S.B. No. 863
AN ACT
1-1 relating to certain conditions of employment for and investigations
1-2 of fire fighters and police officers in certain municipalities.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 143, Local Government Code, is amended by
1-5 adding Subchapter I to read as follows:
1-6 SUBCHAPTER I. FIRE FIGHTER
1-7 AND POLICE OFFICER EMPLOYMENT MATTERS
1-8 IN CERTAIN MUNICIPALITIES
1-9 Sec. 143.301. MUNICIPALITIES COVERED BY SUBCHAPTER. This
1-10 subchapter applies only to a municipality with a population of
1-11 460,000 or more that operates under a city manager form of
1-12 government. This subchapter does not apply to a municipality:
1-13 (1) that has adopted Chapter 174 (The Fire and Police
1-14 Employee Relations Act); or
1-15 (2) to which Subchapter H applies.
1-16 Sec. 143.302. DEFINITIONS. In this subchapter:
1-17 (1) "Association" means an organization in which fire
1-18 fighters or police officers participate and that exists for the
1-19 purpose, in whole or in part, of dealing with one or more
1-20 employers, whether public or private, concerning grievances, labor
1-21 disputes, wages, rates of pay, hours of employment, or conditions
1-22 of work affecting public employees.
1-23 (2) "Public employer" means any municipality or
1-24 agency, board, commission, or political subdivision controlled by a
2-1 municipality that is required to establish the wages, salaries,
2-2 rates of pay, hours, working conditions, and other terms and
2-3 conditions of employment of public employees. The term may
2-4 include, under appropriate circumstances, a mayor, manager,
2-5 administrator of a municipality, municipal governing body, director
2-6 of personnel, or personnel board or one or more other officials,
2-7 regardless of the name by which they are designated.
2-8 Sec. 143.303. GENERAL PROVISIONS RELATING TO AGREEMENTS,
2-9 RECOGNITION, AND STRIKES. (a) A municipality may not be denied
2-10 local control over wages, salaries, rates of pay, hours of work,
2-11 other terms and conditions of employment, or other personnel issues
2-12 on which the public employer and an association that is recognized
2-13 as the sole and exclusive bargaining agent for all fire fighters or
2-14 police officers in the municipality agree. A term or condition on
2-15 which the public employer and the association do not agree is
2-16 governed by the applicable statutes, local ordinances, and civil
2-17 service rules. An agreement must be reduced to writing. This
2-18 subchapter does not require the public employer and the association
2-19 to meet and confer or reach an agreement on any issue.
2-20 (b) A public employer and an association recognized under
2-21 this subchapter as a sole and exclusive bargaining agent may meet
2-22 and confer only if the association does not advocate the illegal
2-23 right to strike by public employees.
2-24 (c) A fire fighter or police officer of a municipality may
2-25 not engage in a strike or organized work stoppage against this
2-26 state or a political subdivision of this state. A fire fighter or
2-27 police officer who participates in a strike forfeits all civil
3-1 service rights, reemployment rights, and other rights, benefits, or
3-2 privileges the fire fighter or police officer enjoys as a result of
3-3 the person's employment or previous employment with the
3-4 municipality. This subsection does not affect the right of a
3-5 person to cease employment if the person is not acting in concert
3-6 with other fire fighters or police officers.
3-7 Sec. 143.304. RECOGNITION OF FIRE FIGHTERS OR POLICE
3-8 OFFICERS ASSOCIATION. (a) The public employer may recognize an
3-9 association that submits a petition signed by a majority of the
3-10 paid fire fighters or police officers in the municipality,
3-11 excluding the head of the department and assistant department heads
3-12 in the rank or classification immediately below that of the
3-13 department head, as the sole and exclusive bargaining agent for all
3-14 of the covered fire fighters or police officers unless recognition
3-15 of the association is withdrawn by a majority of the covered fire
3-16 fighters or police officers.
3-17 (b) A question of whether an association is the majority
3-18 representative of the covered fire fighters or police officers
3-19 shall be resolved by a fair election conducted according to
3-20 procedures agreed on by the parties. If the parties are unable to
3-21 agree on election procedures, either party may request the American
3-22 Arbitration Association to conduct the election and to certify the
3-23 results. Certification of the results of an election under this
3-24 subsection resolves the question concerning representation. The
3-25 association shall pay the costs of the election, except that if two
3-26 or more associations seeking recognition as the bargaining agent
3-27 submit petitions signed by a majority of the covered fire fighters
4-1 or police officers, the associations shall share equally the costs
4-2 of the election.
