City of Mcallen v. Mcallen Police Officers, 13-07-0214-CV.

• Decision Date: 13 April 2007
• Docket Number: No. 13-07-0214-CV.,13-07-0214-CV.
• Citation: 221 S.W.3d 885
• Parties: CITY OF McALLEN, Texas, Appellant, v. McALLEN POLICE OFFICERS UNION and Michael Zellers, President, Appellees.
• Court: Texas Court of Appeals

221 S.W.3d 885

CITY OF McALLEN, Texas, Appellant, v. McALLEN POLICE OFFICERS UNION and Michael Zellers, President, Appellees.

No. 13-07-0214-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

April 13, 2007.

Bradley B. Young, C. Robert Heath, Bickerstaff, Heath, Pollan & Caroom, L.L.P., Austin, Raymond L. Thomas, Kittleman, Thomas & Gonzalez, Michael A. McGurk, Kittleman, Thomas, Ramirez & Gonzales, McAllen, for appellants.

Roberto M. Garcia, Ricardo G. Benavides, Juan A. Gonzalez, McAllen for appellees.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

OPINION

Opinion by Chief Justice VALDEZ.

This matter is before the Court on an accelerated interlocutory appeal. Plaintiffs below, McAllen Police Officers' Union and Michael Zellers, President, and plaintiff-intervenors, Cesar Gomez, individually and on behalf of the McAllen Firefighters Association (collectively "plaintiffs"), filed an application for a temporary restraining order and temporary injunction against the City of McAllen, Texas ("the City"), seeking to enjoin the City from utilizing misleading and confusing ballot language in the May 12, 2007 election. The trial court granted the temporary injunction, and the City now appeals an order denying its plea to the jurisdiction, signed by the trial court on March 27, 2007; as well as the temporary injunction, signed by the trial court on March 29, 2007. We affirm.

I. Background

The Texas Local Government Code authorizes qualified voters of a municipality to propose amendments to the City's charter. See TEX. LOC. GOV'T CODE ANN. § 9.004, 9.005 (Vernon 1999). Under this authority, approximately 3,200 registered voters in the City signed a petition that proposed to amend the City's charter to provide, in relevant part, for binding arbitration in the event of an impasse in the collective bargaining negotiations between the City and the bargaining agents for the police and firefighters. The petition reads as follows:

I, a registered voter of the City of McAllen, pursuant to the provisions of sections 9.004 and 9.005, Local Government Code of the State of Texas, hereby petition the City Commission to submit the following proposed charter amendment to the voters of the City of McAllen on May 12th, 2007:

Article No. IV is amended to add Section No. 3 as follows:

It shall be the policy of the City of McAllen to provide it's [sic] Firefighters and Police Officers with compensation and other conditions of employment that are substantially the same as compensation and conditions of employment in other comparable cities in the State of Texas.

Because of the essential and emergency nature of the public service performed by Firefighters and Police Officers it is essential for the City of McAllen to adopt a fair system of arbitration if the parties fail to agree on the compensation and other conditions of employment during collective bargaining negotiations.

With the right to strike prohibited, to maintain the high morale of Firefighters and Police Officers and efficient operation of the departments in which they serve, arbitration must be expeditious, effective, and binding.

In the event that the City of McAllen is unable to reach an agreement with the Firefighters and /or Police Officers during collective bargaining negotiations and the parties have been at impasse for at least 90 days, then the following impasse procedure shall prevail:

Either party to the dispute, after written notice to the other party containing specifications of the issue or issues in dispute, may request arbitration. In the event that one party makes a request for arbitration, then both parties shall submit all issues in dispute to arbitration. The issues to be submitted to arbitration shall be all matters which the parties have been unable to resolve through collective bargaining. The arbitration ruling shall be final and binding on both parties.

Arbitration shall be conducted by the parties pursuant to the procedures, duties, requirements and rights set forth in local government code, sections 174.153 through 174.164, except that local government code section 174.163 shall be specifically excluded and not apply herein.

In making its decision, the Arbitration panel may consider only the following:

1) the requirements of section 174.021, Local Government Code[.]

2) The total compensation, including wages and benefits, and conditions of employment provided by the City of McAllen to the Firefighters and/or Police Officers.

