80R10595 KSD-F

By: Whitmire S.B. No. 1718

A BILL TO BE ENTITLED

AN ACT

relating to municipal civil service for firefighters and police officers in certain municipalities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 143.057(d), Local Government Code, is amended to read as follows:

(d) If the appealing fire fighter or police officer chooses to appeal to a hearing examiner, the fire fighter or police officer and the department head, or their designees, shall first attempt to agree on the selection of an impartial hearing examiner. If the parties do not agree on the selection of a hearing examiner on or within 10 days after the date the appeal is filed, the director shall immediately request a list of seven qualified neutral independent third party hearing examiners [arbitrators] from the American Arbitration Association or the Federal Mediation and Conciliation Service, or their successors in function. The fire fighter or police officer and the department head, or their designees, may agree on one of the seven neutral independent third party hearing examiners [arbitrators] on the list. If they do not agree within five working days after the date they received the list, each party or the party's designee shall alternate striking a name from the list and the name remaining is the hearing examiner. The parties or their designees shall agree on a date for the hearing.

SECTION 2. Section 143.1014, Local Government Code, is amended to read as follows:

Sec. 143.1014. NOTICE REQUIREMENT FOR CERTAIN MEETINGS OR HEARINGS. (a) The department shall provide to a fire fighter or police officer written notice of the time and location of a meeting or hearing not later than the 48th hour before the hour on which the meeting or hearing is held if the meeting or hearing is:

(1) related to an internal departmental or other municipal investigation of the fire fighter or police officer at which the fire fighter or police officer is required or entitled to be present, including an interrogation;

(2) related to a grievance filed by the fire fighter or police officer under Sections 143.127 through 143.134; or

(3) an opportunity to respond to charges against the fire fighter or police officer before the department terminates the fire fighter's or police officer's employment.

(b) A fire fighter or police officer may waive the written notice prescribed by this section.

SECTION 3. Sections 143.1015(a), (e), (f), and (i), Local Government Code, are amended to read as follows:

(a) A written notice of [An] appeal by a fire fighter or police officer to the commission from an action for which an appeal or review is provided by this chapter is sufficient if the fire fighter or police officer files it with the commission within 15 days after the date the action occurred. In an appeal provided by this chapter the commission shall render a decision in writing within 60 days after it received the written notice of appeal, unless the provisions of Section 143.1017(d) have been invoked by the fire fighter or police officer. If the commission does not render a decision in writing within 60 days after the date it receives written notice of the appeal, the commission shall sustain the fire fighter's or police officer's appeal.

(e) The hearing relating to the reasons for the fire fighter's or police officer's subpoena request shall be held on the date set for the original appeal hearing. If the commission overrules the subpoena request at the hearing:

(1) the commission may hear the fire fighter's or police officer's appeal on that date; or

(2) if the commission finds that justice is served by a continuance, the commission shall:

(A) reschedule the hearing to the commission's next regularly scheduled meeting; and

(B) give the fire fighter or police officer at least 15 days notice of that date.

(f) If the commission sustains the fire fighter's or police officer's subpoena request at the hearing, the commission shall:

(1) reschedule the appeal hearing date to the commission's next regularly scheduled meeting; and

(2) give the fire fighter or police officer at least 15 days notice of that date.

(i) A municipal employee who is subpoenaed to appear as a fact witness in any appeal of a disciplinary decision is entitled to applicable pay for the time the employee is required to be present at the hearing. Witnesses whose testimony relates primarily to the character or reputation of the employee shall be limited by the hearing examiner or commission if the testimony is repetitious or unduly prolongs the hearing. If the hearing examiner or commission limits the number of character or reputation witnesses, additional witness statements may be presented by affidavit. The character witnesses are not entitled to applicable pay for the time they are required to be present at the hearing.

SECTION 4. Section 143.1016, Local Government Code, is amended by amending Subsections (a), (d), (e), (h), (i), and (k) and adding Subsection (l) to read as follows:

(a) In addition to the other notice requirements prescribed by this chapter, the letter of disciplinary action issued to a fire fighter or police officer must state that in an appeal of an indefinite suspension, a suspension, a promotional pass over, or a recommended demotion, the appealing fire fighter or police officer may elect to appeal to a [an independent third party] hearing examiner instead of to the commission. The hearing examiner must be an independent third party hearing examiner. The letter must also state that if the fire fighter or police officer elects to appeal to a hearing examiner, the person waives all rights to appeal to a district court except as provided by Subsection (j).