4-3 (c) The public employer's manager or chief executive and the
4-4 police chief or fire chief, as appropriate, shall designate a team
4-5 to represent the public employer as its sole and exclusive
4-6 bargaining agent for issues related to the fire department and a
4-7 separate team to represent the public employer as its sole and
4-8 exclusive bargaining agent for issues related to the police
4-9 department.
4-10 Sec. 143.305. OPEN RECORDS REQUIRED. An agreement made
4-11 under this subchapter is a public record for purposes of Chapter
4-12 552, Government Code. The agreement and any document prepared and
4-13 used by the municipality in connection with the agreement are
4-14 available to the public under the open records law, Chapter 552,
4-15 Government Code, only after the agreement is ratified by the
4-16 municipality's governing body. This section does not affect the
4-17 application of Subchapter C, Chapter 552, Government Code, to a
4-18 document prepared and used by the municipality in connection with
4-19 the agreement.
4-20 Sec. 143.306. ENFORCEABILITY OF AGREEMENT. (a) A written
4-21 agreement made under this subchapter between a public employer and
4-22 an association is binding on the public employer, the association,
4-23 and fire fighters or police officers covered by the agreement if:
4-24 (1) the municipality's governing body ratifies the
4-25 agreement by a majority vote; and
4-26 (2) the applicable association ratifies the agreement
4-27 by a majority vote of its members by secret ballot.
5-1 (b) An agreement ratified as described by Subsection (a) may
5-2 establish a procedure by which the parties agree to resolve
5-3 disputes related to a right, duty, or obligation provided by the
5-4 agreement, including binding arbitration on interpretation of the
5-5 agreement.
5-6 (c) The district court of the judicial district in which the
5-7 municipality is located has full authority and jurisdiction on the
5-8 application of either party aggrieved by an act or omission of the
5-9 other party related to a right, duty, or obligation provided by a
5-10 written agreement ratified as described by Subsection (a). The
5-11 court may issue proper restraining orders, temporary and permanent
5-12 injunctions, or any other writ, order, or process, including a
5-13 contempt order, that is appropriate to enforce the agreement.
5-14 Sec. 143.307. AGREEMENT SUPERSEDES CONFLICTING PROVISIONS.
5-15 (a) An agreement under this subchapter supersedes a previous
5-16 statute concerning wages, salaries, rates of pay, hours of work, or
5-17 other terms and conditions of employment to the extent of any
5-18 conflict with the statute.
5-19 (b) An agreement under this subchapter preempts any contrary
5-20 statute, executive order, local ordinance, or rule adopted by the
5-21 state or a political subdivision or agent of the state, including a
5-22 personnel board, a civil service commission, or a home-rule
5-23 municipality.
5-24 (c) An agreement under this subchapter may not diminish or
5-25 qualify any right, benefit, or privilege of an employee under this
5-26 chapter or other law unless approved by a majority vote by secret
5-27 ballot of the members of the association recognized as a sole and
6-1 exclusive bargaining agent.
6-2 Sec. 143.308. REPEAL OF AGREEMENT BY ELECTORATE. Not later
6-3 than the 45th day after the date an agreement is ratified by both
6-4 the municipality and the association, a petition signed by at least
6-5 10 percent of the qualified voters of the municipality may be
6-6 presented to the municipal secretary calling an election for the
6-7 repeal of the agreement. On receipt of the petition by the
6-8 municipal secretary, the governing body shall reconsider the
6-9 agreement and either repeal the agreement or call an election of
6-10 the qualified voters to determine if they desire to repeal the
6-11 agreement. The election shall be called for the next municipal
6-12 election or a special election called by the governing body for
6-13 that purpose. If at the election a majority of the votes are cast
6-14 in favor of the repeal of the adoption of the agreement, the
6-15 agreement is void. The ballot shall be printed to permit voting
6-16 for or against the proposition: "Repeal of the adoption of the
6-17 agreement ratified by the municipality and the (fire
6-18 fighters or police officers, as appropriate) association concerning
6-19 wages, salaries, rates of pay, hours of work, and other terms and
6-20 conditions of employment."
6-21 Sec. 143.309. PROTECTED RIGHTS OF INDIVIDUAL EMPLOYEES.
