BILL ANALYSIS S.B. 695 By: Zaffirini (Oakley) 05-10-95 Committee Report (Amended) BACKGROUND In 1987, legislation was passed establishing standardized rules for the maintenance of fire and police employee personnel files in cities covered by municipal civil service. These rules do not apply to state police or fire departments or to police and fire departments in non-civil service municipalities. Furthermore, in cities where these standards exist, there have been cases of unsubstantiated misconduct reports being placed in employees' files. PURPOSE As proposed, S.B. 695 requires personnel files to be kept for certain law enforcement officers and fire protection personnel; provides a criminal penalty. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 614, Government Code, by adding Subchapter E, as follows: SUBCHAPTER E. PERSONNEL RECORDS OF CERTAIN LAW ENFORCEMENT AND FIRE-FIGHTING PERSONNEL Sec. 614.071. APPLICATION. Applies this subchapter only to a law enforcement or fire protection employee who is not covered under Chapter 143, Local Government Code and who is not employed by a municipality with a population of less than 10,000. Sec. 614.072. DEFINITIONS. Defines "custodian," "employee record," "employer," and "law enforcement or fire protection employee." Sec. 614.073. CUSTODIAN OF EMPLOYEE RECORDS. Requires the governor or the governing body of a political subdivision to designate an officer or employee to be a custodian who is required to maintain a permanent personnel file (file) on law enforcement or fire protection employees of the state or political subdivision (public safety employee). Sec. 614.074. PERMANENT PERSONNEL FILES. (a) Sets forth requirements for the files. (b) Prohibits an employee record relating to alleged misconduct by a public safety employee from being placed in the employee's file if the employer or the governing body of the employer determines that there is insufficient evidence to sustain the charge, except for any information pertaining to an investigation that was pending at the time the employee resigned. (c) Requires a record relating to disciplinary action to be removed from the file if the employer, a court, or an administrative body or hearing examiner of competent jurisdiction determines the action was taken without just cause or the charge was not supported by sufficient evidence. (d) Requires the custodian to inform an affected employee within 30 days if a negative record is included in the person's file. Authorizes the employee within a certain time period to file a written response to the negative record. Requires the custodian to file the response with the record. (e) Entitles a public safety employee to a copy of any record in the file for a fee. (f) Prohibits the custodian or employer from releasing information from an employee's file without obtaining the employee's prior approval. The employer can use a photograph of an employee without the employee's written permission for the purposes of identification. (g) Requires the custodian to ensure that files contain only appropriate information. (h) Authorizes the custodian to dispose of the file of a former employee. (i) Clarifies that subsections (b) and (c) do not require an employer to make a determination regarding a charge of misconduct or disciplinary action taken against an employee. Sec. 614.075. EMPLOYER'S PRIVATE FILES. (a) Authorizes an employer to maintain a file for the employer's use. (b) Prohibits the employer from releasing information in the private file to a person requesting information. (c) Requires an employer to refer to the custodian a person or an entity that requests information relating to the file. Sec. 614.076. PENALTY. Provides that a person commits an offense that is a Class C misdemeanor if the person violates Section 614.074(f) or Section 614.075(b). SECTION 2. Amends Section 143.089, Local Government Code, by adding Subsection (h), to provide that each photograph of a public safety official in the possession of the employing department or municipality is part of the official's file. Prohibits the employing department or municipality from releasing a photograph of an officer, with an exception. However, the department or municipality may use a photograph without the written permission of the officer or firefighter for the purposes of identification. SECTION 3. Effective date: September 1, 1995. SECTION 4. Emergency clause. EXPLANATION OF AMENDMENTS Amendment #1 by Oakley exempts the Department of Public Safety from the provisions of this bill. SUMMARY OF COMMITTEE ACTION SB 695 was considered by the committee in a formal meeting on May 9, 1995. One amendment was considered by the committee; the amendment was adopted without objection. The bill was reported favorably as amended by a record vote of 6 ayes, 2 nays, 0 pnv, and 1 absent.