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Civil Service Commission Minutes - 04/27/2007MINUTES OF THE FIREFIGHTERS' AND POLICE OFFICERS' CIVIL SERVICE COMMISSION Present: Bob Monaghan, Chairman Dr. Ernest Dover Dr. Floyd Thornton April 27, 2007 § Commission Members Earl Foster, Fire Chief § Bill Weske, Assistant Fire Chief § David Winney, Human Resources Director § Julia Vasquez, First Assistant City Attorney § Linda Merrill, Recording Secretary § Matthew Childs § Brent Womack § Bruce Deeb § Russell Sheppard § Scott Freeland § James Gowen § Craig Berend § 1. Call to Order City Staff Firefighters, WFFD Chairman Monaghan called the meeting to order at 2:01 p.m. 2. Approval of Minutes (March 20, 2007) Commissioner Thornton moved, seconded by Commissioner Dover, that the minutes of the meeting of March 20, 2007, be approved. The motion carried. 3. Consider Appeal by Firefighters James Gowen and Russell D. Sheppard on the interpretation of Local Civil Service Rules and Section 143.033(a) and (b) of the TEXAS LOCAL GOVERNMENT CODE regarding seniority points. David Winney noted that Scott Freeland had filed an appeal, as well. Minutes of the Civil Service Commission Meeting April 27, 2007 2 Chairman Monaghan observed that these appeals pertain to how seniority points are applied, and invited the appellants to present their issue. Russell Sheppard addressed the Commission. He noted that he was hired by the City on October 16, 1996. The City shows his years of service begin on the date he graduated from the Academy (March 19, 1997). But the State recognizes October 16, 1996 as beginning his years of service. Thus, his full 10 years of service occurred in October 2006. He took a promotional examination in February 2007, four months after he reached his 10 years. However, on the eligibility list, he received only 9 years of seniority points.' If the City would recognize his date of hire, rather than the date he earned certification as a firefighter, he would receive an extra seniority point. With that extra point, he would move up two spots, as would Mr. Freeland. Others would also benefit. In addition, Mr. Sheppard relayed, a previous Civil Service Commission ruled that seniority points should be based upon date of hire. The Civil Service Director at that time was Jan Stricklin. He asked that this rule continue to be followed, as it has been on all previous lists during his employment. Further, the driver test given in October 2005 granted seniority points based upon date of hire. This examination was given five months after the May 2005 revision of the Local Rules. He asked that the Commission continue with the precedent, and award seniority points based upon the date of hire, as opposed to the date of certification. Chairman Monaghan asked Mr. Sheppard if he had the ruling from the previous Commission. Neither Mr. Sheppard nor Mr. Winney has found this ruling, but Mr. Sheppard believes it occurred six to seven years ago. Mr. Winney noted the Local Rules were amended in May 2005, but Mr. Sheppard reiterated that the October 2005 test went by the hire date. Commissioner Thornton asked whether the Commission has a duty to follow previous Commission rulings or the current rules. Ms. Vasquez replied that it is important to be consistent. However, the Chapter 143 definition of firefighter was changed in 2005.2 The change was made to include more positions in the definition. ' §143.033 Promotional Examination Grades (b) .... Each fire fighter is entitled to receive one point for each year of seniority in that department, with a maximum of 10 points. 2 (4) "Fire fighter" means a member of a fire department who was appointed in substantial compliance with this chapter or who is entitled to civil service status under Section 143.005 or 143.084. The term: (A) applies only to an employee of a fire department whose position requires substantial knowledge of fire fighting and who has met the requirements for certification by the Texas Commission on Fire Protection under Chapter 419, Government Code, including an employee who performs: (i) fire suppression; (ii) fire prevention; (iii) fire training; (iv) fire safety education; (v) fire maintenance; (vi) fire communications; (vii) fire medical emergency technology; (viii) fire photography; (ix) fire administration; or (x) fire arson investigation; and (B) does not apply to a secretary, clerk, budget analyst, custodial engineer, or other administrative employee. Minutes of the Civil Service Commission Meeting April 27, 2007 3 The definition now makes clear that a firefighter is one who is either certified or eligible to be certified. A firefighter trainee going through the Academy is not certified, nor eligible to be certified. Mr. Sheppard countered that Section 143.033, Promotional Examination Grades, still stands, and emphasized that this section includes the following language: "Each fire fighter is entitled to receive one point for each year of seniority in that department, with a maximum of 10 points." Ms. Vasquez agreed that Section 143.033 did not change, but