Opinion
14-21-00570-CV
05-23-2023
CITY OF HOUSTON, Appellant v. STEVEN M. DUNBAR, Appellee
On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2020-31030.
Panel consists of Justices Zimmerer, Spain, and Poissant (Zimmerer, J., dissenting).
MEMORANDUM OPINION
Charles A. Spain Justice
After the Houston Fire Department ("HFD") chief suspended appellee Steven M. Dunbar for three days without pay, Dunbar appealed the suspension to the Firefighters' and Police Officers' Civil Service Commission of the City of Houston (the "commission"). The commission issued an order that denied Dunbar relief and upheld the suspension. Dunbar then filed a petition to set aside the decision in district court. See Tex. Loc. Gov't Code Ann. § 143.015(a). After "trial de novo," the district court rendered a final judgment in Dunbar's favor, reversing the commission's order and reinstating Dunbar's pay for the suspension period.
While the commission is named as an appellant in the notice of appeal and the briefing, it is not clear what relief the commission seeks apart from the City, given that the trial court awarded Dunbar "reinstatement of [his] pay for the subject suspension," and the Local Government Code states, "If the [district] court finds for the fire fighter or police officer, the court shall order the municipality to pay lost wages to the fire fighter or police officer." Tex. Loc. Gov't Code Ann. § 143.015(d). Accordingly, we omit the commission as a party to this appeal.
Appellant the City of Houston argues that the district court's judgment contains reversible error, contending in two issues that (1) the commission's order was supported by substantial evidence and (2) the commission's order was not tainted by illegality. We sustain appellant's issues, reverse the district court's judgment, and render judgment affirming the commission's order.
I. Background
On September 11, 2019, HFD Fire Station 84 hosted a public-relations event featuring Houston Rockets basketball players. During the event, Dunbar, an HFD district chief, witnessed the station's high-water vehicle drive off with Rockets personnel on board. When the vehicle returned to the station, Dunbar observed that a Rockets player was driving the vehicle and the vehicle's lights and siren were activated.
HFD Reference No. II-11, Water Rescue & Evacuation, which was admitted into evidence before the district court, defines a high-water vehicle as follows:
3.09 High Water Vehicle: Used in static water
A. OEM Public works vehicles that can navigate flooded streets due to high ground clearance. Used to move large numbers of people and supplies. (non-emergent conditions)
B. HFD High Water Evacuation Vehicle - Heavy Duty Tactical Vehicle which is capable of operating in flood waters not exceeding 30 inches in depth. Designed to transport citizens and supplies to a collection point determined by Command.
Two days later, assistant fire chief Herbert D. Griffin filed a complaint of employee misconduct naming Dunbar, among others. In a statement attached to his complaint, Griffin alleged, "It was brought to my attention that several persons who are not employed by the Houston Fire Department (HFD) may have been allowed to ride on, and possibly drive, an HFD emergency vehicle on a public roadway while operating lights and sirens, disregarding multiple traffic laws." The statement further alleged that Dunbar was among the employees present who allowed the violations to occur.
After an investigation, the department suspended Dunbar for three days without pay for violation of HFD Reference No. I-01, Rules and Regulations, section 6.06, which provides:
6.06 Maintain Discipline: Officers shall be just, dignified and firm in their relations with subordinates, always being careful to abstain from violent, abusive, or immoderate language in giving orders, directions, or in conversation. Officers must model good behavior and promptly report, by well-sustained charges, any violations of Laws, Ordinances, Rules & Regulations, and Orders.(Emphasis added.)
The parties do not dispute that section 6.06 is a "civil service rule," the violation of which may result in suspension. See Tex. Loc. Gov't Code Ann. § 143.117(b) ("The department head may suspend a fire fighter or police officer under this section only if the person violates a civil service rule."). Likewise, the parties do not dispute that Houston is a municipality with a population of 1.5 million or more to which Local Government Code chapter 143, subchapter G applies. See Tex. Loc. Gov't Code Ann. § 143.101.
Dunbar appealed to the commission, which upheld the suspension. See Tex. Loc. Gov't Code Ann. § 143.118 (appeal to commission). Dunbar then appealed to the district court. See Tex. Loc. Gov't Code Ann. § 143.015 (appeal to district court). The district court signed its final judgment in favor of Dunbar, from which the City appeals.
