Three councilors and a bunch of firemen

[RecycleMichael]

http://www.tulsaworld.com/news/article.aspx?subjectid=298&articleid=20090901_298_0_SomeTu408828

Firefighters union accused of using improper campaign tactics  

By BRIAN BARBER World Staff Writer
Published: 9/1/2009 

Some Tulsa city councilors on Tuesday accused the firefighters union of "thuggery" and "intimidation" in its attempts to oust some councilors in this year's elections.
They told City Attorney Deirdre Dexter she needs to defend the City Charter section banning the activity. Councilor Rick Westcott, who is one of the union's targets with Councilors Bill Martinson and Eric Gomez, said he's disturbed the firefighters have gotten so involved in campaigning.

"If any union gets their candidate elected, then that union controls that candidate," he said, during the council committee meetings. "If any union gets enough candidates elected, then that union controls the City Council and controls city government. That would be a death knell for our representative form of government."

Roughly two-thirds of Tulsa's firefighters live outside the city, Westcott noted. Numerous of Westcott's constituents have relayed stories to him about firefighters out walking his district and knocking on their doors, he said. "They were campaigning for my opponent," Westcott said, "and then politely said, 'Gee, it sure would be bad if your house caught on fire and we didn't have enough firefighters to properly respond. Gosh, that would be awful. We sure would hate it if your house caught on fire and we couldn't come out and take care of the problem.'"

Westcott said, "It's like an old black-and-white movie," calling the activity wrong on principle and wrong legally." Martinson said the city has a charter for a reason: "To protect the citizens."

"I've had people tell me they are afraid to put up my yard signs because they fear retaliation," he said. "The unions are swarming the neighborhoods. Folks, when you are afraid of the very people you expect to protect you, we have a huge problem on our hands." The councilors are being targeted because they wanted more time to consider a proposal from Martinson to cut the Police and Fire Department budgets, which consume all of city's two-penny sales tax for operations.

While police and fire officials warned this would require manpower cuts due to union rules, Martinson said the city needs to be able to renegotiate salaries with the unions in such a bleak economic time. Firefighters Local 1176 Stan May maintains that his union members have the right to campaign, as long as they are not in their city uniforms and not doing it while they are working.

May said he "had a hard time believing" the anecdotes that councilors relayed about what firefighters are saying to voters. He urged citizens to call the union with any complaints. Police union members are also participating in the campaigning efforts.

Tulsa's City Charter specifically states that "no chief, officer or sworn member of the Fire Department shall take an active part in any campaign for the election of officers of the city, except to vote and privately state a personal opinion." But Dexter said the city takes its cues from state law, which allows such campaign activity under the First Amendment protections on free political speech.

Councilor John Eagleton, an attorney, gave a lengthy presentation about the city's history with this issue, concluding that it comes down to the charter. Three previous city attorney opinions dating back to 1984, 1990 and 1991 have indicated that charter provisions relating to local concerns prevail over state laws.

One says that those who violate the charter can be disciplined. Eagleton also cited a 1981 Oklahoma attorney general's opinion that says no employee in the classified service can take part in any political campaign. Also, the governor had to approve Tulsa's charter as to be not in conflict with the Constitution or state laws, he pointed out.

Dexter has countered using a 2009 state attorney general opinion that states that the supremacy of state law over a city charter depends on whether the issue is a general matter of the state or strictly a municipal affair. This issue of political campaigning by unions is a general matter of the state, Dexter maintains.

In February 2008, before last year's election cycle began, Dexter sent an email to all city employees stating that the City Charter and Oklahoma law prohibit anyone in the classified service from taking an active part in any municipal campaign. Weeks later, she reversed herself to her current position on the issue that it is allowed while off-duty and not in a city uniform, citing also citing state law.

Martinson said Dexter "dismally failed in this exercise" and that she was trying hard to justify her result. Dexter said that is not true, adding, "I guess we'll have to agree to disagree." Eagleton said, "I expect the city attorney to defend the City Charter."

Westcott added, "Deirdre, I have never been more disappointed in a public official that I am with you as the city attorney." Dexter said she takes her duties seriously and that, "I am not going to compromise my principles for anyone, and I don't care who tries to browbeat me."

I knew there were firefighters out working in district two and five, but did not realize they were also working in district four. Why no comment from Councilor Gomez?

These same firefighters campaigned for Mayor Bill LaFortune in the last Mayor's race. Why didn't these councilors get involved then? I remember a couple of elections back, the whole city council in Claremore was replaced by a slate of politicans that were backed by the firefighters union in that town.

It is certainly interesting that city workers want to get involved in city politics. I don't have a clue if it is allowed or not, but it seems understandable. Council and Mayor decisions have a real impact on their job. But shouldn't there be some protection of these same workers? What if they were working for an incumbent and felt pressured to campaign?