the key is to refer to the definition of firefighter. She added that the Local Rules are subservient to the LOCAL GOVERNMENT CODE; if the two conflict, the LOCAL GOVERNMENT CODE controls. Mr. Freeland opined that, even with the change of the definition of firefighter to include certification, it also states that firefighters get a point for each year of seniority. He believes seniority is the key. The seniority list has always been figured from the date of hire. Seniority in the rank as a firefighter would go from the date of graduation. But seniority in the department itself goes back to the date of hire. He worked for the department before he was a certified firefighter. Mr. Winney remarked that the key to this issue is whether, when hired by the City as a trainee, that individual is able to perform the functions of a firefighter as stated in that definition. Or, does that individual actually become a firefighter only when he or she has completed training and is put into a role by the Chief to perform actual firefighting duties. Mr. Sheppard noted the appellants' viewpoint is that they have seniority on time of service, regardless of the definition of firefighter. Chapter 143 says a firefighter and firefighter recruit are synonymous. The trainees do the same thing that firefighters do. He added that James Gowen was a certified firefighter at the time he was hired by the City. Ms. Vasquez noted that is a different situation. She referenced litigation involving litigants who were certified in EMS training. The Court ruled they were considered certified or eligible to be certified. Mr. Sheppard said the playing field is not level for everyone else in the class. He noted that, although Mr. Gowen would be deemed to have seniority over him (due to his certification); he was in fact hired three days after Mr. Sheppard. Ms. Vasquez expressed her understanding, but noted that the revised definition of firefighter has to be consistently applied throughout the Code. Chapter 143 does not contemplate any departmental seniority. The police and fire departments have seniority lists that pertain to vacation, assignments, etc., but that is an internal operation. This internal list would typically mirror an eligibility list for seniority, but sometimes it will be different. Commissioner Dover asked if she shared that opinion with Mr. Winney. She replied that she did share with him that it is certainly her opinion that the definition of firefighter should be consistent with how seniority points are applied. Minutes of the Civil Service Commission Meeting April 27, 2007 4 Mr. Freeland asked if time counted toward seniority includes the six months of probation prior to certification. Mr. Winney noted that would count toward seniority as an employee, but not as a firefighter. Mr. Freeland countered that seniority is not a tiebreaker; it is awarded above the examinee's raw score. He added that the definition of firefighter is not at issue, but rather, the definition of seniority. Seniority ought to start at the date of hire. Chairman Monaghan asked Chief Foster if he had anything to add to the discussion. Chief Foster noted that he generally tries to stay out of appeals, but he did have some observations. He noted that Mr. Gowen was certified as a firefighter when he joined the department. Messrs. Sheppard and Freeland were firefighter trainees, a position established by the City Council. There are problems with the Local Rules. One section notes that the length of service for determining the eligibility for taking a promotional exam shall include the probationary period in the fire department. Yet a subsequent section specifically requires firefighter certification. Chairman Monaghan noted that the Commission ought to be consistent in its ruling, but he could see how either side can be argued. Ms. Vasquez noted Chapter 143 is always revised incrementally, and there are inconsistent provisions between police and fire. Chief Foster asked when firefighters are actually deemed certified; is it when the Texas Commission on Fire Protection in Austin puts it into the computer, or when they graduate from the Academy? Ms. Vasquez stated the big question is when are they eligible for certification. Commissioner Dover asked for clarification concerning a San Antonio case that ruled a probationary firefighter is not eligible for civil service status. Ms. Vasquez replied that those probationary firefighters do not get the due process and other benefits that go along with civil service until they complete their probationary period. She added that there are some seniority provisions that include the probationary period, one being the eligibility to test. If someone is considered eligible to take a promotional test, probationary time is considered part of the period of seniority. But those employees are not entitled to civil service protection until they finish their probation. Mr. Winney opined that it would seem to him that the critical time of certification for a firefighter is when the Fire Chief determines that that individual can