1947 Political Favoritism Pre City Manager era Adopted in approximately 80 cities Smallest: Sweetwater Largest: Houston Comprehensive Employment

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2 1947 Political Favoritism Pre City Manager era Adopted in approximately 80 cities Smallest: Sweetwater Largest: Houston Comprehensive Employment Statute Benefits added post

3 Commission administers civil service system Limited powers and duties Commission does not manage the Police or Fire Departments Classifies new positions 3

4 Appoints Civil Service Director Adopts and publishes rules and revises as necessary Maintains civil service personnel files Involved in hiring and promotional process May hear disciplinary appeals Determines physical and mental fitness Efficiency reports 4

5 Prepare minutes Maintain records Certify eligibles Examinations Duties as assigned by Commission 5

6 Appointment and removal of the Chiefs Number of employees and the number in each rank Day to day operations of Fire or Police Departments Departmental Rules Assignment of personnel Pay or benefits 6

7 City Manager appoints the Chiefs City Council determines the number of employees and the number in each rank 7

8 City Council confirms appointment City Council is not to interfere with operation of departments 8

9 Sets date for eligibility examination Posts notice of examination Sets qualifications Provides for actual examination Establishes 3 member board Establishes eligibility list Provides names of eligibles 9

10 Set by state law Age limitations No lateral hires into higher classifications, even if no one in Department is qualified to do the work All employees start at entry level salary, even if experience in another city, unless CSC adopts rule and city council adopts ordinance Hiring strictly from eligibility list created by written examination and physical agility test only 10

11 No scored interviews Chief must justify anyone passed over on the eligibility list One year or 18 month probationary period cannot be extended No part time employees 11

12 Approves study materials Posts notice May open examination to next lower classification Establishes rules regarding tests Ensures fairness Posts scores Holds appeals hearing Adopts alternate system in PD after a vote Receives reason for promotional bypass 12

13 Limits on who can apply to take the examination prior experience at another department does not count Written examination only + seniority points determines who gets promoted Appeal process for written examinations No interviews or other assessment factors Unless PD Alternate Process adopted 13

14 Chief can pass over number 1 & 2 but only for valid reason Passed over employee has right of appeal hearing before Commission or Hearing Examiner Strict deadlines on promotional process must make appointments within 60 or 90 days, or risk paying the promoted person back pay 14

15 Temporary duties in higher classification / in each class Same base salary for all employees Optional Add ons Longevity or Seniority Pay Educational Incentive Pay Assignment Pay Certification Pay Shift differential pay 15

16 Sick leave unlimited accumulation Pay out of 90 days at termination for any reason effect on other employees Vacation 15 days after one year Leaves of absence for political purposes Military leave bank City requirement Line of duty illness or injury one year at full pay Injured employees on temporary disability with no cap on duration

17 Maintained under (a) states that a Civil Service Director (or designee) shall maintain a personnel file on each fire fighter and police officer Known as the A file See also

18 Any document, letter or memo relating to: Commendation/honor bestowed by department or the public Any misconduct if the letter/document (a) is from the employing department, and (b) if misconduct resulted in disciplinary action in accordance with this chapter Periodic evaluations 18

19 Mandates that an officer/ff is entitled to copies of any document in the director s ( A ) file Prohibits release of any information contained in the director s ( A ) file without first obtaining the officer/ff s permission unless otherwise required by law 19

20 Only sustained disciplinary actions may be kept in A file If a negative document is placed in director s ( A ) file, officer/ff must be notified of its placement within 15 days, and has right to rebut/respond to negative letter A 20

21 A police or fire department may maintain a personnel file on a fire fighter or police officer... for the department s use... but the department may not release any information contained in the department file to any agency or person requesting information relating to a police officer or fire fighter The department shall refer the requestor to the director 21

22 Information contained the G file is confidential by law under 552,101 AG concluded law prohibits release of information in that file to anyone outside the department G 22

23 Anyone in the department head s chain of command could have access, including the City Manager and council Also included City attorney in persons not outside the department AG concluded that the Council must designate the persons who have access to the G file 23

24 Council must designate those individuals through an ordinance or resolution Reminded us that distribution of this confidential information to unauthorized persons is a criminal offense After consulting with your City attorney, you may want to adopt an ordinance setting out the persons/positions who have access to the G file.** 24

25 NO We have received numerous informal letter rulings from the AG, upholding the confidentiality of the G file AG agrees that the provisions in the PIA ( , Special Right of Access ) does not apply to the G file; neither does it apply to (e) 25

26 180 day rule is very important Hidden violations Temporary suspensions limited to 15 calendar days Only other choice is to indefinitely suspend terminate Negotiated suspension days Demotions: disciplinary & non disciplinary 26

27 Written reprimands and verbal counselings By law maintained in Confidential Department file 180 day rule does not apply No appeal 27

28 Attorney General concluded that FF/officers do not have a right to appeal a reprimand or any other informal discipline They can appeal only formal discipline, which are suspensions, demotions, promotional pass overs 28

29 Because they cannot appeal informal discipline, those documents may not be maintained in the director s A file Reprimands and other informal discipline must be kept in the confidential departmental G file 29

30 The Austin Court of Appeals found: We conclude the plain, simple, and unambiguous terms of subsection (g) permit only one reasonable construction the legislature intended to deem confidential the information maintained by the City police department for its own use under subsection (g). 30

31 The requestors in that case contended that the disputed information was subject to disclosure because the records were under the physical control of the department s internal affairs unit. The Court rejected that argument: There is no suggestion in the statute that such use may not include use or physical control by a subsidiary element of the department. 31

32 Here, the Court held that Use of Force reports, compiled for administrative purposes, were not confidential personnel files. Those reports did not bear on the employment relationship and were not used by the SAPD in personnel decisions. 32

