TEXAS CIVIL SERVICE LAW UPDATE

Texas City Attorneys AssociationSummer Conference - South Padre Island

June 9-11, 2010

Ricardo J. NavarroAlan T. Ozuna

Denton, Navarro, Rocha & Bernal, P.C.Rio Grande Valley Office701 E. Harrison Ste 100Harlingen, Texas 78550

956/421-4904956/421-3621 (Fax)

rjnavarro@rampage-rgv.comaozuna@rampage-rgv.com

www.rampagelaw.com

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I. JUDICIAL REVIEW OF HEARINGEXAMINER AUTHORITY

City of Waco v. Kelly, S.W.3d , 2010 WL571974 (Tex. 2010).

Larry Kelly, the appointed assistant chief ofthe Waco Police Department, was arrested fordriving while intoxicated, for which he wasindefinitely suspended by the chief. Kelleyappealed to a hearing examiner. After ahearing, the examiner found that the chief’scharges against Kelley were proven true, butthat the punishment of indefinite suspension,equivalent to dismissal from the department,was excessive. The examiner believed,however, that the conduct deserved some formof discipline, so he ordered that Kelley bereinstated as a sergeant, a demotion of threeranks, and that he be suspended for a period of180 days.

The decision satisfied neither party, and bothfiled appeals to district court. The cityclaimed that the hearing examiner exceededhis jurisdiction by demoting Kelley andreinstating him with a backpay award. Kelleyalso claimed the hearing examiner had nojurisdiction as a result of the city’s failure tofollow certain statutory procedures. Kelleydid not claim that the hearing examiner had nojurisdiction to demote him, and in fact,specifically asserted that if the hearingexaminer had jurisdiction, he did not exceedit. The district court sided with Kelley’sjurisdictional argument, ruling that the cityhad no statutory right to appeal a hearingexaminer’s decision, and awarded Kelleyattorney fees.

The city appealed this decision and the WacoCourt of Appeals dismissed the appeal for

lack of jurisdiction, holding that §143.057(j),Tex. Local Gov’t Code (TLGC) granted theright of appeal only to civil service employee,not a city. After the Waco Court issued thatdecision, the Texas Supreme Court decided inCity of Houston v. Clark, that despite theabsence of a reference to a city’s appellaterights in the statute, municipalities couldappeal hearing examiner awards on the samelimited grounds enjoyed by employees. TheSupreme Court then reversed the WacoCourt’s dismissal of the city’s appeal andremanded the case to the Court of Appeals.

On remand, the Waco Court of appealssubstantively addressed the City’s argumentthat the hearing examiner exceeded hisjurisdiction in ordering Kelley’s reinstatement.The city’s argued that the statute governingthe appointment of assistant chiefs, TLGC§143.014, allowed the hearing examiner toreinstate only if the charges were determinedto be untrue. The Court rejected thisargument on statutory interpretationprinciples, finding that it would put employeeswho accepted the appointment to assistantchief in a worse position than lower rankingemployees.

The city also argued the hearing examiner hadno jurisdiction to order a demotion, and herethe Court of Appeals agreed. Ironically, thisresulted in the Court vacating only the portionof the examiner’s award ordering thedemotion, arguably the more severe form ofpunishment. In other words, the city prevailedon its legal argument, and ended up with aweaker disciplinary decision against Kelley, afact that was highlighted by the dissent. Thecity sought review.

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The Supreme Court’s decision resulted in amixed bag for the city. It held:

1) the hearing examiner, once he foundcharges against assistant police chief to betrue, was not limited to upholding hisindefinite suspension, thereby rejecting thecity’s contention;

2) the hearing examiner did not exceed hisjurisdiction by reducing Kelley's indefinitesuspension to a one of a period of days, butsuch a reduction was limited to a suspensionof 15 days or less, thus further weakening thedisciplinary award of 180 days;

3) the hearing examiner exceeded hisjurisdiction when he demoted assistant chiefto rank of sergeant, thus agreeing with thecity, but weakening the award;

4) Kelley was not entitled to attorney fees oncity's appeal under §143.057(j); and

5) the appropriate remedy for the hearingexaminer's excess of jurisdiction, in part, wasto vacate the examiner's decision in its entiretyand remand the case to the hearing examiner.

