1-1 By: Barrientos S.B. No. 863
1-2 (In the Senate - Filed March 1, 1995; March 2, 1995, read
1-3 first time and referred to Committee on Intergovernmental
1-4 Relations; March 22, 1995, reported favorably by the following
1-5 vote: Yeas 11, Nays 0; March 22, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to certain conditions of employment for and investigations
1-9 of fire fighters and police officers in certain municipalities.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 143, Local Government Code, is amended by
1-12 adding Subchapter I to read as follows:
1-13 SUBCHAPTER I. FIRE FIGHTER
1-14 AND POLICE OFFICER EMPLOYMENT MATTERS
1-15 IN CERTAIN MUNICIPALITIES
1-16 Sec. 143.301. MUNICIPALITIES COVERED BY SUBCHAPTER. This
1-17 subchapter applies only to a municipality with a population of
1-18 460,000 or more that operates under a city manager form of
1-19 government. This subchapter does not apply to a municipality:
1-20 (1) that has adopted Chapter 174 (The Fire and Police
1-21 Employee Relations Act); or
1-22 (2) to which Subchapter H applies.
1-23 Sec. 143.302. DEFINITIONS. In this subchapter:
1-24 (1) "Association" means an organization in which fire
1-25 fighters or police officers participate and that exists for the
1-26 purpose, in whole or in part, of dealing with one or more
1-27 employers, whether public or private, concerning grievances, labor
1-28 disputes, wages, rates of pay, hours of employment, or conditions
1-29 of work affecting public employees.
1-30 (2) "Public employer" means any municipality or
1-31 agency, board, commission, or political subdivision controlled by a
1-32 municipality that is required to establish the wages, salaries,
1-33 rates of pay, hours, working conditions, and other terms and
1-34 conditions of employment of public employees. The term may
1-35 include, under appropriate circumstances, a mayor, manager,
1-36 administrator of a municipality, municipal governing body, director
1-37 of personnel, or personnel board or one or more other officials,
1-38 regardless of the name by which they are designated.
1-39 Sec. 143.303. GENERAL PROVISIONS RELATING TO AGREEMENTS,
1-40 RECOGNITION, AND STRIKES. (a) A municipality may not be denied
1-41 local control over wages, salaries, rates of pay, hours of work,
1-42 other terms and conditions of employment, or other personnel issues
1-43 on which the public employer and an association that is recognized
1-44 as the sole and exclusive bargaining agent for all fire fighters or
1-45 police officers in the municipality agree. A term or condition on
1-46 which the public employer and the association do not agree is
1-47 governed by the applicable statutes, local ordinances, and civil
1-48 service rules. An agreement must be reduced to writing. This
1-49 subchapter does not require the public employer and the association
1-50 to meet and confer or reach an agreement on any issue.
1-51 (b) A public employer and an association recognized under
1-52 this subchapter as a sole and exclusive bargaining agent may meet
1-53 and confer only if the association does not advocate the illegal
1-54 right to strike by public employees.
1-55 (c) A fire fighter or police officer of a municipality may
1-56 not engage in a strike or organized work stoppage against this
1-57 state or a political subdivision of this state. A fire fighter or
1-58 police officer who participates in a strike forfeits all civil
1-59 service rights, reemployment rights, and other rights, benefits, or
1-60 privileges the fire fighter or police officer enjoys as a result of
1-61 the person's employment or previous employment with the
1-62 municipality. This subsection does not affect the right of a
1-63 person to cease employment if the person is not acting in concert
1-64 with other fire fighters or police officers.
1-65 Sec. 143.304. RECOGNITION OF FIRE FIGHTERS OR POLICE
1-66 OFFICERS ASSOCIATION. (a) The public employer may recognize an
1-67 association that submits a petition signed by a majority of the
1-68 paid fire fighters or police officers in the municipality,
2-1 excluding the head of the department and assistant department heads
2-2 in the rank or classification immediately below that of the
2-3 department head, as the sole and exclusive bargaining agent for all
2-4 of the covered fire fighters or police officers unless recognition
2-5 of the association is withdrawn by a majority of the covered fire
2-6 fighters or police officers.
