(a) Determinations that may be appealed. The following determinations of the ERC may be appealed in accordance with this § 2-253:
(1) The dismissal of a complaint for failure to allege conduct which would be a violation of Division 1 of this article, pursuant to § 2-251(j);
(2) The dismissal of all or any portion of a complaint on grounds that the conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney, pursuant to § 2-251(k); or
(3) The determination as to whether a violation of Division 1 of this article occurred, as alleged in a complaint heard by the ERC, pursuant to § 2-251(l).
(b) Eligibility requirements and filing deadline. Only a party against whom a determination of the ERC described in § 2-253(a) was made may file an appeal. The appeal must be in writing and filed with the city secretary within ten calendar days after the ERC’s determination.
(c) Filing requirement. The appeal must state sufficient facts to show that the ERC committed a material error in its deliberations.
(d) Sworn nature. An appeal must be accompanied by an affidavit stating that the person filing the appeal has good reason to believe and does believe that the facts alleged in the appeal are true and correct. The appellant shall swear to the facts by oath before a notary public or other person authorized by law to administer oaths under penalty of perjury.
(e) Acceptance by the city secretary. If an appeal does not comply with all of the eligibility requirements and filing deadline requirements of subsection (b) above or the requirements of subsection (d) above, or does not substantially comply with the requirements of subsection (c) above, the city secretary shall, by certified mail, return receipt requested, return the appeal to the person filing the appeal with a letter stating the defects in the appeal. If an appeal complies with all of the eligibility requirements and filing deadline requirements of subsections (b) and (d) above and substantially complies with the requirements of subsection (c) above, the city secretary shall acknowledge to the person filing the appeal that the appeal is complete as to form and provide a copy of the appeal to the city council, the city attorney and the person complained against.
(f) Designation of hearing officer and scheduling of evidentiary hearing. Not later than 15 business days after acceptance of an appeal, the city secretary shall designate the hearing officer in accordance with § 2-244(d) and notify in writing the hearing officer, the person filing the appeal and the person responding to the appeal of the hearing’s date, time and location. Such written notice shall be sent to the person filing the appeal and the person responding to the appeal by certified mail, return receipt requested. If the hearing is not held within 30 business days after designation of the hearing officer, the city secretary shall notify both the person filing the appeal and the person responding to the appeal of the reasons for the delay.
(g) Hearing rules. The hearing shall be based solely on the record of the ERC’s hearing. The hearing shall be conducted in accordance with the Texas Open Meetings Act, Tex. Government Code Chapter 551. The hearing officer shall have the right to establish time limits and other rules of procedure for the hearing and relating to the participation of any person in the hearing, subject to subsections (h) and (i) below. All proceedings of the hearing shall be reduced to writing by a court reporter, who shall file the transcript of the hearing with the city secretary within such time as is specified by the hearing officer. All costs of preparing and filing such transcript shall be borne by the appellant.
(h) Rights of appellee. The person responding to the appeal has the right to attend the hearing, the right to make a statement, the right to present witnesses, and the right to be represented by legal counsel or another advisor.
(i) Rights of appellant. The person filing the appeal has the right to attend the hearing, the right to make a statement, the right to present witnesses and the right to be represented by legal counsel or another advisor.
(j) Order of business. The order of business before the hearing officer shall be as follows:
(1) To ascertain whether the person filing the appeal and the person responding to the appeal are present;
(2) To determine whether the appeal is based on a determination of the ERC described in § 2-253(a);
(3) To review the record, hear statements from both the person filing the appeal and the person responding to the appeal as to whether the record shows that the ERC materially erred in its determination as to the issue on appeal, and, based on the particular standard of review set forth below, to determine whether the ERC materially erred in such determination;
(4) To make a recommendation to the city council as to whether the person originally complained against violated Division 1 of this article as alleged in the complaint originally filed; and
(5) If the recommendation to the city council is to find that the person complained against did violate Division 1 of this article as alleged in the complaint, also to recommend a sanction for the city council to impose in accordance with § 2-252.
(k) Ascertaining presence of the parties.
(1) If the person filing the appeal fails to appear at the hearing, the hearing officer shall dismiss the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, the ERC, and the city secretary a written notice of the hearing officer’s dismissal. The hearing officer’s dismissal of an appeal for failure to appear at the hearing is final unless the person filing the appeal petitions the hearing officer in writing within 30 calendar days following delivery of the dismissal to reconsider on grounds that the person had good cause to not appear and the hearing officer grants such request. Any petition for reconsideration filed by the appellant must include a statement that explains in detail why the person filing the appeal did not appear.
(2) If the person filing the appeal appears at the hearing but the person responding to the appeal does not, the hearing officer may proceed with the hearing in that person’s absence provided that the city secretary has a certified mail receipt that the respondent received notice of the date, time and location of the hearing.
