Texas 2009 - 81st Regular

Texas House Bill HB2054 Compare Versions

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1	1	81R9829 KSD-F
2	2	By: Rodriguez H.B. No. 2054
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the conditions of employment for firefighters employed
8	8	by certain districts and entities; providing penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle C, Title 5, Local Government Code, is
11	11	amended by adding Chapter 179 to read as follows:
12	12	CHAPTER 179. CONDITIONS OF EMPLOYMENT FOR FIREFIGHTERS OF CERTAIN
13	13	DISTRICTS AND ENTITIES
14	14	Sec. 179.001. APPLICABILITY. (a) This chapter applies to
15	15	a fire department of and firefighters employed by:
16	16	(1) an emergency services district that:
17	17	(A) was created under Chapter 775, Health and
18	18	Safety Code;
19	19	(B) has a population of 30,000 or more; and
20	20	(C) except as provided by Subsection (b)(1),
21	21	provides emergency medical services for a municipality whose
22	22	firefighters are covered by Chapter 174; and
23	23	(2) an entity created by an interlocal agreement
24	24	between two or more political subdivisions of this state.
25	25	(b) This chapter does not apply to:
26	26	(1) a fire department of and firefighters employed by
27	27	an emergency services district that provides medical services for a
28	28	municipality with a population of more than one million that has
29	29	adopted Chapter 174; or
30	30	(2) a volunteer fire department or the members or
31	31	employees of a volunteer fire department that is operating under a
32	32	contract with an emergency services district.
33	33	(c) For purposes of this section, a reference to a
34	34	municipality or a municipal official in a provision of law made
35	35	applicable by this chapter to a district or entity described by
36	36	Subsection (a) is considered to be a reference to the district or
37	37	entity or the official of the district or entity responsible for the
38	38	performance of the duty to which the provision applies.
39	39	(d) If this chapter applies to the fire department of and
40	40	firefighters employed by an emergency services district and the
41	41	population of the district decreases to less than 30,000, the
42	42	applicability of this chapter in relation to the district is not
43	43	affected.
44	44	Sec. 179.002. DEFINITIONS. In this chapter:
45	45	(1) "Emergency services employer" means an emergency
46	46	services district created under Chapter 775, Health and Safety
47	47	Code, or an entity created by an interlocal agreement between two or
48	48	more political subdivisions of this state.
49	49	(2) "Firefighter" means a person defined as fire
50	50	protection personnel under Section 419.021, Government Code.
51	51	Sec. 179.003. PAYROLL DEDUCTIONS; LONGEVITY PAY;
52	52	CLASSIFICATION PAY; PENALTY. (a) Sections 141.008, 141.032,
53	53	141.033, and 141.034 apply to a firefighter employed by an
54	54	emergency services employer.
55	55	(b) The penalty under Section 141.035 applies to a person
56	56	who is in charge of the fire department of an emergency services
57	57	employer or who is responsible for setting the compensation for
58	58	firefighters employed by an emergency services employer in
59	59	accordance with this section.
60	60	Sec. 179.004. ASSISTANCE; BENEFITS; WORKING CONDITIONS;
61	61	PENALTY. Sections 142.001, 142.0013, 142.0015, 142.0016, 142.004,
62	62	142.005, 142.006, 142.008, and 142.009 apply to a firefighter
63	63	employed by an emergency services employer.
64	64	Sec. 179.005. EXCLUSIVE APPEAL PROCEDURE. This chapter
65	65	provides the exclusive procedure for the administration and appeal
66	66	of a disciplinary action against a firefighter covered by this
67	67	chapter.
68	68	Sec. 179.006. DISCIPLINARY SUSPENSION OR DISMISSAL.
69	69	(a) The head of a fire department for just cause may suspend or
70	70	dismiss from employment a firefighter for violating a rule of the
71	71	fire department or of the emergency services employer. A rule
72	72	described by this subsection must have been adopted by the
73	73	governing body of the emergency services employer.
74	74	(b) A firefighter may be suspended for a reasonable period
75	75	not to exceed 15 days or may be dismissed from employment with the
76	76	fire department.
77	77	(c) If a department head suspends or dismisses a
78	78	firefighter, the department head shall, within 120 hours after the
79	79	hour of suspension or dismissal:
80	80	(1) file a written statement of the reasons for the
81	81	suspension or dismissal with the governing body of the emergency
82	82	services employer; and
83	83	(2) deliver in person to the firefighter a copy of the
84	84	statement described by Subdivision (1) and a written statement that
85	85	if the firefighter wishes to appeal the suspension or dismissal,
86	86	the firefighter must file a written notice of appeal with the
87	87	governing body not later than the 10th day after the date the
88	88	firefighter receives the copy of the statement described by
89	89	Subdivision (1) and the statement described by this subdivision.
