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HomeMy WebLinkAboutR90-174146 TML- CIVIL SERVICE - INITIATIVES RESOLUTION NO. R90-174 A RESOLUTION OF THE CITY OF PLAINVIEW, TEXAS, SUPPORTING THE TEXAS MUNICIPAL LEAGUE'S PROPOSED AMENDMENTS TO TEXAS LOCAL GOVERNMENT CODE CHAPTER 143 (MUNICIPAL CIVIL SERVICE ACT) TO RESTORE PROPER AND EFFECTIVE MANAGEMENT TO POLICE AND FIRE DF~PARTMENTS; AND ENCOURAGING THE VARIOUS LEGISLATORS REPRESENTING THE PLAINVIEW AREA TO ADOPT AND SUPPORT SUCH LEGISLATION. WHEREAS, Texas Local Government Code Chapter 143, hereinafter referred to as the Municipal Civil Service Act, was originally enacted forty-three years ago to correct and prevent mismanagement of police and fire departments, and was a needed and well-intentioned statue; and WHEREAS, the numerous amendments to this law made by the Texas Legislature since 1947 have eroded the ability of local governments to effectively and responsibly manage their police and fire departments under the Municipal Civil Service Act; and WHEREAS, since 1947, politics have been reinstated into police and fire operations through the large campaign contributions of police and fire union organizations made to encourage various amendments limiting the management ability of local government; and WHEREAS, the Municipal Civil Service Act should be amended to provide for hiring and promotion using means other than strictly written exams, therefore, allowing municipalities to incorporate affirmative action plans and to recognize job performance in their police and fire departments; and WHEREAS, the Municipal Civil Service Act should be amended to provide that a municipality may remove itself from the requirements of the Act using the same method that is used to adopt the Act, therefore, allowing cities to remove themselves from a provision which has changed dramatically since it was originally created by the Texas Legislature; and WHEREAS, the experience of numerous cities across the State with the use of hearing examiners under the Municipal Civil Service Act has proven the hearing examinar system a failure, in that police chiefs and fire chiefs have lost management authority over their own employees, with a resulting loss in the efficiency and effectiveness of public safety departments in those cities subject to the Municipal Civil Service Act; and WHEREAS, the proposed amendments will assist the City of Plainview in maintaining efficient, effective, well managed police 1 of 2 147 and fire departments, resulting in better public safety for Plainview citizens, which is the goal of both the City and the officers in the police and fire department; and WHEREAS, a task force composed of elected and administrative officials from cities across the State have determined that ten amendments to the Municipal Civil Service Act should be adopted to address these needed changes, a copy of such amendments being attached hereto. NOW, THEREFORE, BE IT RESOLVED that the City of Plainview, Texas: Section 1: That the City of Plainview hereby requests and encourages the Texas Municipal League, on behalf of Plainview and other cities subject to the Municipal Civil Service Act, to coordinate the preparation and submission to the Texas Legislature of the amendments to Texas Local Government Code Chapter 143 as described in the attached Exhibit "A." Section 2: That the City of Plainview hereby urges the Legislators representing the Plainview area, in the Texas Legislature to support and pass the proposed amendments so that their constituents living in Plainview will be served by the most effective and efficient public safety departments possible. Passed and Approved this 28th day of 3~ugust,/~99D~ / E.V. Ridlehuber, Mayor ATTEST: ca~rl~a Re~ese, C~ity Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM:~/ David Blackburn, City Attorney 2 of 2 148 AN AMENDMENT SPECIFYING CERTAIN 'QUALIFICATIONS FOR HEARING EXAMINERS UNDER CHAPTER 143 Current_ .Law Chapter 143.057 allows a police officer or fife fighter to appeal a disciplinary action to a third party hearing examin.er. The o~y quafifi.c.,ation.nece, ssary, under s,t.a, te .t. aw is that the heating examiner t~e a me.m.~_er o..r. e~tner,, me. American Aroltrauon Association or the Federal Mediation and Conc~t~aUon ~erv~ce. Proposed Change This amendment would require that a third party hearing examiner receive special training re~arding Chapter 143 or that the hearing examiner be a retired or former judge who ~s a member of the State Bar. Reasons for Proposed Change Several cities have experienced problems.with third party hearing examiners not understanding the nature of police or fire work. Police officers ~nd fire fighters, because of de very nature of their work, interact with citizens everyday, Therefore, . when a police chief decides to indefinitely suspend a police-officer because the officer h~s shown a histOry of unnecessary viole.nce in ~arrest. ~!tuations},vio!atio, n~ ~f criminal laws, or for other reasons, the exanuner ot'ten tans to unaerstanct t e liability the city faces by keeping that officer on the force. In an