Category Archives: Civil Service/Collective Bargaining

Fourth Court of Appeals holds civil service employee established jurisdiction for denial of due process claim

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City of Laredo  and City of Laredo Municipal Civil Service Commission v. Tony H. Moreno, 04-21-00413-CV, (Tex. App – San Antonio, Aug. 24, 2022) 

This is a civil service appeal where the Fourth Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.  

Moreno was the City of Laredo’s Water Treatment Superintendent. He was terminated after the City had to issue boiled water notices due to low chlorine levels being detected. The City charter provides such employees with certain civil service protections. Moreno was terminated and appealed to the civil service commission, which affirmed the termination. Moreno filed suit. The City filed a plea to the jurisdiction, which was denied. The City appealed.  

When an administrative body’s decision adversely affects a vested property right or a constitutional right, an inherent right of appeal exists. Civil service employees have a vested property interest in their continued employment. Civil service protection provided in a charter provision does not fall under the same civil service process used for police and fire employees. Here, the Commission’s rules lack a specific provision outlining an employee’s right to judicial appeal. Moreno asserts the City failed to provide him with a termination letter stating the specific violations as required by the rules of why he was terminated, thereby denying him due process. Since this was only at the plea to the jurisdiction stage, the court held Moreno plead sufficient facts to trigger a waiver of immunity under the due process clause.  

Panel consists of Justices Alvarez, Rios, and Rodriguez. Affirmed. Memorandum Opinion by Justice Rios can be read here. Docket page with attorney information can be found here. 

Fort Worth Court of Appeals affirms trial court’s authority under Civil Service Act to vacate a hearing examiner award, remand for a rehearing, and require a separate hearing examiner

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Shea O’Neill v. City of Fort Worth, 02-21-00214-CV (Tex. App. – Fort Worth, Feb 3, 2022)

This is a civil service case (which has already gone up and down the appellate ladder) where the Fort Worth Court of Appeals affirmed the trial court’s ability to order a substituted hearing examiner in an appeal from an indefinite suspension. [Comment: Note, this is a 38-page opinion].

O’Neill was a firefighter for the City and was indefinitely suspended after being involved in a physical altercation with a citizen at a TCU football scrimmage.  He appealed to a hearing examiner who found for O’Neill. An appeal resulted to the Fort Worth Court of Appeals, which remanded the issue to decide if the hearing examiner improperly considered outside evidence. On remand, the court (specifically Judge Fitzpatrick) held the hearing examiner (Guttshall) violated the Civil Service Act (Tex. Loc. Gov’t Code §§143.010(g) and 143.053(d)) by considering evidence that was not presented in the final hearing.  The trial court vacated the examiner’s decision and ordered a rehearing. When the City recognized that the same hearing examiner (Guttshall) was set to preside over the rehearing, the City objected and filed a plea to the jurisdiction, which Guttshall denied. The City then filed suit (that resulted in the present appeal) under the Uniform Declaratory Judgments Act (UDJA) to hold Guttshall could not preside over the rehearing. The trial court held a trial on the merits under the UDJA claims and found Guttshall had exhibited bias, was no longer independent and ruled for the City. O’Neill appealed.

O’Neill argued the City’s declaratory-judgment lawsuit was barred by res judicata or collateral estoppel. The main issue presented to the trial court was whether Guttshall could preside over the rehearing regarding O’Neill’s appeal of his indefinite suspension. While O’Neill asserted the court failed to make the findings of fact on the issues he requested (so the findings entered could not be used in evaluating the appeal), the trial court, as the trier-of-fact has no duty to make additional or amended findings that are unnecessary or contrary to its judgment. O’Neill next asserted the City requested a rehearing when appealing Guttshall’s opinion to Judge Fitzpatrick so the issue of a hearing examiner was already addressed. Hence, his argument goes, since Judge Fitzpatrick did not expressly grant relief for a separate hearing examiner, only a rehearing, the issue was fully litigated. However, when an appellate court remands a case and limits a subsequent trial to a particular issue, the trial court may only determine that particular issue. Because of the remand, Judge Fitzpatrick was therefore constrained to decide only the City’s procured-by-unlawful-means claim and nothing provided for her to determine whether Guttshall had exhibited bias and was thus no longer an independent or impartial hearing examiner. As a result, res judicata and collateral estoppel are not triggered. Next, O’Neill asserted that since Guttshall denied the City’s plea, the issue was already addressed and the City cannot appeal. However, if the denial were considered the same as an arbitrator’s award (which O’Neill argued it was), such an award is appealable. But more importantly, the City’s plea to the jurisdiction and declaratory-judgment action accomplished separate purposes. The City’s plea was an objection to Guttshall presiding over the rehearing, which was a requirement to preserve the issue.  The UDJA claim went beyond mere preservation and sought express relief on the uncertainty of the issue under the wording of Chapter 143 (which does not expressly address this situation). Next, O’Neill argued the trial court erred by impliedly finding that subject-matter jurisdiction exists even though the City failed to exhaust its administrative remedies.  However, since the declarations sought are strictly limited to statutory interpretations, they are questions of law that do not require exhaustion. Next O’Neill argued that the trial court erred by fashioning a remedy not expressly authorized by the Civil Service Act, i.e., allowing a rehearing before a new hearing examiner. The trial court used guidance by referring to the Texas Arbitration Act (TAA) in interpreting/applying the Civil Service Act. The sections of the Civil Service Act make no provision for a scenario in which the district court vacates the hearing examiner’s award and remands the case for a rehearing. The court noted that the Texas Supreme Court has looked to the TAA in prior opinions to fill in the gaps when the Civil Service Act is silent.  Turning to the TAA concerning the issue here, it has a specific section dedicated to rehearings after an arbitration award is vacated. The Civil Service Act states in multiple locations that a hearing examiner must be independent and therefore neutral. When a hearing examiner is found to have developed bias against one party, they are not independent. To allow a biased hearing examiner to preside over the rehearing merely because the Civil Service Act is completely silent regarding rehearings is against the purpose of the Act. The trial court, following the Texas Supreme Court’s example for crafting remedies when the Civil Service Act provides none, is permitted to look to the TAA for guidance.  As a result, the trial court’s order is affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Bassel and Justice Walker. Memorandum Opinion by Justice Bassel.

