Here We Go Again - Charter Amendments

I'm not against the process, or the act, of amending El Paso's city charter.  It is an important facet of the legislative process at the city level.  However, some of the crap they propose to put into the charter just blows my mind.

Marty Schladen wrapped up the taller peaks of this year's coming charter fight in the EP Times today.  I congratulate Marty on not slandering anyone in his article today, which is quite a feat for him.

We'll take these in the order that Marty listed them in his article.

The idea that "equal rights" will be granted first by the lowest law in the land is not only laughable, but brings into question whether anyone involved here ever took a civics course.  The United States Constitution and it's supplemental clarification of all things nongovernmental - the Bill of Rights - have authority over the discrimination issue.  You can pass whatever you want at the city level, but it means nothing if there's a higher law that governs the same issue.  I'm sure there's a term for this... If not I'm sure they'll come with something like "Supremecy Clause" or "Preemption Doctrine."

This feel good amendment does nothing more than give people like me ideas.  And everyone knows my ideas are usually hard on someone's feelings or pocket book - sometimes both. Let's examine what's going on here.

Incorrectly Representative Byrd and others on council assume that the move to deny same sex couples benefits at the city was based on what those couples do with their naughty bits behind closed doors.  Hell, Pastor Brown thinks that is what the fight is about as well.  The truth is that the fight is about fraud. 

What? 

Yes, fraud. 

With no way to certify that someone is actually married because the State of Texas makes no provision to recognize them, you can't be sure that you aren't being scammed.  And by "you" I mean "you the taxpayer."  You the taxpayer are footing the bill for the benefits of their "partner" to the tune of 70% of the total cost.  You want to make sure that a single straight employee isn't putting his best friend on his city provided (taxpayer paid for) health insurance.  People could get very wise to this loophole very quickly and the next thing you know you'll have city employees auctioning off their domestic partner benefit to the highest bidder. 

Don't believe me?  Ask someone in the insurance industry how this whole thing is working out in the private sector.  The big ugly truth is that many of the major companies that used to offer same sex partner benefits while paying for a percentage of dependent care have stopped.  They no longer pick up dependent care because of the widespread fraud taking place.  They will let you add just about anyone, but you pick up their cost 100 percent. 

The bottom line is that this issue is not based on sexual orientation. It's based on the recognition of your marriage/union by the State of Texas.  You can be a man married to woman and have sex with men every night of the week and you aren't going to lose your benefits.  It's not about sex, it's about legal definitions and no city charter amendment is going to change, discourage or fix the problems of fraud that arise when you start playing fast and loose with legal definitions.

The best way to help the gay community get partner benefits is to get the state to pass a civil union law.

Meanwhile, if you want to make some quick cash - do this:

Since the City of El Paso has taken it upon itself to ignore the definition of a civil union and how the state and federal government see someone as "married," you can exploit them (actually us the taxpayer).  A straight man claiming to be married to twelve women has no less claim on partner benefits than a gay man claiming one domestic same sex partner. 

You see, once you throw out the State of Texas' definition of marriage or common law marriage, you open yourself up to each person's own individual definition of "marriage."  There is exactly the same amount of legal merit covering a man wanting to live with twelve "wives" or "partners" in the State of Texas and a guy living with another guy as a "married couple."  Neither are sanctioned nor recognized by the state.  However, the City of El Paso gives credence to the apparently monogamous relationship between two people of the same sex and that means the city has relied on its employees to define their own parameters for marriage.  This means they must recognize all definitions of "marriage" as their employees see, and practice, it. 

If you want to be a smart ass, cause a lot of trouble, make a bundle of dough and you currently work for the city - claim seven "domestic partners" when they have their next open enrollment in the employee benefits program at the city.  When they deny you coverage - sue them.  Your angle is easy - how is your domestic partnership any less valuable/plausible than the one between two people of the same sex?  State law does not cover either, but the city recognizes one and not the other?  Cha-Ching!  You owe me 20 percent for giving you the idea in the first place.

An idiotically worded charter amendment pointed at the specific act of sex will fail to cover the main issue of "marriage" or "domestic partnership," which is the supposed focus of the amendment.  People forget that a lesbian woman can marry a gay man and not have either person's "sexual orientation" change.  All that happens here is that you open the door for people to choose anyone they want as a "domestic partner" and the city has no legal standing to deny them their request for benefits.

With that said - I think the gays are great and should be able to have all the benefits I do - BUT - they need to get recognized by the state first so that we don't open the door to people auctioning off their domestic partner benefits on Craigslist. 