II. Analysis
A. Standard of review
An appeal to the district court of the commission's ruling is by "trial de novo." Tex. Loc. Gov't Code Ann. § 143.015(b). "Trial de novo" usually means "a new trial on the entire case, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance." Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. Spencer Square Ltd., 252 S.W.3d 842, 845 (Tex. App.- Houston [14th Dist.] 2008, no pet.); see Trial, Black's Law Dictionary (11th ed. 2019) (defining "trial de novo" as follows: "A new trial on the entire case-that is, on both questions of fact and issues of law-conducted as if there had been no trial in the first instance."). In the context of an appeal from a commission decision, however, "trial de novo" means that the district court determines "only the issues of whether the agency's rule is free of the taint of any illegality and is reasonably supported by substantial evidence." Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (quoting Fire Dep't of City of Fort Worth v. City of Fort Worth, 217 S.W.2d 664, 666 (Tex. 1949)).
The interpretation comes from case law and accordingly falls under the category of common-law administrative law. See Brinkmeyer, 662 S.W.2d at 955 (explaining that, while decision by civil service commission may be appealed for trial de novo in district court, "the case law has interpreted this to mean a review under the substantial evidence rule"); cf. Administrative Procedure Act, Tex. Gov't Code Ann. §§ 2001.001-.903.
In two issues, the City argues the district court's judgment is erroneous because (1) substantial evidence supported the commission's order and (2) the commission's order was free from the taint of illegality.
B. Substantial evidence
In issue 1, the City contends the commission's order upholding Dunbar's suspension was supported by substantial evidence. The supreme court has explained the substantial-evidence standard as follows:
The principles of substantial evidence review are well settled. Any difficulty applying the substantial evidence rule in cases such as this arises from the dual role the [district] court must play. On one hand, the court must hear and consider evidence to determine whether reasonable support for the administrative order exists. On the other hand, the agency itself is the primary fact-finding body, and the question to be determined by the [district] court is strictly one of law. Thus, while the reviewing court is to a certain extent a fact-finder, it may not substitute its judgment for that of the agency on controverted issues of fact. When there is substantial evidence which would support either affirmative or negative findings the administrative order must stand, notwithstanding the agency may have struck a balance with which the court might differ. The [district] court may not set aside an administrative order merely because testimony was conflicting or disputed or because it did not compel the result reached by the agency. Resolution of factual conflicts and ambiguities is the province of the administrative body and it is the aim of the substantial evidence rule to protect that function. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.Brinkmeyer, 662 S.W.2d at 956 (citations omitted). The high court has further emphasized the deferential standard of review in cases following Brinkmeyer. Specifically, the "issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action." See Mireles v. Texas Dep 't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (citing City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 185 (Tex. 1994)). Accordingly, courts "must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them." Mireles, 9 S.W.3d at 131. "In fact, an administrative decision may be sustained even if the evidence preponderates against it." Id.
Here, Dunbar's suspension was based on violation of HFD Rules and Regulations section 6.06, which provides, in relevant part, that "Officers must model good behavior and promptly report, by well-sustained charges, any violations of Laws, Ordinances, Rules & Regulations, and Orders." There was evidence before the commission and the district court, including admissions from Dunbar himself, that Dunbar witnessed Station 84's high-water vehicle being driven on a public road by a member of the Houston Rockets basketball team with the lights and siren activated. It is likewise undisputed that Dunbar did not file any written complaint about this conduct.
The City argues that the above facts constitute substantial evidence that Dunbar witnessed a section-6.06 violation but did not report it. Specifically, the City contends the conduct that Dunbar admits he witnessed violated: (1) City of Houston Administrative Procedure No. 2-2, Motor Vehicle Assignment and Use, section 7.2.2, which states, "Improper use of a City vehicle which could or does result in a safety hazard, personal injury, property damage, or any damage to the City vehicle is strictly prohibited."; (2) HFD Reference No. II-35, Driving HFD Vehicles, section 6.08(A), which states, "No member will drive an HFD apparatus using lights and sirens without an HFD issued driver's certification in their possession, applicable to the specific type of apparatus to be driven (Light Duty, Engine, and/or Ladder)."; and (3) HFD Reference No. II-11, Water Rescue & Evacuation, section 5.02(A), which states, "Only members who have been certified in the following may operate Evacuation Boats and / or High-Water Vehicles: 1. Boaters Safety Course (USBOAT.ORG or Texas Parks & Wildlife), 2. Trained in Swift Water Awareness 3. Trained in HFD Evacuation Boat operations / High Water Evacuation Vehicle operations may operate the boat/vehicle." The City further points out that Dunbar admitted that he was familiar with each of the above provisions, as well as the reporting requirements of section 6.06.