3) The total compensation and terms and conditions of employment of Firefighters and Police Officers in other comparable cities in the State of Texas[.]

4) The rate of increase or decrease in the cost of living for the McAllen area determined by the Consumer Price Index for the period beginning with the effective date of the current collective bargaining agreement and ending with the most recent published report at the time of commencement of the arbitration.

5) Revenues available to the City of McAllen and the impact on the Taxpayers of the City of McAllen.

Plaintiffs McAllen Police Officers' Union and Michael Zellers, President, submitted the petitions to the City on March 5, 2007.

On March 12, 2007, the City certified the petitions as sufficient in number, substance, and form to place the issue on the ballot for the May 12, 2007 election. The City issued Ordinance 2007-24, which contains the proposition submitted by petition, and proposed to place it on the ballot as Proposition Three, utilizing the following ballot language: "Should the city charter be amended to require that outside arbitrators be the final decision makers in certain labor contract issues affecting city employees and the city budget rather than having the decision made by your elected mayor and city commission?"

That same day, the City, on its own initiative, issued two other ordinances, Ordinance 2007-22 and Ordinance 2007-23, also proposing to change the city charter. Ordinance 2007-22 provided for a vote for or against the following proposition:

The board of commissioners shall from time to time by resolution provide for regular meetings and for call[ed] meetings of said board; and shall provide for the time and place of said meetings. Four (4) commissioners, or the mayor and three (3) commissioners of said board, shall constitute a quorum for the transaction of any and all business that may be brought before the board; provided that no bonds may be issued nor no taxes levied except at a regular meeting of the board attended by at least three (3) commissioners and the mayor, or by four (4) commissioners without the mayor. All official sessions of the board of commissioners, whether regular or called, shall be open to the public.

This proposition was to be placed on the ballot as Proposition Two utilizing the following language: "Should the city charter be amended to provide that a quorum of the Board of Commissioners consists of four members?"

Ordinance 2007-23 provides for a vote "for or against the following proposition:"

Notwithstanding any other provisions of this charter, the City is prohibited from utilizing binding arbitration, or any other similar process which delegates the final decision making authority to an outside person or entity, in determining the appropriate compensation, wages, benefits and/or any other conditions of employment for City of McAllen employees, including but not limited to Police Officers and/or Firefighters. The City shall have the authority to use any appropriate non-binding alternative dispute resolution proceeding, but the final decision to accept and/or reject any recommendations resulting from such proceeding shall remain with the elected city officials of the City of McAllen.

The proposition language to be placed on the official ballot, identified as Proposition One, reads: "Should the city charter be amended to make sure that your elected mayor and city commissioners keep the right to make final decisions on employee labor issues affecting city budgets by prohibiting outside arbitration?"

On March 22, 2007, plaintiffs filed an application for temporary restraining order and temporary injunction. Plaintiffs contended that the proposition language for the ballot adopted by the City was at substantial variance from the language of the petitions and the proposition set forth and described in the ordinance. Plaintiffs further contended that the proposition language: (1) fails to describe the measure with such definiteness and certainty that the voters are not misled; (2) fails to identify the measure and show its character and purpose; (3) fails to utilize such language as to constitute a fair portrayal of its chief features in words of plain meaning so that it can be understood by persons entitled to vote; and (4) fails to adequately describe the proposed amendment to give fair notice to the voter of average intelligence by directing him to the amendment so that he can discern its identity and distinguish it from other propositions on the ballot.

On March 23, Cesar Gomez, individually and on behalf of the McAllen Firefighters Association, filed his petition in intervention also seeking to enjoin the City from proceeding with the election using deceptive, misleading, and confusing ballot language.

On March 26, 2007, the City filed a plea to the jurisdiction, contending that the trial court lacked jurisdiction to rule on the application because there was insufficient time to implement a remedy without delaying the election. On March 27, 2007, the trial court denied the plea.

The trial court held hearings on the application on March 26 and March 27, 2007. On March 27, 2007, the trial court announced her ruling from the bench granting the temporary injunction. On March 29, 2007, the trial court issued a written order finding that plaintiffs had shown a "probable right and probable injury," and providing, in relevant part, that the ballot propositions selected by the...