Maximizing Results in F-5 Hearings - License Separation Strategies
Explore effective strategies for navigating F-5 hearings to achieve favorable outcomes. Learn about categories of discharge, appealing decisions, and setting goals for success in separation procedures.
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LICENSE TO SEPARATE? HOW TO GET THE MOST OUT OF YOUR F-5 HEARINGS Brian J. Begle* Jay Zhang Olson & Olson LLP *Board Certified in Labor and Employment Law. 16th Annual Local Government Seminar January 30, 2020
Why Fight F-5 Hearings? Cities MUST choose a category of discharge for each separation. Officers have 30 days to contest F-5 discharges. Permanent surrender of one license applies to all other TCOLE licenses. F-5 decisions can be appealed to the District Court. 16th Annual Local Government Seminar January 30, 2020
Categories of Discharge Honorably Discharged: [w]hile in good standing and not because of pending or final disciplinary actions or documented performance problem, retired, resigned, or separated from employment with or died while employed by a law enforcement agency. (Tex. Occ. Code 1701.452). 16th Annual Local Government Seminar January 30, 2020
Categories of Discharge Generally Discharged: separation was related to a disciplinary investigation of conduct that is not included in the definition of dishonorably discharged; or separation was for a documented performance problem and was not because of reduction in workforce or an at-will employment decision. (Tex. Occ. Code 1701.452). 16th Annual Local Government Seminar January 30, 2020
Categories of Discharge Dishonorably Discharged: [t]erminated or retired or resigned in lieu of termination in relation to allegations of criminal misconduct; or [t]erminated or retired or resigned in lieu of termination for insubordination or untruthfulness; Officers with repeated negative F-5 reports may find it difficult to gain employment or transfer. (id.) 16th Annual Local Government Seminar January 30, 2020
Before the Hearing, Cities Should Have a Goal in Mind: Consider use of summary dispositions; Winning: sustaining the F-5 decision; Fact gathering: preview of Employee/Plaintiff s strategy; Locking in testimony and allegations: prevent adopting inconsistent positions in later litigation; Confidential: preventing disclosure of allegations. 16th Annual Local Government Seminar January 30, 2020
At the Hearing, Learn to Play the Game: Hearings can be held in Houston or Austin. City has the burden of proof. Each side is entitled to witnesses and discovery. Discovery rules are generally relaxed. Judge, not the City, ultimately signs the F-5 revisions. 16th Annual Local Government Seminar January 30, 2020
Playing the Game, p.2 Strategy: keep it simple. Only witnesses with first hand knowledge need to be there. The City goes first and gets to rebut. Like a mini-trial, but relaxed rules. Litigation considerations if the City wins/loses. 16th Annual Local Government Seminar January 30, 2020
QUESTIONS? 16th Annual Local Government Seminar January 30, 2020