Each of these provisions was admitted into evidence before the district court. While the parties do not discuss this issue, we conclude that each of the provisions is at the very least an "order" for purposes of 6.06 under the plain meaning of that term, which is not defined in the Rules and Regulations. See Order, Black's Law Dictionary (11th ed. 2019) ("1. A command, direction, or instruction.").
Dunbar nonetheless argues he had no duty to report the conduct he witnessed. Dunbar first argues that he did not have enough information to report any violation "by well-sustained charges," as prescribed by section 6.06. The evidence, however, shows that Dunbar witnessed a Houston Rockets player driving a high-water vehicle despite his knowledge that such vehicles could only be driven by HFD members with specific credentials, which would appear to be substantial evidence of a violation of the provisions listed above. Dunbar further argues that he could not determine whether a violation had taken place because he was aware of other events at which athletes had ridden on or driven HFD vehicles. Evidence of such incidents, however, does not dispel substantial evidence of a reportable violation in this instance. See Mireles, 9 S.W.3d at 131 ("The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action.").
Finally, Dunbar argues that, even if he had been required to report a violation, he did so when he discussed the event with deputy chief Richard Galvan on the day of the event and in the days following. However, during the HFD investigation, Dunbar himself stated that he did not "report" any violation. Dunbar's suspension letter, which was admitted into evidence, states that, "[w]hen asked during the investigation if he reported the violations, DC Dunbar stated, 'No, I did not observe what I would consider violations in relation to past events. I have personally seen pro ball players drive an HFD ambulance, as well as seen civilians sitting on the aerial ladders of several HFD apparatus.'" Galvan, moreover, testified that during his conversations with Dunbar, Dunbar made no report of any violation occurring during the event. It was the role of the commission to weigh such conflicting evidence. See Brinkmeyer, 662 S.W.2d at 956 ("Resolution of factual conflicts and ambiguities is the province of the administrative body and it is the aim of the substantial evidence rule to protect that function.").
The letter continues, "DC Dunbar's admission of not reporting the violations because he did not consider them violations, does not relieve him from reporting, therefore, as the highest-ranking officer DC Dunbar failed to maintain discipline." HFD Rules and Regulations section 6.06 provides that a violation for failing to maintain discipline includes a failure to report violations.
Specifically, Galvan testified that Dunbar called him on the day of the incident and talked about a Rockets player driving an HFD apparatus during the event. However, Galvan stated that this conversation did not constitute a "report." Instead, Galvan testified, "We were just talking as friends. He wasn't reporting anything to me. He was explaining to me what was going on and what had happened." Galvan further testified that Dunbar did not characterize the exchange as a "report" during the conversation. In the trial court, Galvan also testified that he was not aware during his initial conversations with Dunbar that Dunbar had not received the appropriate permissions to have civilians on the HFD vehicles in question. The dissent argues that Dunbar "indisputably" reported the incident to Galvan as the reason that the commission's decision was flawed. The dissent points to "text messages, video and phone records." Although there are text messages between these two men in the record, none of the messages reflect any reporting of a violation. Further, the testimony as to whether Dunbar made an oral report to Galvan after the incident was disputed and a fact question appropriately resolved by the commission. While the Rules and Regulations do not define "report," the verb "report" is commonly defined to include the following: (1) "to give a formal or official account or statement of;" and (2) "to make known to the proper authorities." Report, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/report (last visited May 15, 2023). Even absent Dunbar's own statement during the investigation that he did not make a "report," the commission could have credited Galvan's testimony that he and Dunbar were "just talking as friends," that Galvan was not in Dunbar's chain of command and that Dunbar did not characterize the conversation as a report when speaking to Galvan, in making a determination that the conversation did not constitute a "formal or official account" sufficient to constitute a "report." See id. (emphasis added). Under the deferential standard of review applicable to this appeal, we may not disturb such a determination. Although the dissent describes the disputed issue in the case as whether Dunbar's communication was sufficient or formal such that it fulfilled Dunbar's duty to report, we are not the factfinder and we should not disturb the determination of the commission as factfinder to the extent of any ambiguity.
