City of Pasadena v. Smith

• Decision Date: 28 August 2009
• Docket Number: No. 06-0948.,06-0948.
• Citation: 292 S.W.3d 14
• Parties: CITY OF PASADENA, Texas, Petitioner v. Richard SMITH, Respondent.
• Court: Texas Supreme Court

292 S.W.3d 14

CITY OF PASADENA, Texas, Petitioner v. Richard SMITH, Respondent.

No. 06-0948.

Supreme Court of Texas.

Argued September 10, 2008.

Decided August 28, 2009.

Kevin D. Jewell, William S. Helfand, Norman R. Giles, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Petitioner.

Heidi Lee Widell, San Antonio, TX, for Respondent.

Marcus L. Dobbs, Senior Assistant City Attorney, Houston, TX, for Amicus Curiae-City of Houston.

Evelyn Waithira Njuguna, Texas Municipal League, Austin, TX, for Amicus Curiae-Texas Municipal League.

James C. Ho, Solicitor General of Texas, Austin, TX, for Amicus Curiae-State of Texas.

B. Craig Deats, Deats Durst Owen & Levy, P.L.L.C., Austin, TX, for Amicus Curiae-TX Assoc. of Firefighters.

Justice HECHT delivered the opinion of the Court.

The Fire Fighters and Police Officers Civil Service Act¹ limits the grounds for judicial review of a hearing examiner's decision in an appeal from a disciplinary suspension,² but as we observed in City of Houston v. Clark, if those limitations do not allow for meaningful review, they may violate constitutional restrictions on the delegation of government authority to a private person.³ One ground is that the hearing officer exceeded his jurisdiction.⁴ In this case we hold that the hearing examiner exceeded his jurisdiction in summarily reversing an officer's indefinite suspension and reinstating him with back pay and full benefits because the Act requires a hearing examiner to reach a decision based on evidence. Accordingly, we reverse the judgment of the court of appeals⁵ and remand the case to the district court for further proceedings.

City of Pasadena Police Chief M.A. Massey suspended officer Richard Smith indefinitely. The Act gave Smith two routes of appeal — either to the City's civil service commission⁶ or to an independent third-party hearing examiner⁷ — independent third-party hearing examiner — and he chose the latter, as civil service employees often do.⁸ The parties selected a hearing examiner from a list provided by the American Arbitration Association.⁹ When the hearing convened, counsel for the City announced ready, but counsel for Smith moved that the suspension be overturned and that Smith be reinstated without further ado because Chief Massey — the department head¹⁰ on whose statement the suspension was based¹¹ — was not present. The City's counsel stated that he was prepared to prove the grounds for the suspension through Assistant Chief Rahr, who was present, but the hearing examiner agreed with Smith, concluding that "these charges should be dismissed". The hearing concluded in less than half an hour without any evidence being presented.

Later, in a written decision, the hearing examiner ruled that Smith should be reinstated, that he should be fully compensated for the time he had been suspended, and that all service credits and benefits should be restored. The written decision gave as the sole ground for the ruling: "As the Department Head failed to appear under Texas Local Government Code, Section 143.1015(2)(k)(4), at hearing on December 9, 2004, the Hearing Examiner upheld the appeal and dismissed the charges against Officer Smith." No such section exists. The hearing examiner apparently meant section 143.1015(k) of the Act, which states in part: "The director [of fire fighters' and police officers' civil service¹²] may not send the hearing examiner the department head's original written statement. The department head shall submit the written statement and charges to the hearing examiner at the hearing."¹³ The hearing examiner also appears to have overlooked the fact that some of the Act's provisions, including section 143.1015, apply only to a city with a population of at least 1.5 million — viz, Houston.¹⁴ The City of Pasadena, a Houston suburb, does not qualify.¹⁵

The City petitioned the district court for review. Smith filed a plea to the jurisdiction, arguing that the City's petition was untimely. The court sustained the plea, and the City appealed. Without addressing the timeliness of the appeal,¹⁶ the court held that the district court had no jurisdiction over the case under section 143.057(j) of the Act.¹⁷ We granted the City's petition for review.¹⁸

