Officer wins F-5 challenge in Third Court of Appeals.

City of Rice, Texas v. Texas Commission on Law Enforcement Officer Standards and Education, No. 03-10-00407-CV (Tex. App – Austin June 21, 2013).

This is an F-5 police officer termination case. Officer McMahan was terminated from the City’s PD and the F-5 filed with the Texas Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”) stated she was discharged for failing to complete her probationary period.  After a challenge and a State Office of Administrative Hearings (“SOHA”) administrative hearing, the City was ordered to change the F-5 report to “honorably discharged, terminated at will” which the City appealed.  The trial court affirmed the order and the City brought this appeal. However, the Austin Court of Appeals affirmed the order in the end.

The court held A law-enforcement officer is “honorably discharged” if she is terminated or otherwise leaves her employment “while in good standing and not because of pending or final disciplinary actions or a documented performance problem.” Under the administrative standard of review (substantial evidence) a court is concerned with the reasonableness of the administrative order, not its correctness.  McMahan was an unpaid reservist who was later brought in full time. The former Chief of Police testified he believed McMahan completed her probationary period during her part-time reserve status from 2003 to 2004.  She remained in such a status until November of 2007 when she began receiving pay.  In September of 2008 she was terminated by the new Chief.  On the F-5 report, it noted McMahan was hired in 2003, not 2007. Despite this evidence, the new Chief (Cheek), testified the policy manual included unpaid officers in its definition of “employee” for insurance purposes only, and that an officer had to be a full-time, paid employee to be considered to be in her probationary period.  The court held that more than a scintilla of evidence existed that sufficiently qualified as “substantial evidence” to support the SOHA order and affirmed the trial court judgment.

If you would like to read this opinion click here.