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 * * * * *