Beaumont Court of Appeals reinstates arbitrator award for City in civil service termination.

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City of Beaumont, Texas v. James Mathews, 09-20-00053-CV (Tex. App. – Beaumont, Feb. 3, 2022)

This is a civil service/collective bargaining/arbitrator appeal (which has gone up and down the court of appeals route already) where the Beaumont Court of Appeals reversed the trial court’s order and reinstated the arbitrator’s award. [Comment: warning, this is a 38-page opinion].

Firefighter Mathews was discharged from the City of Beaumont Fire Department after a formal investigation into a rear-end collision involving Mathews occurred. Driver Freeman apparently rear-ended the vehicle driven by Mathews, causing Mathews to exit his vehicle and strike Freeman one or more times. The incident occurred while Mathews was off-duty, but the department’s rules and regulations apply certain standards of conduct regardless of duty status. The arbitrator admitted a statement from Freeman asserting such, which was corroborated by other evidence. Mathews appealed the termination to an arbitrator, who ultimately ruled in favor of the City, confirming Mathews’ termination. Mathews appealed to the district court, which reversed the arbitrator’s award, holding the arbitrator lacked jurisdiction and exceeded his jurisdiction. The City appealed.

The court found that Mathews timely filed an appeal of the termination, selected to proceed before an arbitrator and that Mathews signed the appeal letter.  By doing so, he triggered the arbitrator procedure. Mathews argued the notice of dismissal Chief Huff gave him failed to advise him he had the right under the Act to appeal before either the Commission or a neutral arbitrator. But the question is whether the lack of that information is jurisdictional when the record shows the firefighter was aware of the options that were available to him under the Act. Mathews never testified he was unaware he could select arbitration or civil service commission as an appeal forum. Likewise, Chief Huff never testified that she told Mathews he could appeal only to a neutral arbitrator. Mathews’ appeal letter cited the exact sections in the Act that provide firefighters with options in choosing the forum where they may appeal.  In fact, the evidence shows just the opposite, as the live pleadings indicate it was because of the Union’s distrust of the Beaumont civil service commission that Mathews selected the arbitrator. While Chief Huff’s notice does not contain clear and unambiguous language regarding the options it did notify Mathews that he should look to the Collective Bargaining Agreement to decide how to proceed.  Here, the record conclusively proves that Mathews decided after seeking advice from his union that it was in his best interest to demand his appeal be heard by a neutral arbitrator rather than going before a Commission. As a result, the arbitrator’s jurisdiction was properly triggered. Next, under the Act, neutral arbitrators exceed their jurisdiction when they conduct the proceedings in a manner “not authorized by the Act or [a manner that is] contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine.” The City filed pretrial motions with attached evidence and the arbitrator denied the motions. During the evidentiary hearing, the City submitted some of the same evidence, which was admitted by the arbitrator. Mathews argued the arbitrator improperly considered evidence submitted through the pretrial motion procedure instead of exclusively at the evidentiary hearing. The district court held the arbitrator could not consider pretrial evidence or motions. However, the Act allows the parties to file pretrial motions and expressly states it is not a violation of the Act as long as copies of the filings are served on the opposing party. Thus, the City did nothing wrong by filing a pretrial motion since the certificate of service states the City served the motion on Mathews’ legal representative and Mathews never raised a lack of service. In turn, the arbitrator did not violate the Act by conducting a hearing on the City’s motion. Next, the court held that the record does not demonstrate the arbitrator considered evidence that was not admitted during the evidentiary hearing. As factfinders, neutral arbitrators are the sole judges of the admissibility of the evidence and the weight and credibility to be given the evidence admitted during a final hearing. Comparing the arbitrator’s findings of fact and conclusions with the evidence presented during the hearing, the court determined the arbitrator relied upon the evidence admitted at the final hearing. The district court conducted a factual and legal sufficiency review of the evidence, but that is not authorized by the Act. District court’s appellate review of arbitrator decisions are restricted to jurisdictional grounds and claims the award was procured by fraud, collusion, or through the use of other unlawful means. As a matter of law, the record present does not allow the district court to reverse the arbitrator’s decision. The district court’s order and final judgment have deprived the City of the statutory benefit of an efficient and speedy resolution through the Act. As a result, the district court’s order was reversed and the arbitrator’s decision was reinstated.

