Attorney General Opinion GA-0662

ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 11, 2008 The Honorable Tony Goolsby Chair, Committee on House Administration Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910 Dear Representative Goolsby: Opinion No. GA-0662 Re: Application of Local Government Code section 143.014(c) to municipalities that have adopted Local Government Code chapter 174, the Fire and Police Employees Relations Act (RQ-0678-GA) You inquire about the interaction ofLocal Government Code chapter 143, the Fire Fighter and Police Officer Civil Service Act (the civil service act), with Local Government Code chapter 174, the Fire and Police Employees Relations Act (the FPERA).l See TEX. Loc. GOV'T CODEANN. ch. 143 (Vernon 2008) (providing for civil service for fire fighters and police officers), id ch. 174 (providing for collective bargaining for fire fighters and police officers). You specifically raise section 143.014(c) ofthe Local Government Code, which is relevant to a municipality that is subject to both the civil service act and the FPERA. See Request Letter, supra note 1, at 1 (citing section 143.014 of the Government Code). Your questions relate to the City ofFort Worth ("the City" or "Fort Worth"), which adopted the statutorypredecessor ofthe civil service act in 1947.2 You inform us that Fort Worth adopted the FPERA for its fire department in an election held in November 2007, but the city council has not yet placed the FPERA in effect pursuant to section 174.052, which requires the governing body to place chapter 174 "in effect [in the municipality] not later than the 30th day after the beginning ofthe first fiscal year ofthe political subdivision after the election." TEX. Loc. GOV'TCODEANN. § 174.052 (Vernon 2008); see Request Letter, supra note 1, at 2.3 In connection with these facts, you ask two questions. Your first question is as follows: ILetter from Honorable Tony Goolsby, Chair, Committee on House Administration, Texas House of Representatives, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Feb. 19,2008) (on file with the Opinion Committee, also available at www.texasattorneygeneral.gov) [hereinafter Request Letter]. 2See Brieffrom Gerald Pruitt, Fort Worth Deputy City Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Mar. 28, 2008) (on file with the Opinion Committee). 3Because your questions relate only to a fIfe department, we will refer only to fIfe department personnel in answering them. The Honorable Tony Goolsby - Page 2 (GA-0662) [D]oes the last sentence of section 143.014(c) nullify Assistant Fire Chief appointments made prior to the date of the adoption election unless the appointment procedure is adopted by the municipality through the collective bargaining process? Request Letter, supra note 1, at 2. We note that section 143.014 does not mention nullifying appointments made under it. Instead, it addresses the appointment power that a city may grant the fire chief, and the impact the city's adoption ofthe FPERA has on this power. Section 143.014 permits a civil service municipality to authorize the fire chief to appoint persons to the classification immediately below his own classification instead of filling these positions by examination. This section provides in part: (b) Ifapproved by the governing body ofthe municipality by resolution or ordinance, the head ofa fire or police department in the municipality in which at least fOUf classifications4 exist below the classificationofdepartmenthead may appoint eachpersonoccupying an authorized position in the classification immediately belowthat of department head, as prescribed by this section. The classification immediately below that of department head may include a person who has a different title but has the same pay grade. (c) . . . In a fire department in a municipality having fewer than 300 certified fire fighters, the department head may appoint not more than one person to the classification immediately below that of department head. If a municipality has 300 to 600 certified fire fighters, the department head may appoint two persons to the classification. If a municipality has more than 600 certified fire fighters, the department head may appoint three persons to the classification. This subsection does not apply to a municipality that has·adopted The Fire and Police Employee Relations Act (Article '5154c-l, Vernon's Texas Civil Statutes)5 unless the municipality specifically adopts the appointment procedure prescribed by this subsection through the collective bargainingprocess. 4The Fire Fighters' and Police Officers' Civil Service Commission provides for the classification of all fIre fighters and police officers, and the municipal governing body "shall establish the classifications by ordinance." TEX. Lac. GOV'T CODE ANN. § 143.021(a) (Vernon 2008). 