Rationale:

The Court addressed each of the City’s issuesin turn, first tackling the issue of the authorityof a hearing examiner to reduce an indefinitesuspension to a suspension of a period of days.The Supreme Court rejected, as did the WacoCourt, the city’s contention that the languageof §143.014(h) permitted reinstatement onlyin the event that the charges are found to beuntrue. The Court noted that §143.014(h) didnot address what a hearing examiner may doif the charges are found to be true, and insteadonly provided what an examiner must do if thecharges were untrue. It failed to recognize a

corollary, as urged by the city, that if thecharges were true, the only remedy availableto a hearing examiner was to uphold whateversuspension was imposed. Instead, the Courtfound that the general remedial provisionscontained in §143.053 governed the remediesavailable in the event of a true finding. Thus,a hearing examiner is empowered to (1)permanently dismiss an employee; (2)temporarily suspend the employee; or (3)restore the employee to his former position.

Next, the Court addressed the range of optionsavailable to a hearing examiner upon choosingthe remedy of suspending the employee for aperiod of days. The Court noted that§143.052(e)(2) did not impose any limit onthe length of suspension that an examinercould impose. However, the Court found thatthis authority to temporarily suspend must beconstrued in context with other limitations inthe statutes on the imposition of involuntarysuspensions. Specifically, the Court graftedthe limitation applicable to department headscontained in §143.052, that of imposing atemporary suspension of 15 days or less, ontothe authority of the hearing examiner. TheCourt found no legislative intent to authorizeexaminers to impose longer suspensions thancould the department head. The Court impliedthat an examiner’s ability to suspend withouttime limits would violate the non-delegationdoctrine. See City of Pasadena v. Smith,below. Therefore, the Court held that thehearing examiner exceeded his jurisdiction byimposing a suspension of 180 days, becausehe was limited to a 15 suspension by the Act.

On the issue of demotion, the parties seemedto have agreed, in their arguments before theSupreme Court, that the hearing examinerexceeded his jurisdiction by order a demotion.The Court analyzed the issue anyway. TheCourt cited to a separate disciplinary provision

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of the Chapter 143 for demotions contained in§143.054. Providing for a slightly differentprocess from that of suspensions, §143.054allows a department to recommend demotionto the civil service commission, with therecommendation then being heard by thecommission or an examiner at the employee’soption. In this case, the police chief had notfollowed that process, and so the Courtdetermined that the hearing examiner was notpermitted to craft a remedy utilizing it.

On the issue of attorney fees, the Court brieflyreasoned and held that while fees wereauthorized in a district court appeal of acommission order under §143.015, there wasno such authorization in a in a district courtappeal of a hearing examiner order under§143.057(j). Absent statutory or contractualauthority for a fee award, the trial court had noauthority to award fees.

Finally, on the issue of relief from a hearingexaminer’s excess of jurisdiction, theSupreme Court determined that the WacoCourt’s approach – to vacate the offendingportions of the award and leave the rest intact- was incorrect. The Court applied case lawanalyzing review of arbitration decisionsunder the Texas General Arbitration Act.Under this analysis, invalid portions of anaward are only severable if doing so will trulyexpress the will of the arbitrator. In this case,the Court expressed no doubt that theinvalidation of the 180 day suspension anddemotion, leaving only Kelley’s reinstatementremaining in the award, would not result in anaward expressing the will of the hearingexaminer. It was evident to the Court that thehearing examiner believed that Kelley shouldreceive some discipline. Therefore, the Courtreasoned, the entire award must be vacatedand the case remanded to the hearing

examiner so that he could fashion a validaward that expressed his will.

City of Pasadena v. Smith, 292 S.W.3d 14(Tex. 2009).

City of Pasadena Police Chief M.A. Masseysuspended police officer Richard Smithindefinitely, and Smith appealed to a hearingexaminer. At the start of the hearing, Smithimmediately moved that the suspension beoverturned because Chief Massey was notpresent to present his case. The city offered toprove the case through Chief Massey’sassistant chief but the hearing examinerdismissed the charges. The entire hearinglasted less than half an hour, and neither sidepresented any evidence. The examiner latersubmitted a written opinion citing the Chief’sfailure to appear as the sole ground fordismissal of the disciplinary charges, relyingon §143.1015(k), a statute not applicable toPasadena.