2-7 (b) A question of whether an association is the majority
2-8 representative of the covered fire fighters or police officers
2-9 shall be resolved by a fair election conducted according to
2-10 procedures agreed on by the parties. If the parties are unable to
2-11 agree on election procedures, either party may request the American
2-12 Arbitration Association to conduct the election and to certify the
2-13 results. Certification of the results of an election under this
2-14 subsection resolves the question concerning representation. The
2-15 association shall pay the costs of the election, except that if two
2-16 or more associations seeking recognition as the bargaining agent
2-17 submit petitions signed by a majority of the covered fire fighters
2-18 or police officers, the associations shall share equally the costs
2-19 of the election.
2-20 (c) The public employer's manager or chief executive and the
2-21 police chief or fire chief, as appropriate, shall designate a team
2-22 to represent the public employer as its sole and exclusive
2-23 bargaining agent for issues related to the fire department and a
2-24 separate team to represent the public employer as its sole and
2-25 exclusive bargaining agent for issues related to the police
2-26 department.
2-27 Sec. 143.305. OPEN RECORDS REQUIRED. An agreement made
2-28 under this subchapter is a public record for purposes of Chapter
2-29 552, Government Code. The agreement and any document prepared and
2-30 used by the municipality in connection with the agreement are
2-31 available to the public under the open records law, Chapter 552,
2-32 Government Code, only after the agreement is ratified by the
2-33 municipality's governing body. This section does not affect the
2-34 application of Subchapter C, Chapter 552, Government Code, to a
2-35 document prepared and used by the municipality in connection with
2-36 the agreement.
2-37 Sec. 143.306. ENFORCEABILITY OF AGREEMENT. (a) A written
2-38 agreement made under this subchapter between a public employer and
2-39 an association is binding on the public employer, the association,
2-40 and fire fighters or police officers covered by the agreement if:
2-41 (1) the municipality's governing body ratifies the
2-42 agreement by a majority vote; and
2-43 (2) the applicable association ratifies the agreement
2-44 by a majority vote of its members by secret ballot.
2-45 (b) An agreement ratified as described by Subsection (a) may
2-46 establish a procedure by which the parties agree to resolve
2-47 disputes related to a right, duty, or obligation provided by the
2-48 agreement, including binding arbitration on interpretation of the
2-49 agreement.
2-50 (c) The district court of the judicial district in which the
2-51 municipality is located has full authority and jurisdiction on the
2-52 application of either party aggrieved by an act or omission of the
2-53 other party related to a right, duty, or obligation provided by a
2-54 written agreement ratified as described by Subsection (a). The
2-55 court may issue proper restraining orders, temporary and permanent
2-56 injunctions, or any other writ, order, or process, including a
2-57 contempt order, that is appropriate to enforce the agreement.
2-58 Sec. 143.307. AGREEMENT SUPERSEDES CONFLICTING PROVISIONS.
2-59 (a) An agreement under this subchapter supersedes a previous
2-60 statute concerning wages, salaries, rates of pay, hours of work, or
2-61 other terms and conditions of employment to the extent of any
2-62 conflict with the statute.
2-63 (b) An agreement under this subchapter preempts any contrary
2-64 statute, executive order, local ordinance, or rule adopted by the
2-65 state or a political subdivision or agent of the state, including a
2-66 personnel board, a civil service commission, or a home-rule
2-67 municipality.
2-68 (c) An agreement under this subchapter may not diminish or
2-69 qualify any right, benefit, or privilege of an employee under this
2-70 chapter or other law unless approved by a majority vote by secret
3-1 ballot of the members of the association recognized as a sole and
3-2 exclusive bargaining agent.
3-3 Sec. 143.308. REPEAL OF AGREEMENT BY ELECTORATE. Not later
3-4 than the 45th day after the date an agreement is ratified by both
3-5 the municipality and the association, a petition signed by at least
3-6 10 percent of the qualified voters of the municipality may be
3-7 presented to the municipal secretary calling an election for the
3-8 repeal of the agreement. On receipt of the petition by the
3-9 municipal secretary, the governing body shall reconsider the
3-10 agreement and either repeal the agreement or call an election of
3-11 the qualified voters to determine if they desire to repeal the
3-12 agreement. The election shall be called for the next municipal
3-13 election or a special election called by the governing body for
3-14 that purpose. If at the election a majority of the votes are cast
3-15 in favor of the repeal of the adoption of the agreement, the
3-16 agreement is void. The ballot shall be printed to permit voting
3-17 for or against the proposition: "Repeal of the adoption of the
3-18 agreement ratified by the municipality and the (fire
3-19 fighters or police officers, as appropriate) association concerning
3-20 wages, salaries, rates of pay, hours of work, and other terms and
3-21 conditions of employment."
