City of Sherman v. Henry
| Decision Date | 28 August 1995 |
| Docket Number | No. 05-94-00055-CV,05-94-00055-CV |
| Parties | CITY OF SHERMAN, Appellant, v. Otis HENRY, Appellee. |
| Court | Texas Court of Appeals |
Ronald H. Clark, Wolfe Clark Henderson & Tidwell, L.L.P., Sherman, for appellant.
Robert E. Richardson, Jr., Richardson Law Office, Sherman, for appellee.
Before THOMAS, C.J., and MALONEY and CHAPMAN, JJ.
OPINION ON MOTION FOR REHEARING
Appellant's motion for rehearing is granted. We withdraw our opinion of May 25, 1995, and substitute the following opinion in its place. We also vacate our previous judgment.
In this case, we must decide whether a public employee's private, legal sexual conduct is protected under the Texas Constitution. Further, if such a constitutional right of privacy exists, we must decide whether the City of Sherman (the City) established that it had a compelling governmental interest that could be achieved by no less intrusive, more reasonable means.
The City's police chief refused to promote appellee, Otis Henry, to the rank of sergeant based solely on appellee's off-duty, private, legal sexual conduct. The Sherman Civil Service Commission (the Commission) upheld the police chief's decision. Appellee sought judicial review of the Commission's decision in the district court. The trial court found the police chief's actions violated appellee's right of privacy under the United States and Texas Constitutions. Because it held appellee's private conduct was constitutionally protected, the trial court concluded that such conduct did not constitute a "valid reason" for denying the promotion. See TEX.LOCAL GOV'T CODE ANN. § 143.036(f) (Vernon Supp.1995). Accordingly, the trial court rendered summary judgment in appellee's favor. In four points of error, the City generally argues the trial court erred in: (i) granting appellee's motion for summary judgment; (ii) denying its motion for summary judgment; (iii) awarding attorney's fees to appellee; and (iv) denying its attorney's fees.
We affirm the trial court's judgment as it relates to the constitutional issues because appellee's conduct is protected by the Texas Constitution, and the City did not prove that it had a compelling governmental interest that could be achieved by no less intrusive, more reasonable means. We reverse the trial court's judgment as it relates to attorney's fees and remand for a trial on the issue of attorney's fees.
Kelly Olson and Tom Pollard were both employed by the Sherman Police Department. Olson worked as a dispatcher and Pollard served as a sergeant in the patrol division. Olson and Pollard were married on September 30, 1989; however, the couple kept their marriage a secret for nearly two years because the police department had a In April 1991, appellee, a Sherman police officer, began dating Olson. Because appellee knew Olson and Pollard were living together, he asked Olson if they were married. Olson at first assured appellee that she was not married. However, three months later Olson told appellee that she and Pollard were, in fact, married. Shortly after Olson told appellee she was married, Olson and Pollard filed a statement with the City acknowledging their marriage.
nepotism policy prohibiting marriage between employees. 1
Appellee responded to the announcement by writing a letter to Olson. In the letter, appellee told Olson, "I'm going to give you room, to stay out of your life, and try not to pressure you." The record, however, does not clearly indicate how long appellee stayed away from Olson. After receiving appellee's letter, Olson and Pollard attempted a reconciliation. Within a month, however, the two separated and filed for divorce. Following the attempted reconciliation, Olson and appellee resumed dating.
Rumors of the Olson-appellee relationship began to circulate in the police department eight months after the relationship began, when a sergeant's position became available. At that time, the City's director of personnel/civil service sent a list to the police chief naming the top three candidates on the current civil-service list who were eligible for promotion to sergeant. Appellee was ranked first on the list.
Appellee's score from the civil-service exam plus his seniority points totaled ninety. The next two candidates on the list each had total scores of eighty-six. Additionally, appellee had completed all Texas Commission on Law Enforcement certification procedures, earned a bachelor's degree in criminal justice, and received numerous commendations. In fact, appellee was honored as "Outstanding Officer of the Year" in 1991.
