BILL ANALYSIS
S.B. 863
By: Barrientos (Combs)
04-12-95
Committee Report (Unamended)
BACKGROUND
The City of Austin has no formalized process to facilitate change
or improvements in working conditions or environment for public
safety employees. The associations that represent the police
officers and firefighters have used a method with set procedures,
which has been informally accepted by both city management and
public safety employees.
PURPOSE
As proposed, S.B. 863 sets forth certain conditions of employment
for and investigations of fire fighters and police officers in
certain municipalities.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 143, Local Government Code, by adding
Subchapter I, as follows:
SUBCHAPTER I. FIRE FIGHTER AND POLICE OFFICER EMPLOYMENT MATTERS
IN CERTAIN MUNICIPALITIES
Sec. 143.301. MUNICIPALITIES COVERED BY SUBCHAPTER. Provides
that this subchapter applies only to a municipality with a
population of 460,000 or more that operates under a city
manager form of government. Provides that this subchapter
does not apply to a municipality that has adopted Chapter 174
(The Fire and Police Employee Relations Act) or to which
Subchapter H applies.
Sec. 143.302. DEFINITIONS. Defines "association" and "public
employer."
Sec. 143.303. GENERAL PROVISIONS RELATING TO AGREEMENTS,
RECOGNITION, AND STRIKES. (a) Prohibits a municipality from
being denied local control over wages, salaries, rates of pay,
hours of work, other terms and conditions of employment, or
other personnel issues on which the public employer and an
association that is recognized as the sole and exclusive
bargaining agent for all fire fighters or police officers in
the municipality agree. Provides that a term or condition on
which the public employer and the association do not agree is
governed by the applicable statute, local ordinances, and
civil service rules. Requires an agreement to be reduced to
writing. Provides that this subchapter does not require the
public employer and the association to meet and confer or
reach an agreement on any issue.
(b) Authorizes a public employer and an association
recognized under this subchapter as a sole and exclusive
bargaining agent to meet and confer only if the association
does not advocate the illegal right to strike by public
employees.
(c) Prohibits a fire fighter or police officer of a
municipality from engaging in a strike or organized work
stoppage against this state or a political subdivision of
this state. Provides that a fire fighter or police officers
who participates in a strike forfeits all civil service
rights, reemployment rights, and other rights, benefits, or
privileges tied to employment with the municipality.
Provides that this subsection does not affect the right of
a person to cease employment if the person is not acting in
concert with other fire fighters or police officers.
Sec. 143.304. RECOGNITION OF FIRE FIGHTERS OR POLICE OFFICERS
ASSOCIATION. (a) Authorizes a public employer to recognize
an association that submits a petition signed by a majority of
the paid fire fighters or police officers in the municipality,
excluding certain department heads, as the sole and exclusive
bargaining agent for all of the covered fire fighters or
police officers unless recognition of the association is
withdrawn by a majority of the covered fire fighters or police
officers.
(b) Requires a question of whether an association is the
majority representative of the covered fire fighters or
police officers to be resolved by a fair election conducted
according to procedures agreed on by the parties.
Authorizes either party to request the American Arbitration
Association to conduct the election and to certify the
results, if the paries are unable to agree on election
procedures. Provides that certification of the results of
an election under this subsection resolves the question
concerning representation. Requires the association to pay
the costs of the election, with exception.
(c) Requires the public employer's manager or chief
executive and the police chief or fire chief to designate
separate teams to represent the public employer as its sole
and exclusive bargaining agent for issues related to the
fire department and the police department.
Sec. 143.305. OPEN RECORDS REQUIRED. Provides that an
agreement made under this subchapter is a public record for
purposes of Chapter 552, Government Code. Provides that the
agreement and any document prepared and used by the
municipality in connection with the agreement are available to
the public only after the agreement is ratified by the
municipality's governing body. Provides that this section
does not affect the application of Chapter 552C, Government
Code, to a document prepared and used by the municipality in
connection with the agreement.