If you would like to read this opinion click here. Panel consists of Chief Justice Golemon, Justice Kreger and Justice Horton.  Memorandum Opinion by Justice Horton

 

Amarillo Court of Appeals holds fire marshal’s office employs firefighters who are entitled to civil service protection

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-20-00315-CV, (Tex. App – Amarillo, Nov. 18, 2021)

This is a civil service case where the Amarillo Court of Appeals affirmed in part and reversed in part a trial judgment holding the fire marshal’s office was entitled to civil service protection.

Plaintiffs sued the City and various officials trying to hold the Amarillo Fire Marshal’s Office (“FMO”) should be classified as a civil service position.  In the City, firefighters are classified positions, but the FMO is not classified.  As such, employees within the FMO are civilians who are not afforded civil service protections. The FMO performs fire prevention duties such as checking building plans, inspecting businesses, and investigating suspicious fires. FMO employees are certified by the Texas Commission on Fire Protection. Following a bench trial, the trial court entered a final order declaring that positions within the Amarillo FMO are civil service positions, but denied the promotional relief sought. The trial court ruled the firefighter’s association (“Association) was the necessary real party in interest, not the individual Plaintiffs and the claims were therefore precluded.

Both parties agree that the determination of whether a particular position is a “fire fighter” position depends on whether the position meets the definition identified in Texas Local Government Code section 143.003(4).  The City’s argument appeared to turn on whether the position was one of “fire suppression” and not other duties. The express language of section 419.032 distinguishes “fire protection personnel” from “fire suppression.”  The testimony established  FMO positions require substantial knowledge of firefighting. The trial court heard evidence that the FMO was moved within the Amarillo Fire Department in 1989, the FMO is part of the Fire Department for budgeting purposes, and the FMO is listed as part of the Fire Department within the City’s Organizational Structure. As a result, the trial court properly determined the position should be classified as a firefighter. Next, the City actively argued that the association lacked standing to participate in the case and Plaintiff’s agreed. The court did not see any basis for the trial court holding the association’s inaction established the defenses of laches, estoppel, or limitations. The trial court also made findings that the City proved that using non-classified employees in FMO positions was motivated by good faith, was more satisfactory to the public, and was based on more than monetary savings.  However, the standard requires that the City provide a good-faith reason to justify the use of non-classified personnel over civil servants, rather than assessing the qualifications of particular individuals to serve in those positions. Therefore, the City is not entitled to a good-faith defense for the use of non-classified personnel.   And while the court of appeals found the Plaintiff’s general relief was not precluded, the trial court did not consider the entitlement on the merits. As a result, certain relief matters were remanded.

Panel consists of Chief Justice Quinn, and Justices Parker and Doss. Affirmed, reversed, and remanded to trial court. Opinion by Justice Parker can be read here. Docket page with attorney information found here.

San Antonio Court of Appeals held City park and airport police could proceed with declaratory claims to establish collective bargaining rights

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City of San Antonio and Erik Walsh, in his Official Capacity v. San Antonio Park Police Officers Association, et al, 04-20-00213-CV, (Tex. App – San Antonio, July 14, 2021).

This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (“SAPPOA”) sought declaratory relief for three distinct issues related to the legal classification of San Antonio’s park and airport police officers. The San Antonio Court of Appeals affirmed in part and reversed in part the City’s plea to the jurisdiction.

The SAPPOA argued that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the City of San Antonio (“City”) under chapters 174 and 143 of the Texas Local Government Code.  The court explained  Chapter 174 provides a limited waiver of immunity as follows: “This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.” Tex. Loc. Gov’t Code Ann. § 174.023.  SAPPOA clearly alleged a violation of their right to collectively bargain under Chapter 174. The court held that these factual allegations were sufficient to establish the subject matter jurisdiction of the court.

However,  SAPPOA did not allege or argue that chapter 143 provides for a waiver of immunity for their declaratory judgment claim. The court held  SAPPOA did not request a declaration concerning the validity of chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the City’s immunity with respect to their declaratory claim pursuant to chapter 143.

Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.

Panel consists of Chief Justice Martinez, and Justices Rios and Watkins. Reversed in part, Rendered in part, and Affirmed in part. Memorandum Opinion by Chief Justice Martinez can be read here. Docket page with attorney information found here.

Austin Court of Appeals holds that under the Civil Service Act applied to police officers, a reinstatement list must factor in seniority in the position being demoted and not seniority in the department

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Bradley Perrin v. City of Temple, et al, 03-18-00736-CV, (Tex. App – Austin, Nov. 6, 2020)

This is an employment dispute in a civil service police department with crossclaims and a host of procedural matters. The Austin Court of Appeals ultimately held the Plaintiff was entitled to the promotional position of corporal.

Perrin and Powell were serving as police officers for the City and took the written examination for promotional eligibility to the rank of corporal.  Five officers passed, including Perrin and Powell. The results were publicly posted on a certified list with Powell being third and Perrin being fifth. Then, the Director added seniority points, but made Perrin third and Powell fifth. The City Defendants and Powell contend that the Director erred in adding the seniority points and did so incorrectly. However, before the list expired, the City eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. The Chief sent out a memo stating the sequence of events should have resulted in the promotion of Officers Mueller, Perrin, Powell and Hickman to corporal, and then the immediate demotion back to the rank of police officer, and placement on a Re-Instatement List for the period of one year. The reinstatement list listed Powel higher than Perrin due to seniority points being included. Perrin sued the City Defendants for a list status higher than Powell under declaratory judgment and ultra vires claims.  The City Defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion and Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the City Defendants’ and Powell’s motions for summary judgment. Perrin appealed.

The court first held the legislature waived immunity for dissatisfaction with the grading in §143.034(a) of the Texas Local Government Code, which permits an “eligible promotional candidate” who is “dissatisfied” with “the examination grading” to “appeal, within five business days, to the commission for review.” To the extent that Powell is relying on the UDJA to challenge “the examination grading” such is precluded due to the redundant remedy doctrine. Powell’s ultra vires claim is not dependent on the remedies so is permitted to move forward for prospective relief only, but since Powell sought a reevaluation of the promotion list, that is not prospective. The trial court erred in granting Powell’s summary judgment for retrospective relief to alter the list. conclude that the City Defendants’ counterclaim requesting declaratory relief did not rise to a justiciable level and therefore the district court lacked subject matter jurisdiction over the counterclaim. It is the promotional eligibility list that provided the rights and status of the parties as to their initial promotion to corporal. Whether Perrin was erroneously placed ahead of Powell on the promotional eligibility list does not affect the rights and status of the parties under that list because, on this record, there is no mechanism by which the expired list may be retroactively amended.  By providing a unilateral right of review only to officers, the Civil Service Act is not thereby permitting a declaratory judgment action through which the City Defendants may challenge the decision of the Director in making the list.  However, for the reinstatement list, the context of the statute makes clear that the reinstatement list is created by the demotion of officers who have “least seniority in a position” and that the list “shall” be “in order of seniority.” The court determined that “seniority” in section 143.085(a) refers to seniority in the corporal position, not seniority in the Department.  So, when multiple individuals are promoted to open vacancies from a promotional eligibility list at the same time and then demoted at the same time, “seniority” for the reinstatement list is determined by the order of the promotional eligibility list.

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Kelly, and Smith. Memorandum Opinion by Justice Goodwin. Docket page with attorney information can be found here.

The First Court of Appeals to move forward with retaliation claim plaintiff must provide evidence of but-for causation

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Kimberley R. Trimmer-Davis, No. 01-19-00088-CV (Tex. App.—Houston [1st Dist.] August 25, 2020) (mem. op.).

In this employment retaliation case, the plaintiff sued the City when suspended after making a complaint and later terminated after failing to follow drug testing procedures.  The Court of Appeals allowed the retaliation claim related to the suspension move forward but dismissed the retaliation claim for termination due to no but-for causation evidence.

The plaintiff was a civil service employee of the City who made a complaint related to the treatment of females in her City department.  After investigating the complaint, the City determined the claim was untruthful and suspended the plaintiff for one day.  The Civil Service Commission overturned the suspension, but the untruthfulness complaint was left in the plaintiff’s personnel file.  The employee sued for retaliation for the suspension and for refusing to remove the untruthfulness complaint from her files.  Three weeks later, the employee was selected to take a random drug test and failed to follow the proper testing procedure multiple times.  She was terminated for her failure to properly follow the requirements. The plaintiff filed another complaint related to her termination.  The trial court granted the City’s plea to the jurisdiction as to the recordkeeping claim but denied the plea for the one-day suspension and the termination.  Both parties appealed.