The city appealed to district court claimingthat the hearing examiner exceeded hisjurisdiction, and Smith filed a jurisdictionalplea challenging the timeliness of the appeal.The district court sustained the plea and thecity appealed. The Houston Court of Appeals[1 District] affirmed. Although the appealsst

court did not address the timeliness issue, itdetermined that the city had not raised a truejurisdictional challenge. Instead, according tothe Houston Court, the city’s complaintamounted only to a claim of misapplication ofthe law - the examiner’s resort to aninapplicable statute - and, therefore, did notamount to a jurisdictional challenge. The citypetitioned for review and the Supreme Courtreversed, holding the hearing examinerexceeded his jurisdiction by summarilyreversing the discipline.

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Rationale:

The case turned on the Supreme Court’sanalysis of one of the Boll Weevil non-delegation doctrine factors - whether a hearingexaminer’s actions are subject to meaningfulreview by a state agency or other branch ofstate government. The Court noted that CivilService Act's delegation of disciplinary reviewto hearing examiners furthers the purpose ofthe Act. But the Court also observed thatwithout binding and definite standards forhearing examiners, the hearing examinerprocess would raise constitutional concerns.If hearing examiners had broad latitude todetermine not only facts but also applicablelaw, they would become not merelyindependent arbiters but policy makers - anon-delegable legislative function.Conversely, if a city can invoke judicialreview to require that a hearing examiner’sdecision be made according to law, the non-delegation doctrine is satisfied. Thus, theSupreme Court held that the hearingexaminer’s resort to an inapplicable statutewas an appropriate basis for the city’schallenge under §143.057(j).

The Supreme Court also found other aspectsof the hearing examiner’s ruling to be inexcess of his authority. Affirming again thelong-standing principle that hearing examinerspossess the same duties and powers of astatutory civil service commission, the Courtcited the examiner’s refusal to hear evidenceas violative of the statutory requirement uponcommissions to consider only evidencesubmitted at the hearing in rendering adecision. See TLGC §143.010. The Courtalso ruled that even the inapplicable statuterelied upon by the examiner did not permitdefault judgment as a penalty for non-

compliance. The Court rejected Smith’sarguments that these were merely mistakes oflaw as opposed to jurisdictional deficiencies.

The Court also address Smith’s waiverargument - that the City had not argued at thehearing that §143.1015 was inapplicable - byreaffirming that failure to object to ajurisdictional deficiency cannot expand thejurisdiction of a hearing examiner, any morethan it could expand the jurisdiction of a courtof law.

Of procedural importance, the Supreme Courtheld that in the absence of a certified mailing,a city’s deadline for an appeal under§143.057(j) begins to run when received bythe city.

Observations:

Pasadena represents a continuing willingnessof the Supreme Court to impose meaningfulstandards on the arbitral authority of hearingexaminers, as well as continued recognitionthat statutory appeals to examiners are not truearbitrations. This is not a stance with whichsome hearing examiners, who frequently alsoserve as arbitrators, agree or are used to.Pasadena and City of Houston v. Tones,below provide useful comparisons on the issueof whether legal error, typically not a groundfor overturning an arbitration decision, can bea basis for a challenge to a §143.057(j)hearing examiner.

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I I . P O T E N T I A L L Y F A T A LPROCEDURAL PITFAL LS TOI N T E R N A L A F F A I R SINVESTIGATIONS AND DISCIPLINE

Treadway v. Holder, S.W.3d , 2010 WL1507788 (Tex.App. Austin 2010, no pet.).

Comal County corrections officer Treadwaywas terminated for dishonesty and falsificationof official documents. Treadway sued thecounty, seeking a declaration that hertermination violated Government CodeChapter 614, subchapter B, relating todisciplinary procedures against certain lawenforcement and firefighter employees.Subchapter B provides generally that acovered employee may not be disciplinedunless first served with a copy of a complaint.Treadway claimed she was not aware of thenature of the allegations of misconduct againsther until after she was terminated, and neverreceived a copy of a complaint. The countyasserted in a motion for summary judgmentthat subchapter B did not apply becauseTreadway was not terminated based on acomplaint. Rather, she was terminated basedon the direct observations of misconduct bythe chain of command responsible for thedecision to terminate her. The trial courtgranted summary judgment for the county andTreadway appealed. The Austin Court ofAppeals reversed, holding that the allegationsof misconduct against Treadway by hersupervisors constituted a complaint, regardlessof the fact that they originated within herchain of command, and remanded the case.

