Jackson v. Firemen's & Policemen's Civil Serv. Com'n of Galveston

• Decision Date: 08 April 1971
• Docket Number: No. 15736,15736
• Citation: 466 S.W.2d 412
• Parties: John E. JACKSON, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF GALVESTON et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 412

466 S.W.2d 412

John E. JACKSON, Appellant, v. FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF GALVESTON et al., Appellees.

No. 15736.

Court of Civil Appeals of Texas Houston (1st Dist.).

April 8, 1971.

Rehearing Denied April 29, 1971.

Harris, Martin, Carmona & Cruse, Frank T. Carmona, Galveston, for appellant.

Cody Greer, City Atty., Gene F. Smith, Asst. City Atty., Galveston, for appellees.

COLEMAN, Justice.

This is an appeal from a judgment affirming the action of the Civil Service Commission in indefinitely suspending appellant from his position in the Galveston Fire Department.

Appellant was employed in the Galveston Fire Department in 1964. He was informed at the time he was hired that there was a rule requiring city employees to live within the city limits. At the time of his employment he lived in La Marque. He was told that he would have to move to Galveston. Appellant did not move to Galveston. On November 21, 1969, the Fire Chief ordered him to move into the city within ninety days. On February 28, 1970, appellant was indefinitely suspended for his failure to obey this order. He appealed to the Galveston Civil Service Commission, and his appeal was denied. The district court of Galveston County, Texas, 56th Judicial District, after a trial without a jury, rendered a judgment upholding the suspension.

A person may not be barred from public employment arbitrarily or in disregard of his constitutional rights. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). On the other hand, those persons seeking public employment may be required to conform to such reasonable requirements as may be established as a condition to such employment . Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United Public Workers of America (C.I.O) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Reagan v. Bichsel, 284 S .W.2d 935 (Tex.Civ.App.--San Antonio 1955, error ref., n. r. e.). The rule requiring applicants for city employment to be residents of the city has been attacked on constitutional grounds in other jurisdictions and has been uniformly upheld. Kennedy v. City of Newark, 29 N.J. 178, 148 A.2d 473 (New Jersey 1959); Berg v. City of Minneapolis, 274 Minn. 277, 143 N.W.2d 200 (1966); Williams v. Civil Service Commission of City of Detroit, 383 Mich. 507, 176 N.W.2d 593 (1970); In Re Gagliardi's Appeal,401 Pa. 141, 163 A.2d 418 (1960); Salt Lake City Fire Fighters Local 1645 v. Salt Lake City, 22 Utah 2d 115, 449 P.2d 239 (1969).

Appellant was suspended by the Fire Chief for violating 'Rule XX, Section III, Grounds for Removal * * * 'violation of special orders, as applicable * * *. " The 'special order' was 'to move back into the city limits of Galveston * * * and to show proof of his residence in Galveston.' No civil service rule or city ordinance required firemen to live within the city. The City Manager had circulated a memorandum to the heads of departments informing them that all city employees with certain exceptions, were required to reside within the city. Galveston is a home rule city. In its charter the City Manager is designated as the chief administrative and executive officer of the city, and all administrative departments and agencies are under his control.

Article 1269m, Vernon's Ann.Civ.St., authorizes the Chief of the Fire Department to suspend indefinitely any officer or employee under his jurisdiction for the violation of civil service rules. It authorizes the suspended employee to appeal to the Civil Service Commission. The Act provides: '* * * No employee shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specific charges against such employee.'

Section 5 of the Act authorizes the Commission to 'make such rules and regulations for the proper conduct of its business as it shall find necessary and expedient * * *' Such rules and regulations shall prescribe what shall constitute cause for removal or suspension of Firemen or Policemen, but no rule for the removal or suspension of such employees shall be valid unless it involves one or more of the following grounds:

'Conviction of a felony or other crime involving moral turpitude; violations of the provisions of the charter of said city; acts of incompetency; neglect of duty; discourtesy by said employee to the public or to fellow employees while said employee is in line of duty; acts of said employees showing a lack of good moral character; drinking of intoxicants while on duty, or intoxication while off duty; or whose conduct was prejudicial to good order; refusal or neglect to pay just debts; absence without leave; shirking duty, or cowardice at fires; violation of any of the rules and regulations of the Fire Department or Police Department or of special orders, as applicable.'

The statute authorizes the Commission to adopt a rule authorizing the suspension of a fireman for violating a special order applicable to him. It would be an unreasonable interpretation to hold that suspension is authorized for the violation of a special order if it is clearly unreasonable or unrelated to the duties of a fireman. Such an interpretation would render meaningless the enumeration of grounds for suspension found in Section 5 of the Act.

In City of San Antonio v. Poulos, 422 S.W.2d 140 (Tex.1967), the court said:

'Respondent argues that the construction we have given Rule 29 would render the phrase 'willfully misrepresent any matter' applicable to statements made to all persons under all circumstances . The whole answer is that the rules and regulations of the San Antonio Police Department necessarily are, and must be, referable to the performance of the duties of a member of the department, and to the accomplishment of the statutory purpose of securing and maintaining an efficient police department composed of trusted and competent personnel. See Art. 1269m, §§ 5 and 16a. In our view a proper application of this rule requires the holding that a willful...