(l) Determining whether there is a sufficient basis for the appeal. If the hearing officer finds that the appeal is not based on a determination of the ERC described in § 2-253(a), the hearing officer shall deny the appeal in its entirety. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(m) Determining whether the appeal is sufficient. If the hearing officer finds that the appeal does not state sufficient facts to satisfy any of the requirements of § 2-253(b), the hearing officer shall deny the appeal in its entirety. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(n) Review of determination that complaint does not allege conduct which would be a violation of Division 1. If the appeal is based on the ERC’s dismissal of a complaint for failure to allege conduct which would be a violation of Division 1 of this article, pursuant to § 2-251(j), the hearing officer shall review the record and determine whether the ERC materially erred in its determination that the complaint did not allege conduct which would be a violation of Division 1. The hearing officer’s determination as to whether the ERC materially erred in its determination that the complaint did not allege conduct which would be in violation of Division 1 shall be based on a de novo review of the record. If, based on such standard of review, the hearing officer determines that the ERC did err materially in its determination that the complaint did not allege conduct which would be a violation of Division 1, the hearing officer shall remand the complaint to the ERC, and the ERC shall proceed to consider the complaint in accordance with the remaining order of business set forth in § 2-251. If the hearing officer determines that the ERC did not err materially, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(o) Review of determination that conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney. If the appeal is based on the ERC’s dismissal of a complaint on grounds that the conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney, pursuant to § 2-251(k), the hearing officer shall review the record and determine whether the record shows that the ERC materially erred in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney. The hearing officer’s determination as to whether the ERC materially erred in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney shall be based on the substantial evidence standard of review of the record. If, based on such standard of review, the hearing officer determines that the ERC did err materially in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney, the hearing officer shall remand the complaint to the ERC, and the ERC shall proceed to consider the complaint in accordance with the remaining order of business set forth in § 2-251. If the hearing officer determines that the ERC did not err materially in its determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(p) Review of ERC’s determination based on the evidentiary proceeding. If the appeal is based on the ERC’s determination at the conclusion of its evidentiary proceeding conducted pursuant to § 2-251(l) as to whether a violation of Division 1 of this article occurred, the hearing officer shall review the record and determine whether the ERC materially erred in its determination as to whether a violation of Division 1 of this article occurred. The hearing officer’s determination as to whether the ERC materially erred in its determination shall be based on the substantial evidence standard of review of the record. The hearing officer’s determination shall proceed as follows:
(1) If the ERC found that a violation of Division 1 of this article did not occur, and the hearing officer determines that the ERC did not err materially in such determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, the city secretary and each member of the city council a written copy of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s determination in this regard shall be final and will not be considered by the city council pursuant to subsection (q) below.
(2) If the ERC found that a violation of Division 1 of this article did occur, and the hearing officer determines that the ERC materially erred in such determination, the hearing officer shall uphold the appeal. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the hearing officer’s determination that a violation of Division 1 of this article did not occur and that no sanction should be imposed upon the person complained against.
(3) If the ERC found that a violation of Division 1 of this article did occur, and the hearing officer determines that the ERC did not err materially in such determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the ERC’s determination that a violation of Division 1 of this article occurred and the sanction to be imposed or recommended in accordance with § 2-252.
(4) If the ERC found that a violation of Division 1 of this article did not occur, and the hearing officer determines that the ERC materially erred in such determination, the hearing officer shall uphold the appeal and, based on a de novo standard of review of the record, announce any sanction to be imposed or recommended in accordance with § 2-252. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the hearing officer’s determination that a violation of Division 1 of this article occurred and the sanction to be imposed or recommended in accordance with § 2-252.
(q) City council hearing. Within 45 calendar days following the date on which the hearing officer provides the city secretary with a copy of any recommendations of the hearing officer pursuant to subsection (p)(2), (p)(3) or (p)(4) above, or as soon thereafter as is practicable, the city secretary shall deliver to the city council a written copy of the hearing officer’s determination and recommendations, as well as the transcripts of the hearings of both the ERC and the hearing officer, and shall schedule a hearing before the city council to consider such recommendations. The written determination and recommendations of the hearing officer, as well as the transcripts of the proceedings before the ERC and the hearing officer, shall form the sole evidentiary basis for the city council hearing. No other evidence or testimony shall be presented at the hearing before the city council. However, the person filing the appeal and the person responding to the appeal shall each be entitled to make a statement to the city council as to whether the city council should adopt, reject or modify the recommendations of the hearing officer. Each statement shall be subject to any time limitation imposed by the presiding officer of the city council. No rebuttal statements may be made. Following any such statements and a review by the city council of the transcript of the testimony and evidence presented to the hearing officer as well as the hearing officer’s determination and recommendations, the city council shall, by majority vote, adopt, reject or modify the determination and any recommendations of the hearing officer. If any adopted determination includes a recommended sanction against an employee, the city manager will be solely responsible for considering, imposing and carrying out such sanction in accordance with the city manager’s authority under Chapter V of the Charter of the City of Fort Worth, Texas. If any adopted determination includes a recommended sanction against an officer other than a member of the city council, the city council, by majority vote, will be responsible for considering, imposing and carrying out such sanction. Within ten business days, the city secretary shall deliver to the person filing the appeal and the person responding to the appeal a written copy of the city council’s determination.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)