By Hinojosa H.B. No. 2193
77R4695 YDB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to grievance procedures for certain municipal police
1-3 officers and firefighters.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 143, Local Government Code, is amended by
1-6 adding Subchapter K to read as follows:
1-7 SUBCHAPTER K. GRIEVANCE PROCEDURES IN CERTAIN MUNICIPALITIES
1-8 Sec. 143.401. MUNICIPALITIES COVERED BY THIS SUBCHAPTER.
1-9 This subchapter applies only to a municipality with a population of
1-10 less than 1.5 million.
1-11 Sec. 143.402. GRIEVANCE PROCEDURE. (a) A firefighter or
1-12 police officer may file a grievance as provided by this subchapter.
1-13 The firefighter or police officer may file a grievance relating to
1-14 aspects of the person's employment, such as a written or oral
1-15 reprimand, transfer, job performance review, or job assignment.
1-16 The firefighter or police officer may not file a grievance relating
1-17 to:
1-18 (1) a disciplinary suspension, indefinite suspension,
1-19 a promotional passover, a demotion, or an action or decision for
1-20 which a hearing, review, or appeal is otherwise provided; or
1-21 (2) an allegation of discrimination based, in whole or
1-22 in part, on race, color, religion, sex, or national origin.
1-23 (b) The director shall monitor and assist the operation of
1-24 the grievance procedure prescribed by this subchapter. The
2-1 director's duties include:
2-2 (1) aiding the department and departmental grievance
2-3 counselors;
2-4 (2) notifying the parties of meetings;
2-5 (3) docketing cases before the grievance examiner; and
2-6 (4) ensuring that the grievance procedure operates
2-7 timely and effectively.
2-8 (c) The department head shall appoint from among the members
2-9 of the department a grievance counselor whose duties include:
2-10 (1) providing appropriate grievance forms to a
2-11 firefighter or police officer;
2-12 (2) accepting, on behalf of the department head, a
2-13 step I or II grievance;
2-14 (3) assisting the firefighter or police officer in
2-15 handling the grievance;
2-16 (4) forwarding a copy of a step I or II grievance form
2-17 to the director and notifying the department head;
2-18 (5) arranging a meeting between the firefighter or
2-19 police officer and that person's immediate supervisor as prescribed
2-20 by Section 143.403(b);
2-21 (6) arranging the meeting between the firefighter or
2-22 police officer and the department head or the department head's
2-23 designated representative as prescribed by Section 143.404(b); and
2-24 (7) performing duties that the department head may
2-25 assign.
2-26 (d) The grievance procedure is governed by this subchapter
2-27 and consists of four steps. In any step of the grievance process
3-1 in which the aggrieved firefighter's or police officer's immediate
3-2 supervisor is included, the department head or the departmental
3-3 grievance counselor may:
3-4 (1) designate and include in the process another
3-5 appropriate supervisor who is not the firefighter's or police
3-6 officer's immediate supervisor; or
3-7 (2) designate the other supervisor to replace the
3-8 person's immediate supervisor, if the department head or grievance
3-9 counselor determines the other supervisor has the authority to
3-10 resolve the person's grievance.
3-11 Sec. 143.403. STEP I GRIEVANCE PROCEDURE. (a) To begin a
3-12 grievance action, a firefighter or police officer must file a
3-13 completed written step I grievance form with the department head or
3-14 departmental grievance counselor within 30 calendar days after the
3-15 date the action or inaction for which the person feels aggrieved
3-16 occurred. A step I grievance form may be obtained from the
3-17 departmental grievance counselor. If the form is not timely filed,
3-18 the grievance is waived.
3-19 (b) If the form is timely filed, the departmental grievance
3-20 counselor shall arrange a meeting between the firefighter or police
3-21 officer, that person's immediate supervisor or other appropriate
3-22 supervisor, or both, and the person or persons against whom the
3-23 grievance is lodged. The departmental grievance counselor shall
3-24 schedule the step I meeting within 30 calendar days after the date
3-25 the grievance is filed. If the grievance is lodged against the
3-26 department head, the department head may send a representative.
