City of Houston v. Lee
| Decision Date | 13 October 1988 |
| Docket Number | No. 01-87-00283-CV,01-87-00283-CV |
| Citation | 762 S.W.2d 180 |
| Parties | The CITY OF HOUSTON, Texas, Mayor Kathryn J. Whitmire, Lee P. Brown, and The Firemen's and Policemen's Civil Service Commission of the City of Houston, Appellants, v. Richard W. LEE, et al., appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Jerry E. Smith, City Atty., John E. Fisher, Asst. City Atty., Robert J. Collins, Sr. Asst. City Atty., Houston, for appellants.
Gene Jones, Joan Marie Lucci Bain, Houston, for appellees.
Before WARREN, LEVY and DUGGAN, JJ.
This appeal tests the legality of the City of Houston's creation by ordinance and staffing of nine positions in the City of Houston Police Department ("HPD") as part of its "civilianization" program. Houston, Tx., Ordinances 82-1165 (July 27, 1982), 84-1290 (August 21, 1984), 85-568 (April 23, 1985), and 86-1278 (July 23, 1986).
Appellants, the City of Houston, Mayor Kathryn J. Whitmire, Chief of Police Lee P. Brown, and the Firemen's and Policemen's Civil Service Commission of the City of Houston, appeal a final judgment entered following a non-jury trial. The judgment: (1) declared void four City of Houston ordinances insofar as the ordinances attempted to create certain civilian positions within HPD in contravention of former Tex.Rev.Civ.Stat.Ann. art. 1269m 1, the firefighters' and police officers' civil service statute; (2) enjoined the City from hiring civilians to fill certain positions in HPD; and (3) awarded back pay, promotion, and attorney's fees to 16 named plaintiff appellees.
The appellees are police officers who allege that they should be promoted to fill either the new positions created by the ordinances or the vacancies created by the promotion of other officers into the new positions, if the procedures of article 1269m are applicable.
Historically, the Houston Police Department has hired numerous civilian employees in addition to the uniformed classified officers appointed pursuant to article 1269m. The number of civilian employees has doubled since 1970; at the time of trial, HPD employed approximately 4,600 classified police officers and 2,000 civilians. The civilian employees serve as clerks, clerk typists, secretaries, word processor operators, administrative assistants, chemists, computer programmers, crisis counselors, psychologists, financial officers, automobile mechanics, janitorial and maintenance personnel, and in other positions.
Uniformed classified officers and civilian personnel within HPD are employed under different authority. Classified police officers are hired pursuant to article 1269m for positions created by municipal ordinance consistent with article 1269m, while civilian personnel are employed under the municipal civil service system established by city charter. All classified officers receive the same pay, while civilian employee salaries are set within a range. Unlike classified officers, civilians are not entitled to overtime pay. Classified officers, under article 1269m, are either class A, with 1,400 hours of training at the police academy prior to employment, class B, with 340 hours of training, or class C, with between 240 and 280 hours of training.
Many work assignments within HPD do not require the specialized training required of uniformed officers for law enforcement duties. A series of management studies, beginning with the April 1983 HPD "Plan of Action" report, have stated that a need exists to hire additional civilians throughout HPD for managerial and technical roles to free up trained police officers for the "police work" that only classified law enforcement personnel can do. A March 1983 study recommended that the HPD garage be placed under the direction of a professional fleet management, and that it function as a separate entity under the command of the police chief. A December 1984 report on recruit training recommended that a qualified educational specialist be hired to head the police academy.
Although law enforcement training is not required for many HPD jobs, classified police officers nevertheless fill such jobs, working side by side with civilian employees in many divisions. The Office of Planning and Research, for example, is staffed by 29 civilians and 18 classified officers.
By City Ordinances 82-1165, 84-1290, and 85-568, the Houston City Council created nine "civilian" positions between 1982 and 1985 within HPD: four police administrators, two assistant police administrators, one urban policy planner IV, one administrative assistant IV, and one education coordinator in the police academy. The City hired civilians to fill each of these positions and did not follow the procedures set out in article 1269m for the appointment or promotion of classified police officers.
