Bankruptcy appeal sides with San Bernardino over fire union

Dec. 23--An appeals court once again ruled against the San Bernardino City Professional Firefighters and in favor of the city Tuesday, affirming U.S. Bankruptcy Judge Meredith Jury's conclusion that nothing in the city charter or state law prevents the city from outsourcing its Fire Department.

In the same ruling, Otis D. Wright II also found that state law does not prevent the city from outsourcing fire services to a private entity, which the city had considered doing.

Having the county take over responsibility for fire and emergency protection is now a "key" part of the bankruptcy exit plan, officials say. The financial impact is still debated, but the city's consultants, Management Partners, say it will add about $11 million to the city's bottom line -- with $8 million of that coming from a parcel tax that would be implemented as part of the shift.

"The opinion by Judge Otis D. Wright affirms an important part of our recovery plan," said City Attorney Gary Saenz.

The 19-page opinion agrees with Jury's ruling in July that the city could move forward with outsourcing fire services to a fire protection district, despite language in the city charter setting out how a fire department would be run.

"The Court agrees with the bankruptcy court's determination that (the city charter section) simply empowers the City to establish a fire department; it does not require the City to create a fire department, let alone a fire department staffed by City employees," Wright wrote.

Wright then goes further than Jury, who had determined that the city could comply with the fire department structure outlined by the charter even if it outsourced.

"The Court, on the other hand, concludes that because sections 180 through 186 only govern the operation of an internal fire department once created, those sections simply do not apply if the City chooses to outsource firefighting services," the appellate ruling says.

The fire union relied in part on a 1991 opinion by then-City Attorney James F. Penman that said the charter prohibited the city from outsourcing police services (and the same provisions used in that opinion exist for firefighting services, too).

But an opinion arguing the opposite was written in 2015 by Saenz -- the same attorney representing the city in its appeal, Wright noted.

"The City Attorney was therefore duty-bound to reach the conclusion (he) did no matter the merits of the issue, which means that the opinion should command no more deference than the City's briefing," he wrote. "Admittedly, there is no indication that the 1991 opinion was written during litigation involving that issue, but the inherent ethical conflict faced by the City Attorney nevertheless counsels against viewing the 1991 opinion as an impartial memorandum. So while the Court may consider the persuasiveness of the opinion's arguments, the Court sees no reason to give the opinion any deference."

Wright has previously sided with Jury in other appeals by the fire union.

"This is the fifth appeal taken by the City of San Bernardino's firefighters in the City's ongoing bankruptcy saga," he wrote in this ruling.

The union's attorney, Corey Glave, did not return a phone call Tuesday.

In a statement released after Jury first ruled against them on this issue, San Bernardino City Professional Firefighters President Jeff English said it was a sad day.

"It is very scary to think your elected politicians can replace your professional Fire Department with a private, for-profit private corporation," he said. "Not only does this affect your safety, but also your property values and insurance premiums."

The city argued to the bankruptcy court that the question of whether it could outsource to a private corporation was moot, because that was no longer the plan, but Wright sided with the union's argument that nothing stopped them from returning to that plan.

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