## TBDCATNDISNF,Y GENERAL OF %-ExAs

**All-.** - 7e711

March 29, 1977

The Honorable Eddie BerniceJohnson Opinion No. H-965 Chairperson Labor Committee Re: Constitutionality House of Representative6 of Fire and Police Austin, Texas **10767** Employee Relation6 Act.
Dear Chairperson Johnson:
You have requestedour opinion concerningwhether article 5154c-1, V.T.C.S., ia an unconstitutional delegation of authority. Article 5154c-1provide6 for collective bargaining by police and fire employeeswhere authorized by the voters of a political subdivision. Sec. 5. Section 10 provide6 for voluntary arbitration in the event of an impasse, and section 16 provides for judicial action when a political subdivision electsnot to submit an impasse to arbitration. Section 20(b) states that a collective bargaining contract shal take precedence over state and local civil service provisions where the contract so provides. Thus, in the event of an impasse, the act provides for a delegation of the authority to fix the termsof employment to an arbitration board or the judiciary. Section 11 of article 5154c-1provides for the voluntary selection of an ad hoc arbitration board to resolve an impasse; its provi6ions operate independently of the General Arbitration Act. V.T.C.S. art. 239, et seq. While we have discovered no Texas cases dealingwith such a delegation, the rulings of courts of other stateshave been held applicable to Texas "on the subject of delegationof legislativepower." Trinunier v 1 Carlton, 296 S.W. 1070, 1079 (Tex. 1927).
The validity of collective bargaining statutes requiring compulsory, binding arbitration for public employees has recently been examinedby the court6 of several states. Such statutes have been generally upheld againet attacks based upon an allegedunlawful delegation of authority to ad hoc arbitration panels. Town of Arlington v. Board of -- ---

p. 4021The Honorable Pddie Bernice Johnson - page 2 (X-965)

Conciliation andArbitration, 352N.E.Zd 914 Mass. 1976);
'~h%&%f%& ~~~.~~':3~'~~E::~6290 (N.Y. 1975);Cit orwarwick v. i&wick Re ular Firemen'6

-d Assoc., 256 A. zbb(R.I,Tgm6V);State * of LaramZe, m2d 295 (Wyo.1968). In Cityofize or c mrd Teacher's Assoc., 304A.2d 387 (Me.T973), the c=rt ruled that such aqation would be lawfulwhere sufficient standards are given for the exercise of the delegated authority, but held the act before itunconstitutional for lack of such standards. In Dearborn Fire Fi htersUnion No. 412 v. Cit of Dearborn, 231 N W 2d 2237NbS~e70tr judges sp it evenly on the queition of whethe; such A delegation -7% could be made to an ad hoc arbitrationpanel. The only courts which have held such a delegation to beunconstitutional regardlea of standards have done sopursuant to constitutional

similar to thatof Texas is that such a delegation isproper where sufficient standards are provided. Of course, such standards are clearly necessary under Texas law. See, e. ., d.13140)1 A Housin Authority of City of Dallasv. Hi inbothaiiiiii14 S W 2d ttorney Gcemtter - -i%+%& 42%7h.

In lightof the authorities concerning compulsory arbitration, it is our opinion that the courts of Texas would uphold thevoluntary arbitration and collectivebargaining provisions of article 5154c-1 so long as sufficientetandards have been provided. Section 4 of the act provides that political subdivision6shall provide firemen andpolicemen with "compensationand other condition6 of employment

. . . which prevail in comparable private sector employment.