(d) This subsection applies only if the parties have not established a selection procedure in an agreement pursuant to Subchapter J. If the appealing fire fighter or police officer chooses to appeal to a hearing examiner, the fire fighter or police officer and the department head or their designees shall first attempt to agree on the selection of an impartial hearing examiner. If the parties do not agree on the selection of a hearing examiner on or within 10 days after the date the appeal is filed and no motion to consolidate is filed under Subsection (l) [(k) of this section], the director shall on the next work day following notice that the parties have failed to agree on a selection of a hearing examiner request a list of seven qualified neutral hearing examiners [arbitrators] from the American Arbitration Association or the Federal Mediation and Conciliation Service or their successors in function. The fire fighter or police officer and the department head or their designees may agree on one of the seven neutral hearing examiners [arbitrators] on the list. If they do not agree within 25 days after the date the appeal was filed, each party or the party's designee shall on the 25th day after the appeal was filed alternate striking a name from the list and the name remaining is the hearing examiner. In the event that the 25th day falls on a Saturday, Sunday, or a legal holiday, then the parties shall strike the list the next work day. The parties or their designees shall agree on a date for the hearing that is within the time period prescribed by Subsection (e). In the event that the director does not request the list of seven qualified neutral hearing examiners [arbitrators] within the time prescribed by this subsection or the department head or his designee fails to strike the list within the time prescribed by this subsection, the fire fighter or police officer or his designee shall select the hearing examiner [arbitrator] from the list provided. In the event that the fire fighter or police officer or his designee fails to strike the list within the time prescribed by this subsection, the department head or his designee shall select the hearing examiner [arbitrator] from the list provided.

(e) The appeal hearing must begin within 60 days after the date the appeal is filed and shall begin as soon as the hearing examiner can be scheduled. If the hearing examiner cannot begin the hearing within 45 calendar days after the date of selection, the fire fighter or police officer may, within two days after learning of that fact, call for the selection of a new hearing examiner using the procedure prescribed by Subsection (d) or a procedure established in an agreement adopted under Subchapter J. If the appeal hearing is not begun within 60 days after the date the appeal is filed, the indefinite suspension, suspension, promotional pass over, or recommended demotion is upheld and the appeal is withdrawn if the fire fighter or police officer is not ready to proceed, and the appeal is sustained if the department head is not ready to proceed. In computing the 60-day period, a period of delay not to exceed 30 calendar days because of a continuance granted at the request of the department head or his representative or the fire fighter or police officer or his representative on good cause being shown, or because of the unavoidable unavailability of the hearing examiner on the date of the hearing, or because of the pendency of a motion to consolidate with another hearing as provided in Subsection (l) [(k) of this section] is excluded. In no event may a hearing examiner grant a continuance beyond 30 days in an indefinite suspension. A hearing examiner may grant a continuance beyond the 30-day period upon good cause being shown in a disciplinary suspension unless the fire fighter or police officer has another disciplinary action pending.

(h) In an appeal that does not involve an expedited hearing procedure, the hearing examiner shall make a reasonable effort to render a decision on the appeal within 30 days after the date the hearing ends or the legal briefs are filed. The hearing examiner's inability to meet the time requirements imposed by this section does not affect the hearing examiner's jurisdiction, the validity of the disciplinary action, or the hearing examiner's final decision.

(i) The hearing examiner's fees and expenses are shared equally by the appealing fire fighter or police officer and by the department. The costs associated with the service of a subpoena on [of] a witness must be [are] paid by the party who calls the witness.

(k) In an appeal of an indefinite suspension, a suspension, a promotional pass over, or a recommended demotion, each appealing fire fighter or police officer or the appealing fire fighter's or police officer's representative shall be entitled to the selection of a hearing examiner pursuant to Subsection (d) [of this section] to hear the case.

(l) The fire fighter, police officer, department head, or a representative of any of those may, within 10 days of the date they received notice of the appeal, file a motion with a copy to the opposing side to consolidate the case with that of one or more other fire fighters or police officers where the charges arise out of the same incident. The motion to consolidate may be agreed to in writing and filed with the director. If a motion to consolidate the cases is filed and not agreed to, a hearing examiner shall be chosen pursuant to the provisions of Subsection (d) [of this section] to hear the motion. The decision of the hearing examiner shall be final and binding as to the issue of consolidation. The hearing examiner chosen to hear the motion to consolidate shall not hear the case, and the provisions of Subsection (d) [of this section] shall be used to choose the hearing examiner with the day the decision is rendered being the equivalent of the date the appeal was filed.

SECTION 5. Section 143.361(b), Local Government Code, is amended to read as follows:

(b) A written agreement ratified under this subchapter preempts all contrary local ordinances, executive orders, legislation, or rules adopted by [the state or] a political subdivision or agent of the state, such as a personnel board, a civil service commission, or a home-rule municipality.

SECTION 6. The changes in law made by this Act to Sections 143.057(d), 143.1015, and 143.1016, Local Government Code, apply only to an appeal initiated by a firefighter or police officer on or after the effective date of this Act. An appeal initiated before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 7. The change in law made by this Act to Section 143.1014, Local Government Code, applies to a notice required to be provided under that section on or after the effective date of this Act. A notice required to be provided before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 8. This Act takes effect September 1, 2007.