33 The Court went far in explaining its reasoning so that the factual result would not be misinterpreted: We hold that subsection (g) prohibits the disclosure of (1) information of the type listed in Section (a) (d) that is maintained in the police officer s or fire fighter s civil service personnel file and (2) any other information reasonably related to a police officer s or fire fighter s employment relationship. at p. 5 33

34 It is required by (a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's civil service file maintained under (a). 34

35 All investigatory materials in a case resulting in disciplinary action are "from the employing department" when they are held by or are in the possession of the department because of its investigation into a police officer's misconduct, and the department must forward them to the civil service commission for placement in the civil service personnel file. Such records may not be withheld under of the Gov t Code in conjunction with

36 Information relating to alleged misconduct or disciplinary action taken must be removed from the police officer's civil service file if the police department determines that there is insufficient evidence to sustain the charge of misconduct or that the disciplinary action was taken without just cause. OR , OR , OR

37 1 15 days Indefinite suspension Recommended demotion Promotional bypass

38 CSC or Hearing Examiner Issues Subpoenas Formal hearing Subject to the Open Meetings Act

39 Yes! Subject to a sealed protective order AG has ruled (informal opinions) that if a hearing examiner admits exhibits pursuant to a protective order, and the documents are sealed, they are not subject to public release! OR , OR

40 Performance evaluations or efficiency reports? Tickler files maintained by a supervisor? Field training reports on probationary officers/ff? Does the Chief and Asst. Chief have a G file? Do Probationary Police Officers have a G file? 40

41 Section outlines the civil service process Ultimately, after decision regarding fitness is made, the Commission steps out Chief makes the decision on assignment 41

42 Civil Service Commissioners/Commission Preserve integrity of the process; must maintain quasi judicial role Civil Service Directors usually wearing two hats here Gatekeeper/ensure everyone observes roles Department Head /Chiefs Ultimate Decisionmakers Only Chiefs have right of assignment Exhaust , and then transition to ADA/ADAAA 42

43 If a question arises as to whether a fire fighter or police officer is sufficiently physically or mentally fit to continue that person s duties, the fire fighter or police officer shall submit to the commission a report from the person s personal physician, psychiatrist, or psychologist, as appropriate. Who raises the question? Generally, the Chief Who orders the employee? Generally, the Chief Who is appropriate for mental fitness? Psychologist or psychiatrist? Employee is ordered to see his/her doctor and to submit a report to the Commission 43

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45 Director: Schedules meeting Commission, Director, Chief and Employee: Review report and attend meeting All parties consider reports But, the issue for Commission: Do the reports agree or disagree? 45

46 Where is the record kept? A v. G BUT: Who keeps it and for how long? 46

47 Texas Gov t Code, Subchapter J establishes that the Texas State Library & Archives Commission shall issue records retention schedules. These regulations establish mandatory minimum retention periods. Destruction of government records contrary to these provisions is criminal. ml 47

48 If a record is maintained in a bound volume in which pages are not designed to be removed, it must be retained from the date of last entry If two or more records are not severable, the combined record must be retained for the longest time period applicable If the retention period on the record is permanent and it is badly damaged, the government must obtain permission from the director and librarian of the Texas State Library to dispose of it [Form SLR 501] Remember, when in doubt always go with the longer retention period. 48

49 Local Schedule PS Applicable to public safety agencies police & fire Whichever schedule provides the longer retention period must apply that time period to the record Revised and effective on August 14,

50 There are federal requirements for retention periods, but in many instances, state law provides for a longer time period. Note that personnel files is not scheduled for retention as a unit documents normally placed in the personnel file are addressed separately. 50

51 Records relating to considerations of adverse actions (demotion, probation, termination, suspension, leave without pay) against an employee, including witness and employee statements, interview reports, exhibits, reports of findings, and decisions and judgments Retention period: 2 years after case closed or action taken 51

52 Records documenting the initiation, investigation, and disposition of internal affairs investigations of alleged misconduct For the purposes of this records description (for all employees), formal discipline is disciplinary action at or above the level of written reprimand.* Informal discipline is discipline below the level of a written reprimand Retention periods date from the completion of the investigation 52

53 Investigations of shootings which result in death or injury to any person Retention period: PERMANENT Investigations resulting in sustained formal discipline Retention period: 15 years Investigations resulting in sustained informal discipline or investigations whose findings are inconclusive Retention period: 5 years, provided a one year infraction free period precedes the date of destruction 53

54 Investigations whose findings are not sustained, unfounded, or exonerated Retention period: 3 years **Written complaints and records of oral complaints received from the public concerning conduct of public safety personnel that do not lead to an internal affairs investigation Retention period: date of determination not to conduct IA +2 years. 54

55 Employment Applications ( ) Retention period: 2 years from date of creation/date of personnel action involved, whichever is later except transcripts of persons hired is date of separation + 5 years Equal Employment Opportunity Records and Reports ( ) Retention periods: 3 years for EEO reports and analyses, statistical data compiled from source documentation used to complete EEO reports; Case files relating to discrimination complaints, supporting investigations, exhibits, decisions the records must be retained through the resolution of the case + 3 years. 55

56 E mails may very well constitute official records of the City be careful about deleting. E mails and electronic information, including how you create a document (called metadata ) is discoverable in litigation Public Information Act if there is a pending request, no deleting! Relative informality of e mail is deceptive they can and will be used against you. 56

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58 Julia Gannaway 306 WEST BROADWAY AVENUE FORTWORTH, TEXAS MAIN/ FAX LABORCOUNSEL.NET THIS IS NOT LEGAL ADVICE, PLEASE CONTACT YOUR LABOR AND EMPLOYMENT ATTORNEY REGARDING YOUR SITUATION