Filing post-submission brief of hearing examiner’s opinion in a related civil service case was potentially an unlawful means of obtaining a hearing examiner opinion in second case says Austin Court of Appeals

Michelle Gish v. City of Austin, Texas 03-14-00017-CV (Tex. App.- Austin, May 11th 2016)

This is a Civil Service Act case where the Third Court of Appeals reversed the granting of the City’s plea to the jurisdiction and remanded the case.

Michelle Gish was indefinitely suspended from her job with the Austin Police Department. She was one of several officers who secured a suspect to a gurney following a chase and struggle. The suspect spat on Gish, she slapped the suspect, and APD officer Jose Robledo pulled Gish away. She was suspended after an inquiry. Robledo was also suspended for being untruthful during the investigation into Gish.  She appealed that decision to a hearing examiner.  The examiner issued an opinion in Robledo’s case after Gish’s hearing (but before issuing an opinion), and the City discussed and attached the Robledo opinion to its post-submission brief for the hearing examiner in Gish’s case.  The hearing examiner then affirmed Gish’s suspension. She appealed to the district court, which granted the City of Austin’s plea to the jurisdiction and dismissed her case.

By choosing a hearing examiner, Gish waived her right to appeal to the judicial system unless the hearing examiner “was without jurisdiction or exceeded [his] jurisdiction or [] the order was procured by fraud, collusion, or other unlawful means.” The 3rd Court has determined that a hearing examiner or commission’s consideration or acceptance of evidence outside of the hearing shows procurement of the decision by “unlawful means.” Steubing v. City of Killeen, 298 S.W.3d 673, 674-75 (Tex. App.—Austin 2009, pet. denied).  The court held that “[a]ny evidence received outside the bounds set by the statute is illegal, and destroys any presumption that the commission’s order is valid.” The City contends the Robledo opinion was presented to the examiner as legal precedent or authority, not as evidence. However, the City recounted testimony citing the treatment of Robledo and did so “to rebut evidence that Gish received disparate treatment, not simply as legal precedent.” Further, the failure of Gish to object to the submission of the Robledo opinion during the hearing did not resolve any controversy over its post-hearing submission, so the issue is not moot.  By submitting the Robledo opinion in a post-submission brief to the hearing examiner, the City created a fact issue on whether the examiner’s opinion was obtained through unlawful means.  This fact issue renders the granting of the plea invalid. The case is remanded for further processing.

To read the opinion click here. Panel: Chief Justice Rose, Justice Pemberton, Justice Bourland. Memorandum Opinion by Chief Justice Rose. Attorney for the City of Austin is Ms. Chris Edwards and the attorneys for Michelle Gish are Mr. Chad Hyde and Mr. Gregory Cagle.

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