Each of the four civilian police administrators assumed duties supervising a division, 2 duties formerly assigned to captains; the two civilian assistant police administrators each assumed duties formerly performed by lieutenants. The classified police officers who were previously assigned to perform these duties were reassigned within HPD, but their positions were never abolished by city council ordinance. The urban policy planner IV, the administrative assistant IV, and the education coordinator each assumed posts allegedly "equivalent in salary and assignment" to those held by lieutenants.
On January 20, 1986, four new HPD bureaus, created by City Ordinance 86-1278, were implemented in a plan of reorganization: (1) the Management Information Bureau, formerly the Technical Services Bureau, with the added duties of the now-abolished Computer Services Division; (2) the Fleet Maintenance Bureau, created by the elevation of the former Police Garage Division to bureau status; (3) the Career Development Bureau, which assumed the duties previously performed by the Personnel Services Bureau; and (4) the Office of Planning and Research, created by the elevation of the former Planning and Research Division to bureau status. The four civilian police administrators were promoted to head these bureaus. Prior to this reorganization, bureaus were traditionally headed by deputy chiefs.
Appellees filed suit alleging that the four bureau posts headed by the new police administrators were classified positions under article 1269m and should have been filled, under the procedures of Tex.Rev.Civ.Stat.Ann. art. 1269m, § 10 3, by the appellee captains, 4 who, by virtue of examination grades, occupied the second, third, and fourth places on the deputy chief eligibility list. The standing and status of the remaining appellees follows in a domino-like sequence. The five appellee lieutenants 5 occupied the top five places on the captain eligibility list, and alleged that they would have been promoted to the four captain positions that would have been vacated, had four captains been promoted to the bureau commander positions, and to one of the two vacancies in the police administrator posts resulting from the civilians' promotion, which would have allowed two lieutenants to be promoted to captain and would have created two vacant lieutenant positions.
Appellees further alleged that six sergeants who did not join in this suit would have been promoted to lieutenant had six lieutenants been promoted to captain. Four intervenor-appellees, all sergeants, 6 alleged that they would have been promoted to four lieutenant positions that would have been vacant had the top five lieutenants been promoted to captain to assume command of the police administrator divisions to which the civilians had been appointed. The sergeants occupied the first, third, fourth, and fifth positions on the lieutenant eligibility list.
The appellee police officers 7 occupied the top four positions on the sergeant eligibility list, and alleged that they would have been promoted to four of the six sergeant positions that would have been vacated had six sergeants been promoted.
Appellees also contended that the civilians' assumption of duties that were traditionally performed by classified police officers caused the civilians to function as classified police officers and constituted, in effect, the abolition of positions within a classification, action that required a showing of good cause by the City. City of San Antonio v. Wallace, 338 S.W.2d 153, 157 (Tex.1960).
Appellees sought promotion in rank, increased pay, and longevity time credit from January 20, 1986, the date upon which they allege their promotions should have been effective. Additionally, appellees sought injunctive relief prohibiting the City from filling these posts with civilians.
Essentially, appellees' claim is that the four newly created police administrator positions heading the four new bureaus, and the two assistant police administrator positions, all now occupied by civilians, are positions specifically described by title, to-wit: bureau commander and division director, and are within the civil service classifications of deputy chief and captain, respectively, even though the City did not expressly create these posts as "positions" within those classifications. Obviously, appellees' argument is premised on the conclusion that these posts are required to be within an article 1269m classification, thus prohibiting the appointment of civilians.
After a non-jury trial, the trial court entered judgment for appellees that: (1) promoted them to the ranks sought; (2) awarded them salary increases retroactive to January 20, 1986; (3) permanently enjoined the City from employing civilians to assume duties traditionally assigned to police officers; and (4) ordered the City to pay appellees' attorney's fees. The court filed findings of fact and conclusions of law consistent with its judgment.
Article 1269m creates a firemen's and policemen's civil service and civil service commission, and provides for the classification of policemen within police departments and for...
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