The Toledo City Council knowingly chose to violate its own charter to help a local union, despite being told by the law director that its action was illegal.
The council Tuesday had been expected to approve an ordinance presented by Mayor Mike Bell to grant health benefits to employees with same- or opposite-sex domestic partners. But a last-minute amendment on behalf of Toledo Firefighters Local 92 resulted in a threat of a veto by the mayor.
For several weeks, the domestic partner benefits ordinance had been discussed and a majority of council members had expressed support.
Questions about the legality of the ordinance in light of Ohio‘s 2004 amendment to the state constitution, weren’t raised.
Supporters had claimed the measure would help attract better employees to the city, would show Toledo was a progressive city and was the right thing to do in terms of fairness. It was mentioned often that other major cities in Ohio had similar policies.
The cost to taxpayers wasn’t addressed because, as the administration explained, it had no idea how many individuals might request coverage for their domestic partners.
Toledo projected a deficit for 2012 in its general fund and has approved a diversion of up to $12 million from the capital improvement fund to cover the shortfall.
But while an unknown cost to taxpayers was not enough to stop the measure, costs to the firefighters’ union was.
Firefighters in the city are covered by their union’s health insurance plan. The city pays a set amount per employee to the union to cover the costs. The firefighters, who follow the city rules on eligibility, realized that there was an unknown cost and were not happy that their expenses might increase as a result of the legislation.
District 2 Councilman D. Michael Collins, a former president of the Toledo Police Patrolman’s Association and a close ally of unions, presented an amendment to require the mayor to re-open negotiations with the firefighters to address the potential costs and the city reimbursement for those costs. The amendment required:
“reopening Health & Welfare Trust Fund Section 2125.75 of the collective bargaining agreement with the City of Toledo and Firefighters Local 92, exclusively to provide discussions as it relates to the financial impact of expanding eligibility for their ERISA health care trust;”
and included this section:
SECTION 5. That the City of Toledo and Toledo Firefighters Local 92 revisit the singular issue of domestic partner benefits under the color and scope of Section 4117 of the Ohio Public Sector Employees Bargaining Act.
The amendment appeared to have the support of other council members — and then City Law Director Adam Loukx weighed in:
“If you look up in council at all the archives of council, go through the many years past of all the ordinances, you’re not going to find an ordinance that looks like this and the reason for that is that this is a violation of section 30. If, at all, if there should be any negotiations or any of that kind of thing, that is a matter for the administration, it is a matter of state law, but it is not a proper subject for legislation.”
Section 30 says the council shall not interfere with the administration:
“Except insofar as is necessary in the performance of the duties of his or her office, no member of the Council shall interfere, directly or indirectly, with the conduct of the administration or directly or indirectly take any part in the appointment, promotion, or dismissal of any officer or employee in the service of the City other than the officers or employees of the Council and except insofar as Council confirmation is necessary to fill a position as required by this Charter. Except for the purpose of inquiry, the members of Council shall deal solely through the Mayor regarding the administration.”
District 6 Councilwoman Lindsay Webb thought the mayor should just line-item veto the amendment, if he didn’t like it, saying the council should
“… send a clear message to the mayor that it is our intention that the mayor negotiate this so that all employees of the city of Toledo can be treated equally with respect to domestic partner benefits. That needs to happen at the bargaining table. That is the reflective view of the majority of the members of this council. The prudent thing here is for the mayor to basically hear that message from council and line-item veto that provision if he is so dissatisfied with it. That’s the prudent thing to do here. I’m disappointed that the mayor would choose to throw the baby out with the bath water, meaning that we’re throwing out the entire domestic partner benefits because of his standoff with Local 92.
“The prudent thing here is for him to utilize his line-item veto power, line item out that provision that he is dissatisfied with and move forward.”
Collins continued to push the amendment. Here is his further exchange with Loukx:
Collins: “Council had a right to know that the administration had already set forth plans to bring this into the arena. We voted on a contract …”
Loukx interrupted: “I’m not going to debate the time lines or anything of that sort. Whether or not there’s a proper forum for that, I’m not going to debate. What I will tell you, unequivocally, is that the role of council is not to just put anything they like in ordinances. This is a strong mayor system, but even before it was a strong mayor system, we had section 30 that left the administration to the administration. It may well be that – I’m not going to debate whether or not there should be negotiations, whether or not there should not be negotiations, that is not a role for this ordinance to do. This is an improper amendment because it goes too far. It clearly violates section 30 of the city’s charter and I’m going to tell you that it’s inconceivable to me that we’ve had a city with a council since 1917 and this would be the first time you would see an amendment like this proposed. And the reason for that is because it’s obviously a violation of section 30.”
Collins: “I would ask my colleagues on council, and I’ll end by saying, to support this whether it violates it or not because fundamental fairness requires it.”
Loukx: “I would encourage you to not knowingly violate the law.”
The motion to amend the ordinance to protect the firefighters’ union passed by a vote of 8-4. When the vote for the amended ordinance was held, it passed 9-3 with Republicans Rob Ludeman, George Sarantou and Tom Waniewski voting no.
Wednesday, Bell kept his promise and, in a scathing letter to city council, vetoed the measure:
“It is my belief, supported by the opinion of the Law Director, that the ordinance as amended and adopted illegally violates the Charter of the City of Toledo and the basic principles of separation of powers that lie at the heart of the Charter.
It could be suggested that I should limit my veto to a line item as is permitted by the Charter at §43A. It could also be suggested that I should ignore Council’s action to the extent that it attempts to change the intent of the ordinance as introduced. Some may even suggest, pragmatically, that I should just accept Council’s advice on labor relations. For the reasons provided herein, it is my belief that I would avoid my responsibility to this City and the citizens that we all serve if I proceeded in any course other than through veto of the legislation as a whole.
Consistent with the oath I took — and members of Council took — I have respected the Charter and have not interfered with Council in the conduct of its legislative role in City government. … In other words, yesterday’s Charter violation, if unchecked, will serve as tomorrow’s justification for more improper intrusions into executive prerogative.
I cannot simply ignore Council’s attempt to violate the Charter. Despite being advised by the City’s Law Director that Council lacked the authority to act on the amended legislation, Council did so anyway. Certain members of Council have tried to court labor endorsement at the expense of the City as a whole. The legislative action was apparently, in the minds of some Council persons, harmless despite its overt illegality because the Mayor, they believed, would bail them out by issuing a line item veto.
Finally, I am not willing to treat Council’s self-serving and illegal attempt to undermine the Charter as “advisory.” On the last occasion that Council advised this administration on collective bargaining- when it refused to implement favorable terms and conditions upon AFSCME Local 7- it cost the taxpayers hundreds of thousands of dollars.”
Bell said he promised to bring his original ordinance back at the next council meeting.