Ultimately, it is not for this court to determine if the commission's order was correct, but rather whether there was any reasonable basis supporting it. See Mireles, 9 S.W.3d at 131. We conclude there was more than a scintilla of evidence to support the commission's order upholding Dunbar's suspension, which is the limit of our review under the substantial-evidence standard. See id. We sustain issue 1.
The dissent would affirm the trial court's judgment and opines that the commission's order was not supported by substantial evidence. Despite acknowledging our standard of review, the dissent does not follow that standard. Admittedly the legislature has done no one any favors by revising the law originally enacted in 1947, which authorized appeal to the district court by trial de novo, yet the legislature in numerous amendments never acknowledged the supreme court's 1949 substantial evidence interpretation in Fire Department of City of Fort Worth, 217 S.W.2d at 666. See Act of May 15, 1947, 50th Leg., R.S., ch. 325, § 18, 1947 Tex. Gen. Laws 550, 556, amended by Act of Apr. 29, 1955, 54th Leg., R.S., ch. 255, § 4, 1955 Tex. Gen. Laws 706, 708, amended by Act of May 9, 1975, 64th Leg., R.S., ch. 207, § 1, 1975 Tex. Gen. Laws 484, 484, amended by Act of May 28, 1977, 65th Leg., R.S., ch. 255, § 4, 1977 Tex. Gen. Laws 1130, 1133, amended by Act of Apr. 29, 1981, 67th Leg., R.S., ch. 707, § 4(7), 1981 Tex. Gen. Laws 2626, 2627, 2630, amended by Act of May 26, 1985, 69th Leg., R.S., ch. 910, § 6, sec. 18, 1985 Tex. Gen. Laws 3046, 3052, amended by Act of May 27, 1985, 69th Leg., R.S., ch. 958, § 10, 1985 Tex. Gen. Laws 3227, 3231, repealed and recodified by Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, sec. 143.015(b), § 49(1), 1987 Tex. Gen. Laws 707, 893 (codification into Local Government Code), 1306 (repealer of act compiled in Vernon's Texas Civil Statutes article 1269m). Notwithstanding this confusing statutory text, the legislature has passively acquiesced and "trial de novo" in this statute means "substantial evidence review." After citing to irrelevant military justice documents and weighing the evidence in the record, the dissent concludes that it is "not reasonable to discipline solely on a failure to report" based on the facts of this case. The dissent quotes Brinkmeyer for the proposition that a reviewing court need not consider "incredible, perjured or unreasonable testimony" and then employs that reasoning to disregard evidence before the commission. See Brinkmeyer, 662 S.W.2d at 956 (citation omitted). In reaching its conclusion, the dissent reweighs the evidence and substitutes its judgment regarding the Rules and Regulations for that of the commission. In doing so, the dissent ignores the overarching conclusion in Brinkmeyer that a reviewing court "may not set aside an administrative order merely because testimony was conflicting or disputed or because it did not compel the result reached by the agency." Id. There was evidence supporting the commission's decision, as discussed in this opinion, and it is not the role of this court, in reviewing the commission's decision, to reweigh the evidence. We cannot reverse the decision of the commission simply because we do not agree or think it correct. See id.; see also Mireles, 9 S.W.3d at 131 (reviewing court may not substitute its judgment for that of agency).
C. Taint of illegality
In issue 2, the City contests the district court's determination that the commission's order was tainted by illegality. When a public employer's challenged action is arbitrary or capricious, or a clear abuse of authority, then the civil service commission's ruling upholding the challenged action is not free from the taint of illegality. City of Houston v. Cortez, 640 S.W.3d 905, 911 (Tex. App.-Houston [14th Dist] 2022, no pet.). Arbitrary, capricious, or illegal acts destroy the presumption of validity normally accompanying commission rulings. Id. (citing Firemen's & Policemen's Civ. Serv. Comm 'n of City of Port Arthur v. Hamman, 404 S.W.2d 308, 312 (Tex. 1966)). In analyzing whether a ruling was tainted by illegality, courts generally have focused their inquiry on the commission's actions or procedures in conducting its hearing, although the public employer's pretermination conduct is also subject to scrutiny. Cortez, 640 S.W.3d at 911.
