyle council passes civil service the hard way

By BILL PETERSON
Editor at Large

KYLE – On a night for the books, Kyle City Councilmembers all but knuckled under a last-second threat of pressure Tuesday, nearly refusing to pass the final reading of a civil service ordinance after the council, city staff and a city civil service commission had spent six months aiming for final passage at that very moment.

Beginning when Kyle voters approved civil service rules for the Kyle Police Department (KPD) in May, the city council and staff raced to beat an Oct. 31 implementation deadline. The city seated a civil service commission, hired a human resources director largely to implement civil service, drafted the ordinance, budgeted the pay scale, scheduled and announced the first civil service employment examination, conducted at least 15 public hearings and meetings addressing the matter, and the council even passed the ordinance on first reading last month.

But all it took was a short speech at the last minute Tuesday night by Tom Stribling, an attorney for Combined Law Enforcement Associations of Texas (CLEAT), and councilmembers began to jump, apparently having believed a police union would operate in town without ever hinting at legal action.

One by one, the councilmembers began to fall – first Becky Selbera, then Lucy Johnson, then David Wilson, then David Salazar. Once it turned obvious that the majority wanted to delay the measure, Mayor Miguel Gonzalez called for an executive session, with a second from Councilmember Michelle Lopez. After about 30 minutes behind closed doors, the council emerged with a 6-1 vote to pass the legislation, with Selbera still in opposition.

Thus, the ordinance passed, but so rickety and torturous was its path as to raise lasting questions about the backbone of this council, the council’s confidence in the city’s professional staff, the professional staff’s confidence in the council, the counclimembers’ confidence in each other, the discipline of Kyle’s council-manager form of government, the city’s fledgling relationship with a new police union and, not the least, the legality of the civil service ordinance.

Stribling addressed three points in the ordinance passed on first reading last month. All the points were at least somewhat revised in the final version up for vote Tuesday, if not entirely to Stribling’s satisfaction.

First, Stribling said, the Kyle ordinance provides two entry-level positions, while civil service law only allows for one. Under the Kyle plan as passed last month, successful applicants for the Kyle Police Department (KPD) who aren’t licensed as peace officers undertake a 23-week training program, during which they were to be classified as cadets and paid at the rate of $30,000. But entry-level hires already certified become officers and move straight to the base of the pay scale.

A revision in the final version re-names “cadets” as “recruits,” declares the position to be unclassified and raises its pay to $36,195, where it stood before the council reduced it on first reading.

However, said Stribling outside the chamber, it remains that Kyle has set up two entry-level positions.

“You can have one or the other,” Stribling said. “But you can’t have both.”

For example, he said, the Austin Police Department requires all of its officer hires, whether they’re licensed, or experienced, or not, to enter through its police academy. On the other side, the Lockhart Police Department requires all of its hires to already be licensed as peace officers before joining the force. He said civil service law doesn’t allow both paths, as Kyle has established.

Second, Stribling said, September’s version of the Kyle ordinance said candidates for certain promotions were required to hold the intermediate peace officer’s license. Stribling said the only criteria allowed for promotional candidacy in civil service law is that the prospect hold the rank right below the position he seeks for two years before application. The Tuesday version of the ordinance struck the requirement for an intermediate peace officer’s license.

Third, Stribling said, Kyle’s provision for “modified entry” is not mentioned in civil service law and, therefore, is not allowed by the law. Under the Kyle plan, police officers from other departments can move to KPD and enter the pay scale at step two if they have at least three years of experience.

KPD Officer Jesse Espinoza, president of KPD’s CLEAT chapter, said he raised concerns about the ordinance at two civil service commission meetings after the first-reading passage. The first occurred on Sept. 22, and the second on Oct. 6. Kyle City Manager Mattis said he had not heard the specific complaints until Tuesday night.

Following Tuesday night’s vote, Espinoza said he will convene his membership for a decision about how to proceed. Stribling said the measures in question aren’t strictly illegal, as they can be bargained in a “meet and confer” process between the union and the city. However, those meet and confer mechanisms aren’t yet in place between the union and the city.

The city council discussion about these matters did not proceed with such clarity.