Rationale:

The Austin Court relied on its construction ofsubchapter B by referring to Local Gov’t Code§143.123, a tactic employed once before in

Guthery v. Taylor by the Houston Court ofAppeals in one of only two other casessubstantively interpreting the requirements ofChapter 614. According to the Court, theabsence of a definition for “complaint” inChapter 614 required a resort to TLGC§143.123, a provision only applicable to theCity of Houston, for guidance. Even though§143.123 does not define “complaint” either,the Court noted that the statute provides that aHouston civil service employee may not beinterrogated unless a complaint against her isverified, unless the complainant is a peaceofficer. Because §143.123 distinguishesbetween complaints by peace officers andother types of complaints, and Gov’t Code§614.022 does not, the Court reasoned thatthis indicated legislative intent that there be nosuch distinction. Finding no legislative intentto differentiate between complaints comingfrom outside the department and thosegenerated within the chain of command, theCourt held that a “complaint” undersubchapter B was any allegation ofmisconduct that could give rise to disciplinaryaction.

Observations:

The Court appears to place great importanceon the distinction between external andinternal complaints. It does not appear thatthis was the distinction the county intended tomake. Rather the county appeared to highlightthe distinction between disciplinary actionsthat were based on complaints (which couldbe internal or external) and discipline that thechain of command could impose in theabsence of a complaint, such as directviolations of a supervisor’s order, committedin the presence of the supervisor. As thedissent points out, the majority’s constructionrequires a disciplinary decision-maker whopersonally observes misconduct to write the

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allegations down and file them with himself.The dissent is correct in that if the AustinCourt’s decision stands, it will create an moreonerous requirement in the investigation anddiscipline of matters that traditionally do notarise from complaints, such as directobservations of performance deficiencies bysupervisor personnel and insubordination.

This is the first case since 2003 to analyze thespecifics of the service requirements ofChapter 614, and is one of only three cases todo so. If there is a positive angle to the case,it is that practitioners can now point clients tobright line rule to uniformly apply in alldiscipline cases, and avoid the analysis ofwhen and if a written complaint is necessary.

City of Houston v. Tones, 299 S.W.3d 235(Tex.App. Houston [14 Dist.] 2009, no pet.).

Houston Police Officer Tones was suspendedfor five days without pay for charges ofdereliction of duty. Police Chief Harold Hurtt,delivered the notice of suspension first to thecivil service commission and then to Tonesthree days later. On appeal to a hearingexaminer, Tones argued that the suspensionwas void for violating TLGC §143.117(c),providing that a department head must file anotice of suspension with the commissionwithin 120 hours after the officer is notified ofthe suspension. She argued that because thestatute uses the word “after,” it wasimpermissible to serve the notice on thecommission before it was served on her. Thehearing examiner agreed and overturned thesuspension. The City appealed to districtcourt claiming the hearing examiner exceededhis jurisdiction by improperly applying§143.117(c). Tones filed a motion forsummary judgment asserting that the examiner

properly applied the statute, but did not assertthat the district court lacked jurisdiction overthe city’s appeal.

The Houston Court of Appeals [14 District]th

held that the city had not raised a properjurisdictional challenged to the hearingexaminer’s decision, vacated the districtcourt’s judgment, and dismissed the city’scase for lack of jurisdiction.

Rationale:

The city relied heavily on the recently decidedPasadena case, arguing that the examiner’smisapplication of §143.117(c) amounted to anexcess of authority. The appeals courtengaged in a substantial analysis of Pasadena,but ultimately concluded that the city’scontention was not like that raised inPasadena. The hearing examiner in Pasadenaapplied an unquestionably inapplicable statute,whereas here, the city simply claimed that theexaminer misinterpreted an otherwiseapplicable statute. The Court found that thisdid not amount to a jurisdictional attack, andtherefore dismissed the city’s district courtchallenge.

Observations:

Although the legal issue addressed by theHouston Court had to do with the scope of ahearing examiner’s authority and a city’sappeal therefrom, this case will almostcertainly be used as authority for theinterpretation given §143.117(c), and hence§143.052(c), by the hearing examiner. Thepractitioner’s view of the requirement of§143.052 has traditionally been that as long asthe notice to the commissioner is no later than120 hours after notification to the officer, thestatute is satisfied. Since serving thecommission earlier than the officer ensures

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that the notice will not be late, it has not beenconsidered an unsound practice. Often, adepartment will have to track down an officerto effectuate service of the notice, whereasservice on the commission may only involvewalking the notice to a nearby city building.Tones may force practitioners to tighten thepractice to ensure delivery of the notice withina window commencing with the delivery ofthe notice to the officer.

