(a) General provisions, applicability, jurisdiction, and quorum.
(1) To the extent that a rule adopted by the civil service board and approved by the city council conflicts with a provision of this chapter, this chapter prevails.
(2) In this section:
(A) BOARD means the civil service board of the city.
(B) SECRETARY means the secretary of the civil service board.
(3) This section does not apply to:
(A) a department director, an assistant department director, or other managerial personnel designated by the city council in accordance with Section 11, Chapter XVI of the city charter;
(B) a non-civil service employee; or
(C) applicants for employment.
(4) The civil service board has jurisdiction to hear the following matters:
(A) A grievance of a current employee that is not settled at the final grievance and appeal procedure step and that involves a claim of discrimination because of an employee’s race, color, age, religion, sex, sexual orientation, gender identity and expression, genetic characteristics, national origin, disability, or military or veteran status as it affects the employee’s training, promotion, advancement, or transfer, but only if the request for a grievance hearing:
(i) is filed in writing with the civil service board secretary within 10 working days after the date of the employee’s receipt of the letter of the last disposition of the grievance;
(ii) contains the following information:
(aa) a brief explanation of the incident causing the complaint, including the date of occurrence;
(bb) a brief statement showing how the incident harmed the employee;
(cc) the type of discrimination alleged;
(dd) the remedy sought;
(ee) the signature of the employee; and
(ff) a certificate showing the date of service to the secretary; and
(iii) has a copy of the original grievance attached to the request.
(B) A grievance that is not settled at the final grievance and appeal procedure step and that involves an interpretation or application of a civil service rule, but only if the request for a grievance hearing:
(i) is filed in writing with the secretary within 10 working days after the date of the employee’s receipt of the letter of the last disposition of the grievance; and
(ii) contains the following information:
(aa) a brief explanation of the incident causing the complaint, including the date of occurrence;
(bb) a brief statement showing how the incident harmed the employee;
(cc) the provision of the civil service board’s code of rules and regulations that is in question;
(dd) the remedy sought;
(ee) the signature of the employee; and
(ff) a certificate showing the date of service to the secretary; and
(iii) has a copy of the original grievance attached to the request.
(5) The civil service board does not have jurisdiction to hear:
(A) a grievance of an individual whose employment with the city has terminated, even if the original grievance was filed when the individual was a city employee; and
(B) a grievance on a matter that was not included in the original grievance filed by an employee.
(6) Any four members of the civil service board constitute a quorum for purposes of conducting any meeting or hearing under this section. All decisions or actions of the board under this section must be made by a majority of the board members present at a meeting or hearing.
(b) Prehearing deadlines.
(1) To the fullest extent possible, within fifteen working days after the date of service of the request to the secretary of the civil service board, as shown on the certificate attached to the request under Subsection 34-39(a)(4)(A), 34-39(a)(4)(B), or 34-39(a)(4)(C), the secretary shall do the following:
(A) Set a hearing before the civil service board within 60 to 90 calendar days after receipt of the request by the secretary; however, the secretary of the civil service board may, with the approval of the civil service board chair, schedule a hearing outside of 60 to 90 calendar days from the date of the request.
(B) Prepare a “statement of questions,” which must be styled, “Matter of (name of employee)” and include the following language:
(i) If the grievance involves a claim of discrimination, the statement of questions must read “Did the employee establish, by a preponderance of the evidence, the existence of discrimination based on the employee’s (choose appropriate category - race, color, age, religion, sex, sexual orientation, gender identity and expression, genetic characteristics, national origin, disability, or military or veteran status) as it affects the employee’s (choose appropriate category - training, promotion, advancement, or transfer)?”
(ii) If the grievance involves a claim of misinterpretation or misapplication of a board rule, the statement of questions must specify each rule alleged to have been violated.
(iii) The statement of questions may not include any issue not included in the original grievance.
(C) Transmit to each party notice of the hearing and the statement of questions.
(2) Objections.
(A) Within 10 working days after the date of service as shown on the certificate of service on the statement of questions, the parties shall file any objections to the statement of questions with the secretary.
(B) Within five working days after the date of service as shown on the certificate of service on the objections, a response may be filed.
(C) Objections may be resolved at the hearing immediately before evidence is accepted.
(3) Continuances.
(A) At least 15 working days before a hearing or two working days after a party learns of the facts requiring a continuance, whichever date is earlier, a motion for continuance of the hearing may be filed.
(B) Within five working days after the date of service as shown on the certificate of service on the motion for continuance, a response may be filed.
(C) Other than in cases in which the parties agree to abate a hearing to await the final adjudication of underlying criminal charges, the parties may agree to a continuance, in which case, the hearing will be continued for up to 60 calendar days. Agreed continuances in excess of 180 days from the date of the original setting of the hearing must be approved by the civil service board chair, or his or her designee who shall be a member of the civil service board.
