Civil Service Rules and Regulations
Chapter 13: Suspensions, Recommended Involuntary Demotions, Promotional By-Passes, and Other Appeals
Purpose. These rules shall apply to and govern all suspensions, recommended involuntary demotions, promotional bypasses and appeals of the suspensions, recommended involuntary demotions, or promotional bypasses of Fort Worth Civil Service Firefighters and Police Officers pursuant to Chapter 143 of the Texas Local Government Code. The primary purpose of this chapter is to ensure that suspensions, recommended involuntary demotions, promotional bypasses and other appeals are imposed as fairly and equitably as is reasonably possible, with the intention of correcting deficient performance and securing substantial compliance with the working rules and regulations of the Fire and Police Departments.
All suspensions and recommended involuntary demotions and appeals of suspensions and recommended involuntary demotions concerning civil service employees shall be made in compliance with Chapter 143, these rules and regulations, the City's Personnel Rules and Regulations Manual as well as the rules and regulations of the employee's department.
Promotional bypasses and appeals thereof shall be made in compliance with Chapter 143.
CAUSES FOR REMOVAL OR SUSPENSION
The tenure of every civil service employee shall only be during good behavior, and any such employee may be suspended or indefinitely suspended from the civil service for any actions or omission involving one or more of the following grounds:
- The conviction of the employee of a felony or other crime involving moral turpitude;
- Violation of a provision of the Municipal Charter of the City of Fort Worth, Texas;
- Acts of incompetency;
- Neglect of duty;
- Discourtesy by an employee to the public or to a fellow employee while in the line of duty;
- Acts showing a lack of good moral character;
- Ingesting intoxicants while on duty or intoxication while off duty;
- Conduct prejudicial to good order;
- Refusal or neglect to pay just debts;
- Absence without authorized leave;
- Shirking duty, or cowardice at fires; or
- Violation of an applicable Fire or Police Department rule, directive, general or special order.
The term "cause" shall also mean "employee misconduct" and shall necessarily include any act or omission that violates:
- an applicable provision of Chapter 143, Local Government Code; or
- an applicable rule or regulation duly adopted by the Civil Service Commission of Fort Worth.
A Department Head may proceed with appropriate suspension arising from any particular factual event(s) or misconduct which would constitute "cause", only when the employee misconduct is related to those matters set forth in Section 143.051 of Chapter 143. (Also See Section 13.004 above).
For suspension purposes a determination of what constitutes "just cause" is generally made by comparison to what a reasonable person, who is mindful of the habits and customs of their department, who is also mindful of the responsibilities and needs of their department, and who is also mindful of the standards of justice and fair dealing prevalent in the City of Fort Worth, should have done (or should have not done) under similar circumstances.
Prior to imposing any particular level of suspension, the Department Head may use lesser forms of disciplinary or corrective action. However, nothing herein shall prohibit the Department Head from proceeding directly to the appropriate level of discipline if in the opinion of the Department Head the employee's misconduct warrants the disciplinary action imposed.
(Sections 13.009 Through 13.011 Reserved For Expansion.)
DOCUMENTATION OF DISCIPLINARY ACTION
An employee in the Civil Service may be suspended by the Department Head by an order in writing submitted in compliance with Chapter 143 stating at least the following:
- the specific Civil Service rule(s) or regulation(s) violated;
- a description of the operative factual events giving rise to the alleged violation of Civil Service Rules;
- the disciplinary action to be imposed;
- the effective dates;
- the rights of the employee to appeal the disciplinary action; and
- such other matters deemed relevant to the action or as required by law.
The Department Head may not suspend an employee based upon an act that occurred more than 180 days in the past, except as may be provided for in certain criminal investigations as per Sections 143.052(h) and 143.056(h) of Chapter 143.
The written order of the Department Head imposing a suspension shall comply with Section 143.052 of Chapter 143 and be filed with the Director of the Civil Service Commission within 120 hours after the disciplinary action is imposed. A copy thereof shall also be served on the employee in accordance with Chapter 143.
RECOMMENDED INVOLUNTARY DEMOTION PROCEDURES
The written order of the Department Head recommending an involuntary demotion shall comply with Section 143.054 (a) and (b) of Chapter 143.