Sec. 143.306. ENFORCEABILITY OF AGREEMENT. (a) Provides
that a written agreement made under this subchapter between a
public employer and an association is binding on the public
employer, the association, and fire fighters or police
officers covered by the agreement if the municipality's
governing body ratifies the agreement by a majority vote and
the applicable association ratifies the agreement by a
majority vote of its members by secret ballot.
(b) Authorizes a ratified agreement to establish a
procedure by which the parties agree to resolve disputes
related to a right, duty, or obligation provided by the
agreement.
(c) Provides that the district court of the judicial
district in which the municipality is located has full
authority and jurisdiction on the application of either
party aggrieved by an act or omission of the other party
related to a right, duty, or obligation provided by a
written agreement. Authorizes the court to issue proper
restraining orders, temporary and permanent injunctions, or
any other writ, order, or process, that is appropriate to
enforce the agreement.
Sec. 143.307. AGREEMENT SUPERSEDES CONFLICTING PROVISIONS.
(a) Provides that an agreement supersedes a previous statute
concerning wages, salaries, rates of pay, hours of work, or
other terms and conditions of employment to the extent of any
conflict with the statute.
(b) Provides that an agreement preempts any contrary state,
executive order, local ordinance, or rule adopted by the
state or a political subdivision or agent of the state.
(c) Prohibits an agreement from diminishing or qualifying
any right, benefit, or privilege of an employee under this
chapter or other law unless approved by a majority vote by
secret ballot of the members of the association recognized
as a sole and exclusive bargaining agent.
Sec. 143.308. REPEAL OF AGREEMENT BY ELECTORATE. Sets forth
procedures for the repeal of an agreement.
Sec. 143.309. PROTECTED RIGHTS OF INDIVIDUAL EMPLOYEES. (a)
Authorizes a member of the bargaining unit to choose to be
represented by any person of the member's choice or by the
association, for the purpose of any disciplinary appeal to the
civil service commission or to a hearing examiner.
(b) Prohibits an agreement from interfering with the right
of a member of a bargaining unit to pursue allegations of
discrimination based on personal characteristics with the
Commission on Human Rights or the Equal Employment
Opportunity Commission or to pursue affirmative action
litigation.
Sec. 143.310. BINDING INTEREST ARBITRATION. Authorizes a
municipality to be required to submit to binding arbitration
only if approved by a majority of voters in a public
referendum. Provides that this subsection does not affect any
disciplinary arbitration or arbitration provision in a
ratified agreement.
Sec. 143.311. APPOINTMENTS TO CLASSIFICATION IMMEDIATELY
BELOW DEPARTMENT HEAD. Provides that Section 143.014(c) does
not apply to a municipality to which this subchapter applies.
Sec. 143.312. INVESTIGATION OF FIRE FIGHTERS AND POLICE
OFFICERS. (a) Provides that this section does not apply to
a municipality to which Section 143.123 applies.
(b) Defines "complainant," "investigation," "investigator,"
"normally assigned working hours," and "punitive action."
(c) Authorizes an investigator to interrogate a fire
fighter or police officer who is the subject of an
investigation only during the fire fighter's or police
officer's normally assigned working hours unless certain
conditions apply.
(d) Prohibits the department head from considering work
time missed from regular duties by a fire fighter or police
officer due to participation in an investigation in
determining whether to impose a punitive action or the
severity of a punitive action.
(e) Prohibits an investigator from interrogating a fire
fighter or police officer who is the subject of an
investigation or conducting any part of the investigation at
that person's home without that person's permission.
(f) Prohibits a person from being assigned to conduct an
investigation if the person is the complainant, the ultimate
decision-maker regarding disciplinary action, or a person
who has any personal involvement regarding the alleged
misconduct. Provides that a fire fighter or police officer
who is the subject of an investigation has the right to
inquire and, on inquiry, to be informed of the identities of
each investigator participating in an interrogation of the
fire fighter or police officers.