(D) If the parties do not agree to a continuance, the continuance may be granted by a majority of the board members present at a meeting or hearing at which the motion for continuance is considered.
(4) Exchange of information. At least 10 working days before the hearing, each party shall:
(A) exchange witness lists;
(B) exchange exhibits;
(C) stipulate to undisputed facts;
(D) stipulate to the admissibility of exhibits; and
(E) file with the secretary a position statement that must include a:
(i) statement of the party’s position on the issues in the statement of questions;
(ii) designation of undisputed facts;
(iii) list of witnesses and the estimated time required for the direct examination of each witness; and
(iv) list of exhibits.
(5) Request for subpoenas. At least 30 working days before the hearing, each party may file with the secretary a request for subpoena of witnesses and documents, in accordance with the following:
(A) The request for subpoena of witnesses and documents must include:
(i) the name and address of each witness to be subpoenaed;
(ii) if a witness is a city employee, the name of the employee’s department; and
(iii) if documents are being subpoenaed, the specific identification of books, papers, documents, or other tangible things sought to be subpoenaed.
(B) The party requesting the subpoena shall notify the subpoenaed witness of postponements, rescheduling, and appearance times.
(C) The board has the power to compel the attendance of witnesses and the production of testimony and evidence, to administer oaths, and to punish for contempt in the same manner as provided for municipal judges.
(D) Either party may object to a subpoena request within seven working days after receiving notice of the subpoena request. Objections to subpoenas must be in writing, submitted to the secretary, and copied to the opposing party, who has three working days after receipt of the objections to respond in writing to the substantive reasons for the objection.
(E) The secretary shall forward the written objections and the response to the objections, if any, to the civil service board chair for resolution. If the civil service board chair is unavailable, the objections must be ruled upon by his or her designee, who shall be a member of the civil service board.
(F) Once the scope of the subpoena is determined by the civil service board chair, or if no objections are filed, each party shall organize and number the responsive information (“the released documents”) before turning it over to the secretary. The released documents must be provided within an amount of time determined by the civil service board chair or, if no objections are filed, in an amount of time determined by the secretary. The secretary shall provide a complete copy of the released documents to both parties of the hearing, at the expense of the party who issued the subpoena for the documents.
(G) The individual picking up the released documents must sign for the produced information. The requesting party has three working days to submit, in writing, any objections to the completeness of the released documents. The producing party has three working days to respond, in writing, to the substantive reasons for the requesting party’s objections. The secretary shall maintain one complete copy of the released documents, to allow the civil service board chair to fully assess and rule on any objections to the completeness of compliance with the subpoena.
(H) The secretary shall forward the objections and any response to the objections to the civil service board chair for resolution. If the civil service board chair is unavailable, the objections will be ruled upon by his or her designee, who shall be a member of the civil service board.
(I) Decisions rendered by the civil service board chair (or his or her designee, if applicable) regarding subpoenas or responsive information are final and are not subject to further appeal.
(J) After all decisions have been rendered by the civil service board chair regarding the scope of documents to be released pursuant to a subpoena, the secretary shall provide a complete copy of the released documents to both parties of the hearing, at the expense of the party who issued the subpoena for the documents.
(6) Challenge of board members.
(A) At least 10 working days before the hearing, a motion to challenge a board member may be filed with the secretary and served upon all parties.
(B) Within five working days after the date of service as shown on the certificate of service on the motion to challenge a board member, a response may be filed.
(C) A challenge may not be made after the hearing begins, unless the challenge is based on a board member’s:
(i) ineligibility to hear the matter; or
(ii) conduct during the hearing.
(D) If the challenged member does not voluntarily withdraw, the board, by a majority vote, not counting the vote of the challenged member, may remove the member.
(7) Service of subpoenas.
(A) At least five working days before the hearing, the secretary shall cause all subpoenas to be personally served.
(B) The secretary shall designate a person to deliver the subpoenas and that person shall sign each subpoena stating that the witness was served.
(C) The subpoena of an active city employee may be served through the director of the employee’s department.
(8) Computation of time.
(A) In computing any period of time prescribed in this section, the day of the act or event from which the designated period of time begins to run is not included.
(B) The last day of the time period is included, unless it is a Saturday, Sunday, or official holiday observed by the city, in which event the period runs until 5:15 p.m. of the next day that is not a Saturday, Sunday, or official holiday observed by the city.
(C) Except as otherwise specified, time periods will be calculated based on calendar days.
(c) Hearings.
(1) Any four members of the board constitute a quorum for a hearing under this section. The board chair (or, in the chair’s absence, the vice chair or longest serving board member present) shall preside at any hearing and make rulings regarding evidence or procedure. Upon motion of any board member, the board, by majority vote, may overrule or modify any ruling by the chair.