After the Commission has determined that probable cause does exist for a recommended involuntary demotion and has provided the employee with written notice as per Section 143.054 of Chapter 143, thereafter the action for appeal of the recommended involuntary demotion may be conducted according to the same hearing procedures as set forth herein for suspensions or as expressly provided otherwise in Chapter 143.
PROMOTIONAL BYPASS PROCEDURE
The written order of the Department Head bypassing a candidate for promotion shall comply with Section 143.036(f) and (g) of Chapter 143.
After an employee has been bypassed for promotion as per Section 143.036 of Chapter 143, thereafter the promotional bypass appeal shall be conducted according to the hearing procedures as provided in Chapter 143.
ORIGINAL NOTICE OF APPEAL
The employees notice of appeal must be filed in writing in the Directors office within ten (10) calendar days after receiving the suspension, recommended involuntary demotion or bypass notice of the Department Head. An employee may also withdraw his/her request for an appeal at any time thereafter, which shall operate to terminate the proceedings.
The employee's notice of appeal and request for hearing shall set forth the employee's basis for appeal in compliance with Section 143.010 of Chapter 143.
FAILURE TO TIMELY FILE AN APPEAL
Failure on the part of an employee to file an appeal of a suspension, recommended involuntary demotion, or bypass notice with the Office of the Director within the ten (10) day period shall result in no appeal of the matter being considered.
TIME PERIOD AND METHODS FOR FILING DOCUMENTS WITH THE DIRECTORS OFFICE
Except as otherwise provided by Chapter 143, if a firefighter or police officer wants to appeal to the Commission from an action which an appeal or a review is provided by Chapter 143, the firefighter or police officer need only file a written appeal with the Commission within ten days after the date that the action occurred.
In computing the period of time allowed by Chapter 143 and these rules, the day of the act or event for which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal City holiday, in which event the time period runs until 12:00 midnight of the next day which is not a Saturday, Sunday, or legal City holiday.
For purpose of filing matters with the Civil Service Commission, the Civil Service Directors Office shall be deemed to be open for said purposes and documents may be timely filed up until 12:00 midnight of the last day of the time period.
Firefighters or police officers who are filing notices of appeal or other matters may do so by facsimile transmission (FAX), by hand delivery or regular or certified mail to the Office of the Civil Service Director. In all cases, it shall be the employees responsibility to maintain the appropriate form of proof of timely fax, service or other delivery to and receipt by the Office of the Civil Service Director.
OPTIONS FOR APPEAL HEARINGS
If an employee appeals a disciplinary suspension to the Commission, the Commission shall hold a hearing and render a decision in writing within thirty days after the date it receives notice of appeal. The employee and the Commission may agree to extend the thirty (30) day period and postpone the hearing or the deadline for the final ruling.
At any time after filing the original notice of appeal but before either party has incurred third party hearing examiner expenses, an employee may withdraw the original request for the independent third party hearing examiner and submit the appeal to a hearing before the Commission. The election must be made in writing and filed with the Directors office. However, this election may not be used to manipulate the thirty (30) day hearing deadline imposed on Commission decisions by Chapter 143.
At any time after filing of the notice of appeal, the parties may mutually agree to withdraw the appeal from an independent third party hearing examiner and submit the appeal to a hearing before the Commission. The mutual agreement must be made in writing and filed with the Director's office.
DIRECTOR TO COORDINATE ALL MATTERS
The location and accommodations for all hearings and appeals shall be arranged by the Director of Civil Service.
All subsequent matters raised by either party regarding attendance, scheduling, requests for subpoenas, request for continuances, etc., shall be coordinated through the Director. All such information shall be provided to the Director who shall then provide copies of same to the opposing party or representative and also coordinate the appropriate response or action to be taken. In a hearing coordinated by an outside agency, that agency shall also provide coordination services between the parties and the hearing examiner in conjunction with the Director's office.
EXPENSE AND COSTS
If appealed to a Hearing Examiner, the Hearing Examiners fees and expenses are shared equally by the employee and the Department.