perform as a firefighter, and not as a trainee. Mr. Sheppard noted that he went to a church fire during his time in the Academy, and performed firefighter duties. Mr. Gowen added that trainees will go to a structure fire and perform overhaul techniques or whatever else needs to be done, in addition to fire suppression. Chairman Monaghan addressed Mr. Gowen, stating that there is no argument that he was certified when he entered the Academy. The other appellants agree their Minutes of the Civil Service Commission Meeting April 27, 2007 5 situation is different. He questioned whether Mr. Gowen would not have an issue with seniority points being granted from the date of hire, since he had certification at that date that the other appellants did not. Mr. Gowen stated that in a way he would, but mostly not. He believes the points need to be given correctly. The trainees do everything a firefighter does, with the exception that they are not assigned to a shift. Rather, the trainees go to school, Monday through Friday, 8:00 a.m. to 5:00 p.m. But the trainees' duties are those of a firefighter, from day one. Commissioner Dover noted the issue is basically seniority points. Chairman Monaghan added that the issue further addresses when the seniority points are assessed. Mr. Gowen noted that six or seven certified firefighters were hired after him. This issue will also affect them. Mr. Winney noted that Chapter 143 applies only to a position that meets the requirements for certification. Mr. Sheppard argued that precedent has been set, with every test he's taken since he's been employed by the Department, up to this last test. Mr. Gowen noted that the last lieutenant's examination went by the date of hire, as well. He added that he believes it was over 10 years ago that the Civil Service Commission established the date of hire as being relative to seniority points. Mr. Sheppard stated there are people above him on the driver list who will be promoted, as there are vacancies. A tiebreaker situation goes by an applicant's present rank in service, and those individuals will have seniority over him. Commissioner Dover asked if the appellants are asking the Commission to clean up the language at the local level. Mr. Sheppard noted he is looking for the same thing as Chief Foster; it has consistently been the date of hire. Chairman Monaghan noted that if the ruling from the Commission is that seniority starts from the date of hire, the local rules will need to be amended. Ms. Vasquez agreed, adding that this action could not occur today. She added a cautionary note to the discussion: what happens when someone appeals to the Commission to have seniority begin with certification? She noted the GOVERNMENT CODE, Chapter 419, most likely has a provision that requires an individual to successfully complete a fire training academy or program before being considered eligible for certification. Commissioner Thornton asked if the Commission is supposed to go by precedent or the new rules. Ms. Vasquez noted that the Local Rules should never conflict with Chapter 143. That Chapter will always supersede the Local Rules, even if the Chapter contains an error. There is language in the Local Rules that acknowledges this hierarchy. If the Commission determines that the Local Rules are in conflict with Chapter 143, it can grant the appeals without changing the Local Rules first. Minutes of the Civil Service Commission Meeting April 27, 2007 6 Commissioner Thornton stated that he believes an attorney could argue that the "or" found after the list of activities Section 143.003(a) could be interpreted to mean someone who simply performs fire suppression. Ms. Vasquez noted the reason that "including" was used was to ensure that it did not mean only fire suppression. Chairman Monaghan read a portion of the Introduction to the Local Civil Service Rules into the record: These Rules are promulgated in compliance with Chapter 143 of the Local Government Code, which is incorporated herein for all purposes. It is intended that these Rules shall complement said statute and not conflict with the statute in any manner. No set of rules can be so precise as to provide for every employment situation; therefore, it is intended that the Civil Service Commission administer these Rules in the best interest of the Fire and Police Departments. He stated that he is not sure the Local Rules are in conflict with Chapter 143, unless he is told otherwise by legal counsel. Ms. Vasquez noted that she did not believe it was in conflict. Chairman Monaghan continued, stating that even though the Local Rules were amended in 2005, it appears actions since that time have been inconsistent with that change. Ms. Vasquez asked if an FEO test had been given since the Local Rules were revised. Mr. Sheppard replied that an FEO test was given in September 2005, and the hire date was used. Chief Foster noted that, if a fixed date in time is not established, and the Department continues to hire and run certified and non - certified employees through the same Academy, there will be