Bettye Lynn Civil Service - TMHRA

2/21/2013

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© Lynn Ross Gannaway 2013

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2/21/2013

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Charter amendments placed on ballot› Civilian employees› EMS employees

City Manager opposed the change› City can’t spend money on the proposition

Costs and loss of management ability cited in opposition to the measure

All discipline to be reviewed by civilian civil All discipline to be reviewed by civilian civil service commission—political appointees

AFSCME supported adoption Charter amendment approved in November,

2012

© Lynn Ross Gannaway 2013 3

Pushing to place on May ballot› City Manager has opposed publicly› Civil service relies too heavily on exams for promotion› Civil service relies too heavily on exams for promotion› Lengthy legal battles› Loss of volunteers› Best test takers are not best leaders/bosses› $1 million annually to implement especially vacation and sick

leave› CSD and legal fees and replacing volunteers

“Expensive bureaucratic mess that does not improve public safetypublic safety

Council held work session on civil service Singer says not one city raised taxes after adopting civil

service and cost would be only $300,000 year Association also intends to ask for meet and confer so

association could negotiate contracts to keep volunteers© Lynn Ross Gannaway 2013 4

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Fire Association says “we need some assurances. It’s just the next normal step

hen cities go from small to 30 000 in a when cities go from small to 30,000 in a decade”

Heated meeting with LPFFA—council won’t support request to put civil service on May ballot

No complaints ever brought to Council in No complaints ever brought to Council in the past; Association alleges fear of retaliation for complaining


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Indefinite suspension from SAFD HE upheld the discipline HE upheld the discipline Mata claimed hearing examiner’s decision not

supported by substantial evidence Mata tested positive for cocaine Fired pursuant to signed last chance agreement

and agreed to submit to non-random drug testing i i i f i– again tested positive for cocaine

Last chance agreement not contrary to the CBA Hearing examiner’s decision to uphold suspension

was not contrary to exclusive bargaining provisions


Hearing examiner’s decision overturnedg› Reinstated fire fighter without conducting hearing

Hearing examiner exceeded his jurisdiction because he reinstated fire fighter on ground for which §143.052(f) did not permit automatic reinstatement

City had given appropriate notice of acts that were basis of suspension

Court vacated decision and ordered rehearing


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City appealed hearing examiner's decision returning indefinitely suspended firefighterreturning indefinitely suspended firefighter› Fired for inappropriate behavior with female visitor

Hearing examiner ordered reinstatement with only a 10 day suspension

City appealed claiming hearing examiner exceeded his jurisdiction› Hearing examiner exonerated Gonzalez from sexual

h tharassment Did hearing examiner step into non-delegable role

of policymaker when he concluded security policy should not be strictly enforced?

Rejection of claim that hearing examiner's award was procured by “unlawful means”


Police officer indefinitely suspended for numerous city and police department rules y p pviolation

Arbitrator upheld dismissal Employee filed federal lawsuit alleging

violations of Title VII and due process Written notice of charges and chief of

li t ith hi t di h h police met with him to discuss each charge and proposed punishment provided him with an opportunity to respond

Court granted City summary judgment


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T i t d fi fi ht l d hi Terminated firefighter appealed his indefinite suspension for DWI

Claimed procedural defect › Chief did not charge him with a violation of

Local Civil Service Rules Chief did charge him with several

violations of Department’s Standard Operating Procedures


Hearing examiner rejected procedural Hearing examiner rejected procedural challenge› Appellant did not make persuasive case that

rules of conduct must flow precisely from local Civil Service Commission rules.

› Appellant’s ability to present defense was pp y pnot compromised


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Hearing Examiner upholds indefinite suspension of Mission Police OfficerCh d l S i h h d i Chavez used vulgar Spanish phrases during melee involving subduing fleeing prisoner

Complaint by elderly family member about his language and hand gestures toward civilians at the scene

During IA investigation Chavez denies he uttered vulgar phrase; howeveruttered vulgar phrase; however

Dash cam video picked up language Use of experts to enhance audio and testify

about contents


Indefinite suspension based in large part upon untruthfulness during IA investigation due to consistent denials of vulgarities, even when audio played to him during an interviewaudio played to him during an interview.

