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                               * * * * *