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

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.