During an April 6 meeting, Houston City Council approved an ordinance with a 13-3 vote to increase the amount of money given to Norton Rose Fulbright, the company representing the city in a lawsuit from the Houston Firefighters’ Relief and Retirement Fund.
At large council members Michael Kubosh and Letitia Plummer joined District A Council Member Amy Peck in voting against the item. With the ordinance approved, the firm is now receiving $220,000 more for their professional services, making the total the city has given them $1.6 million.
According to Mayor Sylvester Turner, the firefighter pension system is suing to undo the city’s pension reform. During the meeting, Turner discussed the effects the legal battle could have on Houston if the city did not fight back.
“I find the lawsuits totally unnecessary, unless people want to undo the pension reforms, and that hurts the city,” Turner said. “When the city is sued, we have to defend because the stakes are too high.”
On June 30, 2021, the city gave firefighters an 18% raise over a three-year period at a cost of $182 million. On Aug. 4, City Council approved a 9% raise for municipal employees over the course of three years at a cost of $77 million. Most recently, the city's police officers were given a 10.5% pay increase that will be seen over the next three years at a cost of $125 million, Turner said.
During the meeting, City Attorney Arturo Michel said if the city lost the battle, all the work they have put in over the years would be undone. The loss would also affect the municipal employees and police force, he said.
“If we don’t prevail in this lawsuit, we risk the benefit of the gains we’ve made through the reform ... and probably the biggest financial impact any litigation has [had] that I’ve seen at any time that I’ve been city attorney,” Michel said.
The lawsuit from the HFRRF claims Houston’s pension reform bill is unconstitutional because it “infringes on the board’s exclusive authority to select an actuary and determine sound actuarial assumptions,” according to a previous letter to pension review board members.
At Large Council Member Sallie Alcorn asked Michel about the lawsuit’s similarity to an earlier lawsuit filed by the Houston Fire Fighters Union, which was denied by the Texas Supreme Court and resolved in the city’s favor.
According to Michel, the first lawsuit was filed as a facial challenge, which means it was filed claiming that a statute was unconstitutional at all times and under all circumstances. The lawsuit from the HFRRF, by contrast, was filed as an as-applied lawsuit. Michel said an as-applied lawsuit claims a statute is constitutional except for in certain circumstances.
One of the city’s defenses for the latest lawsuit could be res judicata, or claim preclusion, Michel said. With this defense, the city would claim the facts from the HFRRF could have been brought to the hearings before, but since they did not, the action should not be taken back to court.
Joe Gimenez, a spokesperson for the HFRRF, said in an email to Community Impact Newspaper that the two lawsuits are completely different entities.
Kubosh said he thinks the matter should be handled by the city's in-house legal team.
“This is an outside law firm that we’re bringing in and spending a lot of money on, on many cases,” Kubosh said. “I disagree with that idea. We have legal counsel that represents the city. I do believe we have adequate attorneys without having to hire all these outside law firms.”
If the city were to use their own attorneys, other matters would have to be delayed, Michel said. The city needs the firm to put their best foot forward, he said.
“Norton Rose brings additional expertise and also the time to handle this lawsuit,” Michel said.