Selbera, who had spoken with at least one KPD officer about the ordinance before the meeting, raised the first objection, saying she wanted to hold a workshop before passing the legislation. Johnson, after hearing Stribling’s speech, said repeatedly when pressed that she just wanted to hear the officers’ concerns in a workshop. Wilson said he declined to speak with police officers before the meeting, but added that he hadn’t digested the revisions made before Tuesday. Salazar said he felt the pull of the other three objectors and wanted to hold a workshop.

However, Gonzalez, Lopez and Mattis all argued that the city is operating under a very tight time frame for passing civil service, which, by law, has to be implemented by the end of October. Mattis suggested that complications could arise if the ordinance still is pending when the city gives its first civil service examination on Oct. 18, adding that the city planned to implement the civil service pay scale on Oct. 19. The next city council meeting is scheduled for Oct. 21.

Further, Gonzalez and Lopez expressed their perplexity at Tuesday’s developments, particularly regarding the sudden positions taken by Selbera and Johnson.

“The idea of civil service was to take politics out of the process,” Lopez said, targeting her remarks towards Selbera and the police union. “I don’t see how (police) can have individual meetings with councilmembers, then say you don’t want politics in the process. You can’t have it both ways.”

In light of Stribling’s remarks before the council, Johnson said she was uncomfortable with the city’s position because, she said, the city’s attorneys didn’t say they were “100 percent certain” about some provisions when they vetted the ordinance. Mattis said, in reply, that “if there’s an expectation that the staff and the city attorney will ever be 100 percent certain we can’t be legally challenged, then we’re never going to get there.”

Meanwhile, Gonzalez repeatedly grilled Johnson, asking her why, as a city council member, she would accept legal advice in this matter from the police union’s attorney rather than the city council’s attorney.

“I’m concerned that we’re making statements about the competence of our attorneys,” Lopez added. “… Unless we’re willing to fire them, I don’t know why we’re having this conversation.”

During much of the council discussion, Mattis sat back in his chair, visibly despondent that the council would back out on the adoption at the last minute over vague expressions of discomfort after six months of work.

“I’m shocked by some of the things I’ve heard tonight,” Mattis finally said. “I guess I’d better shut up.”

Later, though, Mattis said the council was on the verge of a dangerous precedent by advancing political pressure from city employees. Under the council-manager form of government, the council sets policy and hires the administration. The administration hires the staff, which answers to administration, which answers to the council. The chain of command is designed to take politics out of the city’s day-to-day operation, and that purpose is defeated when councilmembers allow employees to bypass the administration and deal directly with them.

“It’s a very slippery slope,” Mattis said. “I can’t believe that councilmembers are meeting with police officers … The (budget) numbers are there, the law is what it is and it is very, very, very disappointing to hear the work of the city staff and the attorneys disparaged this way on the council.”

That’s one argument. On another front, civil service is designed to take administrative politics out of the police department by largely removing employment and promotional decisions from the administration. But if the police no longer answer to the administration, then where do they go? Following the Tuesday night vote, Mattis and Gonzalez both implored police officers to take their concerns about the ordinance and employment matters to the city administration.

If such employees can go to the councilmembers, then the council-manager form of government loses its shield against politicizing the day-to-day operation. That serpent has just begun to bite its own tail in Kyle, where only time will tell if a civil service measure intended to minimize politics winds up actually intensifying them.

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7 thoughts on “Kyle council passes civil service the hard way

  1. How odd and perplexing.
    “Mattis said the council was on the verge of a dangerous precedent by advancing political pressure from city employees. Under the council-manager form of government, the council sets policy and hires the administration. The administration hires the staff, which answers to administration, which answers to the council. The chain of command is designed to take politics out of the city’s day-to-day operation, and that purpose is defeated when councilmembers allow employees to bypass the administration and deal directly with them.”

    But at the very same Council meeting, they passed a new ordinance that sets up a committee structure, chaired by individual councilman, that results in exactly what Mattis warns above. Staff will serve as liason to these committees, and will be put in a position of working directly with the Councilmen and attending the committee meeings. If this doesn’t “politicize day-to-day operations,” I don’t know what will.

    So, why is it okay to do this with the other department heads – but not with the police department?
    Is it the union thing…..

