City of Waco v. Kelley
| Decision Date | 19 February 2010 |
| Docket Number | No. 07-0485.,07-0485. |
| Citation | 309 SW 3d 536 |
| Parties | CITY OF WACO, Texas, Petitioner, v. Larry KELLEY, Respondent. |
| Court | Texas Supreme Court |
Kevin Wayne Cole, Cole & Powell, P.C., Jennifer A. Powell, Schwartz & Eichelbaum Wardell Mehl and Hansen, Austin, Arthur Pertile III, City Attorney, Christopher Daniel Taylor, Assistant City Attorney, John T. Patterson, Interim City Attorney, David W. Holman, The Holman Law Firm, P.C., Houston, Leah-Flora Bernadett Hayes, City Attorney, for Petitioner.
LaNelle L. McNamara, LaNelle L. McNamara, P.C., Waco, Michael Lee Rickman, C.L.E.A.T. Office, Richard W. Carter, Combined Law Enforcement Associations of Texas, Fort Worth, for Respondent.
B. Craig Deats, Deats Durst Owen & Levy, P.L.L.C., Austin, for Amicus Curiae Texas State Association of Fire Fighters.
Marcus L. Dobbs, Senior Assistant City Attorney, for Amicus Curiae City of Houston.
Under the City of Waco's civil service system, a police officer may appeal involuntary discipline to either the Civil Service Commission or a third party hearing examiner. In this case, an assistant chief was disciplined by being indefinitely suspended, which is the equivalent of being dismissed from the department. A hearing examiner found that the charges against him were true but determined that the discipline was excessive. The hearing examiner reduced the suspension to 180 days, reinstated the assistant chief to the police force at a reduced rank, and ordered that he be made whole as to his lost wages and benefits. We hold that the examiner exceeded his jurisdiction in part. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
The City of Waco has adopted Chapter 143 of the Local Government Code (the Civil Service Act, or Act) and thereby provides a civil service system for its police department.1 TEX. LOC. GOV'T CODE § 143.004;2 WACO, TEX., CODE OF ORDINANCES § 18-96 (2009). The Act provides that all police officers are "classified" employees and have civil service protection, except for the head of the department and any persons the department head appoints to positions categorized as being immediately below the department head. TEX. LOC. GOV'T CODE § 143.021(b).
Larry Kelley was a veteran officer with the Waco Police Department and was serving as commander in 1999 when he was appointed assistant chief of police. Assistant chief is the personnel category immediately below that of the chief, who is the department head. While serving as assistant chief, Kelley was arrested in Austin and charged with driving while intoxicated. Waco's Chief of Police, Alberto Melis, determined that Kelley's conduct violated Waco's civil service rules. Kelley offered to accept voluntary discipline of being returned to the position of commander, serving a ninety-day suspension, and performing service by addressing the younger police officers. Chief Melis rejected Kelley's offer and suspended him indefinitely. The Act specifies that an indefinite suspension is equivalent to dismissal from the department. Id. § 143.052(b).
Pursuant to procedures mandated by Subchapter D of the Act, which is entitled "Disciplinary Actions," Chief Melis filed a written statement with Waco's Fire Fighters' and Police Officers' Civil Service Commission setting out his reasons for suspending Kelley. See id. § 143.052(c). Melis specified that Kelley's suspension was based on Section 143.051(7), which provides that a police officer may be removed or suspended for drinking intoxicants while on duty or for intoxication while off duty, and Section 143.051(12), which provides for the removal or suspension of an officer for violation of an applicable fire or police department rule or special order.
Even though Kelley was not a classified employee because he was an assistant chief, the Act provided him the same appellate rights and privileges as a classified officer. Id. § 143.014(h). He was therefore entitled to appeal either to the commission or to an independent third party hearing examiner. Id. § 143.057(a). Kelley appealed to a hearing examiner. The hearing examiner found that the charges against Kelley were true but concluded that the discipline imposed was excessive. The examiner ordered Kelley reinstated at the rank of sergeant3 and ordered his indefinite suspension reduced to a temporary suspension of 180 days. The examiner also directed that Kelley be "made whole subject to the normal principles of mitigation."