[Townsend]

He urged citizens to call the union with any complaints.

Seems the point of the story is they're scared to do anything like that due to possible repercussions.

I hope these stories are being blown up a bit.

[Wilbur]

Dexter is 100% correct.

You can't tell 4500 people they have absolutely no right to put a bumper sticker on their car or a yard sign in their lawn simply because of their employment status.

I can agree those same employees can't put bumper stickers on their fire trucks or yard signs at the fire station, but don't tell me their employer can dictate what they do on their off-duty time, not wearing any type of uniform.

Eagleton and Westcott must feel the pressure.  I wonder what their stance would be if the firefighters' union was out campaigning FOR them?  Much different I suspect.

[cannon_fodder]

Public employees are more involved in politics around here than seems healthy to me.   Teachers, police, firefighters . . .  they all have an interest in politics for personal gain.   I don't think you can tell a person they can't do whatever they damn well please on their own time (not in uniform, etc.), but it makes me uncomfortable when people receiving public salaries use their power to make sure they have influence over the people that control he purse strings.  Sometimes it seems like the Firefighters and Police run the city counsel (what zoning do you want?  How wide do you want that intersection?  You want us to stop investigating that?).

And I'm not accusing the firefighters of any nefarious activities in this.  I am not familiar enough with the issues to say anything in an educated about their actual position.  Hell, if I was a public employee  I'd campaign for whomever wants to give me more money or make my job easier.  It's just as a matter of principle, it is a bit unsettling to me.   

Furthermore, how many of those firefighters campaigning in Tulsa live in Owasso?  A Tulsa employee living in Owasso telling Tulsans how to vote just seems odd.  I have a mixed opinion on allowing city employees to live in far flung locales (most cities have a distance limit you can live from the city), let alone allowing them to drive city vehicles as commuting vehicles. 

Am I just being spiteful?

[sgrizzle]

Gomez is staying out of it because it's lose-lose.

The issue I see is that why state in the charter that no civil servant can campaign, if it's not an enforceable position? The charter should be enforced or amended. Pick one.

[MichaelBates]

Many years ago, in cities like Chicago and New York and -- going farther back -- even at the federal level, campaigning for a candidate could get you a patronage job in government. Every job from janitor to police officer to firefighter to department manager was subject to the "spoils system" -- to the victor belongs the spoils -- and a change of administration meant the entire staff would be swept away.

At some point, reformers succeeded in establishing the notion of civil service protection. Workers wouldn't lose their jobs and citizens wouldn't lose experienced workers just because someone new was voted into office. But the trade-off for that protection was that you couldn't get involved in campaigns.

For federal workers, there's the Hatch Act. The Hatch Act will sometimes apply to employees of state and local governments if federal grant money is paying their salaries. Oklahoma has similar laws for the state civil service. Tulsa's City Charter grants civil service protection to city workers and firefighters, but also very explicitly restricts them from involvement in local campaigns beyond voting and voicing a private opinion.

The Hatch Act was upheld as constitutional by the U. S. Supreme Court in two cases: United Public Workers of America v. Mitchell (1947) and United States Civil Service Commission v. National Association of Letter Carriers (1973). It was watered down in 1993, when the Democrats had control of Congress during the first two years of the Clinton presidency.

The restriction on political activity was there when the firefighters joined TFD.

Based on the T-shirts I saw at the Beer Summit and signs in front of the union hall at 13th & Detroit, the union is backing Rhoades (2), Patrick (3), Barnes (4), Trail (5), Troyer (6), and Christiansen ( 8 ). Eagleton didn't draw an opponent.

[Wrinkle]

To me, it's a very simple issue.

If they say, "HI, I'm [name], and I'd like to encourage you to vote for [candidate] because s/he supports public safety.", it's fine.

But, if they say, "HI, I'm from the fire deptment and we want you to vote for [candidate]...".

Showing up in a union shirt represents themselves as fire department, just as if they had pulled up front in a fire truck.

They agreed not to campaign and are doing it.
They need to stop, change their methodology, or be fired.

[Conan71]

Public employees are more involved in politics around here than seems healthy to me.   Teachers, police, firefighters . . .  they all have an interest in politics for personal gain.   I don't think you can tell a person they can't do whatever they damn well please on their own time (not in uniform, etc.), but it makes me uncomfortable when people receiving public salaries use their power to make sure they have influence over the people that control he purse strings.  Sometimes it seems like the Firefighters and Police run the city counsel (what zoning do you want?  How wide do you want that intersection?  You want us to stop investigating that?).