Chavez claimed singled out for discipline due to presidency of association

But hearing examiner found no direct evidence of this claim

Hearing examiner applies “but for” test HE concludes Police Officers held to higher HE concludes Police Officers held to higher

standard of public behavior Right of free speech is not absolute and

Chavez’ comment and hand gesture were both unprofessional


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Hearing Examiner sustained two charges of unreasonable use of force against police officerunreasonable use of force against police officer

Use of force is clearly serious misconduct Undermines ability of Police Department and

other officers to perform duties Officer’s claim of disparate treatment Hearing examiner relied on Yselta

› “Similarly situated” Determine if circumstances are similar in all material

respects Similar standards, supervisors and conduct Comparable seriousness Force used by comparator officers was not “nearly

identical’ © Lynn Ross Gannaway 201315

City’s Civil Service Commission could yadopt Local Rule prohibiting dishonesty under §143.051

“Dishonesty” shows lack of good moral character and constitutes conduct prejudicial to good orderprejudicial to good order

Writing “hot checks” shows lack of good moral character and conduct prejudicial to good order


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Appeal of indefinite suspension Alleged violations of §143.312(f) which prohibits

person with involvement in situation from conducting investigation of misconduct

Sergeant not “complainant” in matter Not an additional violation when Police Chief

and Commander questioned officer during D t t’ Di i li R i H i (DRH) Department’s Disciplinary Review Hearing (DRH) – they were not “investigators”

Hearing examiner upheld indefinite suspension because misconduct was established entirely by his admissions


Indefinite suspension of police officer t d loverturned upon appeal

› Reduction to very long disciplinary suspension without pay/benefits

› Failure to comply with all conditions is violation of award and officer properly terminated on January 6, 2012

Hearing Examiner added terms and conditionsea g a e added e s a d co d o s› Physician must approve return to work› Psychological exam and random drug test may be

required› HE retained jurisdiction for six months—permits parties

to request clarification© Lynn Ross Gannaway 2013 18

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Burnett flunked psychological examination and not reinstated

Burnett sought hearing before hearing examiner and subpoena of psychologist’s examiner and subpoena of psychologist s records

City opposed these requests. HE says no jurisdiction to evaluate and rule

on city’s compliance –only court has that jurisdiction

HE has no authority to order doctor to HE has no authority to order doctor to release information or professional conclusions

HE still retained jurisdiction for six months to ensure proper interpretation of award.


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DWI currently the number one culprit and cause of many indefinite suspensions› Fort Worth making headlines due to off duty

DWI arrests of police officers› Chief of Staff to the Police Chief› Member of Police DWI task force › Numerous other DWI arrests of police officers

over last several yearsover last several years Other cities not immune either—fire and

police both involved


Civil service presents numerous challenges to dealing with DWI arrests› Immediately fire or wait until criminal charges

resolved?› Place on unpaid or paid leave if awaiting

outcome of criminal chargesoutcome of criminal charges› Going beyond 180 days—letter to AG??› Defense lawyers dragging out criminal process—

can be years› DA’s often willing to plea down to lesser offense

to permit deferred adjudication—then what happens to Chief’s charge that was based on DWI charge?DWI charge?

› Should employee continue to work while awaiting outcome of trial?

› How can police officer ever testify in court again? Especially on DWI related arrests?


