Hearing examiner v arbitrator; City waived its right due to confusing civil service section

Biesenbach v. The City of San Antonio, 04-11-00900-CV (Tex. App. – San Antonio, July 17, 2013)

This is a civil service hearing examiner appeal with an odd procedural history. Biesenbach was a firefighter who received a notice of indefinite suspension from the Fire Chief. After a meeting on the notice, the Chief and Biesenbach entered into a “Last Chance Agreement” where the City would forgo disciplinary action in exchange for certain terms. One term was Biesenbach would get prior approval before taking leave due to his prior absences at work. Biesenbach later allegedly breach this term and was indefinitely suspended “without the right of appeal” under the Agreement. However, the notice provided to Biesenbach stated he did have the right to appeal (required language included in all disciplinary notices pursuant to TEX. LOC. GOV’T CODE ANN. § 143.057(a) (West 2008)). Biesenbach appealed to a hearing examiner who ordered reinstatement after determining the Agreement was void.

The City filed a declaratory judgment action in district court asserting the hearing examiner was, in fact, an arbitrator under the Agreement and exceeded his authority by declaring the contract void. The trial court agreed with the City and Biesenbach brought this appeal.

The Fourth Court of Appeals determined that since the notice provided to Biesenbach specifically stated he had the right to appeal (even though the Agreement stated otherwise) the City waived its right to compel arbitration. Biesenbach had his case properly heard before a hearing examiner. And since the hearing examiner retained jurisdiction over the issue of attorney’s fees, his order was interlocutory and not subject to appeal to the district court. Only final orders can be appealed and calling the matter a declaratory judgment action cannot change that requirement. The trial court’s judgment was reversed and the matter remanded to the hearing examiner.

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