Copyright © 2013 Albuquerque Journal
Mayor Richard Berry’s administration improperly withheld pay raises owed under a police union contract when the city faced a serious budget crunch three years ago, according to a recent state Court of Appeals opinion.
The city should have reopened the financial terms of the contract for negotiation, the court said, rather than “unilaterally” deciding to exclude pay raises from the proposed budget, Appeals Court Judge Timothy L. Garcia said in a six-page order.
The decision reversed a lower-court ruling that had sided with the city. The Court of Appeals also remanded the case back to District Court for further consideration.
The Berry administration argues that the raises outlined in the contract were always subject to budget appropriations.
City Attorney David Tourek said the city will ask the state Supreme Court to review the case, but even if the remand is upheld, he’s confident the city will succeed.
“We have prevailed in the past on every pay case involving the unions and expect to prevail in this one,” Tourek said Thursday in a written statement. “The remand is just part of the procedural process of appeals.”
He said the city succeeded in a similar case involving the firefighters’ union. In that suit, the city has twice won District Court rulings, though another appeal is still pending.
“Every time the city wins these union cases in district court, the unions appeal and sometimes we have to re-win them again when they are remanded,” Tourek said.
Stephanie Lopez, president of the police union, said she was pleased with the court decision.
“At the end of the day, this has never been about the amount of money,” she said in a written statement. “It’s about what’s right and being treated with respect for the sacrifices involved in ensuring this community’s safety.”
The dispute arises out of an extremely tight budget at City Hall in 2010, Berry’s first full year in office.
The city’s finance department forecast a $67 million budget deficit that year unless the city made cuts or other adjustments.
That included about $9.8 million in raises outlined in the police union contract, which had been approved two years earlier under the administration of then-Mayor Martin Chávez. The raises amounted to about 6 percent for officers. The contract called for salary increases over a period of three years that would have raised an entry-level patrolman’s pay by 47 percent.
Berry proposed the city balance the budget, in part, by reducing employees’ pay. The City Council subsequently approved a plan calling for 2.2 percent cuts, on average. The goal was to avoid layoffs, tax increases or reductions in service to the public.
That summer, the city cut employee pay on a sliding scale, based on how much the employees made. Instead of a pay raise, for example, police officers had their pay cut, on average, about 2.4 percent.
The recent Court of Appeals’ decision centers on a lawsuit filed by the Albuquerque Police Officers’ Association and several individual officers.
The court said that, under city law and terms of the APOA contract, the multi-year agreement could have been reopened to address “economic items,” ensuring the city had some protection against budget shortfalls.
But unless the contract had been reopened, the pay raises were a “binding contractual obligation,” the court said.
Judge Garcia wrote that “rather than reopen the (collective bargaining agreement) for economic reasons, the mayor unilaterally chose to exclude the CBA (collective bargaining agreement) salary increases from the proposed budget.”
Garcia said the mayor “chose to breach the CBA contractual obligation” to avoid layoffs and share the financial burden of cuts more equally across all employees.
But, the judge added, these “reasons and goals do not legally justify a departure from the city’s contractual obligation to reopen the CBA to address unexpected economic items.”
The APOA contract does allow the city to reduce the police force through layoffs.