Dunbar advanced two theories in the tribunals below, which he reiterates on appeal, as to why the commission's order was tainted by illegality. First, Dunbar contends he was not provided notice of all complaints against him in violation of Local Government Code section 143.123(e), which provides that, "[n]ot later than the 30th day after the date that a complaint is received by an investigator, the investigator must inform the fire fighter in writing of the nature of the investigation and the name of each person who complained about the fire fighter, if known, concerning the matters under investigation." Tex. Loc. Gov't Code Ann. § 143.123(e).
See also Tex. Loc. Gov't Code Ann. § 143.123(k) ("If the department head or any investigator violates any of the provisions of this section while conducting an investigation, the municipality shall reverse any punitive action taken pursuant to the investigation including a reprimand, and any information obtained during the investigation shall be specifically excluded from introduction into evidence in any proceeding against the fire fighter or police officer.").
After Griffin's complaint was filed, an investigator from the HFD's Professional Standards Office was assigned to perform an investigation. The record reflects that the HFD investigator provided Dunbar with a copy of Griffin's complaint before Dunbar's interrogation. While Dunbar does not dispute that he received a copy of Griffin's complaint, he contends that Griffin's complaint must have been based on complaints by other individuals who were not identified. Griffin, however, merely stated that the events at Station 84 were "brought to [his] attention"; he did not testify, nor is there any evidence showing, that any individuals who may have brought the incident to Griffin's attention made any complaint or allegation that Dunbar committed any misconduct. Cf. Harris Cnty. Sheriff's Civil Serv. Comm'n v. Guthrie, 423 S.W.3d 523, 530 (Tex. App.- Houston [14th Dist.] 2014, pet. denied) ("'Complaint,' as used in the section, has been defined as any allegation of misconduct that could result in disciplinary action.") (citation omitted). Moreover, Griffin's signed complaint alleviates the concerns underpinning the notice requirement, namely that disciplinary proceedings should not be based on "anonymous or unsubstantiated complaints." Id. at 531 ("This is not a case where an officer was terminated based on anonymous allegations or the complete absence of a signed statement by a complainant."). We conclude the commission's order is not tainted by illegality due a lack of disclosure of complainants.
Second, Dunbar argues the commission's order is tainted by illegality because he was not provided with a copy of the complaint at least 48 hours before Galvan "interrogated" him in the days following the event. See Tex. Loc. Gov't Code Ann. § 143.123(f) ("Not later than the 48th hour before the hour on which an investigator begins to interrogate a fire fighter or police officer regarding an allegation based on a complaint, affidavit, or statement, the investigator shall give the fire fighter or police officer a copy of the affidavit, complaint, or statement.")Chapter 143 defines "investigator" as "an agent or employee of the municipality who is assigned to conduct an investigation." Tex. Loc. Gov't Code Ann. § 143.123(a)(3). There is no evidence that Galvan was an "investigator" who "interrogated" Dunbar for purposes of section 143.123, and no evidence that Galvan was assigned as an investigator of the incident. See id. Indeed, Galvan testified before the commission that, when he and Dunbar had conversations in the days following the event, "[w]e were not investigating the event." We determine the commission's decision was not tainted by illegality due to any lack of notice.
Chapter 143 does not define interrogation; however, in common usage, the word "interrogation" is defined as "a formal and systematic questioning." Interrogation, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/interrogation (last visited May 15, 2023); see also Code Construction Act, Tex. Gov't Code Ann. § 311.011 (words and phrases construed according to common usage).
Concluding that the evidence does not show the commission's order was tainted by illegality, we sustain issue 2.
III. Conclusion
Having sustained issues 1 and 2, we reverse the district court's judgment and render the judgment the district court should have rendered and affirm the commission's order. Tex.R.App.P. 43.2(c).
DISSENTING MEMORANDUM OPINION
Jerry Zimmerer Justice
While the majority opinion correctly recites the substantial evidence standard of review as it relates to deference to the civil service commission, it fails to apply the proper definition of "report," cites as its only authority a misinterpretation and unsubstantiated statement in an investigative report, and fails to recognize the appropriate evidentiary standard for substantial evidentiary review.