Section 143.052(c) reads differently from§143.117(c), instead requiring the commissionto be served “within 120 hours after the hourof suspension.” In light of Tones, the practiceof issuing notices indicating that a suspensionwill commence in the future must also becarefully considered. It appears now that thebest practice, until further clarification ofTones’ effect on §143.052, is to serve anofficer with the notice of suspension at or nearthe commencement of the suspension period,and then serve the commission within 120hours of that.

III. THE OUTER LIMITS OF REASON

Alexander v. City of Austin, 302 S.W.3d 885(Tex.App. Austin 2009, pet. denied).

In this non-disciplinary civil service case,numerous Austin firefighters sued the cityclaiming that a city ordinance imposingrestrictions on the payment of certification andeducational incentive pays violated TLGC §§143.041 and 143.044. The ordinance inquestion set forth criteria for earning thesetypes of pay, but restricted firefighters toearning one type or the other, at thefirefighters’ election.

At issue were two provisions of §143.044.Subsections (b) and (c) permissively authorizea city to establish qualifications for and grantcertification pay and educational incentivepay, respectively. The firefighters did notdispute that the city had discretion whether tooffer such types of pay. Each subsection usedthe phrase, “the municipality's governing bodymay authorize ...” in describing the authorityto grant such pay. The firefighters claimed,however, that once the city authorized suchpayments, it was obligated to pay thefirefighters who met the requirements for thepay without exception.

The Austin Court of Appeals disagreed,finding it significant that the statute uses“may” instead of “shall,” and holding that thestatute grants cities discretionary authority toimpose conditions resulting in the award ofeach type of pay to some firefighters and notothers. Since the statute authorized the city toset criteria for receiving the pay, it was withinthe city’s authority to set the criteria that toreceive one form of pay, a firefighter must notalso be receiving the other. The Courtaffirmed the trial court’s summary judgmentin favor of the city.

City of San Antonio v. Lopez, 2009 WL4140702 (Tex.App. San Antonio 2009, pet.denied).

San Antonio Firefighter Lopez was one of agroup of top-scoring candidates on apromotional list. He scored a 95 on thewritten exam and received 10 bonus points forhis seniority in the department, pursuant tostatute, for a total score of 105. Four otherfirefighters also scored a total of 105, but withhigher written exam scores and fewer bonuspoints for overall seniority. Two otherfirefighters had scores identical to Lopez’s in

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every way, but had less seniority in rank. Thecandidate placed at the top of the list scored a98 on the written exam, with 7 senioritypoints. Lopez sued the city, claiming that heshould have been placed at the top of the listbecause, of all the candidates scoring a total of105, he possessed the highest seniority inrank, as distinguished from seniority in thedepartment. The trial court granted Lopez’smotion for summary judgment, and the cityappealed. The San Antonio Court of Appealsreversed and rendered judgment for the city,holding that the city properly applied the rulefor breaking ties in identical total scorespromulgated by the civil service commission.

Rationale:

The Court relied on an interpretation of thecombined effect of civil service commissionrules, definitions in the collective bargainingagreement between the city and itsfirefighters, and statute. To begin with, TLGC§143.033 provides that a promotionalcandidate’s grade on an eligibility list iscomprised of the applicant’s written examscore plus points for overall seniority in thedepartment. The statute further provides thatthe civil service commission shall determinea method to break ties. The San Antonio CivilService Commission adopted a tie-breakingrule that provided that in the case of ties onthe written exam, seniority in rank woulddetermine the candidate’s ranking on the list.Thus, the rule did not address tie-breaking inthe event of a tied total score. Finally, thecollective bargaining agreement provided thedefinition for seniority in rank.

The city asserted that commission rule onlycame into play when the written exam scoreswere used as a measure of ranking on the list,which could only occur if the written scoresand total scores were tied. The city argued

that the rule presupposed that ranking of tiedtotal scores would first look to the writtenexam score. Then, if a tie still occurred, therule would look to seniority in rank. TheCourt ultimately agreed with this method, asbest giving effect to the entire rule andstatutory requirements.

Lopez argued that the rule’s reference to tiesin the “written promotion examination score”actually referred to the total score andtherefore required a resort to seniority in rankin his case. The Court rejected this argument,noting that in the context of the entire set ofrules, “written promotion examination score”was intended to refer to the written examscore, not the total score. Lopez also assertedthat since a preamble to the civil service rulespecified that the collective bargainingagreement contained provisions for rankingcandidates with identical scores, the suchmethod must be the agreement’s definition ofseniority in rank. The Court found that thedefinition of seniority in rank by itself, despitebeing contained in the agreement’s articlerelating to promotions, did not provide anyexpress method for breaking ties. In fact, theagreement contained no such method, despitethe reference in the rule’s preamble. Thecourt speculated that the preamble may havebeen referring to some earlier version of theagreement, but in any event, the currentagreement contained no such method.Therefore, there was nothing in the agreementoverriding the commission’s ability toestablish a tie-breaker by rule.

Observations:

It is difficult to read Alexander and Lopez andnot feel that the results were foregoneconclusions, given the relatively clearlanguage of the statutes or rules at issue. Yet

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the cases provide examples of how far evenweak statutory interpretation cases can go.Notice that both cases resulted in petitions forreview. The authors would also cite thesecases as illustrative of a common observeddifference in the substance of the claimsarising a fire service as opposed to a policeservice. The other cases discussed in thispaper arise from the law enforcement side ofcivil service, and deal with disciplinary issues.The focus of Alexander and Lopez is insteadon the intricacies of the civil servicemechanism. This difference mirrors theauthors’ own experience with contested civilservice issues.

IV. OTHER IMPORTANT CASE FORPRACTITIONERS

City of DeSoto v. White, 288 S.W.3d 389(Tex. 2009).

The DeSoto police chief indefinitelysuspended police officer Justin White forvarious rules violation. The notice ofindefinite suspension delivered to White metthe statutory requirements for such notices inall respects except one – it did not adviseWhite that if he chose to appeal to a hearingexaminer, instead of the civil servicecommission, his appellate rights would belimited.

White chose to appeal to a hearing examiner,and then as soon as the hearing began, heasserted that the hearing examiner lackedjurisdiction to hear the case because thesuspension letter failed to notify him of thelimitation of his appellate rights caused by hiselection. The hearing examiner offered Whitean abatement and an opportunity to change hiselection. White refused, and the hearingexaminer proceeded with the case, finding that

the city had substantially complied with thenotice requirements. After the hearing, theexaminer upheld the suspension.

White pursued his jurisdictional argument ina district court appeal. The district courtagreed with White and ordered hisreinstatement, and on the City’s appeal, theDallas Court of Appeals affirmed, holding thatthe notice requirements of TLGC §143.057were jurisdictional, and that substantialcompliance did not suffice.

Upon the City’s petition, the Texas SupremeCourt held that the notice requirements werenot jurisdictional.

Rationale:

The Supreme Court began its analysis bynoting that statutory notice requirements arepresumptively non-jurisdictional, absent clearlegislative intent. The Court determined thatthe notice requirements of §143.057 wereindeed mandatory, but this did not necessarilymake them jurisdictional. Observing thatChapter 143 was silent as to the consequencesfor non-compliance with the noticerequirements, while specifically mandatingreinstatement of officers for a city’s failure tocomply with other procedural requirements,the Court found no legislative intent that thenotice provisions were jurisdictional.

The Supreme Court also addressed White’scontention that the Court’s holding in City ofTemple Firemen’s and Policemen’s CivilService Commission v. Bender provided thatnotice requirements in Chapter 143 werejurisdictional. Bender presented the oppositesituation to White - a disciplined officer’snotice of appeal failed to meet all the statutoryrequirements, omitting the specific groundsfor the appeal required by §143.010.

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However, in Bender the Court held that theofficer had failed to invoke the civil servicecommission’s jurisdiction. The SupremeCourt distinguished the two situations, statingthat when it comes to proper invocation of thecommission’s jurisdiction, and hence thehearing examiner’s, the focus was on theofficer’s actions, not the city’s. The city’sdisciplinary letter does not serve to invoke thejurisdiction of the tribunal hearing adisciplinary appeal. Rather, the officer mustinvoke the jurisdiction by filing a propernotice of appeal.

