By Gallegos S.B. No. 1255 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.