3-27 (c) The firefighter's or police officer's immediate
4-1 supervisor or other appropriate supervisor, or both, shall fully,
4-2 candidly, and openly discuss the grievance with the firefighter or
4-3 police officer in a sincere attempt to resolve the grievance.
4-4 (d) Regardless of the outcome of the meeting, the
4-5 firefighter's or police officer's immediate supervisor or other
4-6 appropriate supervisor, or both, shall provide a written response
4-7 to the firefighter or police officer and a copy to the grievance
4-8 counselor within 15 calendar days after the date the meeting
4-9 occurs. The response must include the supervisor's evaluation and
4-10 proposed resolution. The response shall either be personally
4-11 delivered to the firefighter or police officer or be mailed by
4-12 certified mail, return receipt requested, to the last home address
4-13 provided by that person.
4-14 (e) If the proposed resolution is unacceptable, the
4-15 firefighter or police officer may file a step II grievance form
4-16 with the department head or the departmental grievance counselor in
4-17 accordance with Section 143.404. If the aggrieved firefighter or
4-18 police officer fails to timely file a step II grievance form, the
4-19 resolution is considered accepted.
4-20 Sec. 143.404. STEP II GRIEVANCE PROCEDURE. (a) To continue
4-21 the grievance procedure, the firefighter or police officer must
4-22 complete a step II grievance form and file it with the department
4-23 head or the departmental grievance counselor within 15 calendar
4-24 days after the date the firefighter or police officer receives the
4-25 supervisor's response under Section 143.403.
4-26 (b) The departmental grievance counselor shall arrange a
4-27 meeting between the firefighter or police officer, that person's
5-1 immediate supervisor or other appropriate supervisor, or both, and
5-2 the department head or the department head's representative. The
5-3 department head's representative must have a rank of at least
5-4 assistant chief or the equivalent. The meeting shall be held
5-5 within 15 calendar days after the date the step II grievance form
5-6 is filed under Subsection (a).
5-7 (c) Regardless of the outcome of the meeting, the department
5-8 head or the department head's representative shall provide a
5-9 written response to the firefighter or police officer within 15
5-10 calendar days after the date the meeting occurs. The response
5-11 shall either be personally delivered to the firefighter or police
5-12 officer or mailed by certified mail, return receipt requested, to
5-13 the last home address provided by that person.
5-14 (d) If the proposed resolution is unacceptable, the
5-15 firefighter or police officer may either submit a written request
5-16 stating the person's decision to appeal to an independent third
5-17 party hearing examiner pursuant to the provisions of Section
5-18 143.057 or to file a step III grievance form with the director in
5-19 accordance with Section 143.405. If the firefighter or police
5-20 officer fails to timely file a step III grievance form or a written
5-21 request to appeal to a hearing examiner, the resolution is
5-22 considered accepted.
5-23 (e) If the firefighter or police officer prevails and the
5-24 hearing examiner upholds the grievance in its entirety, the
5-25 department shall bear the cost of the appeal to the hearing
5-26 examiner. If the firefighter or police officer fails to prevail
5-27 and the hearing examiner denies the grievance in its entirety, the
6-1 firefighter or police officer shall bear the cost of the appeal to
6-2 the hearing examiner. If neither party entirely prevails and the
6-3 hearing examiner upholds part of the grievance and denies part of
6-4 it, the hearing examiner's fees and expenses shall be shared
6-5 equally by the firefighter or police officer and the department.
6-6 Sec. 143.405. STEP III GRIEVANCE PROCEDURE. (a) To continue
6-7 the grievance procedure, the firefighter or police officer must
6-8 complete a step III grievance form and file it with the director
6-9 within 15 calendar days after the date the firefighter or police
6-10 officer receives the department head's response under Section
6-11 143.404.
