EMERGENCY MANAGEMENT TRAINING UNDER S.B. 11: WHO, WHAT, WHERE, WHEN, AND HOW
The new homeland security bill, S.B. 11, mandates that certain appointed public officers complete three hours of emergency management training. Certain city officials may therefore be required to take the training.
Who and What
According to the bill, the following persons must complete the training requirement:
Because the bill applies only to appointed officers, it is clear that elected mayors and councilmembers (and other elected officers, such as elected marshals) are not required to receive the training.
Which appointed officers must complete the training? The term “public officer” is not defined in Chapter 418 of the Government Code, which contains the new training requirement. Thus, we must look elsewhere in the law for a definition. Fortunately, “public officer” has become a term of art with a relatively well-established meaning.
The generally accepted definition of “public officer” derives from the Texas Supreme Court’s opinion in Aldine Independent School District v. Standley. There, the court, quoting Dunbar v. Brazoria County, held that:
The attorney general has said that under this definition, a person is not ordinarily an “officer” if the person’s actions are subject to control by a superior body, for in such instance the person cannot be said to exercise authority “largely independent of the control of others.”
1. Police Chief?
If the police chief reports to the council, it could be said that he or she doesn’t exercise a “sovereign function of government” that is “independent of the control of others.” Two issues complicate this analysis, however. In general law cities, the police chief stands in place of a statutory marshal if the city has abolished that office. Because a marshal is a statutory office (and, thus, likely a public office), the same might be said about a police chief. Further, many home rule city charters establish the office of police chief. Since a city charter has the effect of law, the officers created by the charter are more independent than a council-created position.
2. Fire Chief?
The position of fire chief isn’t statutorily required by general law, though it is often mentioned in a home rule city charter. Because of the state certification and the department-head nature of a fire chief, it’s possible that fire chiefs are public officers, though that is not a guaranteed conclusion.
3. Rank and File Police Officers?
Curiously, prior to 1993, police officers were thought to be public officers. The attorney general has abandoned that flawed logic, however, and the current wisdom is that police officers aren’t public officers.
4. Rank and File Firefighters?
There is no rationale under which firefighters could be considered public officers.
5. City Administrator/Manager?
The position of city administrator or city manager created by ordinance would not ordinarily be thought of as a public office, as the person filling the position doesn’t serve a sovereign function independent of the control of the council. A city manager position created by a city charter (or by an election under Chapter 25 of the Local Government Code) is a different matter, though. Such a manager is likely a public officer, but would need to take the training only to the extent that the person’s role or job duties specifically include emergency management duties.
6. Other Emergency Management Officers?
It’s likely that larger cities have appointed positions dealing with emergency management. Except to the extent that such positions are created by the charter, however, it’s unlikely that they are “public officers” under the traditional analysis.
7. Bottom Line
Police chiefs and marshals should take the training. A fire chief whose office is created by a home rule charter should take the training. Other fire chiefs may wish to take the training out of an abundance of caution or after consultation with the city attorney.
Police officers and firefighters need not take the training. Mid-level police and fire supervisors are likely not required to take the training either, unless their positions are created by the charter.
Any other city officer should take the training if his or her position is created by a home rule charter and has specific emergency management duties as part of the job description.
When
Each person affected by the bill must complete the training no later than 180 days after taking office (either by taking the oath of office or, if an oath is not required, after assuming the duties of the office). For city officials already in office on January 1, 2008, the training must be completed by January 1, 2009.
Where and How
The Governor’s Office of Emergency Management is tasked with offering the training course or approving training offered by other entities. The division must “ensure that at least one course of training approved or provided by the division is available on videotape or a functionally similar and widely available medium at no cost.” Future editions of the TML Legislative Update will identify any training that is made available.