Still Smoldering

Metropolis: Wednesday, November 12, 2008

Still Smoldering
Local firefighters may have gotten burned by the pension fight they started.

By DAN MCGRAW

In a presidential election year, especially one where the top of the ticket drew as much attention as this one, local races often fly under the radar. But in Tarrant County, you’d have had to be living under a rock in the past few months not to have noticed the campaign for the Texas Senate’s District 10.

That would be the one between challenger Wendy Davis and incumbent Kim Brimer, the one that filled local mailboxes with endless glossy campaign fliers, produced more TV ads in this area, it seemed, than the Obama and McCain organizations, and that threatens to live on via some strange legal possibilities.

And it all started, oddly enough, over pensions — not exactly the usual hot-button, sound-bite fodder of political campaigning. But in this case, the pensions involved, in part, were those of local firefighters. The bitter ruckus that followed went from city hall to the state capitol to various courtrooms, and it may not be over.

Davis, a Democrat and former Fort Worth City Council member, beat Republican Brimer, a 20-year veteran of the thenTexas House and Senate, by a slim margin last week. Despite that victory and several months of unsuccessful attempts to get Davis thrown off the ballot, there’s a chance that Brimer may try to have the tally overturned through some wrangling in Austin.

The dispute began last year when the city learned that it was behind by $411 million in fulfilling its obligations to the city employees’ pension fund. In seeking ways to reduce those mounting obligations, council members considered various remedies; one was to curtail the massive overtime hours some employees were racking up, especially the police and firefighters. Because city workers’ pensions are based on their total wages, reducing such overtime would help reduce the pension amounts the city would be on the hook for. Davis was one of the most vocal supporters of that idea.

The firefighters balked. They made an end run around council, and Brimer carried the ball: He got the Texas Legislature to amend state law to transfer most of the control of the pension fund from the city to the Texas Pension Review Board. Davis was livid. She and two other council members voted against endorsing Brimer’s bill — and in doing so, publicly opposed Mayor Mike Moncrief.

“It really upset me,” Davis told Fort Worth Weekly. “I saw it as our city being disrespected by one of the legislators who should have been looking out for our interests. What was done was, the taxpayers were going to have all the responsibility for that fund, but little control over it. I honestly didn’t think Republicans were against taxpayers not having their say in government.”

In May of last year, Davis was re-elected to the council. Three months later, she announced her candidacy for Brimer’s senate seat. Davis and other Democrats saw District 10 as being ripe for change for two reasons. First, a poll by their party’s Washington-based Lone Star Project found that 20 percent of District 10 voters gave Brimer an unfavorable rating and another 50 percent knew so little about him that they couldn’t even rate him.

The second factor was the change in the area’s demographics. District 10 covers the southern half of Tarrant County (with a few fingers extending into the northeast suburbs), and the Democratic leadership was interested in the increasing numbers of minority voters moving into cities like Arlington, Mansfield, and Crowley.

“While it had been a very strong Republican district in the past, we began seeing the population changes,” said Tarrant County Democratic Party Chairman Steve Maxwell. “We knew if we had the right candidate we could win this.”

But before Davis could win the election, she had to fight numerous lawsuits launched by Brimer. State law prohibits an official still serving in one public office from running for another state office. But Fort Worth’s rules said a council member wasn’t allowed to resign his or her seat until a successor was sworn in. Because of a runoff, her successor, Joel Burns, wasn’t sworn in until early January. In order to stave off any legal questions, Davis then resigned her council seat and re-filed for the senate race.

That started the fun. Three Fort Worth firefighters petitioned then-county Democratic chairman Art Brender to disqualify Davis from the election. Brender declared her eligible. The firefighters then took their case to the Texas Supreme Court, which sent it to a lower state court, which rejected the firefighters’ allegations. Brimer then took up the legal gauntlet and filed his own suit challenging Davis’ eligibility. He lost that case in state district court in July, appealed the ruling, and lost again in a Dallas appellate court in October.

The connector between Brimer and the firefighters may have been a big-time local campaign consulting firm, the Eppstein Group. Bryan Eppstein’s firm had been hired by the firefighters to help pass a charter amendment allowing them to do collective bargaining with the city. Eppstein has also handled Brimer’s campaigns in the past, and he was there again this year.

