PLEASE NOTE: Nothing in this publishing or not this website should be taken as legal advice.
OPINION: San Marcos ‘Meet and Confer’ Public Disciplinary Actions
There has been a lot of talk about the recent ‘Meet and Confer’ related to Mano Amigas’ push for “Hartman Reform.” There have been numerous publishings on the topic. The group seeks to reform more than a few items, as listed by Community Impact:
- End the 180-day rule: repeals the statute of limitations on investigating wrongdoing by officers
- End delay of interviews for misconduct: repeals current conditions where officers are allotted 48 hours to prepare answers in interviews; officers also have the ability to review video footage, photos and other materials prior to giving an official statement
- Public transparency for personnel files: documented misconduct should be available to the community
- End third-party arbitration
- End vacation forfeiture as a substitute to suspension
We aren’t going over each of the five items tagged as “Hartman Reform.” We will focus our opinion on the component of releasing actions taken on paper; such as reprimands, admonishments, written warnings, etc.
There has been a big push by Mano Amiga to get, in their eyes, more transparency to disciplinary records, but a point might be missed.
The City of San Marcos is a Civil Service City
Many may not understand the differences in being a Civil Service city and a non-Civil Service city. We do not intend to go over the differences in this publishing. However, in simplest form it means the city has a process to hire, maintain, promote, and retire employees covered under such a statute. Unlike non-Civil Service cities, there is added protection to various processes, to include the disciplinary process.
Much of the requirements are listed in the Texas Local Government Code 143. The key focus of this publishing is related to Subpart D of the Code.
The Texas Local Government Code 143 Informs What is and is not a Disciplinary Action for Civil Service Under 143
Subpart D of the Local Government Code 143 identifies the following types of discipline:
- Sec. 143.052. DISCIPLINARY SUSPENSIONS.
- Sec. 143.054. DEMOTIONS
- Sec. 143.055. UNCOMPENSATED DUTY OF POLICE OFFICERS
A point of contention mentioned by at least one member of Mano Amiga is referenced in a San Marcos Daily Record article which published on April 2, 2023, titled Activists use SMPD suspensions to highlight need for police reform. The article was written by Dalton Sweat, Barbara Audet, and Shannon West. The quote from the article is as follows:
The most dangerous aspect of this policy is not that officers give up vacation time or that they get to continue working rather than serving the suspension. For me, the most dangerous part is that they don’t have the suspension on their record, so they are able to preserve their seniority and continue to be eligible for promotions later.
Quote from San Marcos Daily Record article which published on April 2, 2023, titled Activists use SMPD suspensions to highlight need for police reform. The article was written by Dalton Sweat, Barbara Audet, and Shannon West and the quote is from Sam Benavidez of Mano Amiga.
This is the part of the concern we have with the ideology that “Hartman Reform,” can happen on all five points. We believe it cannot have all five changes. Part of 143.055 of the Local Government Code states the following:
A disciplinary suspension does not constitute a break in a continuous position or in service in the department in determining eligibility for a promotional examination.
The law listed in the statute indicates that a suspension is not a barrier to promotion. It seems, in our opinion, that various pieces of information were not reviewed before creating all the “Hartman Reforms.”
The suspensions still exist. They are clearly documented. The suspensions are released and are considered public record. What is not considered public record is anything below the three items listed above.
Case Law has Determined Corrective Actions not Considered Discipline in Local Government Code 143 Subsection D are Confidential and Cannot be Released
We have reviewed numerous cases filed in court, and open record decisions issued by the Texas Attorney General’s Office. We even found a Texas Attorney General Opinion issued in request for an opinion on this same topic. On July 18, 2000, the Texas Attorney General issued Opinion Number JC-0257. The key parts are identified here:
You also ask whether a written reprimand must be placed in the civil-service commission personnel file that is open to the public under section 143.089(a) of the Local Government Code or in the department file that is confidential under section 143.089(g). See Request Letter, supra 1; TEX. LOC. GOV’T CODE ANN. 143.089(a), (g) (Vernon 1999). Because it is not a disciplinary action for the purposes of subchapter D, a written reprimand is not an action that may be taken “in accordance with [chapter 1431” under section 143.089(a)(2). See TEX. LOC. GOV’T CODE ANN. 143,089(a)(2) (Vernon 1999). Consequently, it must be placed in the confidential department tile and not in the public civil-service-commission file.
Consequently, a written reprimand may not be placed in the public, civil-service director’s personnel file. The department’s confidential personnel file, maintained under section 143.089(g) of the Local Government Code, is the appropriate repository for a written reprimand. See TEX. LOC. GOV’T CODE ANN. 143.089(g) (Vernon 1999); see also City of San Antonio, 851 S.W.2d at 949 (“Subsection(g) authorizes but does not require City fire and police departments to maintain for their use a separate and independent personnel files on a police officer or fire fighters.“).
As a matter of law, under chapter 143 of the Local Government Code, a municipal civil-service commission that is not subject to subchapters G, H, I, or J lacks jurisdiction to consider an appeal of a written reprimand that does not involve a suspension, demotion, or promotional passover. The department file that is confidential under section 143.089(g) of the Local Government Code is the appropriate repository for such a written reprimand. It may not be placed in the civil-service director’s personnel file that is open to the public under section 143.089(f).
Texas Attorney General Opinion Number JC-0257
As we continue to watch the new San Marcos ‘Meet and Confer’ and if we do not see the changes requested through publication in multiple channels, we recommend to not focus ones attention on the government negotiators, but maybe consider the reasoning the government negotiators are not changing particular items and what legal barriers may exist and how those legal barriers can be overcome.
We have reached out to San Marcos Police Chief Stan Standridge for comment, but we suspect our question answered the comment he would provide. If that changes, we will update the story.
A Couple of Our Other Reads
You may be interested in reading about the San Marcos Police disciplinary actions taken in 2021.
Or you may find the San Marcos disciplinary actions taken in 2022 of interest.
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