  2. The police officers union is trying to set precedent and establish collective bargaining here. The substance of the legislation likely didn’t matter to them at all. They needed to find something in it that they could use as an excuse to force a collective bargaining process at the first possible opportunity. Once that happens, their plan will be to engage in that form of decision-making from here forward. Civil service doesn’t necessarily require collective bargaining but allows for it – at least, that is what the CLEAT attorney appears to be saying.

    Look out Kyle, there go your parks, road improvements and community activities. Within 3 budget cycles, the police department will be more than 50% of the city’s budget. That money either will come from more tax increases or other priorities in the budget. They are already responsible for at least half of this year’s tax increase.

    As for taking the politics out of it. Establishing the police officers union as a political power in the city was Selbera and Salazar’s intention all along. It was priority for former council member Dan Ekakaidis, too, and the three of them are responsble for this disaster. Salazar has been a big support of unionizing the police and the city staff for that matter. His wife is the head of the local chapter of the Texas State Teacher Association, which actively seeks collective bargaining style arrangements (code named “exlusive consulation in the education world)and Selbera is a stooge for the police union, which is naturally going to pursue collective bargaining. Ekakaidis was a union representative in the IRS employees union.

    In Texas, collective bargaining isn’t mandatory and is given code names like “exclusive consultation” or as in the present case the “meet and confer” process. The key is that the elected officials have to consent to those processes before the union can engage in them. That typically requires POLITICAL PRESSURE on elected officials and a hell of alot of backdoor/secret conversations between the union reps and their lackies sitting on the city council or school board. One thing is certain, those folks aren’t looking out for the people that elected them but rather the special interests represented by the unions.

    Noone should be surprised by any of this. What a mess! The school district is next – beware.

    Civil service was a mistake at this stage in Kyle’s development. It was unnecessary and only passed because of voter apathy in an off cycle election. All of us taxpayers are going to regret that we allowed this to happen. Maybe we deserve it for not voting.

    Well, now I’ve done it. I am so going to get pulled over every time one of these guys see me driving down the road. I’m going to have to get a new car and where sunglasses and a ball hat everytime I drive through town.

  3. Todd, good to see you again! Let me know if you need help with a disguise when you’re driving through Kyle. (For those who don’t know, Todd Webster served with distinction on the Kyle City Council for about five years, until last fall, and he obviously opposed civil service.)

    Once again, Lila, you raise an interesting point, and this kind of goes to what Todd’s saying, though a bit more towards the council-manager form of government. Quoting from the Kyle city charter, Section 4.05 (prohibitions against city councilmembers):

    “No member of the council shall give orders directly to any
    city employee, except when empowered to do so by an emergency
    proclamation, and all members of the council shall, except for
    officers appointed by the council, deal with the nonelective
    officers, employees and administrative offices of the city solely
    through the city manager.”

    It’s clear enough here that it’s a violation of the charter for indidividual council members to “deal with” city employees without some kind of consent from the council. Otherwise, it all has to go through the city manager. But what is the nature of that consent?

    Not only is this quote from the charter a compound sentence, but it’s a badly written compound sentence. Taking the second sentence within the compound, we see how unclear and badly written it is:

    “(A)ll members of the council shall, except for
    officers appointed by the council, deal with the nonelective
    officers, employees and administrative offices of the city solely
    through the city manager.”

    Does this mean that councilmembers who are officers appointed by the council can “deal with” city employees? Or does it mean that councilmembers can “deal with” officers appointed by the council, but they can’t deal with other city employees?

    That sentence is not a job for an attorney. It’s a job for a grammarian. That aside, if I’m guessing, the city’s rationale might be that the new councilmember/committee heads are officers appointed by the council and, therefore, they can “deal with” city employees. It certainly was part of the argument for the new structure that councilmembers would have more pull with staffers in pursuit of information. However, that empowerment is not specified in the ordinance creating the new committee structure. Now, I suppose the city manager can just issue a blanket permission saying, “It’s OK with me if committee chairs deal directly with the staff, so long as it’s committee business.”

    But, then, if I’m not mistaken, Councilmember Selbera is the chair of the Safety and Emergency Services Committee (I’m checking on all the committee heads for the story about the committees). If that’s the case, and if committee heads have the authority from council and the city manager to “deal with” city employees under the umbrellae of their committees, then isn’t Selbera empowered to talk with the police about official business, which includes working conditions? I’ll grant that the committee structure wasn’t finalized until Tuesday, so discussions before then should have been verbotten, but you get the point.

