CC Resolution No. 1096 1961
RESOLUTION NO. 1096
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
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 DEPARTMENTS ;
ENCOURAGING THE VARIOUS LEGISLATORS REPRESENTING THE
BAYTOWN AREA TO ADOPT AND SUPPORT SUCH LEGISLATION; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, TEX.L.GOV'T.CODE Chapter 143 , hereinafter referred
to as the Municipal Civil Service Act, was originally enacted
forty-three years ago to prevent mismanagement of police and fire
departments, and was a needed and well-intentioned statute; and
WHEREAS, the numerous amendments to the 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 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 examiner 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
Baytown in maintaining efficient, effective, well-managed police
and fire departments, resulting in better public safety for
Baytown citizens , which is the goal of both the City and the
officers in the police and fire department; and
1962
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 BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1 : That the City of Baytown hereby requests and
encourages the Texas Municipal League, on behalf of Baytown and
other cities subject to the Municipal Civil Service Act , to
coordinate the preparation and submission to the Texas
Legislature of the amendments to TEX.L.GOV'T.CODE Chapter 143 as
described in the attached Exhibit "A. "
Section 2 : That the City of Baytown hereby urges the
Legislators representing the Baytown area , in the Texas
Legislature to support and pass the proposed amendments so that
their constituents living in Baytown will be served by the most
effective and efficient public safety departments possible.
Section 3 : This resolution shall take effect immediately
from and after its passage by the City Council of the City of
Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown, this the 9th day of August,
1990.
Zle_e_ez_- ,
TEMETT 0. HUTTO, Mayor
ATTEST:
EIL�EEN P. HALL, City Clerk
��'�
RANDALL B. STRONG, Ci
,W Attorney
C: 1: 51:9
1963
1.
AN AMENDMENT SPECIFYING CERT
QUALIFICATIONS FOR H ARINGAIN
EXAMINERS UNDER CHAPTER 143
Current Law
Chapter 143.057 allows a police officer or fire fighter to appeal a disciplinary action
to a third party hearing examiner. The only qualification necessary under state law
is that the hearing examiner be a member of either the American Arbitration
Association or the Federal Mediation and Conciliation Service.
Proposed Change
This amendment would require that a third party hearing examiner receive special
training regarding Chapter 143 or that the hearing examiner be a retired or former
judge who is 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 and fire fighters,
because of the very nature of their work, interact with citizens everyday. Therefore,
when a police chief decides to indefinitely suspend a police officer because the
officer has shown a history of unnecessary violence in arrest situations, violation of
criminal laws, or for other reasons, the examiner often fails to understand the
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 examiners have reduced the punishment even though there is no
dispute as to what the officer did. Since there is no appeal from a decision except in
very limited situations, the city is often forced to return an obviously bad officer or
fire fighter to the force.
EXHIBIT A
1965
3.
AN AMENDMENT REUIRING THAT
HEARING EXAMINER BASE THEIR
DECISIONS ON A PREPONDERANCE OF
TAND CONVINCING EVIDENCE
Current Law
Section 143.0570) provides for an appeal to district court of a hearing examiner's
decision only if the decision was without jurisdiction, exceeded jurisdiction or if the
order was procured by fraud, collusion, or other unlawful means. Current law does
not provide a standard of proof that must be met by the city in an appeal of a
disciplinary decision to a hearing 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 Changp
Although the standard of proof in civil cases in Texas is a preponderance of the
evidence, some hearing examiners have required the city to produce "clear and
convincing" evidence to justify the disciplinary decision. This amendment would
clarify the burden which is required and would allow an appeal in the event that this
standard is not utilized by the hearing examiner.
1964
2.
AN AMENDMENT REQUIRING HEARING
EXAMINERS TO BASE THEIR
DECISIONS ON SPECIFIC CRITERIA
Current Law
Section 143.057(f) states that the hearing examiner has the same duties and powers
as the Civil Service Commission as they relate to conducting disciplinary appeals,
including the right to issue subpoenas.