The City appealed to the district court. It alleged that the hearing examiner exceeded his jurisdiction by considering evidence not presented at the hearing, reducing the length of Kelley's suspension from indefinite to temporary, demoting him, and awarding back pay and benefits. See id. § 143.057(j) (). Kelley denied the City's claims. By counter-appeal, he requested reconsideration of the hearing examiner's denial of his motion to have the suspension declared void because the City failed to follow specific procedures under the Act when suspending him. He moved for dismissal of the City's appeal for lack of jurisdiction and filed a motion for summary judgment in which he asserted there was no evidence the hearing examiner exceeded his jurisdiction. The district court denied Kelley's motion to dismiss and counter-appeal, granted his motion for summary judgment, and awarded him $12,500 in attorney's fees. The City appealed.
The court of appeals dismissed the case for lack of jurisdiction. The court reasoned that the trial court had no jurisdiction because "the City has no right of appeal from the hearing examiner's decision—only a firefighter or police officer can appeal." No. 10-03-00214-CV, 2004 WL 2481383, at *1 (Tex.App.-Waco Oct.29, 2004) (mem. op.), rev'd per curiam, 197 S.W.3d 324 (Tex.2006). After the court of appeals rendered its decision, we held that municipalities have the right to appeal an independent hearing examiner's decision. City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex.2006). Referencing Clark, we reversed and remanded Kelley's case to the court of appeals for further proceedings. City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex.2006). On remand, the court of appeals held that the hearing examiner did not exceed his jurisdiction by reducing the length of Kelley's suspension or by awarding him back pay and benefits4 and that the district court properly awarded Kelley attorney's fees. 226 S.W.3d 672, 681. The court of appeals also held that the hearing examiner exceeded his jurisdiction by ordering Kelley's demotion to sergeant and ordered Kelley reinstated at his prior classified position of commander. Id.
We granted the City's petition for review. By six issues, the City challenges the court of appeals' judgment on the bases that when a hearing examiner finds the charges against an indefinitely suspended officer are true, the hearing examiner has authority under the Act only to affirm the suspension and permanently dismiss the officer; even if the hearing examiner has jurisdiction to reduce an indefinite suspension and thereby effectively reinstate the officer to the department, the examiner has no authority to order a suspension for 180 days or order back pay and benefits; and attorney's fees are not recoverable in an appeal from a hearing examiner's award. We begin by addressing the hearing examiner's jurisdiction.
In City of Pasadena v. Smith, 292 S.W.3d 14 (Tex.2009), decided after the court of appeals' decision in this case, we considered jurisdictional boundaries in appeals from disciplinary suspensions under the Act. There, the hearing examiner summarily ruled against the city because the department head was not present to testify when the hearing began. Id. at 16. In analyzing the examiner's actions, we noted that the deadlines, procedures, and limitations the Act provides as to the Civil Service Commission apply equally to hearing examiners. Id. at 20. Those deadlines, procedures, and limitations necessarily provide standards by which the actions of examiners must be measured; otherwise, the Act could raise concerns that it impermissibly delegates legislative authority:
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 v. Andrews, 972 S.W.2d 729 (Tex.1998). 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.
We held that a hearing examiner is not authorized to make rules, but must follow those prescribed by the Legislature and that the Act both confers and limits the power of a hearing examiner. Id. at 20; see TEX. LOC. GOV'T CODE § 143.010(g). We acknowledged the difficulty of stating a test for determining when a hearing examiner exceeds his jurisdiction: "The most accurate test we can state is that a hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine." City of Pasadena, 292 S.W.3d at 21. Because the hearing examiner in City of Pasadena refused to hear evidence and did not make his decision based on evidence submitted during the hearing as the...
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...of the statute takes into consideration each subsection and ensures that none is rendered meaningless. See City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex.2010) (explaining that in interpreting a statute, courts must examine the words in the context of the statute as a whole and refrain fr......
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...and motion for new trial by written order on February 18, 2010. On February 19, 2010, the Texas Supreme Court decided City of Waco v. Kelley, 309 S.W.3d 536 (Tex. 2010). In Kelley, the Texas Supreme Court determined that the appropriate remedy when a third-party hearing officer exceeds her ......