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Other crimes› Soliciting prostitutes› Theft› Writing hot checks› Assaultive behaviors› Problem with disparate treatment claims

What can Chiefs do to reinstate a strict policy where second chances may have been given in the past?g p

How does Chief “start the clock over”? Strategy for beginning again and

enforcing stricter standards © Lynn Ross Gannaway 2013 23

Chief Acevado fired 23 officers in five-year tenure

Culture shift in the APD—to accountability and excellence—supervisors now holding employees accountable

Union says rank and file officers do not trust each other and loss of camaraderie

51 temporary suspensions during 2011 2012—all time high


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Development of disciplinary matrix--Improves consistency

Example of police detective fired for improper investigations and dishonestyimproper investigations and dishonesty› Shoddy investigative work› Failure to return calls from victims› Six prior suspensions and was fired in 2006

only to be reinstated by HE VIP: public intoxication resulted in VIP: public intoxication resulted in

temporary suspension with final warningthat future policy violations would result in termination and no appeal


Another detective receives 12-day suspension for improper investigation resulting in false charges filed against a manman

Criminal history showed man was in jail on date the burglary was committed

Officer fired for shooting at suspect during high speed car chase› Ten shots fired and man was wounded› Chief says firing so many rounds was

unnecessary and against policy


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10-year female fire fighter terminated after b i i PIPbeginning a PIP

Performance issues› Poor fitness› Flustered and shutting down during incidents› Improperly treating patients several times› Needing constant supervision› Failing physical and lifesaving technique testsa g p ys ca a d esa g ec que es s

Few terminations statewide for incompetence Appeal filed Union wants to negotiate standards of

performance for incumbents


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Police officer indefinitely suspended for multiple violations of General Orders, pCity policies and civil service, while working under performance improvement plan

Termination for not doing job adequately is rare under civil service lawis rare under civil service law

Charged with incompetency, neglect of duty, shirking duties and conduct prejudicial to good order


Hearing examiner denied appeal Rejected several novel theories Rejected several novel theories Rejected allegation that prior agreed

temporary suspensions not admissible Rejected claim that PIP issued in bad faith


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Captain in HFD transferred to training academy Filed grievance under §143.134(h) regarding rejected

transfer requestq Hearing examiner directed HFD to transfer Proler to a

suppression station and pay him lost compensation City appealed hearing examiner’s decision Court concluded City’s appeal of hearing examiner’s

decision was proper City challenged hearing examiner’s award of monetary

relief to Proler in the form of overtime compensation› No evidence he worked overtime

City demonstrated district court had jurisdiction when it alleged hearing examiner exceeded his jurisdiction when he awarded unearned overtime


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Lieutenant took promotional exam for Captain’s position

H 2 d C t i ’ li t› He was 2nd on Captain’s list Filed grievance under CBA, claiming Chief refused

to promote him because he wanted to create new list

Arbitrator ruled in Sarmiento’s favor, finding City violated CBA when Chief did not promote him

Opening occurred on May 2, 2009, when Opening occurred on May 2, 2009, when organization chart became effective

Irreparable injury shown No choice but to file lawsuit to prevent promotion

list from expiring Preserved his rights under CBA


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Rubio demoted from the at-will position of Deputy Police Chief per 143.014

No right of appeal since he was bumped back to No right of appeal, since he was bumped back to Captain, the position he had held before his promotion.

Lawsuit is a way of circumventing at-will status of appointed second in command positions that was authorized in 1985

Rubio claims he tried to file grievance and appeal his demotion in 2010 but city refused to provide him a hearingg

Claim of suppression of opportunities to advance in the PD

Retaliation claim due to brother’s (former police officer) criticism of Police management and later termination

Claimed demotion resulted from investigation he was doing regarding falsification of time sheets


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Police officer passed over for promotion to rank of detective/corporal

Chief passed him over 3 times because officer precently agreed to 15-day unpaid suspension

Hearing examiner stated the test of “valid reason” did not involve merely substituting his own opinion for that of Chief’s

Hearing examiner considered passover under the standard of whether it was “… sound, just, well-founded, meritorious, well-grounded or founded, meritorious, well grounded or justifiable…”