confusion. Right or wrong, there needs to be consistency. The only date he can find that is consistent is the date of hire. Mr. Winney remarked that a date needs to be set for administrative purposes. Mr. Sheppard noted the hire date would be the easier date to choose. Mr. Winney replied that he is not as concerned about ease as he is about accuracy and doing the right thing. He believes those who are already certified should get consideration for that experience. Ms. Vasquez agrees that the hire date would be the best way to administer this issue. But her concern is that someone who is already certified would appeal that decision. In her opinion, the law is on the side of the date of certification. Mr. Sheppard noted there has not been such a challenge to date. There will always be someone unhappy with the decisions made by the Commission. Ms. Vasquez asked if the appellants were asking that the Commission rule in their favor, wait to see if someone who is certified files an appeal, and make a 1800 change in their decision. Mr. Sheppard wished that this was not the case, but this is how society is. Minutes of the Civil Service Commission Meeting April 27, 2007 7 Mr. Freeland gave the example of two individuals being hired on the same day. One is already certified, the other is not. If seniority is given to the certified firefighter, then that individual is getting points for the time he has been a certified firefighter for another town. Mr. Vasquez disagreed, adding that the State basically drafted language that does not recognize a firefighter until that person is certified or eligible to be certified. Mr. Freeland asserted that the issue does not have anything to do with the definition of firefighter, but rather, the definition of seniority. He was employed at the same time as Mr. Gowen. Yet Mr. Gowen is eligible for more seniority points because he was already a firefighter. Ms. Vasquez noted the whole origin of allowing 10 points for seniority comes from the LOCAL GOVERNMENT CODE. Chapter 143 is the statute that originates this right. Unfortunately, this statute does not recognize individuals until they are firefighters. That requires a review of the definition of firefighter. The whole reason 10 points is given is because Chapter 143 says those points are awarded, and those points are awarded to firefighters. Mr. Sheppard noted that all they are asking for is a decision on either the hire date or certification date for purposes of awarding seniority points. Ms. Vasquez stated that she felt obliged to warn the Commission that someone who is certified can appeal to the Commission for the date of certification to be used for the awarding of seniority points, rather than the date of hire. The Commission would then be in a position to have to amend any decision they would make in favor of the date of hire. This is a cautionary tale in the event the Commission decides to grant grievances or appeals based on what may seem to be the fairest action, and not on the law. Bruce Deeb interjected that he is an observer who will be affected by the Commission's decision. It would be fine with him that his seniority date begins with his date of hire. But he points out that he is not covered under civil service until he takes the civil service test. Is rank established at the time of the taking of the civil service test? In a tiebreaker situation, the grade of the civil service test comes into play. Ms. Vasquez stated that case law that interprets Chapter 143 reveals that the probationary period counts for seniority for certain purposes. But there is no protection of civil service. Those are two separate things. It seems logical to go by the hire date. The problem is that the firefighter definition was amended in the last legislative session. Chairman Monaghan stated that he appreciates there are obvious inconsistencies. There is not only this issue with the appellants, but potentially an issue with needing to amend the Local Rules. However, someone else could still appeal if the Commission voted in favor of the appellants. Ms. Vasquez added that this change will not only affect this list, but the entire seniority list in the fire department. Minutes of the Civil Service Commission Meeting April 27, 2007 8 Ms. Vasquez opined that the issue is whether the Local Rules are inconsistent with Chapter 143. The Local Rules are subservient to Chapter 143. She is of the opinion that it is not in conflict to the effect that the Local Rules are void. Rather, she believes it is consistent with how firefighter is defined in Chapter 143. The unfortunate issue is that tests were administered after that date, using the hire date for seniority, which may or may not have made a difference. But she does not think it is prudent to keep doing something that is inconsistent with the law simply because that is the way it has always been done. She thinks it was done that way prior to 2005 because there was nothing that defined seniority within a department. That concept did not exist; it was an internal operation created by the police and