Waco Court of Appeals holds fact question exists on who could terminate a police officer
Gregory Maliere v City of Buffalo, Texas, et al, No. 10-22-00391-CV (Tex. App. — Waco, September 28, 2023)
This is essentially an employment dispute where the City terminated a police officer. The officer sued for ultra-vires actions asserting only the chief of police could terminate his employment. The Tenth Court of Appeals determined a fact question existed on authority and reversed the granting of the City’s dispositive motions.
Moliere was a police officer with the City of Buffalo Police Department. After Moliere engaged in a high-speed chase contrary to department policies, the police chief issued a written reprimand. The City Council, dissatisfied with the level of discipline, voted to terminate Moliere’s employment. Moliere sued seeking declarations the council was without authority to terminate him, and that the individual council members, and mayor committed ultra vires acts by terminating him. The City filed a combined plea to the jurisdiction and motion for summary judgment, which was granted. Moliere appealed.
The UDJA waives immunity for only certain claims, but such waiver includes declarations for acts taken without legal authority. Buffalo is a Type A general-law municipality. Chapter 341 of the Texas Local Government Code states “[t]he governing body of a Type A general-law municipality may establish and regulate a municipal police force.” Tex. Loc. Gov’t Code § 341.001(a). The City asserted termination was an implied power flowing from the authority of the City Council to establish and regulate a municipal police force. Courts strictly construe general-law municipal authority and any fair, reasonable, substantial doubt is resolved against the municipality and the power is denied. The City did not pass an ordinance authorizing the City Council to terminate a police officer. It did pass an ordinance stating that police officers are hired by the City Council, but nothing about termination. The City’s police policies appeared to indicate the chief of police has sole disciplinary power up to and including termination, but the City’s personnel manual appears to be contradictory. No policy states which policy controls in the event of a conflict. Because of the lack of express authorization and apparent contradictory policies, the Court held a fact question exists as to authority for termination. As a result, the dispositive motions should have been denied.
If you would like to read this opinion click here. Panel consists of Chief Justice Grey, Justice Johnson and Justice Smith. Opinion by Justice Smith.