Payment of Costs of Witnesses:
- All City employees who are subpoenaed by the City to appear at a disciplinary appeal hearing shall be compensated by the City.
- On-duty employees shall be compensated at their regular rate of pay.
- Off-duty employees shall receive overtime for the actual time spent in the hearing.
- All on-duty and off-duty City employees subpoenaed by the appealing officer/firefighter who are material witnesses to the relevant facts of the matter being appealed shall be compensated by the City in accordance with the procedures described in 13.032 (a).
- All other City employees subpoenaed by the appealing officer/firefighter as character witnesses, or "expert" witnesses, for purposes not directly related to the material facts, or who do not meet the requirements of 13.032 (a) or (b) should seek compensation from the appealing officer/firefighter or the officer/firefighters representative.
- On-duty officers/firefighters subpoenaed for these purposes shall be placed on vacation leave, holiday leave, personal leave, compensatory time off, or if necessary, leave without pay.
The appropriate amount as well as payment of all costs and expenses may be determined and collected by the Director of Civil Service. An employee may receive an estimate of anticipated costs upon request to the Director.
When applicable, the State law governing the doctrine of "mitigation of damages" will be applied in computing reimbursements or offset for an award of back pay.
(Sections 13.035 Through 13.037 Reserved For Expansion.)
FAILURE TO ATTEND SCHEDULED HEARING
The failure of a party to attend a scheduled appeal hearing, or to timely file a request for a continuation of the hearing to a later date, shall not in itself prevent the hearing from proceeding as scheduled nor prevent the Commission from proceeding to take such action as may be appropriate.
EMPLOYEE AND DEPARTMENT REPRESENTATIVES
The hearing process shall recognize the right of employees as well as the Department to be represented by one or more persons throughout the processing of an appeal. However, only one representative shall be allowed to speak or otherwise present evidence on behalf of either party throughout the questioning of a particular witness.
Employee and Department representatives shall use their best efforts to help resolve all proceedings smoothly, expediently, and as fairly as possible to all concerned.
The function of the representatives shall be to articulate the best interests of the employee or the Department represented and to make same pertinent to the issue(s) being considered. Dissatisfaction with a representative shall not constitute grounds for modification of the final ruling.
All representatives or employees who represent themselves shall become familiar with and follow these rules and regulations at all times during the appeal process.
Any problems or concerns regarding the manner in which the opposing party or their representative is handling a particular appeal should be brought to the attention of Director of Civil Service. The difficulty will be expeditiously addressed.
(Sections 13.044 Through 13.045 Reserved For Expansion.)
The Texas Rules of Civil Procedure, the Texas Rules of Criminal Procedure, and all other rules of court regarding what is commonly known as "discovery" shall not apply to any Civil Service proceedings. Mediation and arbitration rules and processes do not apply to any Civil Service hearings.
Parties who request photocopies of documents from the opposing party should be accommodated if such requests are reasonable. Items from departmental policies, rules and regulations manuals may be photocopied. Items such as Accident Review Board recommendations, time and attendance records, duty status forms and other such documents may also be provided so long as they are relevant to the employee and the action under appeal.
Employees and their representatives may obtain copies of matters contained in any of the employee's personnel files after the employee has signed the appropriate release form(s).
Before requesting a subpoena duces tecum for the production of documentary material, a party shall first make a request for the materials directly to the other party and provide a reasonable time for a response. If the request is refused or otherwise not produced, then a request may be made to the Commission to issue the subpoena duces tecum. Requests for subpoenas shall be completed at least ten (10) days prior to the scheduled hearing date in order to be timely processed.
All requests for subpoenas to compel the attendance of a witness shall be coordinated through the Directors Office. Requests for subpoenas shall be completed at least five (5) days prior to the scheduled hearing date in order to be timely processed. The Director may issue subpoenas on behalf of the Commission.
The parties will exchange exhibit lists at least ten (10) days prior to the beginning of the scheduled hearing and will exchange the identity of all potential witnesses to the other party at least three (3) days prior to the beginning of the scheduled hearing, if not mutually agreed earlier.