fire departments to administer their internal processes, such as vacations and assignments. Civil Service does not recognize the departmental seniority list. Chairman Monaghan stated the issue needs to come to a vote. Ms. Vasquez noted that Mr. Freeland's appeal was not posted on the agenda, as he was not identified at the time of posting. Mr. Sheppard noted that if the Commission goes by the certification date, Mr. Gowen has seniority over him by over five months. But if the Commission goes by the date of hire, they are on a level playing field. This action would do the same thing for each class behind them and before them that included both certified and non - certified firefighters. Chairman Monaghan stated his inclination is to defer a decision on the appeals, and request a formal opinion from the City Attorney's office in terms of options available to the Commission. He requests that this opinion be delivered as rapidly as possible, and another meeting of the Commission be scheduled, in accordance with posting requirements, so that this matter can be resolved. Commissioner Thornton observed that the Commission's purpose is to enforce rules and to act for the good of the fire and police departments. Ms. Vasquez explained that this hearing may be continued. Typically, this continuance can only be for one day with the same posting. The meeting will thus have to be reposted. This item can be tabled. Chairman Monaghan then moved that the three appeals be tabled and that the Civil Service Commission request a formal opinion from the City Attorney as to the options available to the Commission; further, this meeting should be reconvened as soon as possible, taking into consideration the requirements for posting. Commissioner Thornton seconded the motion. The motion carried unanimously. Ms. Vasquez confirmed that the meeting will be reconvened at a later date, and the posting will include all three appeals. Minutes of the Civil Service Commission Meeting April 27, 2007 9 Chairman Monaghan thanked the appellants for their time, and congratulated them on the manner in which they pled their case. He assured them the Commission will make a decision as rapidly as possible. Mr. Winney suggested the Commission meet again in 10 days, or a week from the following Monday. Mr. Sheppard informed the Commission that a captain's test will be given on May 8. The examinees will then have five days in the appeal process. That test will reveal the next four drivers. Mr. Deeb addressed the Commission. He believes that the fair thing to do is to decide on the date of hire, even though that would hurt him personally. He has no problem with the appellants getting an extra point. 4. Consider proposed entrance examination changes for firefighter trainees. Chief Foster noted that in 2004, the physical agility test was revalidated at the drill field. Those in the department age 18 -35 were used for this testing. They were put through identical testing, and their test times were recorded. An average time of 6 minutes, 59 seconds was obtained. Ms. Stricklin stated that some time would be added to that for training. When the Local Rules were amended, an incorrect time of 7:46 was used. It was subsequently discovered that 7:46 was the slowest time from those firefighters tested. This time results in about 80% of people passing the test. This does not eliminate a large enough field, and is not a good standard. Plus, it's not the average. He proposes taking the 6:59 and adding 30 seconds to it for training time. The test is based on the duties that are performed on the job. The firefighters know the techniques, so they can perform the drills more quickly than those who are training. Had this number been used on the two classes since the adoption of the revised rules, the 7:29 would have resulted in a 55% passing rate, which is a good number. He would like this revised prior to the next Academy, scheduled for June 16. Ms. Vasquez noted this change can be accomplished. Rule changes do have to be posted for seven days in the stations. After that period, the rule change becomes effective. The drafting of the rule change can be accomplished quickly, and the proposed change can be presented to the Commission at its next meeting. Mr. Winney suggested the time be changed to 7:30, rather than 7:29, so that it is easy to remember. Chief Foster agreed. Chairman Monaghan expressed surprise that 16 seconds could make such a difference in the passing scores. Chief Foster replied that a high percentage of applicants score between 7:30 and 7:46. Chairman Monaghan asked how the Chief would handle complaints of not enough staffing (due to higher standards of testing). Chief Foster replied that there has to be an element of physical agility to be a firefighter. When only 20% of the field is eliminated, it does not seem like physical agility matters Minutes of the Civil Service Commission Meeting April 27, 2007 10 very much. He wants the applicants to be in good shape. The test is simply a pass -fail, rather than a specific grade. Therefore, he would like