90	90	(d) The written statement filed by the department head with
91	91	the governing body under Subsection (c)(1) must list each fire
92	92	department or emergency services employer rule allegedly violated
93	93	by the firefighter and specifically describe the actions of the
94	94	firefighter that allegedly violate the rule.
95	95	(e) A department head may not amend a written statement of
96	96	the reasons for a firefighter's suspension or dismissal from
97	97	employment submitted under Subsection (c).
98	98	Sec. 179.007. APPEAL OF DISCIPLINARY SUSPENSION OR
99	99	DISMISSAL. (a) If a firefighter files a notice of appeal of the
100	100	firefighter's suspension or dismissal from employment with the
101	101	governing body of the emergency services employer, the governing
102	102	body shall hold a hearing on the appeal and render a written
103	103	decision not later than the 30th day after the date the governing
104	104	body receives the notice of appeal from the firefighter. The
105	105	firefighter and the governing body may agree to postpone the
106	106	hearing for a definite period.
107	107	(b) In a hearing conducted under this section, the
108	108	department head may only allege actions and rule violations
109	109	included in the department head's original written statement
110	110	submitted to the governing body of the emergency services employer
111	111	under Section 179.006(c)(1).
112	112	(c) The governing body of the emergency services employer
113	113	may deliberate in closed session after a hearing conducted under
114	114	this section. In reaching its decision after the hearing, the
115	115	governing body may not consider evidence that was not presented at
116	116	the hearing. The governing body must vote on the decision regarding
117	117	an appeal under this section in open session.
118	118	(d) In its decision, the governing body of an emergency
119	119	services employer shall state whether the firefighter is:
120	120	(1) permanently dismissed from employment with the
121	121	fire department;
122	122	(2) temporarily suspended from employment with the
123	123	fire department; or
124	124	(3) reinstated to the firefighter's former position or
125	125	status in the fire department.
126	126	(e) If in a decision rendered under this section the
127	127	governing body of the emergency services employer finds that the
128	128	period of disciplinary suspension should be reduced, the governing
129	129	body may order a reduction in the period of suspension.
130	130	(f) A firefighter who is reinstated to the position or class
131	131	of service from which the firefighter was suspended or dismissed is
132	132	entitled to:
133	133	(1) full compensation for the actual time lost as a
134	134	result of the suspension or dismissal at the rate of pay provided
135	135	for the position held or class of service assigned; and
136	136	(2) restoration of or credit for any other benefits
137	137	lost as a result of the suspension or dismissal, including sick
138	138	leave, vacation leave, and service credit in a retirement system.
139	139	(g) The emergency services employer shall:
140	140	(1) make any standard payroll deductions for
141	141	retirement and other benefits restored as provided by Subsection
142	142	(f)(2) from any compensation paid under Subsection (f)(1); and
143	143	(2) make any of the employer's standard corresponding
144	144	contributions to the retirement system or other applicable benefit
145	145	system.
146	146	(h) A firefighter may be suspended or dismissed from
147	147	employment only for a violation of the rules adopted by the
148	148	governing body of the emergency services employer and only after a
149	149	finding by the governing body of the truth of the specific charges
150	150	made against the firefighter.
151	151	Sec. 179.008. APPEAL PROCEDURE. (a) A notice of appeal
152	152	filed under Section 179.007 must:
153	153	(1) include the basis for the appeal and a request for
154	154	a hearing; and
155	155	(2) contain a statement denying the truth of the
156	156	charge as made, a statement taking exception to the legal
157	157	sufficiency of the charge, a statement alleging that the
158	158	recommended action does not fit the offense or alleged offense, or a
159	159	combination of these statements.
160	160	(b) In each hearing, appeal, or review of any kind in which
161	161	the governing body of the emergency services employer performs an
162	162	adjudicatory function, the firefighter who is the subject of the
163	163	hearing, appeal, or review is entitled to be represented by counsel
164	164	or any other person the firefighter chooses. The hearing must be
165	165	held in public.
166	166	(c) The governing body of the emergency services employer
167	167	may issue subpoenas and subpoenas duces tecum for the attendance of
168	168	witnesses and for the production of documentary material.
169	169	(d) The firefighter may request the governing body of the
170	170	emergency services employer to subpoena any books, records,
171	171	documents, papers, accounts, or witnesses that the firefighter
172	172	considers pertinent to the case. The firefighter must make the
173	173	request before the 10th day before the date the appeal hearing will
174	174	be held. If the governing body does not subpoena the material, the
175	175	governing body shall, before the third day before the date the
176	176	hearing will be held, make a written report to the firefighter
177	177	stating the reason the governing body will not subpoena the
178	178	requested material. The report must be read into the public record
179	179	of the hearing.