Prior to the hearing, the parties shall make an effort to agree on joint exhibits to be submitted, to stipulate to facts not in dispute and to frame the issues to be decided.
In the case of an indefinite suspension, whether appealed to the Commission or a hearing examiner the parties will attempt to expedite the scheduling of such hearings. Hearings of indefinite suspensions should take priority over other hearings.
(Sections 13.054 Through 13.059 Reserved For Expansion.)
HEARING PROCEDURES FOR CIVIL SERVICE ISSUES
At the scheduled time and place, the hearing shall be called to order.
All parties shall come to the hearing prepared and ready to proceed so as to minimize any disruption of the hearing process. All parties shall bring at least six (6) copies of all documents or exhibits to be considered by the Commission at the hearing.
All appeal proceedings shall be public hearings.
A record of the proceedings, capable of clear and accurate reproduction or transcription, shall be made and maintained by the Director.
After being called to order but prior to the beginning of testimony or evidence, consideration shall be made as to any pre-hearing motions, requests or jurisdictional matters as submitted by either party. The participants shall also seek to obtain as many stipulations as possible as to non-contested or non-material matters. The Commission may "carry" such pre-hearing motions until the hearing is completed and all factual evidence has been presented before making its final ruling thereto.
Both parties may be allowed to make brief opening statements.
Unless waived by the participants, the hearing shall then proceed with the reading into the record the statement of charges and specifications as well as factual summary of the operative events as filed with the Commission by the Department Head and which forms the basis of the disciplinary action imposed on the employee.
The hearing shall then proceed to develop the evidence and testimony as to those contested matters.
The party with the burden of proof shall go first in the presentation of evidence and testimony. Thereafter, the responding party shall have the opportunity to respond with its own evidence, witnesses or testimony. Thereafter, the party with the burden of proof may come forward with rebuttal evidence or testimony as may be necessary. Presentations by both parties shall be as brief and closely related to the issue(s) as much as is possible. Throughout the proceedings, Commission members may also ask their own questions as needed in order to aid their consideration of the testimony or evidence.
Witnesses may be sworn and their testimony taken under oath or affirmation. Witnesses are subject to reasonable and relevant cross-examination by the opposing party.
Upon request by either party, the hearing process may utilize what is commonly known as "the Rule" concerning oral testimony, meaning that all persons who shall be expected to testify at the hearing, other than the parties and their representatives, shall not be allowed to observe or listen to any of the proceedings except when they are actually testifying as a witness. "The Rule" may be used to ensure one witness testimony is not influenced by anothers testimony. While under "the Rule", potential witnesses shall not discuss any aspect of the appeal or hearing except with the attorneys or the representative involved. Invoking "the Rule" is not mandatory and may be waived in whole or in part by agreement.
The hearing process shall exercise reasonable control over the questioning of witnesses and the presentation of evidence so as to:
- make an effective ascertainment of the truth;
- keep such presentations relevant to the issues to be determined;
- avoid the needless consumption of time and expense; and
- protect the witnesses and employees from harassment or undue embarrassment.
The parties and their respective representatives shall cooperate in keeping all presentations as brief and to the point as possible. Long drawn-out sessions shall be discouraged.
All hearings must remain business-like and focus upon resolution of factual matters. Hearings shall not be a time for accusations, threats, speeches or arguments. The Commission shall have the discretion to adjourn any meeting where the purpose of the hearing is no longer reasonably possible.
The Commission shall have the discretion to control the length of time of any particular session as well as the amount of time provided for recesses and breaks.
After the close of the presentation of evidence and testimony, both parties shall be given an opportunity to make closing summations.
Thereafter, the Commission may adjourn to closed session for deliberation, as prescribed in Section 143.053(d) of Chapter 143. Thereafter, the Commission shall reconvene in open session and shall, upon motion and second, make its decision. Thereafter, a written order containing same shall be prepared and signed by the Commissioners.
(Sections 13.077 Through 13.079 Reserved For Expansion.)
RULES OF EVIDENCE
Technical rules of evidence shall not apply nor control the conduct of any civil service hearing. The Texas Rules of Court, and the Texas Rules of Evidence shall not apply nor govern any aspect of any civil service proceeding.