5Article 5154c-l of the Revised Civil Statutes was repealed and recodified as chapter 174 of the Local Government Code in 1993. See Act of May 12, 1993, 73d Leg., R.S., ch. 269, §§ 4-5, 1993 Tex. Gen. Laws 987, 1263-74. The Honorable Tony Goolsby - Page 3 (GA-0662) TEX. Loc. GOV'TCODE ANN. § 143.014(b)-(c) (Vernon 2008) (footnote and emphasis added). Legislative history indicates that the purpose of section 143.014 is to allow a fire chiefto create a management team.6 While the usual civil service requirements for employment and promotion do not apply to persons appointed by the department head under these provisions,·appointees must fulfill the requirements set out in section 143.014(e). See id § 143.014(e) (among other requirements, appointees must meet requirements for appointment as head of a fire department). Pursuant to section 143.014, the Fort Worth City Council has authorized the fire chief to appoint up to three deputy fire chiefs. FORT WORTH, TEX. CODE § 13-24 (Municipal Code Corp. Supp. 69) (2008). In construing statutes, the courts ascertain and give effect to the Legislature's intent as expressed by the language of the statute. See City ofRockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We read the words and phrases ofstatutes in context and construe them according to the rules ofgrammar and common usage. See TEX. GOV'T CODEANN. § 311.011(a) (Vernon 2005). The courts use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired. See ide § 311.011(b); City ofRockwall, 246 S.W.3d at 625. Otherwise, a statute's words are construed according to their plain and common meaning, unless a contrary intention is apparent. See City ofRockwall, 246 S.W.3d at 625. The last sentence ofsection 143.014(c) provides that "[t]his subsection does not applyto a municipality that has adopted ... [the FPERA] unless the municipality specifically adopts the appointment procedure· prescribed by this subsection through the collective bargaining process." TEX. Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008) (emphasis added). The Code Construction Act provides that "a reference to a subtitle, subchapter, subsection, ... or other numbered or lettered unit without further identification is a reference to a unit ofthe next larger unit ofthe code in which the reference appears." TEX. GOV'T CODE ANN. § 311.006(2) (Vernon 2005); see XVII OXFORD ENGLISH DICTIONARY 56 (2d ed. 1989) (defining "subsection" as "[a] division of a section"). A subsection is a unit of a section, and "this subsection" refers to subsection (c) of section 143.014. Thus, subsection (c) does not apply to a municipality that has adopted the FPERA unless the municipality specifically adopts the appointmentprocedure prescribed by subsection (c) through the collective bargaining process. See TEX.,Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008). In summary, the City's adoption ofthe FPERA does not change the subsection (b) authorization for the fire chiefto appoint persons to the classification immediately below his own classification, but it removes the numerical limits established by subsection (c), unless the City adopts this procedure through the collective bargaining process. 6See Act relating to fIremen's and policemen's civil service, Hearings on Tex. C.S.HB. 1015 Before the House Comm. on Urban Affairs, 68th Leg., R.S. (Apr. 28, 1983) (statement ofDavid Griffm, Texas Municipal League) (audio tape available from House Video/Audio Servs.) (also on file with the Opinion Committee). The Honorable Tony Goolsby- Page 4 (GA-0662) A briefsubmitted to us argues that the last sentence in subsection 143.014(c) is "inherently contradictory," in that it refers to "the appointment procedure prescribed by this subsection."7 It states that subsection (b) ofsection 143.014 establishes "the appointment procedure," referred to in subsection (c), and that the words "appointment procedure" are without effect, unless the word "subsection" in section 143.014(c) is read as "section." See Deats Brief, supra note 7, at 5-6. The briefrelies on Bridgestone/Firestone, Inc. v. Glyn-Jones for the rule "that courts are not bound by the literal meaning of words in the construction of statutes, but when the intent and purpose of the Legislature is manifest from a consideration of a statute as a whole, words will be restricted or enlarged in orderto give the statute the meaning which was intended bythe lawmakers." Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994); see State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979) (ifthe Legislature's intentis determined from examiningthe entire statute, the courts must enforce that intent even though it is not consistent with the strict letter ofthe statute). The Bridgestone/Firestone court addressed former article 6701d, section 107C(j),8 which provided that the "[u]se or nonuse of a safety belt is not admissible evidence in a civil trial." Bridgestone/Firestone, Inc., 878 S.W.2d at 133-34. Reading this provision in the context of the entire statute, the court determined that the Legislature did not intend the seat belt statute to apply in a suit against a seat beltmanufacturer for a defective seat belt system. See Bridgestone/Firestone, Inc., 878 S.W.2d at 133-34. But see St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) (discussing Bridgestone/Firestone; stating that courts must find the Legislature's intent in the statute's