Firefighter permitted to replead to establish jurisdiction for dispute over pre-employment contract to civil service job

Jamil Saifi v. City of Texas City, 14-13-00815-CV (Tex. App. – Houston [1st Dist.], April 21, 2015), mem. Op.

This is a civil service/collective bargaining case involving a firefighter where the First District Court of Appeals reversed the granting of the City’s plea to the jurisdiction and allowed the plaintiff to replead.

Saifi had a Condition of Employment (“COE”) agreement with the City agreeing to, among other things, obtain EMT certification within a specified time period.  Failure to obtain the certification resulted in automatic resignation. Saifi was unable to obtain certification within the specified time period and was terminated. He attempted to invoke the administrative appeal process but was told that since his employment was via a conditional pre-employment contract, he did not qualify. Saifi filed a breach of contract suit and alleged violations of the Civil Service Act. The City filed a plea to the jurisdiction which the trial court granted and he appealed.

The court first addressed a procedural issue and disagreed with the City that the appeal from the plea was interlocutory with accelerated deadlines. Since the plea dismissed all claims against all parties, it was final.  The appeal deadlines from final orders, not interlocutory orders, therefore controls. Saifi then argued that the COE Agreement, read together with the CBA and incorporated Civil Service Act provisions, constitutes a written contract stating the essential terms of the agreement between Saifi and the City. Saifi also asserts that the CBA is executed on behalf of the City, and it is unnecessary for the COE Agreement to be separately signed for purposes of §271.152 (waiver of immunity in contracts). The City asserted the COE was not signed by a representative of the City did not contain essential terms such as salary, benefits, etc.  The court held the pleadings do not contain sufficient facts to affirmatively demonstrate jurisdiction under §271.152 but do not reveal incurable defects so Saifi should be permitted to replead. A large portion of the evidence and arguments raised by both parties were directed at the merits of the claims and the court held such evidence is irrelevant to considering jurisdiction. The court then held the City’s argument the CBA and COE preempts §271.152 was not properly briefed and therefore not before the court.  Similarly, Saifi did not raise and preserve his constitutional challenge. The trial court did not err in dismissing Saifi’s declaratory judgment claim since the City maintains immunity in this context as the declarations are not separate from the relief sought in the breach of contract claim. As to Saifi’s claims for back pay under Tex. Loc. Gov’t Code §180.006 (waiver of immunity for back pay in civil service context), the court held §180.006 is not a blanket waiver of immunity. It waives immunity only in two narrow circumstances.  The pleadings are deficient to trigger jurisdiction for back pay but do not negate it either, so Saifi can replead. The granting of the plea was reversed, except as to the declaratory judgment action, as Saifi was permitted to fix the pleadings back at the trial court.

If you would like to read this opinion click here.  Panel: Justice Boyce, Justice Busby and Justice Wise.  Memorandum Opinion by Justice Wise.  The attorney listed for the City is Bettye Lynn.  The attorneys listed for Saifi are Vincent L. Marable, III and Richard Charles Mumey.