Brewer says staff can’t give LGBT employees equal pension benefits without approval of council, voters
City Councilman Adam Medrano
One of the city of Dallas LGBT Task Force’s primary goals since the city passed an LGBT equality ordinance earlier this year has been equalizing pension benefits. That ordinance requires every department to review its policies to ensure equal treatment.
Policies offering family leave to cover gay and lesbian employees were quickly put into place. But efforts to equalize pension benefits have proven contentious.
In a memo to the Employees Retirement Fund Councilman Philip Kingston, who is an attorney, wrote, “Simply directing your staff to begin paying equal benefits will not require the change of one word in the entire chapter,” Kingston wrote. “The only contrary argument is that somehow state-law definitions of the term ‘spouse’ control the city’s plan.”
At issue is whether same-sex spouses who outlive the employee would receive the pension for the rest of their lives as opposite-sex spouses do. Kingston wrote that the only possible negative reaction to paying gay and lesbian employee pensions equally to straight employee pensions is that the attorney general could seek a court order requiring the city to stop.
The councilman said that’s unlikely. But, he said, not paying equal benefits could result in costly lawsuits.
“I believe you can, at this point, merely redirect your staff to begin paying equal benefits,” Kingston wrote. But Carla Brewer, ERF board chair, wrote back to Kingston that the board does not believe it has the power to adopt a rule that violates state law.
The ERF board is elected by city employees participating in the pension fund.
The law Brewer is referring to is the state’s anti-marriage amendment that has been declared unconstitutional in a court ruling now on appeal and likely to go all the way to the U.S. Supreme Court.
Brewer also wrote to Kingston that even if it did not violate state law, she believes extending benefits would have to be approved by not just the ERF board, but also by city council and ultimately Dallas voters.
What prompted the requested changes are city employees impacted by these policies. The council has already indicated its support for the change by passing the equality ordinance and both Kingston and City Councilman Adam Medrano have made the council’s intentions clear to the board.
Changes to policies so far have been instigated by LGBT employees who have run up against unequal policies. Interim Assistant City Manager Theresa O’Donnell was unable to take family leave when her child was born, because her wife’s name was on the birth certificate, and a second parent adoption can’t be completed in Texas at birth.
In the pension case, City Attorney John Rogers recently retired and began the battle for pension equality.
Medrano chairs the city’s LGBT Task Force. He said Brewer asked the Internal Revenue Service for an opinion before moving forward.
“We’re working on it, trying to come up with a way for all employees to be included,” Medrano said.
He was optimistic the IRS would send the pension board a positive ruling. Since the U.S. Supreme Court’s Windsor decision that struck down part of the Defense of Marriage Act, the IRS has treated all legally married couples equally — no matter where they live. Married Texas couples began filing joint federal tax returns this year despite state law.
Medrano said he expected a ruling from the IRS that treats same-sex married couples the same as opposite-sex married couples. In that case, no changes to the ERF rules would have to be made. Pensions would simply be offered to all couples with a marriage license equally without regard to sexual orientation.
The LGBT Task Force agreed that waiting for the ruling from the IRS was a good decision.
At its August meeting, the group also heard from Frank Rodriguez who works with the City Council’s legislative committee.
Rodriguez said he expects a new version of employment nondiscrimination to be introduced but recommended that the legislative committee of the city council approve broad wording that supports equality for the LGBT community and opposition to bills that discriminate and demean.
Medrano also said the city is looking at the idea of creating a human rights commission. He said as the city council studies the idea, the task force could look at best practices from commissions already created around Texas and those in other major cities around the country. Currently, those complaints are heard by the Dallas housing office.
This article appeared in the Dallas Voice print edition August 22, 2014.