language). Wedo not agree that the phrase "the appointment procedure prescribed by this subsection" is meaningless when it is read in context. Various subsections ofsection 143.014 describe aspects of the appointment procedure. Subsection (b) provides for the fire chiefs appointment of his immediate subordinates, and subsection (c) places a limit on the number of persons the fire chief may appoint. Subsection (e) sets out the qualifications ofpersons appointed by the head ofthe fire department9 and subsection (f) requires the department head to make each appointment "under this section" 90 days after a vacancy occurs in the position. TEX. Lac. GOV'T CODE ANN. § 143.014(f) (Vernon 2008). Section 143.014 recognizes that the appointment pro,cedure is not confined to one subsection, stating that a fire chief "may appoint each person occupying an authorized position in 7Brieffrom B. Craig Deats, General Counsel, Deats, Durst, Owen & Levy, P.L.L.C., on behalfofthe Texas State Association ofFire Fighters, to Honorable Greg Abbott, Attorney General ofTexas, at 5 (Apr. 7, 2008) (on file with the Opinion Committee) [hereinafter Deats Brief]. 8See Act ofMay 16, 1985, 69th Leg., R.S., ch. 804, § 1, 1985 Tex. Gen. Laws 2846,2847 (amending article 6701d ofthe Revised Civil Statutes by adding section 107C); ActofMay 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1643-44, 1871 (repealing article 6701d, and recodifying it as section 545.413(g) of the Transportation Code); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 8, 2003 Tex. Gen. Laws 847, 863 (repealing section 545.413(g) ofthe Transportation Code). 9Subsection 143.014(d) sets out the qualifications ofpersons appointed by the head ofthe police department. The' Honorable Tony Goolsby - Page 5 (GA-0662) the classification immediately below that of department head, as prescribed by this section." Id. § 143.014(b) (emphasis added). The appointment procedure as a whole is found in section 143.014, and various subsections of section 143.014 set out components ofthe appointment procedure. Legislative history ofthe bill that adopted the predecessor1o ofsection 143.014 supports our conclusion that the last sentence ofsubsection 143.014(c) removes only the limit on the number of persons the fire chiefmay appoint. See HOUSE STUDYGROUP, BILLANALYSIS, Tex. C.S.H.B. 1015, 68th Leg., R.S. (1983). The bill analysis states that [c]ities with a minimum of four classifications below the police or fire chief could allow a chiefto appoint immediate subordinates. . . . Fire chiefs in cities notunder the Fire andPolice Employee Relations Act and with fewer than 300 firefighters could appoint only one person .... Id. at 1-2 (emphasis added). The emphasized language shows that adoption ofthe FPERA would change the number of persons the fire chief could appoint,. not that it would take away the City's authority to allow a fire chiefto appoint a management team. Our construction ofsubsection 143.014(c) is consistentwith other legislation onthis subject, in particular with section 143.311, a provision ofchapter 143, subchapter I. See TEX. Loc. GOV'T CODE ANN. §§ 143.301-.313 (Vernon 2008). Chapter 143, subchapter I, which applies to certain municipalities with a population of460,000 or more that have not adopted the FPERA, authorizes these ,municipalities to negotiate agreements with police officer and fire fighter associations. See ide §§ 143.301-.304. Section 143.311 states that "[s]ection 143.014(c) does not apply to a municipality to which this subchapter applies." Id § 143.311. As the bill analysis stated, the bill would "allow police and firefighter department heads· to make more than two assistant appointments." HOUSE RESEARCHORGANIZATION, BILLANALYSIS, Tex. S.B. 863, 74thLeg.,R.S. (1995). Section 143.311 implements the same legislative policy found in the last sentence of subsection 143.014(c). In answer to your first question, we advise you that a city's adoption ofthe FPERA removes the limits on the number of persons the city may authorize a fire chief to appoint "unless the municipality specifically adopts the appointment procedure prescribed by this subsection through the collective bargaining process." TEX. Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008). A city's adoption ofthe FPERA does not change the fire chiefs authority to make such appointments. Thus, we need not consider whether the adoption ofthe FPERA might "nullify Assistant Fire Chief appointments made prior to the date ofthe adoption" Request Letter, supra note l,at 2. , Your second question is as follows: lOThe predecessor of Local Government Code section 143.014 was adopted by House Bill 1015 ofthe 68th regular legislative session. See Act ofMay 30, 1983, 68th Leg., R.S., ch. 420, §3, 1983 Tex. Gen. Laws 2246, 2249-53. The Honorable Tony Goolsby - Page 6 (GA-0662) [at] what point does Fort Worth's ability to continue appointing Assistant Fire Chiefs under [section] 143.014 cease (absent adoption ofa collectively bargained procedure)? Id. This question is based on a premise contrary to our answer to your first question, in that it assumes that Fort Worth's adoption of the FPERA would remove a fire chiefs subsection 143.014(b) authorityto appoint assistants. Butyou rephrase this question more generally as follows: "Is the FPERA considered 'adopted' at the time the successful adoption election is certified by the City Council, or on the later date when the City Council places the FPERA in effect." Id. Your rephrased question refers to the statement in subsection 143.014(c) that"[t]his subsection does not apply to a municipality that has adopted the Fire and Police Employee Relations Act." TEx. Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008) (emphasis added). Thus, we address the meaning of"adopted" in section 143.014(c). Your question about the meaning of "adopted" does not require us to decide when the FPERA becomes ~ffective in Fort Worth for all purposes. II We are· construing language in Local Government Code chapter 143, the civil service act, and we examine Local Government Code chapter 174, the FPERA, only for the provision triggering the inapplicability of subsection 143.014(c), that is, the FPERA provision stating when the FPERA is "adopted." You mention the FPERA provisions on the adoption election and on the city council's placing the FPERA in effect. Request Letter, supra note 1, at 2. These are respectively sections 174.051 and 174.052. Section 174.,051 provides in part: (a) The governing body of a political subdivision to which this chapter applies shall order an election for the adoption ofthis chapter on receiving a petition signed by qualified voters of the political subdivision [in certain numbers] (b) [election date]. (c) The ballot in the election shall be printed to provide for voting for or against the proposition: "Adoption of the state law applicable to (fire fighters, police officers, or both, as applicable) that establishes collective bargaining if a majority of the affected employees favor representation by an employees association, preserves the prohibition against strikes and lockouts, and provides penalties for strikes and lockouts." TEX. Loc. GOV'T CODE ANN. § 174.051 (Vernon 2008) (emphasis added). 11Thus, we do not address City 0/Kingsville v. International Ass'n o/Firefighters, Local Union No. 2390, 568 S.W.2d 397, 400 (Tex. Civ. App.-Corpus Christi 1978, no writ), which considered whether the FPERA collective bargaining provisions had been in effect for at least one year. The Honorable Tony Goolsby - Page 7 Section 174.052 provides as follows~ (GA-0662) If a majority of the votes cast in an election under Section 174.051 favor adoption of this chapter, the governing body shall place this chapter in effect not later than the 30th day after the beginning ofthe first fiscal year ofthe political subdivision after the election. Id. § 174.052 (emphasis added). You state that Fort Worth's first fiscal year after the November 2007 election begins October 1, 2008, that the Fort Worth City Council has not yet placed chapter 174 in effect, and that it is not required to do so before October 30, 2008. See Request Letter, supra note 1, at 2. We construe sections 174.051 and 174.052 by reading their words and phrases in context and according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon2005). Bothprovisions refer to the adoption ofthe FPERA by an election. Section 174.052 establishes the time when the governing body "shall place this chapter [174] in effect." See TEX. Loc. GOV'T CODE ANN. § 174.052 (Vernon 2008); see id § 174.051. Subsection 143.014(c) refers to "a municipality that has adopted the Fire and Police Employee Relations Act," not to one that has placed the FPERA in effect. Id § 143.014(c). The numerical limits established by subsection 143.014(c) become inapplicable in the municipality when the FPERA is adopted by election. 12 12The limits in subsection 143.014(c) may be reimposed ifthe municipality specifically adopts them through the collective bargaining process. See TEX. Lac. GOV'T CODE ANN. § 143.014(c) (Vernon 2008). The Honorable Tony Goolsby - Page 8 (GA-0662) SUMMARY Section 143.014 ofthe Local Government Code, a provision ofthe Fire Fighter and Police Officer Civil Service Act, authorizes a municipal governing body to allow a fire chiefto appoint a limited number of persons to the classification immediately below him without following the usual civilservice appointment process. When a municipality that is subject to the civil service act adopts Local Government Code chapter 174, the Fire and Police Employees Relations Act, subsection 143.014(c), limitingthe number ofdeputies who may be appointed, becomes inapplicable to the municipality. These limits may be reimposed ifthe municipality specificallyadopts them through the collective bargaining process. For purposes of subsection 143.014(c), the Fire and PQlice Employees Relations Act is adopted by an election held pursuantto section 174.051 of the Local Government Code. The limits in subsection 143.014(c) on the number of deputies who may be appointed become inapplicable in the municipality at this time. Very truly yours, KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee