The Sheriff today posted a new version of the Bill of Rights. We were not given an opportunity prior to publication to review the document.

We have a new version also on the front page of this website.

During the Sheriff’s campaign, on June 17, 2008, then candidate Adrian Garcia met with the Harris County Deputies Organization’s Board of Directors and stated he would provide the Peace Officers Bill of Rights that was created by our organization on “Day One” of his administration.

After failed attempts of negotiating with the Sheriff, and “Day One” now becoming well over day two hundred, on August 26, 2009, our organization submitted a Labor Resolution to the Harris County AFL-CIO Labor Council to address this unnecessary delay of a campaign promise. After a unanimous vote, the Harris County AFL-CIO passed and adopted the resolution calling for the Sheriff to stay accountable to his word.

On January 21, 2010, the Sheriff provided his version of a Bill of Rights that is vague, contradictory, misleading, and is not endorsed by the Harris County Deputies Organization.

The Sheriff is a former Houston Police Officer who enjoyed protection against unlawful terminations, involuntary transfers, and protection from adverse retaliation. It is apparent the Sheriff does not believe his employee’s deserve these same protections.

Did Sheriff Garcia keep his promise? You decide.

In the summer of 2008 City Councilman Adrian Garcia was in his last term. It was an election year that favored Democratic candidates, Sheriff Tommy Thomas was under a lot of media scrutiny, and Councilman Garcia had to make a decision about whether to run against a well entrenched but under-the-gun sheriff.

To win that race he would need more than the fact that Sheriff Thomas was a regular on Wayne Dolcifino’s “undercover” microscope for his new ranch fence. He would need a lot of support and money. Somebody told him that the Deputies’ Organization was unhappy with Thomas. He paid us a visit. And another visit. Finally, he rented space in our hall immediately next door to our office.

Local 154 was reticent at first about endorsing Garcia. The board knew that if we endorsed Garcia and lost, it would have been hell to pay from Thomas. Garcia needed our endorsement. To get it, he made a number of promises. The majority of those promises will be the subject of another article. The one promise Councilman Garcia made that got him the endorsement was his promise to give us a bill of rights within 90 days of taking office. Not just any bill of rights. The bill of rights we gave him ahead of time so he could read and study it.

The Garcia-version of the bill of rights (published on his 387th day in office) is not exactly what he promised. In the preamble of the Sheriff Garcia-amended version he said, “The Bill of Rights will give Harris County Sheriff’s Office employees protections similar to what other law enforcement agencies have under TEX. LOC. GOV’T CODE § 143.123. (HPD’s bill of rights)

The union made a line-by-line comparison of the bill of rights Garcia promised to sign, HPD’s bill of rights (and other civil service protections) and the version Sheriff Garcia finally published to see just how “similar” they are.

Defining “complainant” - A “complainant” in the bill of rights Candidate Garcia promised to sign and in HPD’s bill of rights is a person who claims to be a victim of misconduct. Sheriff Garcia amended the term “complainant”. Here is his definition.

“Complainant” means a person with direct knowledge of an alleged incident of misconduct, or violation of a statute or department directive, who brings the information to the attention of the department. The Sheriff may be the complainant if he chooses to adopt a complaint that is brought to his attention.”

Under Sheriff Garcia definition (and other language below) the department may act on anonymous complaints. That means that when a defendant tells his mama that the mean old deputy beat him up for no reason at all, the IAD can investigate that complaint without the defendant or his mama swearing to anything. In such instances Sheriff Garcia or one of his “designees” will stand as complainant.

Right to counsel - The bill of rights Sheriff Garcia promised to sign would give employees a right to have his attorney or a union steward present during interrogations. A steward present during interrogation is known as “Weingarten rights”, but the bill of rights he signed for us does not include this protection.

Instead, Sheriff Garcia’s revised version of our bill of rights says, “The employee may be accompanied by either a legal counsel or an employee representative of their choice at the Sheriff’s appeal hearing.” That is exactly no change at all.

Right to record an interrogation – The bill of rights Sheriff Garcia promised to sign and the HPD bill of rights has a provision that allows the interrogator or the person being interrogated to tape record the conversation. It also provides that the person recording the interrogation must notify the other party of the recording and provide the other party with a copy of the tape.

The bill of rights Sheriff Garcia finally signed provides that the interrogator shall record the interrogation, keep in a secure place, and only release it “with permission from the sheriff or his designee.” The party recorded may request a copy for disciplinary appeals, but may not make his own recording. Nothing in the Sheriff’s bill of rights guarantees that the employee he will not be surreptitiously recorded or that he will get the requested recording.

(We believe that section is contrary to the Texas Public Information Act. Some months ago our attorney requested recordings from the IAD and they claimed not to have any. It was not until the State Attorney General opened a criminal investigation that the IAD “found” the missing tapes.)

180 day rule – The bill of rights HPD Patrolman Adrian Garcia enjoyed, and the bill of rights Candidate Adrian Garcia promised to sign each had a 180 day rule. That rule gives the agency 180 days—a complete half-year—to investigate alleged misconduct, make a determination, and assess punishment. If the agency exceeds that time constraint they may not take any action against the employee on that complaint.

