Category Archives: Civil Service/Collective Bargaining

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.

District Fire Chief’s grievance moot after later promotion

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Brian McEnery v. City of San Antonio and Chief Charles N. Hood, 04-15-00097-CV (Tex. App. – San Antonio, June 1, 2016).

This is an appeal from a trial court’s order confirming an arbitration award that denied McEnery’s grievance against the City of San Antonio. The court determined the matter was moot.

McEnery took a civil service promotional exam for district chief which consisted of a written exam and practical exam. McEnery passed the written examination but only part of the practical. McEnery filed a grievance, alleging the assessment center portion of the exam was not given in accordance with Chapters 143 and 174 of the Texas Local Government Code and the collective bargaining agreement (“CBA”). Thereafter, McEnery’s grievance was arbitrated and the arbitrator denied McEnery’s relief, finding “there was no convincing evidence or testimony that the test given was faulty or flawed…” McEnery then filed suit. After a bench trial, the trial court rendered judgment denying all of McEnery’s relief.

The San Antonio Court of Appeals held a case is moot when a court’s action on the matter would not have any practical legal effect on the controversy. McEnery asked the trial court to vacate the arbitration award and order the City to permit him to retake the assessment center portion of the exam. However, it is undisputed McEnery was promoted to district chief during the pendency of this suit.    McEnery’s case no longer presents a live controversy as a result of his promotion. McEnery argued his promotion to district chief does not moot the appeal because his request to allow his colleagues to retake the exam and his request for back pay are still pending and justiciable.  However, a review of the record demonstrated neither were sought by McEnery during arbitration. Those were added in the litigation. The limited scope of the judicial review does not permit such relief. The case is therefore moot.

If you would like to read this opinion click here. Panel: Justice Angelini, Justice Barnard, Justice Chapa. Memorandum Opinion by Justice Barnard. The attorneys listed for McEnery are Floyd Contreras
Ronald Prince. The attorney listed for the City is Deborah Lynne Klein.

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

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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.

13th Court disagrees with 4th Court and holds constables can collectively bargain

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Jefferson County Constables Association v. Jefferson County, Texas 13-14-00188-CV (Tex. App.- Corpus Christi, May 5th 2016)

This is a civil service case where the County sought to overturn an arbitration award. The 13th Court of Appeals expressly disagreed with the 4th Court and created a split in the circuits as to whether the Fire and Police Employee Relations Act (“FPERA”) applies to County Constables.

Jefferson County (“County”) and Jefferson County Constables Association (“Association”) entered into a collective bargaining agreement for its law enforcement personnel. It contained a provision requiring binding arbitration for any disputes regarding the contract. During the period of the agreement, the County eliminated several deputy constable positions entirely. The Association asserted the layoffs violated the requirement that seniority be the sole factor for layoffs and submitted it to arbitration. The arbitrator issued a holding in favor of the Association. The County appealed to district court which reversed the award. The Association appealed.

The first issue to address on appeal was whether the Association had the authority to enter into a collective bargaining agreement in the first place.  The San Antonio Court of Appeals in Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362, 366 (Tex. App.—San Antonio 2013, no pet.) held FPERA listed which law enforcement entities were allowed to enter into collective bargaining agreements and “constables” were not one of them. (Summary found here.) Therefore, Wolff held constables could not collectively bargain and any such contracts were void. Using different principals of statutory construction than Wolff, and going outside of FPERA, the 13th Court held “[C]onstables and their deputies, are statutorily designated as peace officers under article 2.12 of the Code of Criminal Procedure.” Further, “[g]iven the liberal construction required by the FPERA, we find no meaningful distinction between deputy sheriffs and deputy constables with respect to the FPERA’s definition of ‘police officers.’” The panel agreed FPERA’s limiting language would exclude certain peace officers who do not serve in what can be categorized as a “police department.” However, the court held “…we do not interpret such language as operating to exclude deputy constables, who work in a county law enforcement office established by the Texas Constitution.”  As a result, constables can collectively bargain. As to the award, the court held Texas Local Government Code §86.011 and §151.001 prohibits an award ordering appointment of new positions, but is not applicable for reinstatement of already established positions (even if the positions are eliminated).  And after analyzing the County’s position it determined the County’s argument “is not that the arbitrator did not have the authority to interpret the agreement, but that the arbitrator decided the issue incorrectly.”  A district court is not authorized to second guess the correctness of an arbitrator’s decision and is limited to determining whether the arbitrator exceeded his authority or was without authority. The panel reversed the trial court and issued an award in favor of the Association.

To read the full opinion click here. Panel: Chief Justice Valdez, Justice Rodriguez and Justice Perkes. Opinion issued by Justice Perkes. The Attorneys for Jefferson County are Kathleen Marie Kennedy and Gerald Riedmueller. Attorneys for the Jefferson County Constables Association are Craig Tahaney and Lance P. Bradley.