3-22 Sec. 143.309. PROTECTED RIGHTS OF INDIVIDUAL EMPLOYEES.
3-23 (a) For the purpose of any disciplinary appeal to the civil
3-24 service commission or to a hearing examiner, a member of the
3-25 bargaining unit may choose to be represented by any person of the
3-26 member's choice or by the association.
3-27 (b) An agreement may not interfere with the right of a
3-28 member of a bargaining unit to pursue allegations of discrimination
3-29 based on race, creed, color, national origin, religion, age, sex,
3-30 or disability with the Commission on Human Rights or the Equal
3-31 Employment Opportunity Commission or to pursue affirmative action
3-32 litigation.
3-33 Sec. 143.310. BINDING INTEREST ARBITRATION. A municipality
3-34 may be required to submit to binding interest arbitration only if
3-35 approved by a majority of those voting in a public referendum
3-36 conducted in accordance with the municipality's charter. This
3-37 subsection does not affect any disciplinary arbitration or
3-38 arbitration provision in a ratified agreement.
3-39 Sec. 143.311. APPOINTMENTS TO CLASSIFICATION IMMEDIATELY
3-40 BELOW DEPARTMENT HEAD. Section 143.014(c) does not apply to a
3-41 municipality to which this subchapter applies.
3-42 Sec. 143.312. INVESTIGATION OF FIRE FIGHTERS AND POLICE
3-43 OFFICERS. (a) This section does not apply to a municipality to
3-44 which Section 143.123 applies.
3-45 (b) In this section:
3-46 (1) "Complainant" means a person claiming to be the
3-47 victim of misconduct by a fire fighter or police officer.
3-48 (2) "Investigation" means an administrative
3-49 investigation, conducted by the municipality, of alleged misconduct
3-50 by a fire fighter or police officer that could result in punitive
3-51 action against that person.
3-52 (3) "Investigator" means an agent or employee of the
3-53 municipality who is assigned to conduct an investigation.
3-54 (4) "Normally assigned working hours" includes those
3-55 hours during which a fire fighter or police officer is actually at
3-56 work or at the person's assigned place of work, but does not
3-57 include any time when the person is off duty on authorized leave,
3-58 including sick leave.
3-59 (5) "Punitive action" means a disciplinary suspension,
3-60 indefinite suspension, demotion in rank, written reprimand, or any
3-61 combination of those actions.
3-62 (c) An investigator may interrogate a fire fighter or police
3-63 officer who is the subject of an investigation only during the fire
3-64 fighter's or police officer's normally assigned working hours
3-65 unless:
3-66 (1) the seriousness of the investigation, as
3-67 determined by the fire fighter's or police officer's department
3-68 head or the department head's designee, requires interrogation at
3-69 another time; and
3-70 (2) the fire fighter or police officer is compensated
4-1 for the interrogation time on an overtime basis.
4-2 (d) The department head may not consider work time missed
4-3 from regular duties by a fire fighter or police officer due to
4-4 participation in the conduct of an investigation in determining
4-5 whether to impose a punitive action or in determining the severity
4-6 of a punitive action.
4-7 (e) An investigator may not interrogate a fire fighter or
4-8 police officer who is the subject of an investigation or conduct
4-9 any part of the investigation at that person's home without that
4-10 person's permission.
4-11 (f) A person may not be assigned to conduct an investigation
4-12 if the person is the complainant, the ultimate decision-maker
4-13 regarding disciplinary action, or a person who has any personal
4-14 involvement regarding the alleged misconduct. A fire fighter or
4-15 police officer who is the subject of an investigation has the right
4-16 to inquire and, on inquiry, to be informed of the identities of
4-17 each investigator participating in an interrogation of the fire
4-18 fighter or police officer.
4-19 (g) Not less than 48 hours before an investigator begins the
4-20 initial interrogation of a fire fighter or police officer who is
4-21 the subject of an investigation, the investigator must inform the
4-22 fire fighter or police officer in writing of the allegations in the
4-23 complaint. An investigator may not interrogate a fire fighter or
4-24 police officer based on a complaint by a complainant who is not a
4-25 fire fighter or police officer unless the complainant verifies the
4-26 complaint in writing before a public officer who is authorized by
4-27 law to take statements under oath. In an investigation under this
4-28 subsection, an investigator may interrogate a fire fighter or
4-29 police officer about events or conduct reported by a witness who is
4-30 not a complainant without disclosing the name of the witness. An
4-31 interrogation may be based on a complaint from an anonymous
4-32 complainant if the departmental employee receiving the anonymous
4-33 complaint certifies in writing, under oath, that the complaint was
4-34 anonymous. This subsection does not apply to an on-the-scene
4-35 investigation that occurs immediately after an incident being
4-36 investigated, except that the fire fighter or police officer under
4-37 investigation must be furnished, as soon as practicable, a written
4-38 statement of the allegations in the complaint.