Hearing examiner concluded that Police Chief had valid reason “regardless of how Hearing Examiner would have handled question…”


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Smith fired in 2008 for improper computer use, criticizing APD, undermining Department’s effectiveness and for insubordinationChi f ff d 30 d id i i ti b th Chief offered 30-day unpaid suspension or resignation - both were refused

Hearing examiner upheld Chief’s decision Hearing examiner upheld indefinite suspension

› In part for previous 60-day suspension 3 years earlier for violating similar rules

Sued Chief and others for alleged constitutional violations Court of Appeals rejected claim -- firing based on work

f di i li hi t d t i d i l ti f performance, disciplinary history and sustained violations of unauthorized computer use and insubordination on 2 different occasions

“Insubordination does not require violation of an APD General Order, much less violation of specific APD General Order” and was demonstrated by his disrespectful conduct


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Interplay between Texas Workers Compensation statute and §143.073 of the TLGC

i hl h d bl th j b i j d Cit Diehl had compensable on-the-job injury, and City paid him workers comp

Diehl received line of duty pay pursuant to §143.073

Received more than 100% of salary City filed counterclaim seeing declaratory

judgmentjudgment› Lawfully recoup overpayments

Court approved district court’s grant of declaratory judgment on City’s right to recoup overpayments


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Payout of Accumulated Sick Leave Upon Retirement


All cities’ auditors now requiring banking of funds to pay off these obligations

Can result in thousands of dollars and difficulties in times of flat Can result in thousands of dollars and difficulties in times of flat budgets

Example is Austin—last five years paid all employees 40 million and $4.5 million in terminal pay in 2011-2012 fiscal year

Austin has agreed to permit up to 1700 hours paid at retirement

Police department paid over $100,000 to 20 retiring officers Is this really what the Legislature intended? Is it time to approach Legislature to place a lower cap on Is it time to approach Legislature to place a lower cap on

accumulations? Can this be changed in collective bargaining negotiations? What trade off might be required to lower the cap? Backlash in other parts of country re such generous pay out

provisions has resulted in lowering them


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Houston sues its Fire Fighter Retirement Fund Seeks to gain access to information about how

i b i tmoney is being spent City trying to calculate benefits paid to Fire

fighters to plan for next 30 years City sought independent audit of information

regarding valuations of pension assets City got Christmas present—judge ordered

pension board to provide information request by pension board to provide information request by actuary hired by Houston to audit valuations of the pension’s actuary

Board has legal duty to provide information Board’s failure to comply inhibited independent

actuary’s ability to do its audit.© Lynn Ross Gannaway 2013 46

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Conflict of interest existed When trustee working for company

doing business with pension fund. Multimillion investments by pension system in company where trustee worked

Group of employees opposed the trustees’ outside work calling it a conflict of interest and highly unethical


Many cities considering altering medical insurance coverage for current retirees Such benefits have become ever more expensive Not required under civil service law Not required under civil service law Councils have granted these benefits years ago before medical costs rapidly

escalated and now trying to rein in the coverage and costs Kilgore is example for FY 2012-2013 Increasing phenomenon is that current employees heavily subsidizing claims of

retirees Kilgore—8 covered retirees’ medical costs same as 152 active employees and

dependents Retiree pool plans being developed but not always politically palatable Many cities eliminating retiree subsidies and dependent payments or increasing

f i i d t b li ibl f th b fityears of service required to be eligible for the benefit Port Neches Finally Rid of its Evergreen Clause in CBA City sought court ruling that evergreen clause in CBA was unconstitutional Pending at appellate court and Union blinked Rewrite of retiree insurance eligibility agreed to by parties thus settling lawsuit


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Charter requires City to maintain a minimum number of police officers—25p