Officer waived his right to appeal in last chance agreement so trial court was without jurisdiction said Austin Court of Appeals

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The City of Austin Firefighters’ and police Officers’ Civil Service Commission, et al v William M. Stewart, No. 03-15-00591-CV (Tex. App. – Austin, April 14, 2016)

This is a civil service employment dispute where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Stewart was a police officer employed by the City of Austin’s police department (“APD”). APD conducted an internal investigation and determined Stewart violated various policies. Rather than appeal, Stewart (while represented by an attorney) entered into a last chance agreement for a 60 days suspension and probation for a year. Almost 11 months later, Stewart was indefinitely suspended after Chief Acevedo determined that Stewart had committed similar acts of misconduct after his sixty-day suspension.  Stewart attempted to appeal, but was told he waived the right to appeal in the Last Chance Agreement.  Steward sued attempting to compel a hearing. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The only question the court determined it must answer is whether the Civil Service Director committed an ultra vires act in refusing to forward Stewart’s appeal to a hearing examiner. If Stewart waived his right to appeal, the Director did not act ultra vires, and the trial court lacked jurisdiction over the claim.  The City had entered into a Meet and Confer (“M&C”) with the bargaining unit. Under the M&C Agreement, if an officer is subject to indefinite suspension, the Police Chief and the officer may enter into a last chance agreement; if the officer agrees to such an agreement but then commits a same or similar act of misconduct within the agreed probationary period, the officer “will be indefinitely suspended without right of appeal.” The applicable section does not refer to a third-party fact-finder having any authority to make a determination of same or similar misconduct. The court held “the parties did not intend that an officer given a last chance after committing misconduct serious enough to warrant immediate termination should be able to appeal if it was later and again determined that he should be terminated.” Allowing an officer who enters into a last chance agreement as an alternative to immediate termination to “unwaive” his right to appeal would defeat the purpose of the waiver language.  Thus, the Director did not commit an ultra vires act in refusing to process Stewart’s notice of appeal.

If you would like to read this opinion click here.  Opinion given by Justice Puryear, Justice Goodwin, and Justice Field.  Memorandum opinion given by Justice Puryear.  Attorney for the Appellants is Chris Edwards.  The attorneys for the Appellee are Craig Deats and Matt Bachop.

Amarillo Court of Appeals overrules AG opinion and holds civil service video examinations are excepted from public disclosure under collective bargaining agreement

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Captain Edwin Scott Hilburn v. The City of Houston, Texas; and Ken Paxton, Attorney General of Texas 07-15-00158-CV (Tex. App. – Amarillo, January 21, 2016).

This is a Public Information Act (“PIA”) case involving promotional examination documentation.

The City conducted the Houston Fire Department Senior Captain examination. Included within this examination, for the first time, were two new exercises: the Subordinate/Organizational Problem Exercise (SP) and the Oral Tactical Exercise (OT).  The SP and OT exercises were video recorded and reviewed by anonymous assessors.  The City received a PIA request for various information, including the SP and OT videos. After going through the administrative process, the AG determined some of the testing information was subject to release. The City filed suit under PIA to withhold the information. Hilburn intervened.  The City and Hilburn filed opposing summary judgments. The trial court granted the City’s motion and denied Hilburn’s.

The court first determined the  City complied with Tex. Gov’t Code §552.3221 allowing the filing of responsive documents in cameria.  It also noted that such filing is permissive, not mandatory, so failing to follow this provision does not equate to a waiver of arguments. The court then determined the City properly raised §552.101 exception and did not waive any arguments. Tex. Loc. Gov’t Code §174.006 states the City’s collective bargaining agreement supersedes the civil service statute.  The City’s collective bargaining agreement specifically noted that video exams were permitted, therefore Tex. Loc. Gov’t Code §143.032 (which makes it a criminal offense to knowingly or intentionally reveal part of a promotional examination) was properly raised.  The court then held that properly raising the exceptions does not automatically equate to entitlement. The court then held that even though the AG determined the video portions were not a “written” exam entitled to protection, the record clearly indicates video exams were intended to be confidential under the collective bargaining agreement. Further, §552.122 makes test questions developed by a licensing agency excepted. However, the assessor’s names do not fall under any of the designated exceptions to disclosure, so neither do the rating forms. So, in the end, the questions and videos were excepted, the rating forms of anonymous assessors were not.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle.  Memorandum Opinion by Justice Hancock. The attorney for the City is listed as Robert W. Higgason.  The attorney listed for the AG is Kimberly Fuchs.  The attorney listed for Hilburn is Barbara A. Hilburn