City Council approved an $850,000 settlement Wednesday in a years-old Houston Fire Department sexual harassment case, but a debate over whether to change the rules about when and how firefighters can be disciplined will continue.
At the heart of that debate is what is known as the “180-day rule.”
The rule governs when supervisors can investigate and discipline a Houston firefighter for infractions of department rules or violations of the law. Some city council members want to reopen the city’s contract with the firefighters union to renegotiate the 180-day rule.
Read about the newest fire union contract here
Council members publicly have agreed that a former city firefighter who investigators allege took private videos from a female colleague’s computer should have been fired when supervisors learned of it in 2017.
The original incident, however, occurred in 2008. The 180-day rule limited the type of discipline the fire chief could administer for the original infraction of taking the video.
Council members have held up the proposed settlement with the former firefighter, calling it an example of why the city’s 180-day rule needs to be changed.
Mayor John Whitmire and Marty Lancton, the Houston Professional Fire Fighters Association president, said council’s call to return to the bargaining table is an unnecessary politicization of the case that withholds justice for the firefighter who deserves to put the incident behind her.
City Council members instead have argued that reexamining the rule could stop similar incidents from happening in the future.
Council approved the settlement Wednesday without a promise from Whitmire or Lancton to reenter negotiations.
What is the “180-day” rule?
Generally speaking, the “180-day rule” in this case refers to the amount of time a fire chief has to investigate and discipline a firefighter for an alleged act of misconduct – this can range from seemingly simple issues, such as chronic tardiness, to more serious offenses, including violence.
State law outlines how the 180-day rule works in multiple scenarios of misconduct, but cities can negotiate with their respective fire unions to change the rule.
What is the Houston Fire Department’s 180 day rule?
The Houston 180-day rule defaults to the state guidelines and differs depending on what kind of discipline a fire chief decides to administer.
Houston stands apart from other Texas cities only in regard to suspensions fewer than 15 days.
The city’s fire chief has 180 days from when an act of misconduct is discovered or reported to suspend a firefighter for fewer than 15 days.
If the suspension is longer than 15 days, the fire chief has 180 days from the date the misconduct occurred.
In short, the rule is more restrictive in cases that involve more severe discipline.
How does the 180-day rule affect terminations for firefighters?
In cases involving indefinite suspension, a.k.a. termination, the investigative clock starts ticking at the time of the offense.
The chief can indefinitely suspend a firefighter after the 180-day discovery period if the investigation is related to a felony or a Class A or B misdemeanor. In such cases, the chief must write to the Texas attorney general within 180 days of the offense to explain why waiting for the results of a criminal investigation is necessary.
How does Houston’s 180-day rule differ from other cities?
One section of the related state code changes the rules for cities with a population higher than 1.5 million – but only for suspensions fewer than 15 days.
At the moment, Houston is the only city in Texas with a population greater than 1.5 million.
The law specifies that in other cities, suspensions of fewer than 15 days only can be given within 180 days of the alleged act of misconduct.
However, each city and union can negotiate a different process.
In San Antonio, for example, fire chief has the ability to discipline an employee within 180 days after they discover, or should have reasonably discovered, an act of misconduct if the act was committed in the previous two years. However, the timeline can extend back five or 10 years, depending on the type of offense.
Did the city try to change the 180-day rule during contract talks?
Houston City Attorney Arturo Michel said the 180-day rule was “a major point” in the negotiations with the fire union for the contract approved earlier this year.
He did not go into depth about why the rule was not changed.
Whitmire said he had been in the Texas Legislature long enough to “hear both sides” of the rule, and believes any changes should happen there.
Houston leaders currently cannot bring the debate to the Harris County delegation as it would be a breach of the contract with the fire union. Both parties agreed not to petition or support federal or state policies that would change the terms of the contract, but the legislature independently could take up the issue at any time.
Do the police and municipal workers unions have a 180-day rule?
Yes, but it does not work in the same way.
Under both the Houston Police Officers Union and the Houston Organization of Public Employees’ contracts, supervisors have 180 days from the date an incident is discovered or reported to investigate and discipline an employee, regardless of the length of a subsequent suspension.
What does the fire union say?
Lancton, president of the International Houston Professional Fire Fighters Association Local 341, said any conversation about changing the 180-day rule should be taken up with the Texas Legislature.
“We’re going to continue to operate under the law and ensure that there is a fair, just process,” Lancton said. “…but also provide an environment to where anybody feels as though that they need to report an incident, that you create a culture and environment to where they have a fair process to ensure that, whatever issue it is, can come to finality.”
Lancton said any questions of the discipline doled out in the aforementioned sexual harassment case should be directed at the former fire chief.
Former Fire Chief Samuel Peña had the authority to terminate the firefighter accused of taking the video from his colleague’s computer even though that incident occurred nine years before.
That is because the firefighter allegedly had destroyed evidence and lied during the investigation.
Peña demoted the firefighter two ranks and suspended him without pay for 90 days. The firefighter resigned earlier this year after Whitmire and the current fire chief, Thomas Muñoz, made it clear he “did not have a future” with the department, Whitmire said at a council meeting.
Can City Council force negotiations with the fire union?
No. The current contract with the fire union does not end until 2029. Both the city and the union would have to mutually agree to return to the bargaining table to make changes to the existing contract.
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