Reinstatement is not sole remedy for hearing examiner in civil service case

 

Bracey v. City of Killeen, 03-12-00199-CV (Tex. App. – Austin November 6, 2013).

This is an employment case involving the civil service relationship between police officer and city. The court was asked to decide whether an independent hearing examiner “exceeded her jurisdiction” within the meaning of the Civil Service Act’s judicial-review provisions in upholding a police officer’s indefinite suspension (i.e., dismissing him) when the disciplinary action fully complied with the requirements specified within the Civil Service Act, yet originated with “complaints” that were not reduced to writing, signed, and provided to the officer.

The Austin court analyzed the notice and specificity requirements for informing an officer of an alleged rule violation under the Civil Service Act. The, the court analyzed Subchapter B of Government Code chapter 614 which regulations—including a type of notice requirement—apply when certain law enforcement agencies are presented with a “complaint” against one of their officers. The court noted that chapter 614 includes civil service complaints and that only meet and confer and collective bargaining complaints are excluded from its application.

In December 2010, following an internal investigation, the Police Chief indefinitely suspended Bracey based on his alleged violation of several Killeen civil service rules. The Chief prepared, filed, and delivered to Bracey a letter of disciplinary action detailing the civil service rules that Baldwin contended Bracey had violated and the alleged acts that Baldwin viewed as constituting such violations (mainly dealing with providing false information to the department). Bracey timely perfected an appeal before an independent hearing examiner who confirmed the suspension and Bracey appealed to district court. The trial court dismissed Bracey’s case which he again appealed.

The court went through an lengthy analysis of the power of the hearing examiner and what can and cannot be done within his/her jurisdiction. It examined whether compliance with Subchapter B of 614 was jurisdictional vs merely mandatory; a distinction which grants or denies the power to reinstate for non-compliance. The court ultimately held Bracey was protected by Subchapter B and was entitled to a written complaint prior to disciplinary action; however failure to provide does not equate to automatic reinstatement.

Bracey’s sole complaint is that the hearing examiner “exceeded her jurisdiction” by failing to reinstate him based on Subchapter B. We have concluded that, to the contrary, the examiner had no jurisdiction to award him that remedy based solely on any failure by appellees to provide him one or more written “complaints” required by Subchapter B. Bracey has not preserved any complaint that the hearing examiner failed to enforce Subchapter B through a remedy that would be within her jurisdiction to award. Accordingly, the hearing examiner did not “exceed her jurisdiction” as a matter of law.

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