Section 143.057(j), which is not limited to cities over 1.5 million,¹⁹ states in pertinent part: "A district court may hear an appeal of a hearing examiner's award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means."²⁰ Because subsection 143.057(j) is identical to the provision we construed in Clark, section 143.1016(j), though that section applies only to Houston,²¹ Clark applies to all civil service cities.²²

Clark rejected the argument that only a fire fighter or police officer can appeal to the district court and held that a municipality may appeal as well, even though the statute is silent on the subject.²³ In reaching that conclusion, we were mindful that "interpreting Section 143.1016(j) to foreclose municipalities' appellate rights could well render the Legislature's delegation of authority to independent hearing examiners constitutionally suspect."²⁴ The potential problem was the nondelegation doctrine — the Texas Constitution's restrictions on the delegation of governmental power, especially to private persons, which we thoroughly explained in Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen.²⁵ There, we reiterated:

The Texas Legislature may delegate its powers to agencies established to carry out legislative purposes, as long as it establishes reasonable standards to guide the entity to which the powers are delegated.

* * *

The separation of powers clause [TEX. CONST. art. II, § 1] requires that the standards of delegation be reasonably clear and hence acceptable as a standard of measurement.²⁶

A delegation of power without such standards is an abdication of the authority to set government policy which the Constitution assigns to the legislative department. While legislative delegations of authority to other governmental entities can raise constitutional concerns,

private delegations clearly raise even more troubling constitutional issues than their public counterparts. On a practical basis, the private delegate may have a personal or pecuniary interest which is inconsistent with or repugnant to the public interest to be served. More fundamentally, the basic concept of democratic rule under a republican form of government is compromised when public powers are abandoned to those who are neither elected by the people, appointed by a public official or entity, nor employed by the government. Thus, we believe it axiomatic that courts should subject private delegations to a more searching scrutiny than their public counterparts.²⁷

Applying eight factors,²⁸ we held that the delegation of power to the private entity in that case was unconstitutional.²⁹

We do not determine here whether this Act's delegation of authority to a hearing examiner violates the nondelegation doctrine; we consider only whether the court of appeals' construction of section 143.057(j) raises constitutional concerns. Thus, we do not address all eight factors listed in Boll Weevil but focus on the first one — whether the hearing examiner's "actions [are] subject to meaningful review by a state agency or other branch of state government"³⁰ — because it is directly implicated by the scope of review in section 143.057(j). The Act's use of independent hearing examiners provides a forum for resolving civil service disputes that is detached from city government, thus furthering the Act's purpose of "secur[ing] efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants."³¹ In Proctor v. Andrews, we rejected the contention that the Act violates the nondelegation doctrine by failing to provide adequate standards for assuring that arbitrators are qualified and neutral.³² Here, the State as amicus curiae argues that submission of civil service disputes to hearing examiners is simply a resort to arbitration and therefore raises no constitutional concerns.³³ But if the Act does not bind hearing examiners to definite standards for reaching decisions and instead gives them broad latitude in determining not only factual disputes but the applicable law, they become not merely independent arbiters but policy makers, which is a legislative function. This would raise nondelegation concerns, an issue noted but not addressed in Proctor.³⁴ It is one thing for a hearing examiner to determine whether conduct for which an officer or fire fighter has been disciplined occurred as charged; it is quite another thing for a hearing examiner to decide whether conduct that did occur deserves discipline. If a city can invoke judicial review to require that a hearing examiner's ruling be made according to law, one concern of the nondelegation doctrine is satisfied. But as we observed in Clark, "if the right of appeal provided by Section 143.1016(j) does not afford a city meaningful review of the merits of a [hearing examiner's] decision, ... delegation of grievance decisions to an independent hearing examiner may raise constitutional problems."³⁵

Thus, in construing the scope of judicial review permitted by section 143.057(j), we must be mindful as in Clark that "[w]hen faced with multiple constructions of a statute, we must interpret the statutory language in a manner that renders it constitutional if it is possible to do so".³⁶ The City argues that the hearing examiner's summary ruling exceeded his jurisdiction within the meaning of section 143.057(j). The statute actually refers to an "arbitration panel" exceeding its jurisdiction, but the term includes a hearing examiner.³⁷ The reference to arbitration suggests the source for the statutory...