the time requirement to mean something. Chairman Monaghan asked for confirmation that this could not be voted on today. Ms. Vasquez confirmed, noting this is not an action item. The rule change will need to be written. She added that the police department will come before the Commission with a similar request. Mr. Winney added that they wish to take the 32 sit- ups in one minute requirement to 28. Ms. Vasquez noted the police department was having the opposite problem of the fire department; too many applicants were being eliminated due to this requirement. Mr. Winney noted a change was needed to Section 143.023, Eligibility for Beginning Position. Subsection (4), Cause for rejection of applicants for firefighter classification, states that applicants who have violations exceeding four events (moving violations or preventable accidents) within the past three years may be rejected. The City's Employee Handbook makes applicants or employees ineligible for certain positions if they have four or more violations within the past three years. Police and Fire employees thus get more consideration. Chairman Monaghan asked that this proposed change be added to the agenda of the next meeting, as well. Chief Foster then addressed another issue with the Local Rules. There are several passages in the Rules which reference the B -Pad testing process. The Fire Department does not currently use a B -Pad. He is hesitant to remove references to the B -Pad completely, as he would like to see it used again in the future. However, he is questioned about the fact that the B -Pad is mentioned in the Rules but never used. He suggested that, to clarify the Rules, all references to the B -Pad should be removed, or include the phrase "if applicable," or some similar wording, to allow for the reference to remain. Ms. Vasquez suggested the phrase "if required." Chairman Monaghan suggested language such as, "We reserve the right to do the following... ". Ms. Vasquez noted appropriate language would be drafted for consideration by the Commission. 5. Report from Fire Chief. Chief Foster noted that an Academy is beginning this coming Monday for five certified firefighters. They will be going through an eight -week refresher course. On June 16, a written examination and physical agility test will be given. This is open to anyone, and those successful will enter a full - fledged six month Academy scheduled to begin on August 27. There will probably be 12 in the Academy, but that number will depend on the number of vacancies. Chairman Monaghan asked where the certified firefighters are coming from. Chief Foster replied that two of them were Vernon College students from the last academy; one was an instructor with the United States Air Force Fire Academy; one is from Yoakum, Texas, and the other from Saint Jo, Texas. Minutes of the Civil Service Commission Meeting April 27, 2007 11 6. Consider proposed updates to the Local Civil Service Rules. Chief Foster addressed the need to amend Section 143.024(2).3 This section has the applicant receiving a conditional offer of employment prior to the interview with the Fire Chief. The job cannot be offered until the applicant has met with the Chief. Ms. Vasquez noted that the medical and psychological examinations cannot proceed prior to the conditional offer of employment. Mr. Winney interjected the proposed language revision includes a conditional offer of employment pending the Chief's interview and the medical and psychological examination. Ms. Vasquez agreed to placing the medical and psychological examination last. Chief Foster added there is nothing in the list that requires the applicant to pass a written examination, which needs to be included. Ms. Vasquez reminded Chief Foster to state in his interviews that the applicant is still subject to passing the medical and psychological testing. Chief Foster stated that he does this routinely. 7. Adjourn. Commissioner Dover moved, seconded by Commissioner Thornton, that the meeting be adjourned. The motion carried, and the meeting adjourned at 3:33 p.m. 3 (2) Order of Entry Level Application and Examination Process for Fire Applicants. —All applicants for entry-level positions in the Fire Department shall complete the following screenings and examinations: 1) submit written application and completed background packet 2) pass physical ability test —with standards determined by the Civil Service Commission. An applicant may retake the physical ability test without any waiting period, but may retake the physical ability test only twice in one day. If the applicant does not pass after two tries, he /she must then wait until the next test date to retake the physical ability test. 3) pass B -Pad screening — applicant may take B -Pad twice before being disqualified for a period of six months. 4) pass background investigation 5) be approved by legal review 6) receive conditional offer of employment 7) pass medical and psychological examinations 8) pass Chiefs interview Items number 7 and 8 are interchangeable as to the order in which they may be scheduled.