To show retaliation, the employee has to show an adverse employment action was caused in retaliation for protected activity.  There is no disagreement that adverse employee actions occurred or that protected activity occurred prior to the actions.  The process for proving retaliation through circumstantial evidence is that: (1) the plaintiff prove that the adverse employment action and the protected activity occurred; (2) the employer then present non-retaliatory reasons for the actions; and (3) finally the plaintiff shows that the non-retaliatory reasons are pretextual.  The City argued that it had non-retaliatory reasons for the terminations.  The plaintiff argued that the non-retaliatory reasons were a pretext for all three activities (suspension, keeping the untruthfulness complaint in her file, and the termination).  The Court of Appeals held that the suspension occurred in a manner inconsistent with the City’s own policies, which provides sufficient evidence of pretext. The Court also held that the City’s arguments regarding its recordkeeping were insufficient to definitely prove there was no retaliatory intent in keeping the untruthfulness complaint in its files because the City’s policies related to recordkeeping were vague and contradictory.  Finally, the Court of Appeals held that there was sufficient evidence that the City had non-retaliatory reasons for the termination related to the drug testing and that the plaintiff had not provided sufficient evidence that her earlier complaints were a but-for cause of her termination.  The case was sent back to the trial court on the recordkeeping and suspension retaliation claims.

If you would like to read this opinion click here.   Panel consists of Justices Kelly, Hightower, and Countiss. Opinion by Justice Peter Kelly.

Lieutenants in civil service county not considered exempt employees for FLSA purposes says U.S. 5th Circuit

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Miller v Travis County, 19-50360, (US 5th Cir – March 26, 2020)

This is a Fair Labor Standards Act (FLSA)/overtime case where the U.S. 5th Circuit held the County failed to establish the lieutenants in the Sheriff’s office were exempt employees.

In the Travis County Sheriff’s department, the Sheriff is at the top. In descending order are the Chief Deputy, majors, captains, lieutenants, sergeants, detectives, and deputies.  The County falls under the civil service statute for law enforcement.  The lieutenants’ main responsibility is to manage the operation of units of sergeants and deputies.  The lieutenants participate in employment decisions regarding their coworkers, starting with hiring and promotion.  The lieutenants also participate in discipline and termination decisions. Believing they were entitled to overtime pay, the lieutenants sued Travis County and a jury issued an award in their favor. The County appealed.

The employer bears the burden of proving an employee is exempt from overtime pay under the FLSA. To qualify as an executive exemption, the employee must have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. The lieutenants could not hire/fire, so the jury only decided whether their opinions have particular weight in the decision. However, the hiring and promotional boards (made up of 6 officers)  did not provide the lieutenants any special influence. They sometimes sat on the boards, but, at least for hiring boards, they did so along with their subordinates. Thus, at most, a lieutenant’s recommendation accounted for one-sixth of the final tally.  The jury was properly instructed on the purpose of the civil service system, which includes a design to prevent any one viewpoint from having disproportionate influence.  As a result, the jury could have found for the County or for the lieutenants, given the facts. The jury found for the lieutenants. The same is true for the lieutenants’ role in discipline and termination. “There was evidence on both sides, and the jury picked a winner. Our task is not to determine whether the verdict was correct—only whether there was a sufficient basis to render it… There was.”  Since the review is under an abuse of discretion the County failed to establish an abuse of discretion.

If you would like to read this opinion click here. Panel consists of Smith, Ho, and Oldham.  Opinion by Judge Smith. Attorneys for the Appellant are Amy Stoeckl Ybarra, Leslie Wood Dippel, and Laurie R. Eiserloh. Attorneys for Appellee are Jacob Sheick and Meredith B. Parenti.

 

City allowed to appeal civil service order since hearing examiner performed her own Internet search on medication side-effects

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City of Fort Worth v. Shea O’Neill, 02-18-00131-CV (Tex. App. – Fort Worth, Jan. 23, 2020).

The Fort Worth Court of Appeals reversed-in-part and affirmed-in-part a trial court order regarding whether the court had jurisdiction over an appeal from a hearing examiner’s decision under the Civil Service Act.

Shea O’Neill was indefinitely suspended as a firefighter with the City.  O’Neill, while on work-related leave, struck a 70-year-old fellow parent at a football scrimmage. The parent alleged he sustained facial injuries, several cracked and broken teeth, and a bloody nose.   The fire chief found that O’Neill had violated several fire-department rules and regulations and imposed the suspension.  O’Neill appealed and a hearing examiner reversed the suspension. The City appealed to the district court, which granted O’Neill’s plea to the jurisdiction holding it had no jurisdiction over the hearing examiner’s decision. The City appealed.