attempt to reach a compromise between the city and an officer who has been disciplined, hearing examiner~ have reduc, ed the punishme, n~t even t,hou, g.h there is. n.o dispute as to what the officer did. Since there is no appear from a oecxslon except m ve~ limited situations, the city is often forced to return an obviously bad officer or fire fighter to the force. Section as the 'including AN AMENDMENT ~QUIRING H_E_A_RING E~NERS TO BASE THiEIR DECISIONS ON SPECIFIC CRITERIA , Current Law examiner has the same duties and powers '~ to conducting disciplinary appeals, Section 143.057(j) provides for an appeal to district court of a heanng examine s decision only.on th~ 'grounds that the eXaminer's decision was without jurisdiction, or exceeded its jurisdiction or if the order was: procured by fraud, collusion, or omer unlawfUl means. - Proposed Change This amendment would clearly define the phrase: "the same duties and. p.owers of th,~ ,.~,.,m~,m" Tho. nrnnosed amendment would state that a comnnss~on or a ,,,. ,.,, ................ .t- -r . . - ........ htr third party hearing examiner may uphold a susPensiOn or dtsnnssm or a nre ng e or Poflce Officer for a viOlation of a ~vil service rule by determining that the sPecifiC charges against the fire fighter or police officer are true~ This amendment Would olur;~a th'~'t fha ~a rn "findines" stanaard currently required of the commission is al_so required of the hearing exarmner. In the event the. hearing exa~er doc, s ,not make a flnding concerning the truth of the chargesi that decision may oe appeatea. Reasons for Proposed Change The commission is required to find ~he truth of the specific charges against the fire fighter or police officer, and the hearing examiner h~s the same ~luties and powers as the con~nission. HoWever, if ia hearing examiner does not m.a.ke a fi.~n, din. g a.s t.o the truth of the charges, there is no recourse, This change would specmcany state this duty of the hearing examiner and provide for an append if the hearing ex~miner fails to comply. .. 149 AN AMENDMENT RE_Q_UI .RI_N_ ~G_.__~T HEARING EXAMINERS BASE 'l'HEta DI~CISI~S ON A PREPONDERANCE OF TH~ g~7~IDENCE, NOTON CLEAR AND CONVINCING EVIDENCE Current Law SeCtion 143.057(j) provides for an appeal to district court of a heanng examine s decision only if/fie decision Was witfi6ut jurisdiction, exceeded jurisdiction or if the order was p/:ocured bY fraud, collusion, or other unla.wful, mear~s. Current law, do~es not provide a standard of proof that must be met by ttae city in an appear ota disciplinary deciSion to a he&ring eXaminer. Proposed Change This amendment would specifically state that the decision of a hearing examiner must be based upon a preponderance of the evidence and that failure to do so would be grounds for appeal of that decision to district court. Reasons for Proposed Change Althou h the standard of ~roof in civil cases in Texas is a preponderance of the evidence, S~me h~aring e~aminers have required the city to produce "clear and convincifig" evidence to justify the disciplinary decision. This amendment would clarify th~ burden which is required and ~ould ~llow an appeal in the event that this standard is not utilized by the hearing examiner. ® AN AMENDMENT PROVIDING THAT AN__AP~AL TO A · ~EA~NG EXAMINER IS LIMITED cASES ~F DEMOTION, INDEFINITE SUSPENSION, OR DISCIPLINARY ACTIONS OF TEN DAYS OR MORE Current Law Section 143.057(a) requires that the c~ty's letter of disciplinary action issued to a fire fighter or poi/ce officer State that;ifi an appeal of an indefinite suspension, a suspension' promotional PaSsover or a reCo~ended, demotion, the aPi~ealing fire figl-iter or p61ice officer rhay elect t6 aPpeal, to an independent third 15~ty h~aring examiner instead 0f the ci~l service c6mmission. Therefore, the fire fighter or police officer is given the choice of going before the commission or before the hearing examiner since both have the same jurisdiCtion in appeals. Proposed Change This amendment would allow the fire: appealing to a hearing . recommended demotion, or a suspensmn of ten days or more. chOice of a Reasons for Proposed' Change The citieS under civil service have had five :years of experience with appeals to hearing examiners. A two-day hearing often c6Sts $1,500 6r more, not inC~U~ling the hearin~ examiner's travel expense.s:. Th!s seems.pa~rtmularly, exp_ens!ve._w_he.n~ t~ appeal involves a one-day suspensmn. 'An appem ota one-aay suspens..m~.to t civil service commission costs virtually nothing. Th~s amendment woum anow an appeal to a hearing examiner in the most serious of disciplinary actions -- an indefinite suspensioh, a recommended demotion, or a susp6nsion of ten days or more. This amendment does not dilUte an officer's right to a due process proceeding, since the promotional passover or suspension of less than I0 days is always appealable to the civil service commission. 