    I’m feeling your argument, Lila. This committee structure does have the potential to politicize the day-to-day operation, defeating the purpose of council-manager government. There might be mitigating considerations, but I don’t know what they are.

    Oh, what a tangled web we weave!

  4. This is going to be a financial boondoggle that the Kyle citizens have brought upon themselves. They had a chance to vote civil service down and they didn’t. Look for the smart one’s to flee the high taxes Kyle will have to pass to afford this police department once they get collective bargaining.

    Hays county voters take note that you will soon have a chance to VOTE AGAINST civil service for the Sheriff’s department.

  5. Bill, thank you for your kind words. You did a nice job with this story. Since I’ve been gone, I really have been following things in Kyle through this website. It’s been a great source of information. Oh, and I’m coming back soon. So, I might take you up on that disguise.

    Regarding the committee structure and the city manager form of government. Since moving to a council/manager form of government, there has always been a tremendous amount of tension between the council and the city administration regarding the level of interaction between the council and staff. I believe some of this is a hangover from the way things used to be in Kyle, when the city council member could tell city staff what to do and they would pretty much just go do it. That probably sufficed when the city had 2,000 people. With few exceptions, the council members that I witnessed routinely violating the spirit of the council manager form of government were those with long histories in the city. I would say Mike Moore was an exception – he lived here his whole life and respected the chain of command. Dan Ekakaidis was an exception the other way. He was always up at city hall telling city staff what to do and wasn’t a long time resident. Most of the offenders have been in Kyle for awhile – Linda Tenorio, Chris Martinez, Becky Selbera to name some.

    I may have spoken to staff here and there but really tried to keep my role focused in the policy making realm. The council sets policy and the city manager implements and directs staff to implement that policy or at least that is the way it supposed to be. Some of the problem is ego and the rest I think derives from frustration when a council member lacks the ability to work within the system to get policy changed via the democratic process. The more inept the council member at getting policies adopted by a majority of council, the more likely they are to try and work staff behind the city manager’s back. Also, the inept council members are easy prey for special interests, vendors and other lobbyist. It isn’t coincidence that there is some correlation between the council members that allowed the city to get swindled on Thunder (blunder) Palooza and those that are carrying the water for CLEAT (the police union). If you want something that is screwy or not in the best interest of the city, it is pretty well known which members of the council will fall for it.

    As for the committees, my recollection is that the Mayor was very frustrated that the committees weren’t accountable and that it was difficult to delegate real work to them because there was a lack of consistency in their output. I think this probably is an attempt to try and make the committees AND some of the council members productive. I don’t think it will work because what matters is work ethic, not whether a person is a council member or not. Having a member of the council lead a committee means nothing if they are deadbeat. I’d rather have a hardworking and dedicated member of the general public lead a committee than some of the folks that will be leading them in the structure that was just adopted. With that said, I do think that this is a sincere attempt by the mayor and others on the council to make the committee structure more productive.

    However, the unintended consequences that result from well intended changes in policy do have the potential to unravel the system that really has worked well for the city thus far and has done so despite all of the prior attempts to circumvent it.

  6. Like I’ve been saying all along – putting individual councilmen in charge of individual committees puts them more and more directly in charge of the operations of the City (i.e., politicizing operations) and farther away from directing policy.

    It is moving towards a Commission form of government wherein individual council members are heads of departments. I don’t like it. I think it’s headed in the wrong direction. And it is definitely in violation of the spirit of our City Charter.

    But I’ve obviously been talking into the wind on this one. But maybe this comment should have been saved for Bill’s next article….

    Welcome back Todd. Good to hear from you.

  7. Lila’s right. The city is going to be run like a lot of cities in the midwest – fully unionized and commission driven, if they keep heading down this road. I can attest to how poorly that system is working in this region of the country. The whole region is dying – there may not be a single city within 300 mile radius of where I’m sitting right now (Dayton, Oh) that has experienced economic growth in 8-10 years. Kyle was headed in a different direction – I’m not so sure where it’s headed now.

    I can’t believe how the progressive nature of the city has reversed in just one year. It’s sad.

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