Politicized for No Good Reason

You may have caught the reformed Marty Schladen's article in the EP Times this week on the domestic partner benefits fight brewing at the city.  If you didn't, read the article HERE.

We've got a major problem brewing here now that this matter has become a public fight.  If you read the article and understand it, the measure being voted on will create a lot of unintended consequences for current and past employees of the city.  It seems that the Jesus Freaks' minor win, will be a major loss for people who aren't gay. 

I think that's funny, because many Americans think that we take extraordinary measures to accommodate a very tiny group of folks - the gays.  The Jesus Freaks often claim that we do things for the gays that adversely affect everyone else.  It seems that the Jesus Freaks have now propagated that very scenario by screwing retirees and current employees with kids between 18 and 25 in an effort to fight the gays.  Somebody should invent a saying about using a firearm to shoot oneself in a nonlethal, but useful part of the body to describe what the Jesus Freaks did here.

The simple fact is that the measure will pass when the voters go to the polls.  El Paso is not tolerant of the gays.  It's not something the local democrats like to talk about too much seeing as how their party is the one that should be championing gay rights.  Just remember that it wasn't but a few months ago that a democrat used another democrat's sexual orientation as a campaign jab.  When the party in town that is said to love the gays acts like that, what can you expect out of a vote of the people at large?

The interesting part of this whole story doesn't sit within the halls of the socially intolerant Jesus Freaks' glass house. It resides within the world of government institutions and the separation administrative policy and what can only be described as political policy. 

A municipal administrator from a bible beating city in east Texas told me that there was no reason this issue should have been on a council agenda.  It seems that many Texas municipalities have simply made the decision to allow for domestic partner benefits as offered to them by most all insurance companies who offer plans to local governments and private businesses.  Employee benefits outside their pension are generally handled by human resources.  Employment issues as a whole are handled by administrative staff and then by an appointed civil service board if needed (for disclosure - my mother is on the civil service board).  There are good reasons not to have elected city council members involved in the day to day HR activities of the city.  The least of them being simple confidentiality laws.

It appears that at some point a member of city council decided to make this administrative issue a political issue.  The city manager could have instructed the HR department to go ahead with insuring the gays and unmarried heterosexuals without council's approval.  Somehow the issue was put on council's agenda and now you have a fight that should have never escalated to this point.  This was all done because some ultra-liberal on council wanted to prove an ultra-liberal point for no other reason than to put a feather in their cap. 

Well, now gays and the unmarried non-gays won't be getting benefits along with retirees and the adult children of employees.  Was politicizing what was simply an administrative call worth screwing all those people?  I don't think so, but our city council would rather try to show off rather than be effective legislators. 

You can't blame a dog for being a dog.  If you let him in the house, don't surprised if he lifts his leg and chews on the furniture.  In the same light, you can't blame a Jesus Freak for being a Jesus Freak.  If you let them into your administrative policy, don't be surprised if they attack the gays and screw the retirees in the process.

Bottom line - this should have been an internal decision (and from my research, was a decision made in the 1990's, but for some reason wasn't offered to employees - it was funded way back then), not a Tuesday morning council vote.

Comments

[Carl Starr]

If the measure passes I doubt the city will enact/enforce a policy that harms retirees...the issue is not ripe now or even after the vote, it would take a retiree to prove/show harm and that a city policy [versus a law] caused the harm.

As a public service here is the latest law reviews and case law on the issues.

National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), 122 Harv. L. Rev. 1263, 1263 (2009) ("Recently, in National Pride at Work, Inc. v. Governor of Michigan, the Supreme Court of Michigan undertook such an interpretive exercise and held that the state's marriage amendment prohibits public employers from providing healthcare benefits to the same-sex domestic partners of their employees."). The first employer to offer domestic partner benefits to its employees was the Village Voice in 1982. n17 In 1992, Lotus Development Corporation became the first publicly traded company to do so. n18 One example of this is the affidavit that the University of California previously used to determine entitlement to domestic partner benefits: "We are each other's sole domestic partner and intend to remain so indefinitely. We are in a relationship of mutual support, caring, and commitment. We are financially interdependent."

Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) (same-sex domestic partners lack standing to challenge denial of federal rights under Defense of Marriage Act).

In June 2009, President Barack Obama issued a presidential memorandum extending some benefits to same-sex partners of federal employees, but "the Defense of Marriage Act n28 prohibits the federal government [*353] from extending health and retirement benefits to same-sex couples, so the benefits are more likely to be marginal--like relocation assistance." n29

Cornell Journal of Law and Public Policy Spring,2010
19 Cornell J. L. & Pub. Pol'y 383 Human Rights Campaign, Statewide Employment Laws & Policies, http://www.hrc. org/documents/Employment Laws and Policies.pdf (last updated Feb. 17, 2010) (noting that the following twelve states and the District of Columbia have laws prohibiting discrimination on account of sexual orientation and gender identity: California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. The following nine states prohibit discrimination on account of sexual orientation: Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin. In addition, six states "have an executive order, administrative order or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity and 3 states prohibit discrimination against public employees based on sexual orientation only. In 22 states and the District of Columbia state employees are provided with domestic partner benefits.").