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Okay... well... That was nearly 1,000 words on the first charter amendment issue. Let's take a break and grab the others in another post.

Comments

[Carl Starr]

re local law and preemption on these facts-see below

I think the key to a legal charter change will be the wording of the settings eg public or private re discrimination

while here as shown below a local law would not preempt in public settings, however other complexities arise in any private settings...most likely 'preempted' by the 1st Amendment...violative anyways.

I tend to agree re Fraud.

582 F. Supp. 2d 22; 2008 U.S. Dist. LEXIS 86148 October 23, 2008, Decided. Title II provides that "[a]ll persons should be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation," a plaintiff may not bring a civil action claiming an alleged act of discrimination in violation of Title II "before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority," if such authority has a law "prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice."

[Texaswoman]

Take a look at the Texas Family Code section 2.401. It lays out the requirements for the informal marriage in Texas and said arrangements can only be dissolved by a Court. In other words divorce proceedings.

Now the above at this moment applies to opposite sex couples but I can see where it could also apply to same sex couples.

For same sex couples it will take the courts to put this issue to rest. The basis for the action will be the SCOTUS ruling that marriage is a basic human right and the Constitutional provision in regards to contracts and the 14th amendment

[Carl Starr]

rereading the Times story the reporter got it right "to prevent the city government from discriminating" ...where it gets fuzzy is "It's, in essence, an anti-discrimination policy for the city," Byrd said.

basicly all it is can do for new gays is the city cannot refuse to hire or promote you if your open gay...or city can't turn off your water if gay

besides public resturants etc...the fuzziness starts with any policy that seeks to extend into the private sectors

[sick of the issue]

City council - remove from the budget this year the 70% premium the city pays for ALL dependents and spouses and it solves the issue of taxpayer dollars paying for lifestyle choices. No discrimination in that. No reason to have a charter amendment and no reason for Pastor Brown to recall council members. Simply de-fund the dependent and spouse premiums the city currently pays. Issue solved. Done. Move on.

But DavidK's points about who exactly is your "domestic partner" is right on target. That's a different battle - but if you de-fund what the city pays towards dependent coverage the argument goes away and so does the request to be covered under the insurance. El Paso is a cheap town - if I have to pay 100% for it then I am not going to do it.

[Texaswoman]

Sorry Carl there is no such thing as a private sector. To operate a business you are required to get a license and meet requirements set by the city. If non discrimination is one of them then the license can be pulled or not issued. Plus all businesses need the public infrastructure to operate. So you get the idea.

[Carl Starr]

Texaswoman I am looking at the issue strictly legal and what courts would most likely rule under current law...the only license a city can pull would be a public eatry or hotel not all biz and I doubt any city can even pull a license for discrimination...the right to contract and the right to gather with like-minded and the 1st Amendment prohibits morality crusades via charters. While reverse stings have been run re race and banking and housing...they were not ran by the police or city, the city cannot send two fake gays in to test a biz then pull license. Besides Biz angle which like I said only apply to eats and hotels, by private sectors I mean private gatherings and clubs etc private matters, peference...I think Byrd ment the policy is "FOR the city" not just city government.

[public employee]

sick of the issue, many of us have been proposing this in the blogs for a long time. even ness proposed it in her campaign. i wonder how much of the budget would that cut per year ? anybody know ? i know the cost to the city is around 250 for the employee. that means i would pay 750 to 800 a month for spouse and kids(2 or more). as of right now we pay 400 dollars of that amount per month. that means every city employee would have to pay 350 to 400 more per month for the top plan.

now we know that none of the city council will want to piss off the city employee voters, even if it is the right thing to do. i would pay the extra money because i know its the best plan for the money out there. if we only had a council member with some balls who would bring this up. you would cut the budget and solve the partner issue all in one shot. oh, and that would go for the water utilities too since they never adhere to the city's wage freezes and they still pay for further education even though the city quit doing it. no one tells archuleta what to do . even wilson.

[Texaswoman]

And those at the bottom of the pay scales would not be able to have insurance.