Under the substantial evidence rule, "The reviewing courts need not consider 'incredible, perjured, or unreasonable testimony because such evidence is not substantial.'" Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (quoting Trapp v. Shell Oil Company, 198 S.W.2d 424, 440 (Tex. 1946)). However, the reviewing court may go no further than to examine the evidence for these infirmities. Id. The trial court found "the record lacked a scintilla of evidence to support that the Plaintiff failed to promptly report the witnessed violations of Houston Fire Department's rules and regulations and City of Houston's policy." Because the majority holds otherwise, I respectfully dissent.
While the facts of this case are sufficiently addressed in the Majority Opinion and need not be repeated, a review of specific evidence is required as a part of substantial evidence review.
Overarching this case was HFD's lack of objective standards by which "reporting" was to be performed. The failure of HFD to document or otherwise establish policies or procedures for reporting creates ambiguity as to the requirement of timeliness of any report; who was the event "sponsor" in charge of reporting;were there any overarching policy prerequisites; the lack of, and distinction of, authorization required for non-HFD riders vs. drivers; the seriousness of the event in relation to other events, and whether, following HFD Guidelines the incident would have to be reported at all. Moreover, there was a question as to whether Galvan was given sufficient time, between the incident and the time of receiving his formal notice of investigation (which ordered that he immediately cease any further action or discussion) and whether this was reasonably sufficient time to permit him to investigate these issues and make a formal report.
Alfredo Martinez, assistant chief over HFD Professional Standards Office, testified there is no time limit to file a complaint or report an issue.
Dunbar Exhibit 1 shows it was the HFD Public Relations Office who authorized the vehicle being out of service.
HFD Code of Administrative procedure 2(b) provides formalized complaints by a supervisor following consultation with their chief officers.
Assistant Deputy Chief Galvan acknowledged that the policies and procedures related to authorization to ride on the vehicles as compared to driving the vehicles was unclear and offered to initiate a written policy in light of the these events.
The City's attorney stipulated, "there is no dispute in the fact that there are other events where there have been civilians riding in the back of a vehicle." Chief Galvan testified, "I will let them know that there is -- has been precedence, that someone -- that approvals had been done before for civilians to drive the apparatus."
Alfredo Martinez, formerly of the HFD Professional Standard Office, testified with regard to Section B, Houston Fire Department's Code of Administrative Procedure as follows:
Q. (By Chief Dunbar) Okay. Is "may" permissive or mandatory?
A. [Alfredo Martinez] Permissive.
Q. Okay. So they may file a complaint; they may not file a complaint. Is that correct?
A. Yes.Deputy Chief Galvan testified:
Q. (By Chief Dunbar) Okay. So does that tell you that you have to file a complaint?
A: [Chief Galvan] No.
Q: Does that give you the ability, as a chief officer of the Houston Fire Department, to decide between a Form 34 or an official complaint?
A: Yes.Fire Chief Peña acknowledged that filing a "complaint" would have satisfied the "report" requirement and that a "complaint" could have been filed "at any point."
The Charge:
Dunbar was not charged with allowing a civilian to drive the high-water vehicle without authority, something he did not do. Rather Dunbar was charged with an alleged failure to report. According to the commission's suspension letter, whether Dunbar thought the actions were violations of regulations did not relieve him from reporting the facts of the incident.
Complainant, Chief Griffin, specifically did not allege Galvan's involvement in authorizing or approving non HFD members to drive the apparatus.
Trial Court Review:
The evidence before the commission reflected Dunbar after-the-fact witnessed Station 84's high-water vehicle being driven on a public road by a member of the Houston Rockets basketball team with lights and siren activated. The record before the commission further reflected that Dunbar contacted Chief Galvan via text, phone, and videos, to report the incident.
Deputy Chief Galvan testified at the commission hearing as follows:
Q. (By Chief Dunbar) So we went over last week that there were five phone calls between you and I when me and you on September 11th, 12th and 13th, you testified last week that the conversation was something about somebody driving the truck; is that correct?