Observations:

White provides an important and usefulproposition in recognizing the distinctionbetween an employee’s and a city’s duties toinvoke the tribunal’s jurisdiction. Employeesfrequently make challenges to the“jurisdiction” of the hearing examiner forsome alleged procedural fault, but in actually,what they seek is summary recision of thedisciplinary charge. Characterizing theirchallenges as jurisdictional also convenientlysets up employs to circumvent the limitationon appellate rights from hearing examinerdecisions. But if an employee argues that ahearing examiner has no jurisdiction to hearhis appeal, would that not mean that he has noappellate remedy, and therefore, the disciplinemust stand? White helpfully clarifies that it isnot incumbent upon the city to invoke thetribunal’s jurisdiction, and should serve tohead off jurisdictional challenges brought byemployees to their own disciplinary appeals.The practitioner should keep in mind,however, that White does not foreclose theability of a hearing examiner to penalize a cityfor non-compliance with proceduralrequirements.

Steubing v. City of Killeen, 298 S.W.3d 673(Tex.App. - Austin 2009, pet. filed).

Killeen police officer Juneth Steubing wasindefinitely suspended from the Killeen PoliceDepartment and appealed her suspension to athird party hearing examiner under TLGC§143.057. The hearing examiner upheld theindefinite suspension. In his decision, thehearing examiner stated that he sua sponteconsidered various psychological studies notoffered by either party.

Steubing appealed the decision to districtcourt arguing that the court had jurisdiction tohere the appeal because the hearingexaminer’s decision was procured by“unlawful means.” See §143.057(j). Theunlawful means cited were that the hearingexaminer considered evidence other than theevidence offered at the hearing - in the form ofthe psychological studies - in violation of§143.053(d).

The district court agreed that the hearingexaminer should not have considered theextraneous material, and reversed the hearingexaminer’s order in part. But the court did notorder that Steubing be reinstated. Instead thecourt remanded the case to the hearingexaminer for reconsideration without theextraneous material. The court also denied heattorney fee claim.

Steubing appealed, arguing that once the courtagreed that the decision had been procured byunlawful means, it had no choice but toreinstate her, as opposed to merely remandingthe case. She also challenged the denial ofattorney fees, claiming she was automaticallyentitled to them as the prevailing party. Thecourt of appeals affirmed, holding that the trialcourt did not abuse its discretion in remandingthe case, or in denying the attorney fees.

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Rationale:

The Austin Court utilized standard codeconstruction principles in deciding that thelegislature’s intended a broad grant ofauthority to district courts hearing appeals ofdisciplinary decisions to fashion appropriateremedies. The Court points to the language in§143.015(b), stating that the district court’sremedy “may include reinstatement,” as anindication of legislative desire to give districtcourts discretion when deciding whether toorder reinstatement.

Having decided that the statute authorizedrelief other than reinstatement, the Courtspecifically addressed whether the districtcourt possessed the authority to remand.Here, the Court noted that remand by thedistrict court, sitting essentially as an appellatecourt over a disciplinary case, was consistentwith the appellate practice of remanding acase back to a trial court when the courtimproperly admits evidence.

On the issue of fees, the Court again cited tothe discretionary nature of the languageauthorizing a fee award in §143.015(c).Although it considered Steubing to havetechnically prevailed in that the district courtpartially overturned the hearing examiner’sdecision, the Court held that the district courthad discretion whether to award fees. Notingthat the City did not introduce the extraneousmaterial into the hearing examiner case, theCourt could not conclude that the trial courtabused its discretion.

Observations:

The Supreme Court should have littledifficulty in denying review of this case inlight of Kelley, as that case confirms remandas an appropriate remedy. It is unfortunatethat Steubing did not provide more analysis of“unlawful means.” The parties seemed toagree that considering evidence outside therecord violated §143.053 and was thereforeunlawful. However, the prohibition against adecision procured by “unlawful means” maynot be that inclusive. Section 143.057(j) reads“A district court may hear an appeal of ahearing examiner's award only on the groundsthat the arbitration panel was withoutjurisdiction or exceeded its jurisdiction or thatthe order was procured by fraud, collusion, orother unlawful means.” There was nodiscussion in Steubing of the principle ofejusdem generis. The authors might haveargued that “fraud, collusion, or otherunlawful means” limited the meaning of“unlawful means” to acts akin to fraud orcollusion, thereby not including the hearingexaminer’s mere failure to limit himself torecord evidence.