[Carl Starr]

University of the District of Columbia Law Review Spring, 2011 Equality Foundation of Greater Cincinnati v. City of Cincinnati, did not find that homosexuality is a suspect classification. n93 In Equality Foundation of Greater Cincinnati, the city appealed a bench trial judgment, which found a voter amendment to the city charter, unconstitutional because the amendment violated equal protection. The trial court found that homosexuals are a suspect classification with limited political access and the amendment does not survive strict scrutiny. The voters approved the amendment in an effort to appeal the Cincinnati City Council enactment of the "Equal Employment Opportunity Ordinance," which stated that the City may not discriminate in its own hiring practices because of classifications like sexual orientation. n96 In addition, the amendment contradicted another Council ordinance, the "Human Rights Ordinance," which prohibits private discrimination in areas such as employment, housing, or public accommodation because of sexual orientation. The appellate court disagreed with the trial court and found homosexuals are not subject to a quasi-suspect classification based on their sexual orientation. n98 Further, the appellate court, found that homosexuality is based on conduct, which is not easily identifiable or immutable and therefore is not a classification that deserves strict scrutiny. n99 Specifically, the appellate court determined that: No law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable "on sight" unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self- [*143] proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because "they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group [.]" n100 Further, the appellate court found that homosexuals are not prevented from participating in the political process, where they have other avenues to support homosexual legislation through their Congressmen, and where the amendment does not stop homosexuals from voting for City Council members.

[public employee]

they would have the lower version of the insurance. my example was the top plan.

those in the "private sector" at the bottom of the pay scale have to pay it. its benefits like this that has put our whole country's city,state, and federal government into extreme debt and near bankruptcy. now even the postal service is not matching the amount for the employees pensions. they cant afford it. matching contributions was done originally to keep private businesses from paying taxes on profits and keeping people employed until they were vested with the company. the public sector has taken the private sector's good deeds and gone crazy with it over the years. look at the city's payroll for those over 52 k a year. no way they could make that much in the private sector. the over paying of public employees is what is bankrupting this country. the state of california and the city bell, california are good examples.

[sick of the issue]

public employee: Not paying 70% of the employee dependent coverage would probably cause the city to lose some favorable premium treatment for the overall program which might increase the cost to the city - but what's the difference in new cost versus not paying dependent coverage? Could be a wash. You are right - private sector can't afford to pay a portion of dependent premiums for employees. Most of them can barely provide insurance for employees only. Only the mega corporations might pay a portion of dependent coverage but not much. Problem is city employees have not had a raise in 2-3 years and that would be a shock to the take home pay for those that would have to pick up 100% of the cost. So do you give them a raise to equal the loss? How fair is that to those that have no dependents on the plan?

The council person with the balls to suggest not paying any of the dependent/spouse premiums will be my hero if they suggest looking at it. Not sure Ness would have followed through had she been elected. She couldn't figure out how to pay her taxes much less understand the complexity of a group insurance plan that covers 6000+ employees.

[public employee]

sick of the issue, i thought the city was self-insured and that aetna just manages it ? they have a large pool whether dependents are there or not. im also not sure if that they had private insurance companies quote them that they couldn't get a better rate than they have now being self-insured. there are many private company employees who havent had raises in years and many who have had cuts. why is it that all public employees expect raises ? do they really deserve it ? the top plan would cost them 3500 to 4000k more a year. i dont remember anyone matching my husbands roth i.r.a. ! with a bad economy and property taxes being raised every year and their lack of efficiency along with not being able to be fired unless they commit murder(they would probably draw un-employment while in jail) why do they deserve a raise ? the dependent coverage would be a big cut in the city budget i bet. next would be to cut the upper level employees. those that make lets say 75 k and above by about 25 percent. do you really believe mcnabb could make 195k in the private sector. joyce wilson 235k ? ed archuleta 350k ? wilson's assistants 125k ? its not the lower public employees that are overpaid. its the higher. look at episd. the teachers are the lower while the worthless administrators get ridiculous wages ?

[sick of the issue]

public employee: so I guess you think all management in government should make no more than $100k (to us an arbitrary number) regardless of experience, education, etc. Yes Wilson could make the same salary in the private sector - working as an Executive in a large corporation - so could Archuleta - McNabb certainly could make what he makes in private sector - or as corporate counsel to a large corporation. The difference between what they make and the rank and file is they have the education and experience and have moved up the ranks over the years. None of them started at the top when they got out of school - they worked their way up the ladder just like any competent, aggressive, educated person will do.

As to the self insured issue for the city - yes they are to a point - a stop loss (for claims) - then the insurance company takes on the remainder of the claim cost. It's a common way to purchase health insurance for very large groups. Small employers would never do that - one catastrophic claim and they would be out of business. So the self insured part of the city will pay a part of all covered persons medical care to a certain limit. But I am sure not all 6000 employees have huge medical bills every year.