Charter review committee recommended eliminating charter requirement

Union says it is a “public safety issue” Originally designed to keep Police Department

from being disbanded—15 years ago What happens if City’s population drops and What happens if City s population drops and

current 29 employees no longer needed? Charter Amendment to remove the minimum

staffing defeated by 79+ % in last May’s election


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Effective October 1, 2012—September 30, 2015

No raise first year Second year—1% raise Third year 2 % raise Third year—2 % raise


Tense talks in June 2012 Voluntary fact finding—report sided with

Association’s demands City said report was irresponsible Fire fighters want more money and more

city funding of health insurance Firefighters pay higher premiums than Firefighters pay higher premiums than

police—almost double—due to increased usage

No raise during 2011—2012 Health insurance potentially rising 14.6%


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Weslaco continues collective bargaining with Fire fighters

Billboard criticizing city leaders erected by fire fighters unionP t ti l f bit ti f di t Potential for arbitration of disputes over who controls management of department and incentive pay

2011 City laid off 11 fire fighters as part of larger cuts

Prompted bumper stickers and billboard Prompted bumper stickers and billboard City wants to reclaim management rights Del Rio in talks with Police Officers on new

collective bargaining agreement


What do all of us who drive to Bryan/College Station from Metroplex associate Riesel with?

Police officers want collective bargaining 2-officer department plus the Chief gathered signatures Officers want input on City policies—especially for

discipline Chief does not have authority to discipline police

officers—only Council has that authority Officers also report dislike of having to punch time clock p g p

because they are salaried Collective bargaining is an “extra security blanket”

according to the Chief Need update on results of November election


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McKinney—first M&C Agreement with Police 3 year termPolice – 3 year term

Market-competitive pay increases with phased-in pay for certification and education

Sick leave pay at separation increasedFi A t 2 Fire Agreement—2 years› Adds sections regarding fair treatment and

management rights City Council ratified both Agreements


Firefighter filed grievance alleging City violated CBA when it failed to buy back his sick leave

Arbitrator found in favor of employee relying on City’s Arbitrator found in favor of employee, relying on City s past practice

City reasonably led Union and members “to expect City to continue to exercise annual option

Arbitrator’s award had only to draw its “essence” from the CBA

City’s past practice of buying back firefighters’ sick leave was an arbitrable issue – employee did not rely on any language in CBA creating past practices

City failed to convince Court that arbitrator exceeded the scope of his authority when created a “good faith” standard


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McAllen—Police Association will be pushing term limits for Council members

Three-term limit being discussed 3100 people signed petition for term limits that

would prevent the Mayor and all six commissioners from running for re-election.

Election sought for November 2012 Union held press conference Union paid “volunteers” to collect signaturesU o pa d o u ee s o co ec s g a u es Union claims City Commission is a “dictatorship

in McAllen”


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CLEAT field rep claims Kyle needs 64 CLEAT field rep claims Kyle needs 64 sworn officers instead of 36 + 2 proposed for 2012-13

City Manager say unable to afford adding five to six officers every year adding five to six officers every year without tremendous increase in property tax


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Costa Mesa Police union flexing political muscle to Costa Mesa Police union flexing political muscle to avoid budget cuts—instilling fear in local officials

City Councilman had to sodas after community meeting at pub owned by another council member. After he arrives at home, police officer shows up at his door and asks him to step outside and take sobriety test

Private eye employed by CMPOA’s law firm phoned 911 and reported possible DUI claiming he was a 911 and reported possible DUI, claiming he was a concerned citizen—claimed council member stumbled out of bar and swerving all over the road. PI also showed up at council member’s house.

This occurred soon after the council member criticized the law firm


CMPOA quickly fired law firm, but not before firm bragged about its brass-knuckles tactics and bringing “city managers to their knees.”