The City asserts the district court had jurisdiction to consider the appeal for two reasons: (1) the hearing examiner’s decision was procured by unlawful means because she considered evidence not admitted at the hearing and (2) the hearing examiner exceeded her jurisdiction because she concluded that the fire department’s due-process violations compelled her to reinstate O’Neill.  The Civil Service Act mandates that a decision be made on evidence submitted at the hearing. A hearing examiner’s decision is “final and binding on all parties.” An appeal is permitted only if the hearing examiner was without jurisdiction or exceeded his/her jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. It is undisputed the hearing examiner conducted her own independent Internet research on the side effects of certain drugs. O’Neill counters the search results were not “procured” through unlawful means. In ordinary usage, “procure” means to “to cause to happen or be done” and to “bring about.”  The hearing examiner found the “slap” was defensive in nature and unlikely to have caused the broken teeth or bones and dismissed the nosebleed as being caused by the slap. The court held a fact issue exists regarding the side-effects evidence and whether it led the hearing examiner to decide that the evidence overall did not support the fire chief’s findings and conclusions.  Such was improper and was procured through an unlawful means as the medication issue was not submitted during the hearing as evidence.  As a result, the “procured through unlawful means” ground entitled the City to reversal of the order granting the plea and a remand for further proceedings. However, the hearing examiner also determined that the department did not fully investigate the facts and allegations and did not give O’Neill an adequate opportunity to respond to the allegations. Such is within her discretion. Nothing in the Civil Service Act prohibits hearing examiners from reinstating a firefighter based on a finding that the department did not give due process during the disciplinary process. That ground was overruled by the court, even though it still remanded the case.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr, Visiting Justice Massengale.  Memorandum opinion from Justice Kerr. The docket page with attorney information can be found here.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension

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Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals

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Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

Texas Supreme Court holds constables work for a “police department” and are allowed to collectively bargain

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Jefferson County, Texas v. Jefferson county constables association, 16-0498, — S.W. 3d. – (April 13, 2018)

The Texas Supreme Court ends a split in the circuits and holds constables are “police officers”  who work for a “police department” for purposes of the collective bargaining statute.

Jefferson County (“County”) and the Jefferson County Constable Association (“Association”) entered into a collective bargaining agreement (“CBA”) under Tex. Loc. Gov’t Cod ch 174.  The County and Association had a disagreement regarding the County’s ability to abolish positions and the dispute was submitted to an arbitrator. The arbitrator ruled for the Association, holding the County violated the CBA by eliminating certain positions. The County appealed asserting the arbitrator exceeded his authority.  The trial court ruled for the County and the Association appealed. After the parties completed principal briefing in the court of appeals, the County filed a supplemental brief arguing for the first time that the CBA was invalid, depriving the arbitrator of jurisdiction.  Principally the argument goes the Association is not allowed to utilize Chapter 174 for collective bargaining since the chapter only applies to “police officers” as defined by Texas law. The County asserted the CBA was void.  The 13th Court of Appeals held the constables were “police officers” for purposes of Chapter 174. (summary found here).   The County relied on the line of cases such as Wolff v. Deputy Constables Ass’n of Bexar County, 441 S.W.3d 362 (Tex. App.—San Antonio 2013, no pet.) holding constables do not fit the statutory definition of police officers for collective bargaining purposes. (Wolff summary found here). The Texas Supreme Court granted the petition for review.

The Court first held that unlike the Wolff case (where the associated sued to compel the county to engage in collective bargaining), Jefferson County had already entered into a CBA and was trying to enforce the CBA, not Chapter 174 (“the Act”). Therefore, the Association in this case has standing to bring suit to enforce the CBA.  The enforcement of the CBA does hinge, however, on the language of Chapter 174. Whether the deputy constables are “police officers” entitled to collectively bargain is a matter of statutory interpretation. The term “police officer” is statutorily defined in the Act as “a paid employee who is sworn, certified, and full-time, and who regularly serves in a professional law enforcement capacity in the police department of a political subdivision.” Tex. Loc. Gov’t Code §174.003(3). The parties’ principal dispute is whether the deputy constables serve in “the police department of a political subdivision.” The Act does not define the term “police department,” but its ordinary meaning is “a governmental department concerned with the administration of the police force.” In turn, a “police force” is “a professional body of trained officers . . . entrusted by a government with maintenance of public peace and order, enforcement of laws, and prevention and detection of crime.” The Court reviewed a spectrum of statutes governing the authority and duties of constables and other law-enforcement officers. It went through various duties and powers.  The Court analyzed the word “the” to determine if a County can have more than one police department. The sheriff’s office is already defined as the County’s police department. Other peace officers are commissioned by and serve entities that clearly do not qualify as police departments, such as school districts, water control and improvement districts, and hospital districts. To some extent, deputy constables’ daily responsibilities vary by county and even by precinct. But their statutory duties are identical, and the Court did  not read the Collective Bargaining Act to apply to some deputy constables as “police officers” but not others. It focused on the statutory duties, not the individual county facts. After over ten pages analysis the Court held that deputy constables “regularly serve[] in a professional law enforcement capacity in the police department of a political subdivision.” Therefore, the CBA is valid and constables may utilize the Act. The Court then analyzed the arbitrator’s award. The arbitrator did not quibble with the County’s right to abolish as many deputy positions as it deemed necessary or prudent, nor did he order the County to create or fund positions that no longer existed. He merely determined that, upon eliminating funding for eight deputy-constable positions, the County was required under the CBA to consider the deputies’ countywide seniority in determining which eight deputies were to be terminated. As a result he did not exceed his authority.