6-12 (b) The director shall arrange a hearing of the firefighter
6-13 or police officer with a grievance examiner to be appointed by the
6-14 commission under Section 143.407. The hearing shall be held within
6-15 15 of the aggrieved firefighter's or police officer's working days
6-16 after the date the step III grievance form is filed under
6-17 Subsection (a).
6-18 (c) A hearing shall be conducted as an informal
6-19 administrative procedure. Grievances arising out of the same or
6-20 similar factual situations may be heard at the same hearing. A
6-21 court reporter shall record the hearing. All witnesses shall be
6-22 examined under oath. The firefighter or police officer, that
6-23 person's immediate supervisor or other appropriate supervisor, or
6-24 both, the department head or the department head's designated
6-25 representative, or both, and each person specifically named in the
6-26 grievance are parties to the hearing. The burden of proof is on
6-27 the aggrieved firefighter or police officer.
7-1 (d) The grievance examiner shall make written findings and a
7-2 recommendation for resolution of the grievance within 15 calendar
7-3 days after the date the hearing ends. The findings and
7-4 recommendation shall be given to the commission and copies mailed
7-5 to the firefighter or police officer by certified mail, return
7-6 receipt requested, at the last home address provided by that
7-7 person, and to the department head.
7-8 (e) If the proposed resolution is unacceptable to either the
7-9 firefighter or police officer or the department head, either party
7-10 may file a step IV grievance form with the director in accordance
7-11 with Section 143.406. If the firefighter or police officer and the
7-12 department head do not timely file a step IV grievance form, the
7-13 resolution is considered accepted.
7-14 Sec. 143.406. STEP IV GRIEVANCE PROCEDURE. (a) If the
7-15 department head or the firefighter or police officer rejects the
7-16 proposed resolution under Section 143.405, the department head, the
7-17 department head's designated representative, or the firefighter or
7-18 police officer must complete a step IV grievance form and file it
7-19 with the director within 15 calendar days after the date the person
7-20 receives the grievance examiner's recommendation.
7-21 (b) The commission shall review the grievance examiner's
7-22 findings and recommendation and consider the transcript of the step
7-23 III hearing at the commission's next regularly scheduled meeting or
7-24 as soon as practicable. The transcript shall be filed within 30
7-25 calendar days after the date the step IV grievance is filed. The
7-26 commission may for good cause shown grant a reasonable delay not to
7-27 exceed 30 calendar days to file the transcript. The commission may
8-1 not render a decision later than the 30th calendar day after the
8-2 date the transcript is filed. If the commission does not timely
8-3 render a decision, the commission shall sustain the firefighter's
8-4 or police officer's grievance.
8-5 (c) The commission shall base its decision solely on the
8-6 transcript and demonstrative evidence offered and accepted at the
8-7 step III hearing. The commission shall furnish a written copy of
8-8 the order containing its decision to the firefighter or police
8-9 officer, the department head, and the grievance examiner. The copy
8-10 to the firefighter or police officer shall be mailed by certified
8-11 mail, return receipt requested, to the last home address provided
8-12 by that person. The commission decision is final.
8-13 Sec. 143.407. GRIEVANCE EXAMINER. (a) The commission shall
8-14 appoint a grievance examiner by a majority vote. The commission
8-15 may appoint more than one grievance examiner if necessary. The
8-16 commission may appoint a different grievance examiner for each
8-17 grievance. An examiner may not be affiliated with any municipal
8-18 department and is responsible only to the commission. The
8-19 commission shall pay an examiner from a special budget established
8-20 for the purpose, and the director shall provide an examiner
8-21 sufficient office space and clerical support.
8-22 (b) The grievance examiner may:
8-23 (1) impose a reasonable limit on the time allowed each
8-24 party and the number of witnesses to be heard;
8-25 (2) administer oaths;
8-26 (3) examine a witness under oath;
8-27 (4) subpoena and require the attendance or production
9-1 of witnesses, documents, books, or other pertinent material; and
9-2 (5) accept affidavits instead of or in addition to
9-3 live testimony.