After the sergeant's vacancy was posted and the civil-service list received, the police chief asked a lieutenant to informally investigate the rumors regarding the Olson-appellee relationship. Although it is unclear from the record who actually led the investigation, it resulted in a report prepared solely by Pollard while his divorce from Olson was pending. The report concluded appellee had been involved in an affair with Olson. This conclusion was based in part on copies of private correspondence between appellee and Olson that Pollard found hidden in Olson's closet. The private correspondence was attached to Pollard's report.
A few days later, a computer-generated sign was posted on a bulletin board in the police department and placed in most officers' mailboxes. The sign stated: "If you can't trust another officer with your wife, how can you trust him with your life?" At about the same time, appellee went to the police chief because he had heard rumors the chief was considering passing him over for the promotion. At the meeting, the police chief confronted appellee about the rumors concerning the relationship with Olson. Appellee did not deny the truth of the rumors.
A month after receiving Pollard's report, the police chief ultimately refused appellee's promotion. The police chief explained his decision was based entirely on appellee's relationship with Olson. In his written explanation, the chief stated he believed (i) appellee would not command respect and trust from rank and file officers or other members of the department, and (ii) appellee's promotion would adversely affect the efficiency and morale of the department.
Appellee appealed the police chief's decision to the Commission. At the Commission hearing, the City called four witnesses to show it had a valid reason for refusing to promote appellee.
At the hearing, the police chief testified he did not promote appellee because of his relationship The police chief had never before passed over a candidate for promotion. In explaining his decision in this matter, the police chief acknowledged there was no written rule in the department's manual or in state law authorizing him to deny appellee the promotion. Rather, the police chief stated he had an unwritten policy that he would not promote anyone having an affair with the spouse of a fellow officer. Elaborating on this unwritten rule, the chief said he would also refuse to promote anyone having a relationship with the girlfriend or boyfriend of a fellow officer. However, when the chief was asked if he would promote Pollard to lieutenant if Pollard were known to have had an affair with a fellow officer's wife, the chief responded that he could not say because he would have to consider each incident on a case-by-case basis. In appellee's case, however, the chief categorically stated that he was blinded by appellee's relationship with Olson and was unable to even consider any of appellee's numerous qualifications.
with Olson and the impact it would have on appellee's ability to perform his duties. However, the police chief never specifically stated how appellee's ability to perform his duties was affected. Instead, he focused on the effect that knowledge of the relationship had on the department. The police chief acknowledged that appellee was very qualified for the sergeant's position. He admitted, however, that he did not consider any of appellee's qualifications because he was "blinded" by the Olson-appellee relationship. In making his decision, the police chief relied on Pollard's report and the private correspondence to conclude that the relationship existed. The chief admitted that he had no reason to suspect that any sexual activity took place while appellee was on duty. When describing the impact the relationship had on the department, the chief pointed to the following facts: (i) Pollard took some sick leave and seemed distraught; (ii) there were rumors among the officers about this relationship; and (iii) the sign posted on the bulletin board. The chief concluded that other than the sign, a few rumors, and innuendo, he had no first-hand knowledge of dissension within the department.
Sergeant Blankenship, appellee's immediate supervisor, testified that this situation had adversely affected his shift because officers were spending time talking about the propriety of the relationship. However, Blankenship also noted that there was still "good order and discipline" on his shift. Blankenship also acknowledged he had evaluated appellee twice after the affair began, and he had not rated any aspect of appellee's performance as unsatisfactory in either evaluation. While Blankenship noted in the evaluations that appellee was the next officer on the promotion list, he made no notations indicating whether appellee should or should not be promoted.
Dwayne Barber, a criminal justice instructor at Grayson County College, testified as an expert witness. He said that, in general, promoting an officer who had an affair with another officer's wife would have an adverse impact on the police department. In particular, Barber believed that other officers might have difficulty trusting such an officer. He admitted, however, that his opinion might change if the officer did...
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