(g) Requires an investigator to inform a firefighter or
police officer in writing of the allegations in the
complaint not less than 48 hours before beginning the
initial interrogation of the fire fighter or police
officers. Prohibits an investigator from interrogating a
fire fighter or police officer based on a complaint by a
complainant who is not a fire fighter or police officer
unless the complainant verifies the complaint in writing
before a public officer who is authorized by law to take
statements under oath. Authorizes an investigator to
interrogate a fire fighter or police officer about events or
conduct reported by a witness who is not a complainant
without disclosing the name of the witness. Authorizes an
interrogation to be based on a complaint from an anonymous
complainant if the departmental employee receiving the
complaint certifies the complaint was anonymous. Provides
that this subsection does not apply to an on-the-scene
investigation that occurs immediately after an incident
being investigated, with an exception.
(h) Prohibits an interrogation session of a fire fighter or
police officer from being unreasonably long. Requires the
gravity and complexity of the investigation to be considered
in determining reasonableness. Requires the investigators
to allow reasonable interruptions to permit the fire fighter
or police officer to attend to personal physical
necessities.
(i) Prohibits an investigator from threatening a fire
fighter or police officer who is the subject of an
investigation with punitive action during an interrogation.
Authorizes an investigator to inform a fire fighter or
police officer that failure to truthfully answer reasonable
questions directly related to the investigation or fully
cooperate in the conduct of the investigation may result in
punitive action.
(j) Authorizes either the investigator or the fire fighter
or police officer who is the subject of an interrogation to
record the interrogation if prior notification of intent to
record an interrogation is given to the other party.
(k) Prohibits a reprimand, finding, or determination from
being placed in a person's personnel file unless the fire
fighter or police officer is first given an opportunity to
read and sign the document if an investigation results in a
written reprimand, adverse finding or determination.
Authorizes a reprimand, finding, or determination to be
placed in the personnel file with a notation of refusal if
the fire fighter or police officer refuses to sign.
Authorizes a fire fighter or police officer to respond in
writing to a reprimand, finding, or determination that is
placed in the person's personnel file by submitting a
written response to the department head no later than the
10th day after the date the fire fighter or police officer
is asked to sign the document. Requires the response to be
placed in the personnel file. Authorizes a fire fighter or
police officer who receives a punitive action and who elects
not to appeal the action to file a written response no later
than the 10th day after the date the person is given written
notice of the punitive action from the department head.
(l) Authorizes a violation to be considered by the
commission or hearing examiner during a disciplinary appeal
hearing if the violation substantially impaired the fire
fighter's or police officer's ability to defend against the
allegations of misconduct.
Sec. 143.313. POLYGRAPH EXAMINATIONS. (a) Provides that
this section does not apply to a municipality to which Section
143.124 applies.
(b) Provides that a fire fighter or police officer employed
by the municipality may not be required to submit to a
polygraph examination as part of an internal investigation
unless the complainant submits to and passes a polygraph
examination or the fire fighter or police officer is ordered
to take an examination under Subsection (f).
(c) Provides that Subsection (b) does not apply if the
complainant is physically or mentally incapable of being
polygraphed.
(d) Provides that a person passes a polygraph examination
if, in the opinion of the polygraph examiner, no deception
is indicated in the examination regarding matters critical
to the subject matter under investigation.
(e) Provides that the results of a polygraph examination
that relate to the complaint under investigation are not
admissible in a proceeding before the commission or a
hearing examiner.
(f) Authorizes the head of the employing department to
order a fire fighter or police officer to submit to a
polygraph examination if the department head considers the
circumstances to be extraordinary or believes that the
integrity of a fire fighter, police officer, or the
department is in question.
SECTION 2. Emergency clause.
Effective date: upon passage.
SUMMARY OF COMMITTEE ACTION
SB 863 was considered by the committee in a public hearing on April
10, 1995. No one testified in favor of, against, or on this bill.
The bill was reported favorably without amendment, with the
recommendation that it do pass and be printed, by a record vote of
7 ayes, 1 nay, 0 pnv, and 1 absent.