The dissent stated the policy decision to grant them authority to engage in collective bargaining belongs to the Legislature, not this Court. Adopting the reasoning in Wolff, the dissenting opinion stated deputy constables are not “police officers” any more than police officers are deputy constables.

If you would like to read this opinion click here. Panel consists of Justice Chief Justice Hecht, Justice Green, Justice Guzman, Justice Devine, Justice Brown, and Justice Blacklock. Justice Lehrmann delivered the opinion of the Court. Justice Boyd delivered a dissenting opinion, in which Justice Johnson joined, found here.

 

Trial court had jurisdiction to determine if certain jobs should be classified as civil service, but not to award backpay

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-17-00120-CV (Tex. App. Amarillo — March 21, 2018)

This is a civil service lawsuit where the Amarillo Court of Appeals reversed-in-part the denial of the City’s plea to the jurisdiction.

In Amarillo, firefighter positions have civil service protection and firefighters are contained within the Fire Supersession Department. However, positions in the Amarillo Fire Marshall’s Office (“FMO”) have traditionally been treated outside the protection. Nurek and Stennett were the highest scoring individuals on the promotional exams for positions of an Investigator I (equivalent rank of lieutenant) and Investigator II (equivalent rank of captain) within the FMO. When they were not offered the positions, they sued to declare the positions subject to civil service protection (and therefore eligible for placement via promotional exam). They also sought instatement in the positions and the backpay. The City and the officials sued, filed a plea to the jurisdiction which was denied. They appealed.

Immunity bars a declaratory judgment action seeking a declaration of the government’s liability for money damages.  However, that only addresses the Plaintiffs’ claim for backpay. The court held jurisdiction exists for the trial court to examine the City’s failure to classify firefighter positions within the FMO as civil service positions.  Under §180.006 of the Texas Local Government Code, immunity is waived “for claims to recover monetary benefits that are authorized by a provision of…” the Act. However, the claims asserted do not specify the sections which would authorize the payment in the Plaintiffs’ pleadings. “While appellees may prove to be right regarding appellants’ erroneous classification of FMO positions outside of the civil service, it is clear that appellees have not affirmatively pled facts demonstrating that their claims for monetary benefits are authorized by a provision of the Civil Service Act.”  Further, the pleadings do not differentiate between acts of the City and any alleged ultra vires acts of individual officials. Nothing indicates where the City Manager is responsible for civil service job classification. The failure to allege enough jurisdictional facts to demonstrate the trial court’s jurisdiction gives rise to a right to amend the pleadings unless the jurisdictional defect may not be cured by repleading. As a result, part of the plea should have been granted and part was proper to deny, but amended pleadings should be ordered.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Parker. Opinion by Judge Parker. The attorneys listed for the City Defendants are William M. McKamie, Bettye Lynn and Bryan McWilliams.  The attorney listed for the Plaintiffs is Matt Bachop

Dallas Court of Appeals disagrees with El Paso Court of Appeals and holds civil service commission dismissal of grievance is still subject to appeal to district court

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Rodney D. Bailey v. Dallas County, et al.,  05-16-00789-CV (Tex. App. – Dallas, December 21, 2017)

This is a county civil service case where the Dallas Court of Appeals affirmed-in-part and reversed-in-part the County Defendants’ plea to the jurisdiction filed in a district court case challenging his termination.

Bailey was a Dallas County Deputy Sheriff who was indicted for sexual assault and suspended from active duty.  Bailey timely filed a grievance challenging his termination.  Before the Civil Service Commission (“Commission”) held a hearing, the County dismissed the charges against Bailey.  Once the hearing was set, the County requested that the Commissioners dismiss Bailey’s grievance because he did not request a hearing within thirty days of the dismissal of the indictment, which the County asserted was required by §5.02(2) of the Dallas County Sheriff’s Department Civil Service Rules.  The Commission granted the motion. Bailey then filed suit in district court under §158.037 of the Texas Local Government Code, which allows for an appeal from a  Commission order removing him or demoting him. He also brought declaratory judgment claims asserting the Commission’s rules were void and the Commission acted in an ultra vires manner.  The County Defendants filed a plea to the jurisdiction, which the trial court granted. Bailey appealed.