The scope of evidence to be considered at a disciplinary hearing shall be generally limited to matters relevant to the statement of charges as set forth in the Department's written statement, the employee's notice of appeal as well as the employees previous employment record with the Department.
Either party may offer such relevant evidence as he/she may desire to aid in the determination of material disputed issues.
It shall be the province of the Commission to ultimately determine:
- the admissibility of any particular evidence or testimony;
- the relevance of any particular evidence or testimony;
- the credibility of any particular evidence or testimony; and
- the materiality or "weight" to be given to any particular evidence or testimony.
Subject to limited exceptions for compelling reasons shown by a party, the Commission may refuse to hear or consider any testimony or item of evidence if:
- a party has deliberately withheld previously-known and duly requested evidence from the other party until the hearing, and the said evidence should have been previously produced as per these rules; or
- the hearing has been closed.
The Commission may receive and consider the evidence of witnesses by affidavit and assign it such weight as it deems proper after consideration of objections, if any, made to its admission.
On-site inspections shall be discouraged and may be conducted only if the evidence to be considered cannot be otherwise presented via stipulations, photographs, videotapes, maps, diagrams, etc.
All evidence and testimony shall be presented and received into the record while in open session.
(Sections 13.088 Through 13.089 Reserved For Expansion.)
ISSUES TO BE DETERMINED IN DISCIPLINARY APPEALS
Generally, the determinative issues to be considered and determined by the disciplinary action appeal process shall be:
- Did "cause" exist to support the imposing of some form of disciplinary action as to the employee?;
- Did the employee receive reasonable or appropriate "due process" in the Department's disciplinary process?;
- Was the degree of disciplinary action imposed by the Department "reasonable" under the circumstances?; and
- Has the hearing process developed matters which justify or compel modification of the Department Heads disciplinary action?
A party is required to establish its factual assertions by a "preponderance of the evidence." A "preponderance of the evidence" means the greater weight and degree of credible testimony or evidence admitted into the record.
It shall be recognized that prior to imposing any form of discipline, the Department Head may use lesser forms of disciplinary or corrective action. However, the failure to utilize "progressive discipline" shall not in itself be grounds to overturn or otherwise modify a Department Heads decision to proceed directly to the appropriate level of discipline if the employees misconduct warrants such disciplinary action or termination. Progressive discipline need not always apply and the seriousness of a single offense may negate a previously unblemished record.
The hearing shall provide the employee every reasonable opportunity to produce objective evidence and testimony to develop:
- that the employee did not commit the misconduct as alleged, i.e., "the facts are not true"; or
- that even if the employee committed the acts as alleged, that such activity does not constitute actionable misconduct; or
- that even if the employee committed actionable misconduct, that the degree of discipline imposed is too harsh or severe, i.e. the disciplinary action imposed was "unreasonable, arbitrary or capricious"; or
- a combination of any of these matters which would justify or compel modification of the Department Head's action.
An employees mere disagreement or difference in opinion in regard to the department actions or reasoning therefore, without more, shall not constitute grounds to overturn nor modify the disciplinary action.
If the hearing establishes one valid charge of misconduct supported by evidence sufficient to establish its truth, that charge may be sustained even if other charges in the letter of disciplinary action are not supported by the evidence at the hearing.
(Sections 13.096 Through 13.099 Reserved For Expansion.)
FINDINGS AND ORDERS OF THE COMMISSION
As a result of the evidence and testimony presented at the hearing, the Commission shall make a just and fair resolution of the matter via a written statement finding the truth of the specific charge(s) against the employee, or a written statement finding that the specific charge(s) against the employee are not true. This issue shall be addressed in all final orders, regardless of the subsequent issues addressed in the same final order.
In the event that the specific charge(s) of misconduct against the employee are found to be "not true", then the final order and ruling shall be to promptly restore the employee to the employee's proper position or status without penalty.
In the event that specific charges of misconduct against the employee are found to be "true", then the final order and ruling shall clearly state whether the employee is:
- permanently dismissed from the Fire or Police Department; or
- temporarily suspended from the Department, and shall then set forth the definite time period and conditions of suspension which shall be imposed.
