City of Sherman v. Henry, No. 95-1195

• Court: Texas Supreme Court
• Writing for the Court: ABBOTT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, CORNYN, ENOCH and BAKER
• Citation: 928 S.W.2d 464
• Parties: , 11 IER Cases 1569, 39 Tex. Sup. Ct. J. 920 CITY OF SHERMAN, Petitioner, v. Otis HENRY, Respondent.
• Decision Date: 19 September 1996
• Docket Number: No. 95-1195

Page 464

928 S.W.2d 464 65 USLW 2062, 11 IER Cases 1569, 39
Tex. Sup. Ct. J. 920 CITY OF SHERMAN, Petitioner,
v.
Otis HENRY, Respondent. No. 95-1195. Supreme Court of Texas. Argued Feb. 14, 1996.
Decided July 8, 1996.
Rehearing Overruled Sept. 19, 1996.

Ronald H. Clark, Sherman, for Petitioner.

Robert E. Richardson, Jr., Sherman, for Respondent.

Page 465

ABBOTT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, CORNYN, ENOCH and BAKER, Justices, join.

The City of Sherman Police Chief denied Patrolman Otis Henry a promotion to the rank of sergeant because Henry was having a sexual affair with the wife of a fellow police officer. The Firemen's and Police Officers' Civil Service Commission of the City of Sherman, Texas (the Commission) upheld that decision by finding that the Police Chief had a valid reason for not promoting Henry. Henry appealed to district court which held that the basis of the Police Chief's decision violated Henry's right to privacy under the United States and Texas Constitutions and was not a valid reason for denying the promotion. Accordingly, the district court ordered the promotion of Henry. That decision was affirmed by the court of appeals. 910 S.W.2d 542. We reverse the judgment of the court of appeals and hold that Henry's constitutional rights were not violated when he was denied a promotion for having a sexual affair with another officer's wife.

I

Sergeant Tom Pollard and Dispatcher Kelly Olson worked for the Sherman Police Department. Pollard and Olson were married in September 1989, but kept their marriage secret for nearly two years because they believed the police department had a nepotism policy prohibiting marriage between employees.

Henry and Olson developed a relationship in April 1991 that progressed into a sexual affair. When the relationship began, Henry knew that Olson and Pollard lived together and were dating, but he did not know they were married. In June 1991, Olson admitted to Henry that she was married to Pollard. A month later, Olson and Pollard informed the department they were married. Olson and Pollard separated in December 1991 and Pollard filed for divorce. Meanwhile, the sexual affair between Henry and Olson continued.

Police Chief Stephen Pilant first heard allegations of the affair in the late summer or early fall of 1991. After that, Chief Pilant noticed that Pollard seemed distraught on occasion and missed work due to illness. Rumor and innuendo about the affair increased in December 1991, about the same time it became known in the department that a sergeant's position would become available in January 1992.

Henry ranked first on the city's civil service list of eligible candidates for promotion to the sergeant's position. Additionally, Henry had completed all Texas Commission on Law Enforcement certification procedures, earned a bachelor's degree in criminal justice, received numerous commendations, and was honored as "Outstanding Officer of the Year" in 1991. Absent a valid reason to the contrary, Henry was entitled to the promotion to sergeant. See TEX. LOC. GOV'T CODE § 143.036(f).

In mid-January, and before making the promotion decision, Chief Pilant asked Lieutenant Mayo to investigate the validity of the rumors regarding Henry's relationship with Olson. The investigation consisted of Lieutenant Mayo getting from Pollard a memorandum detailing facts about the affair and a love letter from Henry to Olson. Pollard's memorandum simply described how he had already verified the existence of the affair. The record reveals that several months before Chief Pilant requested an informal investigation, Pollard had already confirmed the affair between Olson and Henry. Moreover, Pollard did not engage in clandestine conduct to "investigate" the affair; instead, he discovered Olson and Henry together while he was driving on the public streets. He also found in his own home love letters from Henry to Olson. Mayo did not pursue further investigation after receiving Pollard's memorandum, and he did not interrogate Henry or anyone else about the matter.

On January 17, 1992, a sign appeared on a department bulletin board and in the departmental mailboxes of most police officers that stated in its entirety: "If you can't trust another officer with your wife, how can you trust him with your life?" Henry assumed the author directed the jab at him and complained about the sign to Lieutenant Mayo and another Lieutenant. Henry also requested

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an investigation by the Internal Affairs Division.