A. [Chief Galvan] That's correct.
Q. Was it specific about a Houston Rockets driving a high water vehicle?
A. That was the event.
Q. Do you recall what we were discussing?
A. Something about what had happened at the event, and that it was on video.
This testimony created a substantial evidence question as to the fact of Dunbar's report, sufficient for the trial court to grant review.
Undisputed Facts:
It is undisputed Dunbar initiated these communications via a text message to Chief Galvan on September 11, the date of the event, and reported to Chief Galvan that a member of the Houston Rockets drove the vehicle on a public road. Therefore, it is undisputed Dunbar reported the operative acts and events to Chief Galvan, a superior officer. What might be disputed is whether Dunbar's report to Galvan was sufficiently "formal."
What Constitutes a Report:
The trial court reviewed the testimony of the commission and heard additional testimony. The record at both the commission and at the trial court is completely lacking any definition of what constitutes a "report" or any standard operating procedures or training, education, custom or practice which would establish a basis for defining when or how an HFD report must be made.
As a comparison, see U.S. Marine Corps, Order 3504.2A Operations Event/Incident Report (OPR EP-3) Reporting, p.5, "OPREP-3 Reporting Requirements" (07 Aug 2013).
The use of the word "report" as used in HFD Reference No. I-01, Rules and Regulations, section 6.06 is an act to be performed. The proper use in this scenario is as a verb, i.e.: "to give and account of: RELATE, TELL," "to make known to the authorities." Merriam-Webster Dictionary New Edition 58 (2004). The Rules and Regulations do not specifically require a formal or written report and using the verb as defined above, it is undisputed Dunbar did in fact, "relate," "tell" and give an account of the operative facts to a superior officer, Chief Galvan. Thus, under the facts of this case. it is not reasonable to discipline solely on a failure to report.
HFD Reference No. I-01, Rules and Regulations, section 6.06 provides, "Officers must model good behavior and promptly report, by well-sustained charges. . ."
Even governmental protocols for reporting our highest national security issues begin with verbal reports, see fn 8.
The Evidence:
The sole evidence advanced by the commission and by the majority is a challenged quote of Dunbar during the investigation. The report claims Dunbar stated "No, I did not observe what I would consider violations in relation to past events." The report later concludes this statement as an "admission" when it states, "DC Dunbar's admission of not reporting the violations because he did not consider them violations, does not relieve him from reporting."
The majority quoted this statement as substantial evidence Dunbar did not report any violation. But Dunbar challenged this was his statement, and even if made, in context, challenges another issue raised by Dunbar, which was under the rules, no report would be necessary if the violations were not "well-sustained" in light of prior actions.
The statement was not an admission. Dunbar challenged this was even his statement when Chief Peña testified he had "relied upon Dunbar's statement."Moreover, even if this statement had been made, it was a clear reference to another defense, as to whether or not the charges were "well sustained," and not therefore, clear, specific, and unambiguous, as to Dunbar's failure to report. The statement alone is not credible as establishing a failure to report considering the undisputed and objective facts, as evidenced by text messages, videos, phone calls, and the testimony of Chief Galvan.
Q. (BY MR. DUNBAR) Chief, you stated that the suspension was based on my statement, the statement to Professional Standards?
A. Your statement was considered when I made my decision. Yes.
Q. Okay. And you did not refer to my actual statement. You referred to the typed letter from Professional Standards?(Upon being presented with Dunbar's actual sworn statement) (by Chief Peña) "It's not in here, in this -- in what you presented."
Section 6.06 of the Rules and Regulations required Dunbar to "report," which he indisputably did in texting and phoning Chief Galvan, the most senior HFD officer at the event, and a superior officer to Dunbar. On the day of the incident Dunbar reported to Galvan that unauthorized Rockets players had driven the high-water vehicle on the public roadway with lights and sirens. Dunbar's reporting is reflected in the commission and trial court records through text messages, video, and phone records admitted into evidence and Chief Galvan's own testimony.
Because it is undisputed that Dunbar contacted Chief Galvan on the day of the incident and reported to Galvan the operative facts that an unauthorized Houston Rockets player drove the high-water vehicle. That failure to report was the sole charge against Dunbar; the commission's order is simply not supported by substantial evidence, and I would affirm the trial court's judgment. Because the majority reverses the trial court's judgment, I respectfully dissent.