Police testing applicant did not violate policy by scribbling on post-it note says 4th Court.


City of San Antonio, Texas v. Joseph Salvaggio, 04-13-00172-CV (Tex. App. – San Antonio, November 20, 2013).

This is a hearing examiner case where the City of San Antonio appeals the trial court’s summary judgment in favor of Police Lieutenant Salvaggio affirming the hearing examiner’s award overturning his indefinite suspension and reinstatement. The San Antonio Court of Appeals affirmed the reinstatement.

Salvaggio took a promotion exam for captain. This was the first time post it-notes were used to designate assigned setting.  Despite the fact no exam procedures were given out, no definition of “exam materials” was provided (but a rule prevented testing materials from being taken out of the exam room), and not prohibition for scribbling on the post it-notes was expressed. Salvaggio used the post-it note as scratch paper, writing down notes about topics he wanted to review during the mid-day break.  The note was confiscated but was reported to his supervisors. Several months later, some incidents involving several candidates taking test booklets out of a detective promotional examination were reported to the media. During an investigation of these incidents by SAPD Internal Affairs, the post-it note incident with Salvaggio was mentioned and a separate investigation was opened.  Salvaggio was eventually suspended indefinitely and appealed to a hearing examiner who reinstated him. The City appealed to the district court which affirmed the hearing examiner’s determination.

The City asserts the hearing examiner exceeded his authority because the definition of “testing materials” is a policy decision over which the examiner has no jurisdiction.  The court noted that if the hearing examiner had created a new rule by defining “testing materials” it would be improper.  However, that is not what the examiner did in this case. Reading the hearing examiner’s written decision as a whole, the hearing examiner did not define “test materials” to exclude, or include, the post-it note. The examiner based his decision on the fact that the term “test materials” had never been defined by the Commission, which was the sole entity authorized to define the term. The Chief had no authority to define the term to include the post-it note as that is for the Commission. Since the City failed to establish the note was testing material, it failed to properly assert a violation. The reinstatement was affirmed.

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