. . .I Section 13(a)provider that an arbitrationpanel is to consider "hazardsof employment, physical qualifications, educationalqualifications,mental qualifications, job training, and skills," among other factors, inreaching a decision. We believe it clear that euch arbitrators should likewise consider the standard provided in section 4, su ra. % These standard6are substantially identical to those foun sufficient in the aforementioned authorities. See Town of Arlington v. --

Board of Conciliation andArbitrat%i, supra; City o-fAmzerdam v. Heleby, supra;& of WarwickvL Warwick -

p. 4022The Honorable Eddie Bernice Johnson - page 3 (H-965)

Accordingly, in our Regular Firemen's Assoc., supra. opinion sufficient standards have been provided for the exercise of authority by an arbitrationboard convened pursuant to article 5154c-1 and thedelegation of such authority is constitutional. Section 16 of article 5154c-1provides that in the event a political subdivision elects not to arbitrate, the collective bargaining association may bring an action indistrict court and that the court

ehall have full power, authority,and jurisdiction to enforce the requirement6 of Section 4 hereof as to any unsettled issue relating to compensationand/or other terms and condition6 of employment for firefighters and/or policemen.
If the court finds the political subdivisionto be in violation of section 4, it "shall

. . .declare the compensation and/or other terms and conditions of employmentrequired by Section 4...."
As previously noted, section 4provides for: compensation and other conditionsof employment that are substantiallythe same as [those]

. . .whichprevail in comparable private sectoremployment.

. . . The fixing of salaries and termsof employment is a legislative or administrative act. Highway Cormnissionv. El Paso Buildin and Construction Trades Council, 234 Sx.2d 857-x4 w Assoc.ofrris Count% v. City of Houston, 105 S.

. (Tex.9=). Tex. o=t. Gt. 3, s 44. We have found no Texas casein which a court has fixed compensation and other term6of employment. See Austin Fire and Police Departmentsv. Cit of Austin, 21B S.W.Zdm($%.m; Fire Departmento wmort Worth --+- -- v. Cit of Fort Worth, 2fl.W.Zd 664 (TG. 1949). ZeE+h-- In our t e fixingofompensation is analogous to rate-setting. It iswell established that the doctrineof separation of powers precludes a court from settingrates; itmay only review the rates set to determine their legality. State v. 526 S.W.Zd 526 (Tex. m75):

93 S.W.Zd 372 ;WiSSOUri, K. 6 T. RailwayCo. v. Empire EXpre6S

--- --

p. 4023The Honorable Eddie Bernice Johnson - page 4 W-965)

Co.* 221 S.W. 590 (Tex.Comm'n App. 1920, jdpt. adopted). The courts have required a certain rate only under statutory provisions requiringequality of rates and evidence of a certain rate chargedby one of the parties to others. Edin- &gL:Eg;t:;; Co. v. Paschen, 223 S.W. 329 (Tex.Civ.K --

O),an'mS.W. 1085 (Tex.Comm'nApp. 1922, judgmt. adopted).
While section 4 of article‘5154c-1 requires '6ubatantially the same* compensationas that prevailing in theprivate sector, this standard falls far short of theprecisenes6 of the requirements enforced in Xdinbur quite similar to that of section dkm?v%?$ and of San Franciscov. Cooper, 534 P.2d 403 (Ca

.- ZiTinvolved a zanenge to the legalityof an ordinance which set the compensation and term6of employment for public employees. The court began its analysis by noting that the ordinancewas "clearly legislative innature." Id. - at 411. The court explained:

In'addition,because a fair prevailing wage determinationmay take intoaccount many component elements - such asvarious fringebenefits -which are frequently not susceptible toprecise appraisal,a substantialmeasure of legislativedircretion is inevitable. Id. at 417. - See Christy-Dolphv. Gragp, 59 F.2d 766 (W.D.Tex. 1932). - Consequently,when a district court sets the terms and conditions of employment in accordinancewith l eotion 4 of article 5154c-1, it inevitably exercises legislative discretion. Such an exercise of legirlativepowerr by the judiciary is specificallyprohibited by article 2, rection 1

Accordingly, inour opinion, section 16of article 5154c-1unconstitutionallydelegated legislativepower to the judiciary.

p. 4024, ,,. 1The Honorable Eddie Bernice Johnson - page 5 (H-965)

SUMMARY
The delegation of authority to an arbitrationboard to fix compensationand other terms of employment under article 5154c-1 is constitutional. The delegation of suchauthority to the judiciary by section 16 of article 5154c-1 violates article 2, section 1 of the Texas Constitution.

APPROVED: Very truly yours,

NDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee
km1

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