The final written ruling on all disciplinary appeals shall also include such other matters so as to finally and clearly resolve the issues under consideration, particularly to resolve questions concerning:
- the employee's resulting employment status;
- back pay and other employment benefits;
- mitigation of damages; and
- whether the documents relating to the disciplinary action should be modified or removed from the employees personnel file per Section 143.089(c) of Chapter 143.
If modifying the disciplinary action of the Department, the final order shall clearly explain in writing the factors and rationale for doing so. If affirming the disciplinary action of the Department, it shall be presumed for same reasons and facts as presented by the Department unless otherwise indicated.
When necessary, the Commission may consider matters involving questions of applying Chapter 143 to facts or events which may arise during the disciplinary appeal process and which are outside the scope of the Departments statement of charges or the employees notice of appeal. The Commission shall do so only after obtaining an agreement from the parties as to precisely what issue(s) is to be decided.
The final ruling and order of the Commission may be made by the majority vote of two of the three Commissioners present. If only two Commissioners are present, the final ruling and order must be made in agreement by both Commissioners present.
A copy of the department's disciplinary action, a copy of the employees request for appeal, the record of the proceedings, a copy of the exhibits submitted together with a copy of the final decision shall be filed in the Commission record. These records may be cited as reference material in subsequent determinations by the Commission.
(Sections 13.108 Through 13.119 Reserved For Expansion.)
APPEALS TO INDEPENDENT THIRD PARTY HEARING EXAMINERS
Only disciplinary actions concerning an indefinite suspension, a suspension, a promotional bypass or a recommended involuntary demotion are appealable to Hearing Examiners.
If at all possible, the parties will agree on the selection of the Hearing Examiner.
At the time that the Director submits the parties agreed date(s) for the hearing, the Director shall also forward to or see that the hearing examiner has the following materials:
- a copy of these Civil Service Commission Rules and Regulations;
- a copy of Chapter 143;
- a copy of the Departments statement of disciplinary charges as filed with the Commission;
- a copy of the applicable City Personnel Rules and Regulations, or Fire Department's Standard Operating Procedures (S.O.P.s), or Police Department's General Orders alleged to have been violated; and
- a copy of the employees notice of appeal as filed with the Commission;
The Director shall thereafter coordinate with the parties and the agency sponsoring the Hearing Examiner as to all matters regarding scheduling, place of hearing, accommodations, etc.
The rule-making power and authority of the Civil Service Commission is in no way conferred upon or delegated to any Hearing Examiner, either by implication or otherwise.
In every disciplinary appeal conducted under Section 143.057 of Chapter 143, the Hearing Examiner shall have the "same duties and powers" as would the Commission, including the right to issue subpoenas to compel the attendance of a witness.
A disciplinary proceeding conducted by a Hearing Examiner shall be conducted in accordance with Chapter 143.13.128
After the close of evidence and testimony a Hearing Examiner may deliberate and thereafter enter the ruling either in the same manner as the Commission or as per Section 143.057(g) and (h) of Chapter 143.
If a situation arises pertaining to the administrative processes of selecting a Hearing Examiner, or meeting notices, or request for rescheduling, recusal, conflict of interest, etc., and the situation is not provided for Chapter 143 or in these Rules and Regulations, then the parties and the Director shall attempt to mutually resolve the situation by agreement. If the matter is not one capable of being reasonably resolved by agreement, then the Director may refer the matter to the administrative processes of the entity sponsoring the Hearing Examiner to resolve the situation within their own processes.
If a Hearing Examiner has been initially selected but thereafter is objected to or is asked to be recused by a party, both parties may mutually agree to excuse the Hearing Examiner and thereafter request a new list of qualified Hearing Examiners and start the selection process over again. If no such agreement can be reached, then both parties shall prepare a written statement including their request and reasoning therefore which shall be submitted to the Director. The Director shall then transmit same to the agency sponsoring the Hearing Examiner which shall then resolve the dispute according to its own administrative processes. The response shall either excuse the Hearing Examiner and thereafter provide a new list or it shall provide a written statement of reasons why the Hearing Examiner was not excused.
End of Chapter 13