Section 143.0570) provides for an appeal to district court of a hearing examiner's
decision only on the grounds that the examiner's decision was without jurisdiction or
exceeded its jurisdiction or if the order was procured by fraud, collusion, or other
unlawful means.
Proposed Change
This amendment would clearly define the phrase: "the same duties and powers of
the commission." The proposed amendment would state that a commission or a
third party hearing examiner may uphold a suspension or dismissal of a fire fighter
or police officer for a violation of a civil service rule by determining that the specific
char es against the fire fighter or police officer are true. This amendment would
clarity that the same "findings" standard currently required of the commission is also
required of the hearing examiner. In the event the hearing examiner does not make
a finding concerning the truth of the charges, that decision may be appealed.
Reasons for Proposed Change
The commission is required to find the truth of the specific charges against the fire
fighter or police officer, and the hearing examiner has the same duties and powers
as the commission. However, if a hearing examiner does not make a finding as to
the truth of the charges, there is no recourse. This change would specifically state
this duty of the hearing examiner and provide for an appeal if the hearing examiner
fails to comply.
1966
4.
AN AMENDMENT PROVIDING THAT AN APPEAL TO A
HEARING EXAMINER IS LIMITED TO
CASES OF DEMOTION, INDEFINITE SUSPENSION,
OR DISCIPLINARY ACTIONS OF TEN DAYS OR MORE
Current Law
Section 143.057(a) requires that the city's letter of disciplinary action issued to a fire
fighter or police officer state that in an appeal of an indefinite suspension, a
suspension, promotional passover or a recommended demotion, the appealing fire
fighter or Police officer may elect to appeal to an independent third party hearing
examiner instead of the civil service commission. 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 fighter or police officer the choice of
appealing to a hearing examiner only in the case of an indefinite suspension, a
recommended demotion, or a suspension of ten days or more.
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 costs $1,500 or more, not including the
hearing examiner's travel expenses. This seems particularly expensive when the
appeal involves a one-day suspension. An appeal of a one-day suspension to the
civil service commission costs virtually nothing. This amendment would allow an
appeal to a hearing examiner in the most serious of disciplinary actions -- an
indefinite suspension, a recommended demotion, or a suspension 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 10 days is
always appealable to the civil service commission.
1967
Jr.
AN AMENDMENT PROVIDING THAT A
HEARING EXAMINER SHALL UPHOLD THE
DISCIPLINARY DECISION OF THE CHIEF IF
THE HEARING EXAMINER MAKES A FINDING OF
THE THE FIRE FIGHTER OR POLICE OFFI AGAINST
Current Law
The hearing examiner has the ability to alter the disciplinary action imposed by the
chief even if the hearing examiner has made a determination that the city's charges
against an officer are true.
Proposed Change
This amendment would clarify any confusion regarding the determination that must
be made by a hearing examiner. The hearing examiner must make a finding of the
truth of the specific charges. This amendment would also provide that once the
hearing examiner has made a finding of the truth of the specific charges against the
fire fighter or police officer, the disciplinary action recommended by the chief 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 disciplinary recommendation. The amendment would clarify the
findings that must be 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.
1968
6.
AN AMENDMENT REQUIRING THAT A HEARING EXAMINER
FOLLOW THE PROCEDURAL RULES USED BY THE
CIVIL SERVICE COMMISSION AND ALLOWING THE
CITY TO OR FAILURE TO FOLLOWMTHE RULES ISION
Current Law
Section 143.008 requires that the commission adopt rules necessary for the proper
conduct of commission business. There is no appeal of a hearing examiner's
decision to district court by the city except in very limited situations.
Proposed Change
This amendment would require that a third party hearing examiner follow the
procedural rules set by the city's civil service commission. It would also allow for an
appeal of the hearing examiner's decision if the examiner failed to follow the
commission's procedural 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 rule,
commissions often require in their rules 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 procedure were followed. Under current law, the city cannot
appeal the hearing examiner's decision for failure to follow the commission's rules
of procedure.
This amendment would clarify the procedural rules that the hearing examiner must
follow and would allow the city to appeal a hearing examiner's decision to district
court for failure to follow those rules.