4-39 (h) An interrogation session of a fire fighter or police
4-40 officer who is the subject of an investigation may not be
4-41 unreasonably long. In determining reasonableness, the gravity and
4-42 complexity of the investigation must be considered. The
4-43 investigators shall allow reasonable interruptions to permit the
4-44 fire fighter or police officer to attend to personal physical
4-45 necessities.
4-46 (i) An investigator may not threaten a fire fighter or
4-47 police officer who is the subject of an investigation with punitive
4-48 action during an interrogation. An investigator may inform a fire
4-49 fighter or police officer that failure to answer truthfully
4-50 reasonable questions directly related to the investigation or to
4-51 cooperate fully in the conduct of the investigation may result in
4-52 punitive action.
4-53 (j) If prior notification of intent to record an
4-54 interrogation is given to the other party, either the investigator
4-55 or the fire fighter or police officer who is the subject of an
4-56 interrogation may record the interrogation.
4-57 (k) If an investigation does not result in punitive action
4-58 against a fire fighter or police officer but does result in a
4-59 written reprimand or an adverse finding or determination regarding
4-60 that person, the reprimand, finding, or determination may not be
4-61 placed in that person's personnel file unless the fire fighter or
4-62 police officer is first given an opportunity to read and sign the
4-63 document. If the fire fighter or police officer refuses to sign
4-64 the reprimand, finding, or determination, it may be placed in the
4-65 personnel file with a notation that the person refused to sign it.
4-66 A fire fighter or police officer may respond in writing to a
4-67 reprimand, finding, or determination that is placed in the person's
4-68 personnel file under this subsection by submitting a written
4-69 response to the department head not later than the 10th day after
4-70 the date the fire fighter or police officer is asked to sign the
5-1 document. The response shall be placed in the personnel file. A
5-2 fire fighter or police officer who receives a punitive action and
5-3 who elects not to appeal the action may file a written response as
5-4 prescribed by this subsection not later than the 10th day after the
5-5 date the person is given written notice of the punitive action from
5-6 the department head.
5-7 (l) A violation of this section may be considered by the
5-8 commission or hearing examiner during a disciplinary appeal hearing
5-9 if the violation substantially impaired the fire fighter's or
5-10 police officer's ability to defend against the allegations of
5-11 misconduct.
5-12 Sec. 143.313. POLYGRAPH EXAMINATIONS. (a) This section
5-13 does not apply to a municipality to which Section 143.124 applies.
5-14 (b) A fire fighter or police officer employed by the
5-15 municipality may not be required to submit to a polygraph
5-16 examination as part of an internal investigation regarding the
5-17 conduct of the fire fighter or police officer unless:
5-18 (1) the complainant submits to and passes a polygraph
5-19 examination; or
5-20 (2) the fire fighter or police officer is ordered to
5-21 take an examination under Subsection (f).
5-22 (c) Subsection (b) does not apply if the complainant is
5-23 physically or mentally incapable of being polygraphed.
5-24 (d) For the purposes of this section, a person passes a
5-25 polygraph examination if, in the opinion of the polygraph examiner,
5-26 no deception is indicated in the examination regarding matters
5-27 critical to the subject matter under investigation.
5-28 (e) The results of a polygraph examination that relate to
5-29 the complaint under investigation are not admissible in a
5-30 proceeding before the commission or a hearing examiner.
5-31 (f) The head of the employing department may order a fire
5-32 fighter or police officer to submit to a polygraph examination if
5-33 the department head:
5-34 (1) considers the circumstances to be extraordinary;
5-35 or
5-36 (2) believes that the integrity of a fire fighter, a
5-37 police officer, or the department is in question.
5-38 SECTION 2. The importance of this legislation and the
5-39 crowded condition of the calendars in both houses create an
5-40 emergency and an imperative public necessity that the
5-41 constitutional rule requiring bills to be read on three several
5-42 days in each house be suspended, and this rule is hereby suspended,
5-43 and that this Act take effect and be in force from and after its
5-44 passage, and it is so enacted.
5-45 * * * * *