Klinger v. City of San Angelo

• Decision Date: 21 June 1995
• Docket Number: No. 03-92-00505-CV,03-92-00505-CV
• Citation: 902 S.W.2d 669
• Parties: Kenneth KLINGER, Appellant, v. CITY OF SAN ANGELO and Fire Fighter and Police Officer Civil Service Commission of San Angelo, Appellees.
• Court: Texas Court of Appeals

Page 669

902 S.W.2d 669

Kenneth KLINGER, Appellant, v. CITY OF SAN ANGELO and Fire Fighter and Police Officer Civil

Service Commission of San Angelo, Appellees.

No. 03-92-00505-CV.

Court of Appeals of Texas,

Austin.

June 21, 1995.

Rehearing Overruled Aug. 16, 1995.

B. Craig Deats, Jenkins & Deats, P.C., Austin, for appellant.

Kaye Holland Edwards, San Angelo, for appellees.

Before ABOUSSIE, JONES and B.A. SMITH, JJ.

ON MOTION FOR REHEARING

ABOUSSIE, Justice.

The Court's earlier opinion issued July 7, 1993 is withdrawn and the following substituted therefor.

Kenneth Klinger appeals from the district court's take-nothing judgment in his suit against appellees, the City of San Angelo and the Fire Fighter and Police Officer Civil Service Commission of San Angelo (collectively, "the City"). This case involves the Fire Fighter and Police Civil Service Act ("CSA"), Tex.Loc.Gov't Code Ann. §§ 143.001-.134 (West 1988 & Supp.1995). Specifically at issue are provisions governing promotional vacancies. The parties dispute whether the City's procedure in filling a vacancy in the fire department satisfied the CSA and whether Klinger, who eventually was appointed to fill the vacancy, is entitled to promotion and attendant benefits retroactive to June 30, 1989. The trial court rendered judgment in favor of the City. We will affirm the judgment.

BACKGROUND

San Angelo is a home rule city. Under the CSA, the City is required to develop a classification plan and establish rules regarding promotion within its police and fire departments. CSA §§ 143.021(a), .032(a) (West 1988). The City adopted ordinance 1-25-11 which established the employment classifications for its fire department.

The CSA is intended "to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants." CSA § 143.001 (West 1988). A fundamental principle of civil service is that appointments must be made according to merit and fitness, ascertained by competitive examinations. Holcombe v. Levy, 301 S.W.2d 507, 519 (Tex.Civ.App.--Galveston 1957, writ ref'd n.r.e.); Prospective fire fighters must take a competitive qualifying entrance examination. CSA § 143.025 (West 1988 & Supp.1995). Those scoring satisfactorily are placed on an eligibility list from which new recruits are appointed to beginning positions. Id.; CSA § 143.026 (West 1988). The CSA requires that a fire fighter must serve a one-year probationary period beginning the first day of employment, after which the person automatically becomes a full-fledged civil service employee with full civil service protection. CSA § 143.027 (West 1988). Thereafter, all promotions must be based upon promotional examinations administered by the local civil service commission. CSA §§ 143.028, .032(a) (West 1988). Lists ranking members who are eligible for promotion from one classification to the next are created based upon such factors as exam grade and seniority. CSA § 143.033(b) (West 1988) & (c) (West Supp.1995). When a vacancy occurs, the City may already have an eligibility list on hand. If not, it must administer a promotional examination in order to create a list from which to fill the vacancy. The promotional examination must be fair, competitive, and administered to an adequate number of persons in order to accomplish this end. CSA §§ 143.030(d), .032(g) (West 1988). The City determined by local rule that at least four persons must take an examination in order to ensure its competitiveness.

see also Lee v. City of Houston, 807 S.W.2d 290, 295 (Tex.1991).

A fire fighter is not eligible for promotion to a vacant position unless the person has served at least two years in the fire department where the vacancy exists and, for at least two years before the date the promotional examination is held, the person has served in the next lower position to the vacancy. CSA § 143.028(a) (West 1988). Each fire fighter who has held a position for at least two years in the classification immediately below the one having the vacant position is eligible to take the examination. CSA § 143.030(b) (West 1988).

In order to provide an "adequate" number of applicants, the commission, in its sole discretion, may open the exam to persons with less than two years' service in the next lower position. CSA § 143.030(d). If the number of applicants is still "insufficient," the commission may open the examination to persons with two years' experience in the second lower positions. Id. Those eligible have no obligation to take an examination.