The bill of rights Sheriff Garcia signed provides that investigations will be completed and punishment assessed within 180 days “to the extent possible”. If it is not possible, or of the IAD simply wants to take a little longer, oh well.

Polygraph – The bill of rights Candidate Adrian Garcia promised to sign required complainants to take and pass a polygraph examination before a complaint would be investigated. The philosophy there is that if a deputy’s career is going to be put in jeopardy the complainant ought to at least believe the allegations are true and be able to pass a polygraph.

Sheriff Garcia’s amended version has only one mention of polygraph: ”Employees may be polygraphed in accordance with Tex. Gov't Code § 614.063.” Again, that represents no change at all to the status quo.

The bill of rights Candidate Garcia promised to sign would allow an attorney to be present “prior to, during and after” the polygraph test was administered. The HPD bill of rights does not contain that provision, and it not make it to Sheriff Garcia’s final draft.

Putting documents in employees files – The bill of rights Candidate Garcia promised to sign would have prohibited placing a document in an employee’s file without giving the employee an opportunity to read and sign it. The version Sheriff Garcia published has no such provision.

Sheriff’s hearings – The bill of rights Candidate Garcia promised to sign would have allowed a deputy to postpone his or her sheriff’s hearing until after the grand jury heard the case. The version Sheriff Garcia adopted has no such provision.

48-hour rule – If Patrolman Garcia had ever been investigated (we do not know whether he was) he would have had a 48-hour protection clause. Before he could have been interrogated, the HPD investigator would have had to give him written notice at least 48 hours in advance, regardless of the allegation, telling him who made the complaint and what the complaint said. The version Candidate Garcia promised to sign had that protection also. The version Sheriff Garcia put into place also has a 48 hour rule, but it does not apply to investigations conducted by immediate supervisors.

Amending the statement – The version Candidate Garcia promised to sign prohibited investigators amending or changing an employee’s statement. (The union has evidence this was done under the Thomas regime.) The version Sheriff Garcia signed has no such provision.

Copy to the affiant - The bill or rights Candidate Garcia promised to sign would have forced the investigator to give an employee a copy of his or her statement. The bill of rights Sheriff Garcia finally published has no such right.

Exclusionary rule – HPD’s bill of rights and the bill of rights Sheriff Garcia promised to adopt had an exclusionary rule that would have prohibited the use or consideration of any evidence gained in violation to the bill of rights. Sheriff Garcia’s biIl of rights has no exclusionary rule. If any of the bill of rights rules are violated there are no penalties for violating them.

Instead, the version Sheriff Garcia adopted says: “If a subject employee or his representative who appeals a punitive action can demonstrate in the Sheriff’s Appeal Hearing by clear and convincing evidence that the provisions of subsection 20.02, 20.03, and/or 20.04 of this Rule were violated, then any evidence obtained as a consequence of such violation shall be considered during the Sheriff’s Appeal Hearing in rendering a final decision.”

That means that the sheriff’s “designees” who are a party to the controversy will make a determination about whether evidence is admissible, and if the majors rule against the employee, the issue of exclusion may not be considered by the civil service board.

Anonymous complaints – There is no mention in the bill of rights Candidate Garcia agreed to support or HPD’s bill of rights about accepting anonymous complaints. This provision appears ONLY in Sheriff Garcia’s version of the bill of rights: “An interrogation may be based on a complaint from an anonymous complainant if the departmental employee receiving the anonymous complaint certifies in writing, under oath, that the complaint was anonymous.” That provision appears to be Sheriff Garcia’s method of nullifying this provision of state law:

Sec. 614.022. COMPLAINT TO BE IN WRITING AND SIGNED BY COMPLAINANT. To be considered by the head of a state agency or by the head of a fire department or local law enforcement agency, the complaint must be:
(1) in writing; and
(2) signed by the person making the complaint.

Sec. 614.023. COPY OF THE COMPLAINT TO BE GIVEN TO OFFICER OR EMPLOYEE. (a) A copy of a signed complaint against a law enforcement officer of this state or a fire fighter, detention officer, county jailer, or peace officer appointed or employed by a political subdivision of this state shall be given to the officer or employee within a reasonable time after the complaint is filed.

(b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the officer or employee.

Common language – Peace officers’ bills of rights have some common language, regardless of the jurisdiction. That common language is in place at HPD, in the bill of rights Candidate Garcia promised to sign, and in the version Sheriff Garcia adopted. That common language includes: investigations not being conducted during “normal working hours” except under particular circumstances, investigators not going to an employee’s home to conduct the investigation without permission, people who are a party to the allegation shall not investigate the incident, investigations shall be based on sworn affidavits, employees shall being allowed to take restroom breaks, interrogations shall not being unreasonably long, and interrogators shall not allowed to threaten employees. That language is consistent in Sheriff Garcia’s version of the bill of rights.