Peter J. Paske, Jr. v. Joel Fitzgerald, Individually and in His Official Capacity as Chief of Police of City of Missouri City, and the City of Missouri City, Texas 01-15-00631-CV (Tex. App.- Houston [1st Dist.], June 23,2016)
This is a police officer wrongful termination case for alleged violations of Texas Gov’t Code chapter 614 where the First District Court of Appeals affirmed the granting of the City’s summary judgment motion.
Paske was a sergeant with the Missouri City police department when Chief Fitzgerald was appointed. Chief Fitzgerald found Paske to have been insubordinate on different occasions and subsequently issued Paske a performance improvement plan (PIP) which required an independent evaluation through the city’s employee assistance program (EAP). After the initial EAP evaluations, the EAP therapist found several “red flags” for potential steroid use so Paske was ordered to take a drug test. When Paske arrived for his appointment and was told to take a drug test (which was not nearby) he advised his babysitter (mother-in-law) had been struck by a car earlier in the day and the children were home alone but he felt it was OK if he only had to go to the AEP appointment. He could not drive to the drug testing facility which was some ways away. Chief Fitzgerald called Paske and ordered him to report to the department’s headquarters within an hour. Paske refused. Paske did not go to headquarters that day, but he arranged for a drug exam issued by an accredited third-party. This exam did not test for steroids, but Paske’s results were negative for other substances. Chief Fitzgerald terminated Paske by a letter that listed several violations of the Department’s code of conduct stemming from his failure to report for the drug test. Paske sued alleging, among other things, he was terminated in violation of §614.021 which requires a written complaint be provided to an officer before termination. The City filed a plea to the jurisdiction and motion for summary judgment asserting Chapter 614 does not apply when the chief of an agency discharges a subordinate based on failure to follow a lawful direct order. The trial court granted the City’s motion and Paske appealed.
First the court noted Paske has alleged that Chief Fitzgerald failed to perform a necessary ministerial act by failing to provide him with a signed complaint pursuant to the Government Code, i.e. an ultra vires act. The trial court has jurisdiction over the claims relating to the Chief, but not the same declaratory judgment claims over the City. The City is immune from claims seeking a declaration to construe the meaning of the statute. Next, Chief Fitzgerald argued that the trial court properly granted him summary judgment because there was no “complaint” in this case, and instead he acted upon employee misconduct that he personally witnessed in his official role as chief. The court analyzed the meaning of the word “complaint” and determined that procedure is not imposed as a precondition to every adverse employment action that may be taken against a law enforcement officer. Specifically, when conduct is personally witnessed by the agency chief, the language would be superfluous. As a result, the trial court properly granted summary judgment for the Chief.
To read the opinion click here. Panel consists of Justice Higley, Justice Bland and Justice Massengale. Justice Massengale wrote the opinion. Attorneys for City Defendants are Norman Ray Giles and William S. Helfand. Attorneys for Paske, are Margaret A. Harris and Paul Harris.