1969
7.
AN AMENDMENT PROVIDING THAT A
DEMOTION ISECT TO EFFECTIVE
AN IMMEDIATELY,
SUBPPEAL
Current Law
Under Sec. 143.054, the chief of the fire or police department may recommend in
writing to the civil service commission that an officer be involuntarily demoted. The
chief must include reasons for the recommended demotion and request that the
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 police 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 party hearing examiner. The only
time requirement in the statute is one which requires that the commission give
notice to the affected police officer 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
matter, 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).
1970
8.
AN AMENDMENT ALLOWING AFFIRMATIVE ACTION PLANS
TO BE IMPLEMENTED IN POLICE AND FIRE DEPARTMENTS
Current Law
Under Section 143.026, when a vacancy occurs in a beginning position in a fire or
police department, the civil service director certifies to the city s chief executive
officer the names of the three persons having the highest grades on the eligibility
list. The chief executive officer then appoints the person with the highest grade
unless there is a valid reason that the person having the second or third highest
grade should be appointed.
Proposed Change
Under this amendment, an additional name from the eligibility list may be added to
the list submitted to the chief executive officer to fill a vacancy in a beginning
position. This additional name is allowed if the city council has adopted an
affirmative action plan that has been approved by the civil service commission.
The additional candidate from the eligibility list must meet all the other
qualifications and criteria necessary to fill a beginning position. Currently, the chief
executive officer can appoint the person with the highest grade unless there is a
good and sufficient reason that one of the other persons named should be
appointed. Under the proposed amendment, the implementation of an affirmative
action plan would be a "good and sufficient" reason to appoint someone other than
the first person on the list.
Reasons for Proposed Change
City councils are currently being sued for implementation of affirmative action plans
in their police and fire departments. Local city councils should be able to consider
implementation of affirmative action plans in hiring of police and fire personnel to
avoid court-ordered sanctions or comply with appropriate consent decrees. This
provision would also allow local authorities to consider what is best for their
community in balancing the make-up of police/fire departments in lieu of having
the courts make those determinations. The unions contend this is a violation of the
Civil Service Act because there is no provision that allows for these appointments.
City councils should be allowed to hire minorities and women when they have
adopted an affirmative action plan.
1971
9.
AN AMENDMENT CONFORMING REPEAL
PROCEDURES WITH ADOPTION PROCEDURES
Current w
Law To Adopt Civil Service
43.004(b) if the city council receives a
A city may adopt civil service under Section 1
petition requesting an election signed by 10 percent of the number of voters who
voted in the most recent municipal election. The resulting election is decided by a
majority of those voting.
Law To Reveal Civil Service
the petition
must be
signed
If the voters
repeal
civi ervInorerfor herpeaef orttosuccee , a
all qualified voters the
majority of all qualified voters in the city must vote for the repeal.
Proposed Chan
tion
or repeal of civil sevice with the
—
sais amendment would allow voters to umber of signatures with which the voters rsfccan petition to adopt civil service.
The amendment would also provide that the election for repeal shall be decided by
a majority of those voting.
Reasons for Proposed Chans;e_
the
e in
7, nearly
cities
Since the have adopted the civil service statute by eacted lection. Since rthat time, he civil�ervice
statute has been amended numerous times to include many more provisions than
had been originally approved by the voters.
What was initially adopted by cities as the Civil Service Act is not w to hat cities the
are
clity's with adoption yofivil Therefore,sservicet if the
should em no loe to nger petition and
d theeneedsp or the
expectations of the citizens in the community.
1972
10.
AN AMENDMENT PROVIDING FOR
FOB RED DEPARTMENTS PROCEDURES
Curr_ en=
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,
the commission may adopt an alternate promotional system to select persons to
occupy non-entry level positions other than positions that are filled by appointment
by the department 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 same safeguards (a recommendation by the chief and a majority vote of the fire
department) are adopted for fire departments, the commission should be allowed to
adopt an alternative promotional system to promote persons to non-entry level
positions. There is no good reason that a police department is allowed to exercise
this option and a fire department is not.