One month later, Chief Pilant announced that Henry would be passed over for the promotion. In a written memorandum, Chief Pilant stated the reason for denying the promotion was his belief that Henry would not command respect and trust from rank-and-file officers and that promoting Henry would adversely affect the efficiency and morale of the department. Chief Pilant orally expressed to Henry that the sole basis of these conclusions was the affair Henry had with Olson.

Henry appealed Chief Pilant's decision to the Commission. At the hearing, Chief Pilant admitted that Henry was very qualified for the sergeant's position. Nevertheless, Pilant testified that he did not promote Henry because of the impact the relationship between Henry and Olson would have both on Henry's ability to perform his work and on the morale of the department. As evidence that the affair was disruptive, the Chief pointed to the rumors and innuendo among officers, the sign posted on the bulletin board, and the emotional distress suffered by Pollard. The Chief acknowledged that he had never before passed over a candidate for promotion and that there was no written rule in the department's manual or in state law authorizing him to deny Henry's promotion due to the affair. He also conceded that there was never any indication that Henry and Olson engaged in sex while on duty. Nonetheless, the Chief stated he had an unwritten policy that he would not promote anyone having an affair with the spouse of a fellow officer.

In explaining why the affair established a valid reason for not promoting Henry, Pilant stated:

A police officer, by the very nature of his work, often times must put his complete faith and trust in fellow officers, to some point even as much as trust him with his life. If a police officer, in my opinion, cannot be trusted to take care of and protect a fellow officer's family ..., you would have serious doubts about whether that police officer can be trusted with your own life. It also hinders the harmony of police officers between each other.

Several more witnesses testified at the Commission hearing that the affair adversely affected the department and that Henry's promotion would have a detrimental impact on morale and on Henry's ability to perform his job. That evidence was contested by testimony from Henry and Olson.

After hearing all of the evidence presented by the City and by Henry, the Civil Service Commission voted unanimously that Chief Pilant had a valid reason for not promoting Henry. Henry appealed the Commission's decision to state district court where both Henry and the City of Sherman moved for summary judgment. Significantly, neither party challenged the Commission's fact findings or claimed the Commission's decision was not based on substantial evidence. Indeed, both parties submitted their summary judgment motions to the district court upon stipulated facts. One of the stipulated facts was that Henry was denied the promotion because he had a sexual affair with Olson.

Based upon the stipulated facts, both parties requested the district court to decide whether the evidence considered by the Commission demonstrated a valid reason for denying Henry's promotion. Henry argued the reason was invalid because his conduct was protected by the United States and Texas Constitutions. The City argued that the stipulated reason for not promoting Henry was constitutionally valid. The district court agreed with Henry, granted his motion for summary judgment, ordered his promotion with back pay, and granted him attorney's fees in the amount of $36,343.75. The court of appeals affirmed the district court, holding that Henry's constitutional rights were violated when he was denied a promotion because of his sexual affair with Olson.

During the oral argument of this case, the parties represented that, after the trial court's judgment, Henry was promoted to sergeant and the Pollards subsequently remarried. Thus, the issue for us to decide is whether Henry is entitled to the back pay and the attorney's fees awarded to him by the trial court. To make that determination, we must decide whether the Police Chief's

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reason for denying Henry the promotion infringed upon Henry's constitutional rights. Because both parties have a financial interest in the outcome of the case, a contested case and controversy has been presented which must be decided by the Court. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex.1988); cf. Speer v. Presbyterian Children's Home, 847 S.W.2d 227, 229 (Tex.1993). Neither Henry nor the City of Sherman claim the case is moot, and both parties have squarely presented the constitutional issue to this Court for resolution. II

Chief Pilant could properly deny the promotion to Henry for a "valid reason." Section 143.036(f) of the Texas Local Government Code provides:

Unless the department head has a valid reason for not appointing the person, the department head shall appoint the eligible promotional candidate having the highest grade on the eligibility list.... On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the commission.

TEX. LOC. GOV'T CODE § 143.036(f)(emphasis added). The Commission upheld Chief Pilant's reason for not promoting Henry even though Henry had the highest grade on...