Duke Journal of Gender Law & Policy May, 2010 17 Duke J. Gender L. & Pol'y 385

The following bills addressing the needs of the LGBT community have been introduced in Congress, but have not been enacted as of May 9, 2010: (1) the Employment Non-Discrimination Act, S.1584, 111th Cong. (2009), H.R. 3017, 111th Cong. (2009), would provide protections against employment discrimination on the basis of sexual orientation; (2) the Domestic Partnership Benefits and Obligations Act, S. 1102, 111th Cong. (2009), H.R. 2517, 111th Cong. (2009), would provide the benefits afforded to different sex spouses to LGBT federal civilian employees; ; (3) the Tax Equity for Domestic Partner and Health Plan Beneficiaries Act, S. 1153, 111th Cong. (2009), H.R. 2625, 111th Cong. (2009), would prohibit the taxation of benefits provided for domestic partners under employers' health plans; (4) the Early Treatment for HIV Act, S. 833, 111th Cong. (2009), H.R. 1616, 111th Cong. (2009), would provide states the option of covering low-income HIV-positive people under Medicaid, before they become disabled, and provide an increased federal match for this purpose; (5) the Uniting American Families Act S. 424, 111th Cong. (2009), H.R. 1024, 111th Cong. (2009), would permit Americans to sponsor their same-sex partner for family-based immigration; (6) the Military Readiness Enhancement Act, H.R. 1283, 111th Cong. (2009), would repeal Don't Ask, Don't Tell, the policy prohibiting LGBTs from openly serving in the military; and (7) the Ending Health Disparities for LGBT Americans Act, H.R. 3001, 111th Cong. (2009), would make the nation's health care system more equiptable for LGBTs.

The passage of the 1996 San Francisco Equal Benefits Ordinance represented a significant new step in the evolution of domestic partnership. The ordinance, authored by Supervisor Leslie Katz and signed in November 1996 by Mayor Willie Brown, required all businesses with a city contract to provide health benefits to their workers' unmarried partners. n124 The motive force behind the bill was Geoff Kors, a Stanford Law School graduate who had worked at the ACLU in Chicago and was at the time a partner in the San Francisco civil rights firm Wotman, Kors & Clouiter, as well as Katz's chief of staff. n125 Kors conceived of the bill as a way to push the Salvation Army, which had received city contracts to provide meals to AIDS victims despite antigay policies, to adopt a more progressive approach toward the gay community. n126 The ordinance had a broad impact, covering large businesses like United Airlines at the city-owned San Francisco Airport, and thus "changed the landscape of what domestic partner benefits were," showing that they could be used to legislate greater equality for same-sex couples even within the private sector. n127

An important case currently pending in the Ninth Circuit is Collins v. Brewer, which seeks to enjoin Arizona's attempt to strip health benefits from the domestic partners of state employees n504

[QUESTION]

what portion of the dependents coverage does the city(or joe the taxpayer) pay for the employee ?

[Carl Starr]

Court of Appeals of Texas,Houston (1st Dist.).

IN RE: Carroll G. ROBINSON

IN RE: Carroll G. ROBINSON, Bruce R. Hotze and Jeffrey N. Daily, Relators.

Nos. 01-04-01276-CV, 01-05-00374-CV.

-- April 14, 2005

Relators are not challenging the results of the election by way of this mandamus.   Instead, they are challenging the process of the election, i.e., the City's refusal to see that the results of the election are certified and recorded in the City's records so that they might become effective.   Also like Blum and Glass, relators claim that their standing is not based solely on their status as voters.   Instead, relators argue that they have a particular interest in the outcome of this case because they organized and financed a petition drive to get Proposition 2 on the ballot, helped draft the wording of the referendum petition, signed the petition, and voted for Proposition 2. We agree that relators have a particular interest in seeking to have a proposition that they “sponsored” enacted as law once it is adopted by the citizens of the city in a referendum election.

Having decided that we have jurisdiction to consider these mandamus proceedings and that relators have standing to bring them, we turn next to the issue of whether mandamus will lie, i.e., whether respondents have failed to perform ministerial duties for which relators have no adequate remedy at law.   We examine the statutory basis of the two duties alleged as the basis of this original proceeding.

Section 9.007 of the Local Government Code

The first statute on which relators rely in seeking mandamus relief is section 9.007 of the Local Government Code, which provides:

(a) As soon as practicable after a municipality adopts a charter or charter amendment, the mayor or chief executive officer of the municipality shall certify to the secretary of state an authenticated copy of the charter or amendment under the municipality's seal showing the approval by the voters of the municipality.

The City argues that section 9.005(b) does not impose a mandatory duty on the City Council to enter an order in the city records declaring that the amendment is adopted.   Specifically, the City alleges that “[t]his provision neither mandates that the municipality's governing body must enter such an order nor prescribes the deadline for entering such an order.”   The City further alleges that “section 9.005 gives the governing body the discretion to determine when or if to enter such an order and allows it the discretion to determine whether a proposed amendment violates a city charter, the laws of Texas, or the Texas Constitution.”

If we were to accept the City's argument that section 9.005(b) does not create a mandatory duty on the part of the City Council, we would be providing a mechanism by which a city council could effectively “veto” a voter-initiated and adopted amendment simply by refusing to enter an order recognizing the amendment's adoption.   This cannot have been the legislature's intent.   We will not interpret section 9.005(b) in such a manner as to give the City Council the choice of deciding when, or indeed if, a charter amendment that has been passed by a majority of the voters becomes effective.   The task of determining whether an amendment that has been adopted by majority vote violates the city charter or other existing law belongs, as it must in a three-branch government, to the courts (the judiciary)-not the City Council (the legislative branch) or the Mayor (the executive branch).