Eppstein may also have been a factor in Mayor Moncrief’s very public endorsement of Brimer. The mayor — who usually counsels his colleagues to stay out of partisan races — didn’t just allow his name to be used on campaign fliers; his face spent more time on TV screens than Brimer’s did, in Brimer’s broadcast ads.

Though the local Fort Worth council elections are nonpartisan, Moncrief had been a Democrat when he served as county judge and a state senator. Many wonder where his allegiance now lies.

Neither Brimer nor Moncrief returned calls or e-mails for this story. But others did comment on the endorsement. Brender termed Moncrief’s action “pretty disloyal, but it doesn’t surprise me, [given] how he has acted in the past.”

Davis said Moncrief had always advised council members not “to get involved in partisan political races, so it did surprise me. But we will work well together to meet the needs of Fort Worth residents.”

Current Democratic chairman Maxwell was less optimistic. “I have known the mayor for a very long time and consider him to be a friend,” he said. “But I was terribly disappointed in his decision to endorse Brimer the way he did. It was unimaginable to me that he would not endorse a person he worked with for all those years. [Moncrief] has made a statement he is not one of us anymore.”

The two candidates ran very different campaigns. Davis was out and about, while Brimer, a lot of the time, was nowhere to be found. The two did appear at candidate forums in Bedford and Arlington. But Brimer refused to appear on a long-scheduled “candidate conversation” on WFAA-TV, citing his dislike of their campaign coverage. He also failed to show at a League of Women Voters forum after indicating he would participate.

The Fort Worth Fire Fighters Association decided to schedule its forum on the same night as the WFAA event. Davis said she had already committed to the TV program but would do it any other night. The firefighters wouldn’t reschedule, so for that one, Brimer showed up alone.

Davis’ campaign accused Brimer of avoiding his opponent and the voters. “He basically didn’t show up for anything,” Maxwell said. “He acted like he was entitled to that job and didn’t have to tell voters why he was.”

Brimer aired some TV attack ads against Davis, but they did little to raise state issues. Davis was portrayed as a council member who voted against a senior citizen income tax freeze and supported foreign companies for building Texas toll roads. The most-played ad featured his grandchildren saying they loved their “paw-paw.” (That was also the tone of his campaign mailings, most of which featured various people saying Kim Brimer was their friend, their relative, their “paw-paw.”)

Davis, by comparison, went for the jugular. Her TV ads never even mentioned her name out loud, but focused on Brimer’s having defaulted on loans many years ago and using campaign contributions to buy a luxury condo in Austin. He was shown in grainy photos wearing sunglasses, with a stubby cigar hanging from his mouth. One Davis mailing accused him of having “spent his career getting rich at our expense.” Another said “Sen. Kim Brimer: Living the High Life.”

Davis defended her strategy. “We knew from the start we were running against a 20-year incumbent, and you have to let people know in specific terms why he needs to lose his job,” she said. “We needed to show voters that there were self-interest motivations going on in that seat and that he was harmful to the Tarrant County citizens in that district.”

At least the nasty race is over … right? More than likely, but Brimer has left the door open to a further challenge of Davis’ eligibility.

After Brimer lost the appeal on his eligibility challenge in October, his campaign sent out a press release stating that the question of eligibility could be “determined by action taken after the election.” The release said that a ruling by the Texas secretary of state could void the election, or action by the state attorney general, or a vote by the Texas State Senate not to seat an ineligible candidate.

Renea Hicks, an Austin attorney specializing in state political rules, said any of the methods theoretically could be used by Brimer, based on the state’s constitution and its election code. But he couldn’t recall any of those options having been used in more than 20 years.

“His case ... is very weak,” Hicks said. “It has been to court so many times, and Davis has won every one of them. Those rulings are going to be insurmountable, I would think.”

Hicks also pointed out that if the election results were to be voided, that would make it necessary to hold a special election for the seat — an election in which Davis could run. “It is far-fetched to think that Republicans in Austin would put so much on the line to save Brimer’s job,” Hicks said. “She would just beat him again and make them all look bad.”