6-22 (a) For the purpose of any disciplinary appeal to the civil
6-23 service commission or to a hearing examiner, a member of the
6-24 bargaining unit may choose to be represented by any person of the
6-25 member's choice or by the association.
6-26 (b) An agreement may not interfere with the right of a
6-27 member of a bargaining unit to pursue allegations of discrimination
7-1 based on race, creed, color, national origin, religion, age, sex,
7-2 or disability with the Commission on Human Rights or the Equal
7-3 Employment Opportunity Commission or to pursue affirmative action
7-4 litigation.
7-5 Sec. 143.310. BINDING INTEREST ARBITRATION. A municipality
7-6 may be required to submit to binding interest arbitration only if
7-7 approved by a majority of those voting in a public referendum
7-8 conducted in accordance with the municipality's charter. This
7-9 subsection does not affect any disciplinary arbitration or
7-10 arbitration provision in a ratified agreement.
7-11 Sec. 143.311. APPOINTMENTS TO CLASSIFICATION IMMEDIATELY
7-12 BELOW DEPARTMENT HEAD. Section 143.014(c) does not apply to a
7-13 municipality to which this subchapter applies.
7-14 Sec. 143.312. INVESTIGATION OF FIRE FIGHTERS AND POLICE
7-15 OFFICERS. (a) This section does not apply to a municipality to
7-16 which Section 143.123 applies.
7-17 (b) In this section:
7-18 (1) "Complainant" means a person claiming to be the
7-19 victim of misconduct by a fire fighter or police officer.
7-20 (2) "Investigation" means an administrative
7-21 investigation, conducted by the municipality, of alleged misconduct
7-22 by a fire fighter or police officer that could result in punitive
7-23 action against that person.
7-24 (3) "Investigator" means an agent or employee of the
7-25 municipality who is assigned to conduct an investigation.
7-26 (4) "Normally assigned working hours" includes those
7-27 hours during which a fire fighter or police officer is actually at
8-1 work or at the person's assigned place of work, but does not
8-2 include any time when the person is off duty on authorized leave,
8-3 including sick leave.
8-4 (5) "Punitive action" means a disciplinary suspension,
8-5 indefinite suspension, demotion in rank, written reprimand, or any
8-6 combination of those actions.
8-7 (c) An investigator may interrogate a fire fighter or police
8-8 officer who is the subject of an investigation only during the fire
8-9 fighter's or police officer's normally assigned working hours
8-10 unless:
8-11 (1) the seriousness of the investigation, as
8-12 determined by the fire fighter's or police officer's department
8-13 head or the department head's designee, requires interrogation at
8-14 another time; and
8-15 (2) the fire fighter or police officer is compensated
8-16 for the interrogation time on an overtime basis.
8-17 (d) The department head may not consider work time missed
8-18 from regular duties by a fire fighter or police officer due to
8-19 participation in the conduct of an investigation in determining
8-20 whether to impose a punitive action or in determining the severity
8-21 of a punitive action.
8-22 (e) An investigator may not interrogate a fire fighter or
8-23 police officer who is the subject of an investigation or conduct
8-24 any part of the investigation at that person's home without that
8-25 person's permission.
8-26 (f) A person may not be assigned to conduct an investigation
8-27 if the person is the complainant, the ultimate decision-maker
9-1 regarding disciplinary action, or a person who has any personal
9-2 involvement regarding the alleged misconduct. A fire fighter or
9-3 police officer who is the subject of an investigation has the right
9-4 to inquire and, on inquiry, to be informed of the identities of
9-5 each investigator participating in an interrogation of the fire
9-6 fighter or police officer.
9-7 (g) Not less than 48 hours before an investigator begins the
9-8 initial interrogation of a fire fighter or police officer who is
9-9 the subject of an investigation, the investigator must inform the
9-10 fire fighter or police officer in writing of the allegations in the
9-11 complaint. An investigator may not interrogate a fire fighter or
9-12 police officer based on a complaint by a complainant who is not a
9-13 fire fighter or police officer unless the complainant verifies the
9-14 complaint in writing before a public officer who is authorized by
9-15 law to take statements under oath. In an investigation under this
9-16 subsection, an investigator may interrogate a fire fighter or
9-17 police officer about events or conduct reported by a witness who is
9-18 not a complainant without disclosing the name of the witness. An
9-19 interrogation may be based on a complaint from an anonymous
9-20 complainant if the departmental employee receiving the anonymous
9-21 complaint certifies in writing, under oath, that the complaint was
9-22 anonymous. This subsection does not apply to an on-the-scene
9-23 investigation that occurs immediately after an incident being
9-24 investigated, except that the fire fighter or police officer under
9-25 investigation must be furnished, as soon as practicable, a written
9-26 statement of the allegations in the complaint.
