Judge tells city to pay firefighters first _lowres

Advocate staff photo by ELIOT KAMENITZ--- New Orleans firefighters hose down and inspect the remains of a milt-building fire on the corner of Urquhart Street at Press Drive on Thursday, September 5, 2013.

Mayor Mitch Landrieu has told the firefighters suing him over the size of the city’s contribution to their pension fund to go to the back of the queue, pointing out that dozens of other parties with lawsuits against the city — some dating back years — have yet to be paid.

A Civil District Court judge disagreed Thursday, telling Landrieu to pay the firefighters first.

It’s the latest wrinkle in a yearslong battle over how much the city should be paying into the beleaguered pension fund.

Civil District Court Judge Robin Giarrusso ruled last year that the city has been shortchanging the fund since 2010 and owes it $17.5 million. The Landrieu administration still has a request for review pending at the U.S. Supreme Court, but it has exhausted its appeals in state courts.

Yet the case continues to grind on without resolution.

The judge said Thursday that Landrieu’s administration has to pay the firefighters before dealing with other lawsuits because they filed for what’s known as a writ of mandamus. It’s a legal procedure that’s meant to force a government entity to perform a basic governmental function — in this case, keeping the pension fund in good standing.

According to the judge’s reasoning, that means the pension lawsuit is distinct from a typical “money settlement” and must come first.

At the same time, the mayor and City Council still have ultimate authority over the city’s purse strings. As Landrieu has pointed out, state courts cannot seize city assets to pay off a lawsuit, although Giarrusso’s agreement to issue a writ of mandamus suggests she believes the city can be compelled to comply with a legislative mandate to pay whatever sum is required to fund the system.

Louis Robein, an attorney for the firefighters, said the judge has fairly broad discretion to begin leveling fines and even requiring jail time if her order is disregarded, though it is hard to imagine a judge ordering Landrieu behind bars, and the mayor could appeal any order to that effect.

What seems likely, or at least possible, in the next few weeks or months is some kind of negotiated settlement between the city and firefighters, perhaps for a sum less than the full $17.5 million.

The Legislature this year approved a potential property tax hike to help pay for police and fire protection, but that will need approval from voters both statewide and in Orleans Parish.

It may help matters that New Orleans is expecting to find a rare budget surplus from 2013 when final accounting is complete on Monday, although it is not clear yet exactly how big that surplus will be.

The City Council will have to approve any payment to the firefighters. Council President Stacy Head, who sat in on Thursday’s session with the judge, said it would be difficult to find much fat in the city’s budget that could be handed over.

She emphasized that whatever the outcome, current beneficiaries of the pension fund are still getting their retirement checks and will continue to get them.

“We would have to figure out which department is going to be bled for the satisfaction of the firefighters,” she said.

Both sides are scheduled to go back before the judge July 22 for a status update.