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.