Domestic Partner Benefits back on Agenda: Possible city subterfuge?

The partner benefits issue is back at city council. On tomorrow’s city council (June 7, 2011) agenda, item 8F, “an ordinance amending Ordinance No. 017456”, was put on the agenda by Mayor John Cook. Ordinance No. 017456 is the result of a November 2, 2010 election where El Paso voters voted to eliminate health care benefits to spouses of city employees that are not legally married.

The electorate driven ordinance states; “That the City of El Paso endorses traditional family values by making health benefits available only to city employees and their legal spouse and dependent children”. The ordinance became effective on November 2, 2010, and according to the city’s legal counsel had the unintended consequence of excluding city retirees, non-employees and service contractors from receiving health benefits.

The leadership of the movement to limit city benefits to legally married spouses continuously stated that the object of the movement was to deny coverage to unmarried couples and that they had no intention of changing the benefits package for retirees and other groups that were receiving them. The city, through its legal counsel, on the other hand claimed that the ordinance, as written, effectively excluded all others that were not actual city employees. Thus the initial intent of the ordinance was obscured in a legal logjam effectively neutralizing it and forcing it into court’s jurisdiction.

Prior to this, District five City Representative Rachel Quintana, attempted to correct the ordinance’s wording that, according to the city’s legal team, denied benefits to an unintended group by asking, first on November 16, 2010 and then on December 8, 2010 for council’s support to amend the ordinance to address the unintended consequence.

During the November 16 motion, city representative Susie Byrd moved to ask that the city attorney not help Quintana in writing the appropriate amendment. The majority of council approved the Byrd motion.

On May 20, 2011, Judge Montalvo ruled that the ordinance does not violate the United States Constitution as alleged and therefore must stand. The judge reaffirmed that the ordinance, as written, did in fact limit the benefits to city employees and their legal spouses.

The proposed amendment to the ordinance seems to clarify the intent of the voter by rewording the ordinance as follows: “That health benefits shall be available to city employees and their legal spouse and dependent children and all other persons who are within an eligible class under a City Health Benefits Plan to receive health benefits or who are in a class that actually received health benefits from the City prior to November 10, 2010, the effective date Ordinance No. 017456; provided however, that all persons who were previously approved for health benefits for the reason that they were in a ‘related agency’ shall be reevaluated to determine their eligibility under the sates states [corrected on June 8, 2011] law enumerated classification of an ‘affiliated service contractor’ and shall be approved to re-approve for eligibility by the City Manager, as appropriate.”

City Subterfuge?

A possible point of contention on the ordinance revision lies in the section that states; “who are in a class that actually received health benefits from the City prior to November 10, 2010”. [emphasizes by the author]

In 2009, City Council extended domestic partner benefits that included unmarried couples. As of November 2010, when the current citizen driven ordinance was adopted, unmarried couples were included in the city’s health plan. Cook’s proposed amendment to the citizen driven ordinance, on the other hand, clearly states that only “legal” spouses of city employees are now eligible, thus appearing to eliminate unmarried couples from the city’s benefit plan.

On one hand, the proposed amendment to the ordinance states that those that were covered prior to the November 10, 2010 date, which includes unmarried couples, are still included under the new ordinance. At the same time, the proposed ordinance makes it clear that only “legal spouses” are to be included.

The proposed amended ordinance is expected to be voted on June 14, 2011, as this is only an introduction. Although no public comment is normally allowed during the introduction, the wording of the proposed amendment might force public discussion on the proposed ordinance change. As the city has relied on the legal interpretation of the wording and the “intent” of the voter, the wording of the proposed ordinance amendment will most likely be challenged based on its own wording. If the “intent” of the voter is to be adhered to, the coverage date should be prior to the 2009 City Council addition of the domestic partners clause. Clearly that would satisfy the “intent” of the voter.

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