9-4 Sec. 143.408. SPECIAL PROVISIONS FOR STEPS I AND II. (a) If
9-5 the aggrieved firefighter's or police officer's immediate
9-6 supervisor is the department head, the steps prescribed by Sections
9-7 143.403 and 143.404 are combined. The department head shall meet
9-8 with the aggrieved firefighter or police officer and may not
9-9 appoint a representative.
9-10 (b) A department head, with the approval of the commission,
9-11 may change the procedure prescribed by Sections 143.403 and 143.404
9-12 to reflect a change in a department's chain of command.
9-13 Sec. 143.409. MISCELLANEOUS GRIEVANCE PROVISIONS. (a) A
9-14 firefighter or police officer may appear on the firefighter's or
9-15 police officer's own behalf or may obtain a representative at any
9-16 time during the grievance procedure. The municipality is not
9-17 obligated to provide or pay the costs of providing representation.
9-18 The representative:
9-19 (1) is not required to be an attorney;
9-20 (2) is entitled to be present to advise the
9-21 firefighter or police officer;
9-22 (3) is entitled to present any evidence or information
9-23 for the firefighter or police officer; and
9-24 (4) may not be prevented from fully participating in
9-25 any of the grievance proceedings.
9-26 (b) A firefighter or police officer may take reasonable time
9-27 off from a job assignment to file a grievance and attend a meeting
10-1 or hearing. Time taken to pursue a grievance may not be charged
10-2 against that person. The firefighter or police officer shall be
10-3 compensated on an overtime basis for the time that person spends at
10-4 a grievance meeting or hearing if:
10-5 (1) the meeting or hearing is scheduled at a time
10-6 other than that person's normally assigned working hours; and
10-7 (2) that person prevails in the grievance.
10-8 (c) If notice that a grievance meeting or hearing is to be
10-9 recorded is provided to all persons present at the meeting or
10-10 hearing, the firefighter or police officer, the department head, or
10-11 the department head's representative may record the meeting or
10-12 hearing.
10-13 (d) The director shall provide a suitable notice explaining
10-14 the grievance procedure prescribed by this subchapter and furnish
10-15 copies to the department. The department head shall post the
10-16 notices in one or more prominent places within the department work
10-17 areas to give reasonable notice of the grievance procedure to each
10-18 member of the department.
10-19 (e) At the request of the department head of a firefighter
10-20 or police officer who has filed a grievance under this subchapter,
10-21 the municipality's legal department or the director shall assist in
10-22 resolving the grievance.
10-23 (f) The director is the official final custodian of all
10-24 records involving grievances. A depository for closed files
10-25 regarding grievances shall be maintained in the civil service
10-26 department.
10-27 (g) A firefighter or police officer who files a grievance
11-1 under this subchapter is entitled to 48 hours notice of any meeting
11-2 or hearing scheduled under Section 143.403(b), 143.404(b),
11-3 143.405(b), or 143.406(b). In the event that the firefighter or
11-4 police officer is not given 48 hours advance notice, the
11-5 firefighter's or police officer's grievance shall be automatically
11-6 sustained and no further action may be had on the grievance.
11-7 (h) If the decision of the commission under Section 143.406
11-8 or the decision of a hearing examiner under Section 143.404 that
11-9 has become final is favorable to a firefighter or police officer,
11-10 the department head shall implement the relief granted to the
11-11 firefighter or police officer not later than the 10th day after the
11-12 date on which the decision was issued. If the department head
11-13 intentionally fails to implement the relief within the 10-day
11-14 period, the municipality shall pay the firefighter or police
11-15 officer $1,000 for each day after the 10-day period that the
11-16 decision is not yet implemented.
11-17 SECTION 2. The addition by this Act of Subchapter K, Chapter
11-18 143, Local Government Code, applies only to a grievance that arises
11-19 on or after the effective date of this Act. A grievance that
11-20 arises before the effective date of this Act is governed by the law
11-21 in effect at the time the grievance arises, and the former law is
11-22 continued in effect for that purpose.
11-23 SECTION 3. This Act takes effect September 1, 2001.