March
7, 2001
HB 2536 (Maxey)
Related to the definition of a
disciplinary action
This bill clarifies the definition of a disciplinary
action in the Texas civil service code section 143.
Synopsis:
This bill defines a “disciplinary action” as “any
action by the department administered as a punishment for violating a
departmental rule or order.” Presently the term disciplinary action is not
defined in Chapter 143, and as a result the Attorney General[1]
has created a definition by combining the title of a subchapter and imputing an
implied definition from the structure of local civil service agency. This
ruling and implied definition openly defies a plain reading of Section 143.089,
and the whole situation would be made clear if the term disciplinary action
were only defined.
Background:
Presently there are two laws under which a local
municipal government might fall related to open records about disciplinary
actions against police and firefighters. Most larger cities have, via election,
"opted in" to the state's civil service statutes, which contain
significant restrictions on what records may be made public. All other
municipalities and all county Sheriffs are governed in this matter by the
Public Information Act, section 552.108. Under Texas' civil service code,
municipalities may only release "sustained complaints which result in
disciplinary action." Attorney General John Cornyn last summer interpreted
this narrowly to mean only complaints that result in termination, suspension or
demotion. By contrast, in cities whose officer personnel files are subject to
section 552.108 of the Public Information Act, the public may view all
complaints, officers' responses to complaints, material from the
investigations, and any documents reflecting the final outcome.
For cities that elect to be "civil service
cities," under present civil service law (LGC 143.089) only documents
related to complaints that "result in disciplinary action" are
public, and General Cornyn defined “disciplinary actions” so narrowly that
it excludes most departmental actions taken as punishment for sustained
allegations of misconduct.
By contrast, in non-civil service cities all
complaints, investigative files and the outcomes are public once the
department’s disciplinary process is complete, whether or not the complaint
was sustained or rejected. The Attorney General’s 2000 Public Information
Act Handbook states, “information about complaints against police officers
generally may not be withheld under section 552.108.[2]
This inequity in how different cities are treated
means citizens and even governing bodies in civil service cities can never
really know the true extent of officer misconduct. To look at a local example:
For Austin, only 8% of complaints resulted in
termination, suspension or demotion, the only “official” disciplinary actions according
to the current AG interpretation. Another 17 percent were sustained, but no
information about the officers’ misconduct is public. In most of these cases
officers received some punishment – a written reprimand, forced reassignment,
mandatory counseling, restricted overtime, or any number of other possible
negative actions. This is precisely the category of complaints – sustained with
a disciplinary action less than suspension or demotion – about which this bill
would make limited information public
This bill does not advocate full open records
like at non-civil service police departments and Sheriffs. For 55 percent of
complaints against the APD, the department neither sustained the complaint nor
exonerated the officer, most frequently because the complaint pitted the
officers' word against the complainants' with no corroborating evidence on
either side. This means, for the Austin P.D., the public may view no
information about any non-sustained complaint and 2/3 of sustained
complaints, and only summaries about the rest. Down the street at the Travis County Sheriff’s Department, nearly
all complaints, officers responses to complaints, all investigative notes, and
the final outcome of the investigation are public in any case, whether or not
the complaints are sustained.
This bill would
make limited information about nearly all sustained complaints public in civil
service cities, but not any complaints a department deemed unprovable or
frivolous. The bill does not alter the structure of police personnel
files, or alter the clear intent of past legislators who declared in
Section 143.089(a)(2) that “any letter, memorandum, or document relating to
…any misconduct by the fire fighter or police officer if the letter,
memorandum, or document is from the employing department and if the misconduct
resulted in disciplinary action by the employing department.”
Example:
Until
July, Beaumont and Port Arthur officials released civil service police
officer's entire files, written reprimands included. Only medical history,
phone, social security numbers, and addresses were withheld. The Port Arthur
personnel director, Harvey Robinson, told the Associated Press that this new
direction taken by the Attorney General ensures that public files will no
longer offer a clear reflection of job performance. "The file is supposed
to contain a history…pro and con," he said. "Under this opinion, it would
give a skewed impression." (Austin American Statesman,
"Officials: Personnel files should be available," October 5, 2000.