And I'm not accusing the firefighters of any nefarious activities in this.  I am not familiar enough with the issues to say anything in an educated about their actual position.  Hell, if I was a public employee  I'd campaign for whomever wants to give me more money or make my job easier.  It's just as a matter of principle, it is a bit unsettling to me.   

Furthermore, how many of those firefighters campaigning in Tulsa live in Owasso?  A Tulsa employee living in Owasso telling Tulsans how to vote just seems odd.  I have a mixed opinion on allowing city employees to live in far flung locales (most cities have a distance limit you can live from the city), let alone allowing them to drive city vehicles as commuting vehicles. 

Am I just being spiteful?

"Awww, gee, it'd be an awful shame if you had a fire and we couldn't put it out..."

[shadows]

By common reason when a fireman or policeman, singularly or in groups, canvas an area distributing by word or signs, defining themselves as such does without doubt intimidates many citizens when the citizen is forewarned by the media of their coming.  When they do so as their citizens rights but by the nature of the act, which distorts those rights, they are identifying  themselves as a part of the sworn officers of the city and there should be no question that they are violating the policies set out in the charter.  Thus if any voter calls to say they were intimidated by the act of reciting that they are of a group, connected to the city in any such way, they should be disciplined for violation of their oath as a sworn officer.

This should also apply to the legal department in accepting such action which can be construed easily as an presumed act to intimidate even the placement of signs of opponents in the citizen's own yard.  It has all gone too far.   

What was that story that they were a policeman or fireman 24 a day even when the were off duty?  Seem that has been brought up in the union's negotiations.  Does that mean if not home at the time when they observe an act they just say "Now stand right there while I go home and change to my  uniform?"   Remember the story on drive home cars?

[cannon_fodder]

What was that story that they were a policeman or fireman 24 a day even when the were off duty?  Seem that has been brought up in the union's negotiations.  Does that mean if not home at the time when they observe an act they just say "Now stand right there while I go home and change to my  uniform?"   Remember the story on drive home cars?

Wow.  Great point Shadows.  When it is the right to carry a gun, drive a city vehicle, or negotiate wages and benefits you are always "on duty."  But if being "on duty" effects them in other ways it doesn't seem to apply.

[AngieB]

A group of firemen supporting Rhoades came to our door on Saturday. I immediately told them I was supporting Westcott. I wouldn't say that I felt "intimidated", but they got very defensive and maybe a bit aggressive with "Why don't you like Rhoades?" I simply told them "I don't dislike Rhoades, I like Westcott." I gotta say it was a bit uncomfortable...but then they left.

[Conan71]

Hmm, I'm trying to decide if "Three councilors and a bunch of firemen" would be better as the name for a rock group or a porno flick.

[Wrinkle]

Some of you attorney's, help me out. Pro Gratis.

Under Oklahoma Contract Law, a breach of contract voids the entire contract, right?

In a breach, it's not one of those, "....if any clause herein fails test, all other conditions remain in force..." type issues.

Intentional, or even unintentional, breach would void the contract, I think.

So, is the fireman's union ready to sit down and re-negotiate ALL terms of their contract with the City? Can you say, pay cut?

[RecycleMichael]

...the union is backing Rhoades (2), Patrick (3), Barnes (4), Trail (5), Troyer (6), and Christiansen ( 8 ). Eagleton didn't draw an opponent.

Three incumbents and four challengers...
Four Republicans, two Democrats, and one Independent...

Sounds diverse and planned out to me.

[cannon_fodder]

Under Oklahoma Contract Law, a breach of contract voids the entire contract, right?

In a breach, it's not one of those, "....if any clause herein fails test, all other conditions remain in force..." type issues.

Short answer yes with an if, or no with a but . . .

Generally if a contract is void, it's void in its entirety.  Bear in mind that you can contract around that issue with some simple language ("should on portion of this contract be found void it shall have no effect on the force of the remainder of this contract" or "a breach of one portion of this contract constitutes a breach of only that portion and shall not hinder nor disrupt performance on the remainder of said contract").  OR, a judge can decide to "blue pencil" the contract and remove the offending part (which they are not supposed to do).  But usually when a breach voids a contract - it's a package deal.

However, generally when a contract is breached the contract is not void.  The non-breaching party can seek a remedy under the contract without necessarily voiding the contract.  IE - when you fail to pay on a note you have breached the contract, but whomever holds the note can sue you for the breach (you owe me arrears) and still seek to enforce the remainder of the contract (you keep the car and continue your payments, which would be stupid in that instance).

Finally, it is worth noting that in labor law and labor contracts a specific set of construction norms may apply.  I do not specialize in labor law, but in my ancillary dealings contract language generally covers such issues.  For union contracts, few if any actions will outright void the contract (again, in my limited experience).

/2 minute analysis