AUSTIN (KXAN) – Dozens of firefighters sat through several hours of Thursday’s Austin City Council meeting to show their support for a settlement that will end a legal tangle between City Hall and the federal government that resulted in a hiring freeze for the Austin Fire Department.
The council item was pushed back during the day and wasn’t heard by council members until 8:30 p.m. After two hours, in a 5-2 vote, the Council approved the settlement with the U.S. Department of Justice regarding AFD’s hiring practices. Councilmen Mike Martinez and Chris Riley both voted “No.”
The Austin Firefighters Association had opposed the deal.
“No laws were broken and no consent decree should be granted and the fact the city would enter into an expensive consent decree and give power to the federal government as far as oversight is ridiculous,” said Bob Nicks, Austin Firefighters Association President after the final vote was cast Thursday night.
The revised Justice Department consent decree finalized May 2 is posted to the City’s website (as item 10). It calls for:
- Provisions that allow AFD to resume and complete its current cadet hiring process,
with some modification to the original design of that process.
- A requirement that the design and administration of any future cadet hiring process
during the term of the consent decree is subject to DOJ oversight.
- A process to provide backpay and/or priority hiring relief to unsuccessful Hispanic
and African American candidates from the 2012 hiring process who can demonstrate
eligibility for such relief. The backpay relief component is capped at a maximum of
$780,000 for all candidates. The priority hiring component includes thirty
positions in future fire cadet academies, divided between twelve African American
candidate slots and eighteen Hispanic candidate slots.
- The length of the consent decree would be a minimum of four years, with the
possibility of extending the decree for up to an additional four years for good cause
The proposed consent decree would not become effective until approved by both the city council and Department of Justice, and then by a United States federal judge in a legal proceeding.
After an initial proposed draft settlement was pulled from the council agenda on two separate occasions this winter, Austin Firefighters Association representatives joined city and DOJ attorneys in early March at the mediation table.
Austin Firefighters Association: Hire, yes; but no decree
For the first time, leadership at the AFA, IAFF 975, agree to portions of the proposed deal with a mind to resuming hiring as quickly as possible. Specifically the union backs the proposal about completing the recommended 30 ‘priority hires’ from the 750 in the 2012 hiring pool. That decision would be subject to union members’ approval.
But the association remains opposed to a consent decree itself. Indeed President Bob Nicks has repeatedly said the AFA would delay any final approval of the decree by intervening in the federal court hearing. That could hold up the process by years, Nicks said. In that case he said a judge could order a temporary injunction to re-start some firefighter hiring this year.
Part of an AFA brief sent to council members in April stated:
“There is no lawful means or a consent decree – and we do not support the concept of Washington, D.C. managing the affairs and local tax dollars of Austin’s residents. (Or being) …involved in dictating our local Austin firefighter hiring process.”
The city received a notice Sept. 26, 2013, from federal civil rights attorneys indicating a finding of racial hiring discrimination in the 2012 hiring process. The 2013 process would be included in the probe as well.
A city background memo indicates the hiring process stopped when the five-month DOJ investigation began in April 2013.
The memo also indicates the “DOJ did not conclude at any time that the city had intentionally discriminated against any candidates, but rather that the statistical result of its neutral hiring practices showed an adverse impact on Hispanic and African American candidates when compared to white candidates.”
The association holds the city simply did not give 2012 candidates the required time to finish an exam and called it an administrative error. Further, the firefighter’s association asserts the 2013 cadet hiring process was “one of the most successful ever in the history of AFD.”
As KXAN reported earlier this year, the city brought in a new vendor in 2013 to manage the process. They concluded in an internal email to AFD Chief Rhoda Mae Kerr “the 2013 process not only corrected the 2012 issues, but also greatly improved the validity…of the process while being fair and inclusive to all groups.”
This DOJ ruling of discrimination not only stalled the hiring process — the last AFD graduating class was July 2013 — but further delayed any resolution to ongoing collective bargaining talks between the city and union.
The association now recommends the city use the 2013 eligibility list to hire the top 175 candidates. That would provide a legal basis since the association asserts the current list violates Civil Service Act and Local Government Code hiring rules.
An association background memo obtained by KXAN points out since the 2012 hiring issues have been corrected, the city can now simply go ahead and follow through on the 2013 hiring process. No formal federal deal is needed.
The AFA background memo also shows attorneys for the group are going over the entire 76-page decree to ensure the city has not added any language that runs counter to association positions. As they have promised in the past, AFA members plan to protest the consent decree vote at Thursday’s council meeting.
AFD staff indicated 66 staff vacancies exist within the department, as of May 2. A normal vacancy rate is about 36, allowing the department flexibility to maintain minimum 24/7 staffing levels the city mandates for Austin’s fire stations.