The County Defendants asserted the Commission’s order did not demote or remove him but was simply a dismissal of the appeal. However, this has the effect of leaving the Sheriff’s removal in place. The court noted County of El Paso v. Zapata, 338 S.W.3d 78 (Tex. App.—El Paso 2011, no pet.) expressly supported the County Defendants’ position. However, the court disagreed with the El Paso Court of Appeals, thereby causing a split in the districts. The Commission’s dismissal supported the Sheriff’s removal and therefore §158.037 was applicable. Next, the court analyzed the UDJA claims. Ultra vires claims under the UDJA are prospective only. Bailey clearly is seeking retrospective relief under the UDJA, which is not permitted. Bailey’s request for a prospective hearing would require the retrospective setting aside of the prior order of dismissal. Bailey’s pleadings also do not actually seek the invalidity of a Commission rule or state statute. He asserts the Commission injected provisions which are not contained within the state statutes. These are complaints about the applicability and construction of the sections, not that they are invalid.  Bailey sought a writ of mandamus ordering the County to provide him a Commission hearing. The court disagreed the Commission had the discretion to provide Bailey a hearing. Officials have no discretion to misapply the law. As a result, the court had jurisdiction to hear Bailey’s mandamus claim to a hearing, even though it has a retrospective effect. Finally, the County asserted the Commission was not a separate jural entity subject to suit. Whether the Commission has a separate and distinct legal existence is a jurisdictional fact question. The County has the burden in a plea.  It presented no evidence the Commission does not have a separate and distinct legal existence.  The court, in a footnote, stated it expressed no opinion as to what the ultimate result of the analysis would be once evidence is submitted, only that the trial court had jurisdiction to consider the issue.

If you would like to read this opinion click here. Panel includes Justice Bridges, Justice Myers and Justice Schenck.  Memorandum Opinion by Justice Myers. The attorney listed for Bailey is Lance Franklin Wyatt.  The attorney listed for the County Defendants is Tammy Jean Ardolf.

4th Court of Appeals holds City’s “evergreen clause” in collective bargaining agreement does not create unconstitutional debt

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City of San Antonio v. San Antonio Firefighters’ Association, Local 624, 04-15-00819-CV (Tex. App. – San Antonio, August 23, 2017).

This is a permissive appeal, which was allowed by the court, where the City requested the Court of Appeals review the denial of its motion for summary judgment seeking to hold the “evergreen” clause of its collective bargaining contract, void as an unconstitutional debt. The court determined the clause was not an unconstitutional debt.

The City and firefighter union enter into multi-year collective bargaining agreement.  Because the contracts require council and union member approval, which takes time, the contracts have contained “evergreen” clauses which state the effective contract would continue in effect until a specified future date unless first replaced by a successor agreement or terminated by mutual agreement. At the time of suit, the Union and City had not adopted a successor agreement or terminated the current collective bargaining agreement (“CBA”). The City sought a declaration the clause was void as an unconstitutional debt or, in the alternative, as against public policy. The trial court denied the City’s summary judgment motion, which prompted this permissive appeal.

Article XI, Section 5 and Section 7 of the Texas Constitution prohibit debts by a city unless a sinking fund with revenue tax commitments are in place. The drafters intended to require local governments to operate on a cash basis and to limit their ability to pledge future revenues for current debts.  The court analyzed the term “debt” as referenced in the Texas Constitution. After analyzing case law, the court held a “debt” for constitutional purposes is a pecuniary obligation which cannot be satisfied out of current revenues for the year or savings. A contract can avoid constitutional infirmity if it is conditioned on a yearly appropriation of funds.  However, this CBA does not contain such a provision.  The City asserts “[w]hen the CBA was created in 2011, an absolute debt was created at once with only the time of payment being postponed.” The amount of the “debt” is presumably the total expense of complying with the contract, including the value of all the wages and benefits estimated to be due from 2011 through 2024.  According to the Union employee wages and benefits are not “debts” within the meaning of the Texas Constitution because no amount will be owed for a future year’s wages and benefits until work is performed by fire fighters and an obligation to pay them is incurred. The CBA sets a schedule of payments for when work is performed but is not a contract for employment. In order to succeed in its claims, the City must establish either that the entire CBA constitutes a debt or that non-severable obligations imposed by the CBA are unconstitutional debt, rendering the CBA void in its entirety. Conversely, if there are any severable provisions of the CBA that are not void for violating sections 5 and 7 of article XI of the Texas Constitution, the entire CBA is not void and the trial court properly denied the motion for summary judgment.  After a very long analysis of different provisions of the contract, the court held the contract does not create a debt. The actual amount the City will owe in a given year for operating expenses depends on the number and classification of employees. The contract does not expressly obligate the City to pay wages and benefits and does not contain any minimum staffing or funding requirements. As a result, the trial court properly denied the motion.

If you would like to read this opinion click here. Panel includes Chief Justice Marion, Justice Martinez and Justice Chapa. Opinion by Justice Chapa. The docket page with attorney information can be found here.