Efforts to embarrass, extort or vote against best interests of cityinterests of city

Union law firm statewide—playbook calls for work slowdowns, mobbing council meetings calling for more police funding; scaring residents about crime problems, putting pressure on one elected official at a time, threatening statements and text messages by union leaders and attempting to harm elected officials’ businesses

City council fighting Union passed open City council fighting Union—passed open negotiations resolution; outsourcing law enforcement and pension reform—infuriating unions

Described as “gangster cop” mentality


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“Most dangerous city “ in the US Unionized work force with CBA Unionized work force with CBA Camden eliminating the force Only half with be employed as a non-union

metro division and half with be laid off. 460 member department—will save millions

of dollars in budgetU i d ib thi i b ti Union describes this as union busting

January 31, 2013 target date for implementation

Gov. Christie endorsed the plan


Nasty dispute between CLEAT and former training coordinator and Field former training coordinator and Field Service Rep

Lawsuit filed by Rep claiming defamatory comments and wrongful allegations of criminal misconduct and NLRB unfair labor practice chargeNLRB unfair labor practice charge.

CLEAT countersuit alleging “legal shenanigans”


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Bazile v. City of Houstony African American firefighters sued City of Houston alleging civil

service promotional exam was racially discriminatory Reached settlement agreement Jointly sought court to enter decree containing changes to

some civil service provisions as well as CBA Association intervened – urged court to reject the agreement

due to its conflict with civil service law and the CBAdue to its conflict with civil service law and the CBA Court concluded exams violated Title VII, but ruled proposed

solution violated CBA and civil service law Use of situational-judgment questions and assessment center

were justified by record evidence and were job-related and consistent with business necessity


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Changes in promotional process were necessary to address disparate impact of old system

Those changes were permissible even if they were inconsistent with CBA and civil they were inconsistent with CBA and civil service law

Court ordered City to retain “rule of three” on promotional decisions

Court rejected “pass/fail” written exam, eligibility list with no rank order, and g ycomputer based objective test

The proper method for scoring exams should be determined through collective bargaining


Disparate impact claim against CCFD brought by p p g g yDepartment of Justice

Claim of discrimination against women applicants in physical fitness testing

19% pass rate for women and 63% for men This is statistically significant for purposes of Title VII

law Proposed consent decree will scrap physical abilities

t t d d l l ti d li t test and develop new selection procedure compliant with Title VII and pay back pay of $700,000 to eligible female applicants between 2005 and 2011

Cities across country struggling with same issues


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Jacksonville Florida—disparate impact on black candidates in written exams for promotion of firefighters

Buffalo NY › Buffalo’s examinations for promotion to Fire

Lieutenant had disparate impact on black fire fighters

› Tests were found to be job related and consistent with business necessity

› Buffalo relied on statewide survey of critical tasks and skills

› Court approved of using state wide study, rather than study specific to Buffalo

› “Job of fire lieutenant . . . involves common tasks requiring essentially same skills, knowledge, abilities and personal characteristics.”


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25-year veteran of Fire Department filed EEOC charge alleging discrimination on basis of national origin and retaliationg

Claimed disparate treatment by his immediate supervisor

Then transferred from support to Operations Division and believed this was retaliatory

Claim of forced resignation due to hostile work environment

M l i d A l l t t d b tt Marquez claimed Anglo employees treated better City claimed Marquez failed to exhaust his

administrative remedies as he failed to use EPFD’s grievance procedure

EEOC found no probable cause and issued right to sue letter


City and Association had CBA that contained grievance procedure requiring exhaustion of grievance procedure requiring exhaustion of grievance procedure—but Marquez did not file grievance

Court says “may file a grievance. . .” indicates permissive nature of procedure

Court says nothing in Title VII or state law i h ti f CBA i require exhaustion of CBA grievance

procedure Apparently City did not rely on 14 Penn Plaza


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Claimed verbal abuse from supervisors Claimed verbal abuse from supervisors created hostile environment

Denied privileges due to stuttering Claim of ADA and FMLA violations Request for $2.5 million in damages, Request for $2.5 million in damages,

reinstatement and promotion


Bettye Lynn Civil Service - TMHRA

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