180	180	(e) Witnesses may be placed under the rule at a hearing
181	181	conducted by the governing body of the emergency services employer.
182	182	(f) Only the evidence submitted at the hearing may be
183	183	considered by the governing body of the emergency services
184	184	employer.
185	185	(g) A public record of each proceeding shall be made, with
186	186	copies available at cost.
187	187	(h) The governing body of the emergency services employer
188	188	may designate three persons who are qualified voters within the
189	189	employer's jurisdiction to serve as an appeal panel to hear and
190	190	decide the appeal in lieu of the governing body. The appeal panel
191	191	has the same powers and duties related to the appeal as the
192	192	governing body, including the power to issue subpoenas.
193	193	Sec. 179.009. HEARING EXAMINER. (a) A firefighter may
194	194	choose to appeal to a hearing examiner instead of the governing body
195	195	of the emergency services employer. The appealing firefighter must
196	196	submit to the governing body a written request as part of the
197	197	original notice of appeal required under this chapter stating the
198	198	person's decision to appeal to an independent third party hearing
199	199	examiner.
200	200	(b) The hearing examiner's decision is final and binding on
201	201	all parties. If the firefighter decides to appeal to an independent
202	202	third party hearing examiner, the person automatically waives all
203	203	rights to appeal to a district court except as provided by Section
204	204	179.010(e).
205	205	(c) If the appealing firefighter chooses to appeal to a
206	206	hearing examiner, the firefighter and the department head, or their
207	207	designees, shall first attempt to agree on the selection of an
208	208	impartial hearing examiner. If the parties do not agree on the
209	209	selection of a hearing examiner within 10 days after the date the
210	210	appeal is filed, the parties shall immediately request a list of
211	211	seven qualified neutral arbitrators from the American Arbitration
212	212	Association or the Federal Mediation and Conciliation Service, or
213	213	their successors in function. The firefighter and the department
214	214	head, or their designees, may agree on one of the seven neutral
215	215	arbitrators on the list. If the parties do not agree within five
216	216	working days after the date they receive the list, each party or the
217	217	party's designee shall alternate striking a name from the list, and
218	218	the name remaining is the hearing examiner. The parties or their
219	219	designees shall agree on a date for the hearing.
220	220	(d) The appeal hearing shall begin as soon as the hearing
221	221	examiner can be scheduled. If the firefighter receives notice that
222	222	the hearing examiner cannot begin the hearing within 45 days after
223	223	the date of selection, the firefighter, within two days after
224	224	receiving the notice, may call for the selection of a new hearing
225	225	examiner using the procedure prescribed by Subsection (c).
226	226	(e) In a hearing conducted under this section, the hearing
227	227	examiner has the same duties and powers as the governing body of the
228	228	emergency services employer, including the power to issue
229	229	subpoenas.
230	230	(f) In a hearing conducted under this section, the appealing
231	231	firefighter shall pay the hearing examiner's fees and expenses.
232	232	The party who calls a witness shall pay the costs of the witness.
233	233	Sec. 179.010. DISTRICT COURT PETITION. (a) A firefighter
234	234	who is dissatisfied with the decision of the governing body of the
235	235	emergency services employer may file a petition in a district court
236	236	asking that the decision be set aside. The petition must be filed
237	237	not later than the 10th day after the date the governing body's
238	238	final decision is:
239	239	(1) sent to the firefighter by certified mail; or
240	240	(2) personally received by the firefighter or by the
241	241	firefighter's designee.
242	242	(b) An appeal under this section is by trial de novo. The
243	243	district court may grant the appropriate legal or equitable relief
244	244	necessary to carry out the purposes of this chapter. The relief may
245	245	include reinstatement with back pay if an order of suspension or
246	246	dismissal is set aside.
247	247	(c) The court may award reasonable attorney's fees to the
248	248	prevailing party and assess court costs against the nonprevailing
249	249	party.
250	250	(d) If the court finds in favor of the firefighter, the
251	251	court shall order the emergency services employer to pay lost wages
252	252	to the firefighter.
253	253	(e) A district court may hear an appeal of a hearing
254	254	examiner's award only on the grounds that the hearing examiner was
255	255	without jurisdiction or exceeded the examiner's jurisdiction or
256	256	that the order was procured by fraud, collusion, or other unlawful
257	257	means.
258	258	(f) An appeal under this section must be brought in a
259	259	district court having jurisdiction in the emergency services
260	260	district or in a political subdivision in which the fire department
261	261	is located, as applicable.
262	262	SECTION 2. This Act takes effect September 1, 2009.