150 Se AN AMENDMENT PROVIDING THAT A __ Hl~NG E~NER SHALL UPHOLD THE iii§En, LfN hqY DECISION OF TI IE CHIEF.IF THE HEARING EXAMINER MAKES A FINDING OF · HE TRUXU OF XUE SPECIFIC CI-IARGES AGAINST THE FIRE FIGHTER OR POLICE OFFICER Current Law The hearing examiner has the ability to alter the disciplinary action imposed by the chief even l'f the hearing examiner has made a determ~nati(~n that the city's charges against an officer are true~ Proposed Change This amendment would Clarify any co '.nfusio. n regard!ng the deter~rnina¢on,.that ~t be made by a hearing examiner, The heanng examiner must .maz:e a nnamg ott e truth of the -specific charges. This amendment would also provide that' once t,he hearing examiher has made a finding of the truth of the specific charges against me fire fighter or police officer, the disciplinary action recordmended by the ~hief shall be imposed. Reasons for Proposed Change In the past, hearing examiners have been confused as to the finding that must be made at an appeal hearing and the level of proof that is required of the city in defending its clisciplinary recommendatiomThe amendment would clarify the findings that must fie made by the examiner. Additionally, hearing examiners, in an attempt to reach a compromise between the chief and the disciplined uniformed officer, will: (1) find that the charges are true, but (2) determine that the disciplinary recommendation is too harsh and reduce it. CML S CITY e EXAMINER 'THE Current Law Section 143.008 requires that the c6mmission adopt rules necessary for the proper conduct of commission heiring exarhiner's decision to district cOurt 1 This amendment would procedural rules set by appeal of c~hun/ssion's Proposed Change require that a third par.ty.hearing examiner follow the cormmss~on. It would also allow for an examiner failed'to follow the rules. Reasons for Proposed Change Civil service commissions often adopt detailed rules regarding procedures that must be followed during an appeal hearing. In the absence of a specific role, commissions often require in their roles that the rules of civil procedure shall be followed. Hearing examiners have often held hearings in which neither the commission rules nor the rules of civil proced~re were follOwed, under current law, the city,c_annot appeal the hearing examiner s decision for failure to follow the commission s rules of ~rocedufe. This amendment would clarify the procedural roles that the he_,a_ring examiner must follow and would allow the ~ity to appeal a hearing examiner s decision to district court for failure to follow those rules. 181 e AN AMENDMENT PROVIDING THAT A DEMOTION IS 'EFFECTIVE IMMEDIATELY, SUBJECT TO AN APPEAL Curr_ e. nt Law Under Sec. 143.054, the chief of the fire or police department may recommend in ~wfiting to the civil service co ~mmi.s, sion that an of,tic,er,be iI~.V.o!ur~_t_%ril_y_d~.e.~,ot,e~d2 tT~hee chief mUst include reasons for tne recommenaect aemouon anu ~cttu¢~[ mai commission order the demotion. If the commission believes that good cause exists for ordering the demotion, the commission shall give the fire fighter or police officer notice to appear before the commission for a public hearing. The commission must give the p6iibe officer or fire fighter ten days notice before the hearing. Proposed Change This amendment would provide that when the chief recommends a demotion for a police officer or fire fighter, the demotion would take effect immediately, subject to the appeal. Reasons for Proposed Change Currently, if the chief recommends a demotion, the decision must await a review and possible appeal to the commission or a third pa.r~ hearing examiner. The only time requirement in the statute is one which reqmres that the commission give notice to the affected police offider or fire fighter. If the officer has been suspended, the commission must hold a hearing and render a decision in writing within 30 days after the date it received notice of appeal. Often, attorneys repreSenting the employee in a demotion appeal will delay any hearing on the m[ttter, effectively blocking the attempted demotion of the officer. There seems to'be no logic for the difference between a suspension (which has immediate effect) and a demotion (which has effect only after an appeal).. 10. AN AMENDMENT PRO_~_DIN__G ~O~S ALTERNATIVE TESTING PROCEDU FOR FIRE DEPARTMENTS Current Law Under Section 143.035, upon the recommendation of the chief of the police department, and after a majority vote of the sworn police officers in the department, th~ commission may 'adopt an alternate promotional' system to select persons to occupy non'entry ieCel p&iti°ns other, thah positions tha't are filled by appointment by the departmeht head. Proposed Change Allow the same alternative testing procedures for fire departments. Reason for Proposed Change Currently, only police departments 'may choose alternative testing procedures. If the sam~ safeguards (a recommendation by the chief'and a majori~-y ;vote of the fire department) are adopted for fire departments, the commission ihotild be allowed to adopt an 'alternative promotional system to promote persons to non-entry level positionS. There is no good reason ~hat a police depart~nent is allOWed to exercise this option and a fire department is not. .