9-27 (h) An interrogation session of a fire fighter or police
10-1 officer who is the subject of an investigation may not be
10-2 unreasonably long. In determining reasonableness, the gravity and
10-3 complexity of the investigation must be considered. The
10-4 investigators shall allow reasonable interruptions to permit the
10-5 fire fighter or police officer to attend to personal physical
10-6 necessities.
10-7 (i) An investigator may not threaten a fire fighter or
10-8 police officer who is the subject of an investigation with punitive
10-9 action during an interrogation. An investigator may inform a fire
10-10 fighter or police officer that failure to answer truthfully
10-11 reasonable questions directly related to the investigation or to
10-12 cooperate fully in the conduct of the investigation may result in
10-13 punitive action.
10-14 (j) If prior notification of intent to record an
10-15 interrogation is given to the other party, either the investigator
10-16 or the fire fighter or police officer who is the subject of an
10-17 interrogation may record the interrogation.
10-18 (k) If an investigation does not result in punitive action
10-19 against a fire fighter or police officer but does result in a
10-20 written reprimand or an adverse finding or determination regarding
10-21 that person, the reprimand, finding, or determination may not be
10-22 placed in that person's personnel file unless the fire fighter or
10-23 police officer is first given an opportunity to read and sign the
10-24 document. If the fire fighter or police officer refuses to sign
10-25 the reprimand, finding, or determination, it may be placed in the
10-26 personnel file with a notation that the person refused to sign it.
10-27 A fire fighter or police officer may respond in writing to a
11-1 reprimand, finding, or determination that is placed in the person's
11-2 personnel file under this subsection by submitting a written
11-3 response to the department head not later than the 10th day after
11-4 the date the fire fighter or police officer is asked to sign the
11-5 document. The response shall be placed in the personnel file. A
11-6 fire fighter or police officer who receives a punitive action and
11-7 who elects not to appeal the action may file a written response as
11-8 prescribed by this subsection not later than the 10th day after the
11-9 date the person is given written notice of the punitive action from
11-10 the department head.
11-11 (l) A violation of this section may be considered by the
11-12 commission or hearing examiner during a disciplinary appeal hearing
11-13 if the violation substantially impaired the fire fighter's or
11-14 police officer's ability to defend against the allegations of
11-15 misconduct.
11-16 Sec. 143.313. POLYGRAPH EXAMINATIONS. (a) This section
11-17 does not apply to a municipality to which Section 143.124 applies.
11-18 (b) A fire fighter or police officer employed by the
11-19 municipality may not be required to submit to a polygraph
11-20 examination as part of an internal investigation regarding the
11-21 conduct of the fire fighter or police officer unless:
11-22 (1) the complainant submits to and passes a polygraph
11-23 examination; or
11-24 (2) the fire fighter or police officer is ordered to
11-25 take an examination under Subsection (f).
11-26 (c) Subsection (b) does not apply if the complainant is
11-27 physically or mentally incapable of being polygraphed.
12-1 (d) For the purposes of this section, a person passes a
12-2 polygraph examination if, in the opinion of the polygraph examiner,
12-3 no deception is indicated in the examination regarding matters
12-4 critical to the subject matter under investigation.
12-5 (e) The results of a polygraph examination that relate to
12-6 the complaint under investigation are not admissible in a
12-7 proceeding before the commission or a hearing examiner.
12-8 (f) The head of the employing department may order a fire
12-9 fighter or police officer to submit to a polygraph examination if
12-10 the department head:
12-11 (1) considers the circumstances to be extraordinary;
12-12 or
12-13 (2) believes that the integrity of a fire fighter, a
12-14 police officer, or the department is in question.
12-15 SECTION 2. The importance of this legislation and the
12-16 crowded condition of the calendars in both houses create an
12-17 emergency and an imperative public necessity that the
12-18 constitutional rule requiring bills to be read on three several
12-19 days in each house be suspended, and this rule is hereby suspended,
12-20 and that this Act take effect and be in force from and after its
12-21 passage, and it is so enacted.