Ordinance 1-25-11 set out multiple employment classifications. The first four are as follows:

Class 1: Fire Fighter Recruit

Class 2: Fire Fighter I

Class 3: Fire Fighter II

Class 4: Fire Engineer (or Driver)

The ordinance includes the job description and qualifications for each position.

The City ordinance designated its first two classes as entry-level, probationary positions. A beginning Fire Fighter Recruit (Class 1) automatically moves to Fire Fighter I (Class 2) upon completing certain basic training and certification. Consistent with the statutory scheme, at the end of a one-year probationary period, a fire fighter automatically moves to Fire Fighter II (Class 3). The ordinance expressly requires that a Driver (Class 4) "must have spent at least two years in the next lower class of Fire Fighter II."

Klinger was hired as a recruit by the San Angelo Fire Department on October 16, 1986. On May 1, 1987, Klinger completed his certification course work and was classified as a Fire Fighter I. On the one year anniversary of his hiring date, October 16, 1987, Klinger successfully completed his probationary period, and he automatically became classified as a Fire Fighter II.

On April 1, 1989, a vacancy arose in the City Fire Department for a Driver position. Had a promotional eligibility list been available, the City would have been required to submit to the department head the names of the three persons ranked highest on the list so that an appointment to the vacancy could be made within sixty days. See CSA § 143.036(b) (West Supp.1995) & (e) (West 1988) (providing that if a list exists, the vacancy shall be filled within 60 days). At the time the vacancy opened, however, no eligibility list existed. According to the CSA, the City was required to hold a competitive written examination, create an eligibility list, and As of June 30, however, Klinger was one of only three fire fighters serving in positions below Driver who had been employed with the Department at least two years. Only two of these persons had also served for two years as a Fire Fighter II, the position classified immediately below Driver. Klinger was not one of them. On July 1, a fourth person completed two years' service in the department, although like Klinger he had not yet served two years as a Fire Fighter II.

fill the position within ninety days of the vacancy. CSA § 143.036(d), (e) (West 1988). Klinger's complaint arises from the city's failure to schedule the promotional examination by June 30, ninety days after the vacancy occurred.

The City did not schedule a promotional examination until July 10, 1989, more than ninety days after the Driver vacancy arose. See CSA § 143.036(d). ¹ Only Klinger and one other fire fighter applied to take the examination. The City postponed the test.

The City then scheduled a promotional examination for January 12, 1990. ² Four persons, including Klinger, applied to take the test. Klinger received the highest score and was promoted to fill the Driver position on January 16, 1990.

Klinger sued the City, seeking declaratory and injunctive relief, claiming that it had violated CSA section 143.036 by failing to conduct an examination, create an eligibility list, and fill the Driver position within ninety days of the vacancy. He further sought retroactive promotion, back pay, and benefits effective June 30, 1989. The trial court rendered a take-nothing judgment on his claims.

DISCUSSION

Section 143.036 of the CSA provides:

(d) If an eligibility list does not exist on the date a vacancy occurs or a new position is created, the commission shall hold an examination to create a new eligibility list within 90 days after the date the vacancy occurs or a new position is created.

(e) ... If an eligibility list does not exist, the department head shall fill the vacancy by permanent appointment from an eligibility list that the commission shall provide within 90 days after the date the vacancy occurs.

CSA § 143.036(d), (e). The act of filling a vacant position through the procedures outlined in the CSA is not one committed to the discretion of a local fire chief. The department head has a mandatory duty to promote an eligible employee to fill an opening in a legally created civil service position. See International Ass'n of Firefighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562, 563 (Tex.1981); Duckett v. City of Houston, 495 S.W.2d 883, 886 (Tex.1973); see also International Ass'n of Firefighters Local 624 v. San Antonio, 822 S.W.2d 122, 131 (Tex.App.--San Antonio, 1991, writ denied); Michna v. City of Houston, 521 S.W.2d 331, 333 (Tex.Civ.App.--Houston [1st Dist.] 1975, no writ); Bostick v. Owens, 423 S.W.2d 471, 472 (Tex.Civ.App.--Fort Worth 1968, writ ref'd n.r.e.). An employee eligible for promotion demonstrates entitlement to promotion by taking a promotional examination. A fire fighter's ranking on an eligibility list created from the results of a competitive promotional examination establishes the person's entitlement to promotion. Townsend, 622 S.W.2d at 563; Duckett, 495 S.W.2d at 887. Absent proof of an exception, the person at the top of the list existing when a vacancy occurs has the primary right to be promoted to fill the vacancy and is entitled to that promotion within the statutory time-period, no later than the last date permitted by statute. See Duckett, ...