(2) The employee has the burden of establishing, by a preponderance of the evidence, that the city discriminated against the employee or misapplied or misinterpreted a rule as alleged.
(3) If the board, by majority vote, determines, by a preponderance of the evidence, that the city discriminated against the employee or misapplied or misinterpreted a rule as alleged, the board shall direct such relief as it deems just and equitable.
(4) The appealing employee:
(A) may request the hearing or deliberations, which are usually open to the public, to be closed; and
(B) may not be compensated for time away from the employee’s city position while attending a hearing, unless so ordered by the board.
(5) The board may exclude:
(A) redundant, irrelevant, or cumulative evidence;
(B) evidence that is not competent or properly authenticated;
(C) any exhibit not previously exchanged; and
(D) the testimony of a witness not previously identified as a witness.
(6) The secretary shall maintain a record of the hearing and shall, at the city’s expense, appoint a court reporter to make a record of the hearing.
(7) The board shall release city employee witnesses as soon as possible to return to city business.
(8) Placing witnesses under the rule.
(A) Upon request by either party, the witnesses on both sides shall be sworn and removed from the hearing room so they cannot hear the testimony as delivered by any other witness in the case.
(B) Witnesses shall be instructed that they are not to converse with each other or with any other person about the case, other than the attorneys in the case.
(9) After the parties have rested, the board may request a party to produce additional evidence as the board deems necessary to decide the issues before it.
(d) Disposition.
(1) Dismissal. A grievance or any part of a grievance must be dismissed for, but not limited to, any of the following reasons:
(A) The appealing employee fails to appear in person at the hearing, unless:
(i) good cause for the failure to appear is shown; and
(ii) the city would not be unduly prejudiced if the grievance is not dismissed.
(B) The appealing employee fails to introduce sufficient evidence to prove the alleged discrimination or misapplication or misinterpretation of a rule.
(C) The board cannot grant the relief that the appealing employee has requested.
(D) The board lacks jurisdiction.
(2) Board orders.
(A) The disposition of a grievance must be reduced to writing by the secretary and transmitted to the parties within three working days after the board has announced its ruling. This writing is the order of the board.
(B) The order is final unless a motion for rehearing is filed within 10 working days after the date on the written order.
(3) Relief. The board may grant the prevailing party relief that is just and equitable as is consistent with the city charter and other applicable law.
(4) Costs. The board may not authorize payment of attorney’s fees, expenses, or costs or provide payment of damages beyond payment of salary and benefits that would have ordinarily been paid to the appealing employee.
(e) Post-hearing deadlines.
(1) Within 10 working days after the date on the written order, a motion for rehearing may be filed by either party.
(2) A motion for rehearing may be granted by the board only if the order:
(A) exceeds the board’s authority;
(B) contains provisions im-permissible under applicable law;
(C) is unclear; or
(D) incorrectly states the dis-position of the matter.
(f) Other matters.
(1) If a court of law rules on an issue involved in the grievance, the board’s order must conform with the court’s ruling or must be vacated in deference to the court’s ruling, whichever is applicable.
(2) The board may order, with the consent of the parties, that any matters having common issues of fact be consolidated.
(3) No party or party representative shall communicate with any board member regarding the issues involved in the grievance except at the hearing.
(4) The board, by majority vote, may seek advice regarding its jurisdiction or the nature and extent of its authority from the city attorney.
(5) A party may be heard through a representative if that representative is designated:
(A) in writing filed with the secretary and served on all parties;
(B) on the record at the hearing before evidence is accepted; or
(C) through the signature of the representative on any paper filed with the secretary on behalf of the party.
(6) The secretary shall ensure that the board receives any materials filed by the parties.
(7) Any paper served by a party on the secretary must include a certificate showing service to all other parties.
(8) Service upon the city must be accomplished by serving the assistant city attorney assigned to the hearing.
(9) Nothing in this section may be construed to authorize the practice of law except as permitted by the Supreme Court of Texas.
(10) By presenting to the board (whether by signing, submitting, or later advocating) a request for a hearing, a complaint, a written or oral motion, or any other document, the party is certifying that it is acting in good faith.
(g) Nothing in this section conveys upon, implies, or intends to imply that an employee has a property interest in continued employment or a contract of employment with the city based on any right to grieve or appeal provided by this section or on the nondiscrimination policy stated in Section 34-35 of this chapter. Nothing in this section or in the nondiscrimination policy creates any right or remedy under any law or limits any existing right or remedy provided under any law. (Ord. Nos. 19340; 20988; 22195; 24873; 24930; 25051; 26182; 28024; 29480)