Opinion
NO. 03-15-00591-CV
04-14-2016
The City of Austin Firefighters' and Police Officers' Civil Service Commission, Mark Washington, Arturo Acevedo, and The City of Austin, Appellants v. William M. Stewart, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-13-003351, HONORABLE ORLINDA NARANJO, JUDGE PRESIDINGMEMORANDUM OPINION
Appellants The City of Austin Firefighters' and Police Officers' Civil Service Commission, Mark Washington, Arturo Acevedo, and The City of Austin appeal from the trial court's order denying their plea to the jurisdiction. We reverse the trial court's order and render judgment dismissing appellee William M. Stewart's suit.
Background
Stewart was a police officer employed by the City of Austin's police department (APD). In August 2012, APD's chain of command conducted an investigation and determined that Stewart had violated APD's policies on neglect of duty, use of mobile data computers, and honesty. The chain of command recommended that Stewart be placed on indefinite suspension, which is the equivalent of being fired. See Tex. Loc. Gov't Code § 143.052(b). In September 2012, rather than appeal, Stewart, who was represented by an attorney, signed a "Last Chance Agreement" that temporarily suspended him for sixty days and placed him on probation for one year. The Last Chance Agreement, which was also signed by Chief of Police Acevedo, provided that if during his one-year probationary period, Stewart "commits the same or a similar act of misconduct for which he is being suspended, he will be indefinitely suspended without the right to appeal that suspension." The Last Chance Agreement concluded with a statement that Stewart "waive[d] all right to appeal this disciplinary action, including the additional terms and conditions cited herein," to the Commission, an independent third-party hearing examiner, or the trial court.
On July 30, 2013, Stewart was indefinitely suspended after Chief Acevedo determined that Stewart had committed same or similar acts of misconduct after his sixty-day suspension. Stewart filed an appeal with Washington, Director of the Commission, asserting that he had not committed any misconduct; that, even if misconduct had occurred, it was not same or similar misconduct that warranted his indefinite suspension under the Last Chance Agreement; and that indefinite suspension was excessive for the misconduct alleged. Stewart asked for a hearing before an independent third-party hearing examiner. Washington responded by letter that Stewart had waived his right to appeal his indefinite suspension, that the Commission lacked jurisdiction to act on the appeal, and that no further steps would be taken to process the appeal.
Chief Acevedo's letter placing Stewart on indefinite suspension explains that Stewart's actions were reviewed by another officer and then investigated by Internal Affairs. Chief Acevedo relied on those findings in indefinitely suspending Stewart pursuant to the Last Chance Agreement.
Stewart filed suit in the trial court, seeking to compel appellants to provide him an appeal to a hearing examiner under chapter 143 of the local government code, the Civil Service Act ("the Act"). See id. §§ 143.001-.403. Appellants filed a plea to the jurisdiction asserting that Stewart was not entitled to a hearing and that they were entitled to governmental immunity. The trial court denied the plea and remanded the matter to allow a hearing examiner to determine whether Stewart had committed same or similar acts of misconduct. Appellants filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
Standard of Review
A plea to the jurisdiction challenges the trial court's authority to decide a case. Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). We review a trial court's decision on a plea to the jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). When a governmental entity is immune from suit, the trial court lacks subject-matter jurisdiction unless the legislature has expressly consented to the suit. City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). However, "while governmental immunity provides broad protection to the state and its officers, it does not bar a suit against a government officer for acting outside his authority—i.e., an ultra vires suit." Houston Belt & Terminal Ry. v. City of Houston, No. 14-0459, 2016 WL 1312910, at *3 (Tex. Apr. 1, 2016). Governmental immunity protects officials who act "consistently with the law, which includes those who act within their granted discretion," and we look to applicable rules, ordinances, and statutes to determine whether an alleged act or failure to act fits within the narrow ultra vires exception. Id. at *5-6. "Although only exercises of absolute discretion are absolutely protected, whether a suit attacking an exercise of limited discretion will be barred is dependent upon the grant of authority at issue in any particular case. And so many legislative grants of authority, although not absolute, will be broad enough to bar most, if not all, allegedly ultra vires claims." Id. at *6.
Discussion
The only question we must answer in this case is whether Washington committed an ultra vires act in refusing to forward Stewart's appeal to a hearing examiner to consider whether Stewart had committed same or similar acts of misconduct. If Stewart waived his right to appeal that issue, Washington did not act ultra vires, and the trial court lacked jurisdiction over the claim.
Although Stewart also sought declarations that the Last Chance Agreement was void and sought mandamus relief requiring appellants to grant Stewart protection under the Act, he concedes on appeal that the trial court lacked jurisdiction over his non-ultra-vires claims. However, he also asserts that appellants' arguments related to exhaustion of remedies do not apply to his claim that the Last Chance Agreement was void because (1) it did not comply with the Meet and Confer Agreement ("M&C Agreement") between the City and the Austin Police Association, APD officers' exclusive bargaining agent (the M&C Agreement governs relations between the City and APD officers, including disciplinary actions, see generally Tex. Loc. Gov't Code §§ 143.301-.313, and supersedes conflicting statutes, see id. § 143.307), and (2) the Austin Police Association was not a party to the M&C Agreement. We disagree.
Appellants state, and Stewart does not dispute, that when he entered into the Last Chance Agreement, Stewart was "represented by the Austin Police Association" and an attorney from the Combined Law Enforcement Associations of Texas. (The Combined Law Enforcement Associations of Texas is "a labor union that represents law enforcement officers" and that works with and assists local police associations. See Combined Law Enf't Ass'ns of Tex. v. Sheffield, No. 031300105CV, 2014 WL 411672, at *1 (Tex. App.—Austin Jan. 31, 2014, pet. denied) (mem. op.).) Further, the M&C Agreement provides that the police chief and an officer may enter into last chance agreements without anywhere indicating that the Austin Police Association must sign the agreement as a party. Finally, the Last Chance Agreement did not alter the terms of the M&C Agreement, and thus the Austin Police Association's consent was not necessary. We note that, if the Last Chance Agreement were determined to be void, the original indefinite suspension would be back in place. See Mata v. City of San Antonio, No. 041100311CV, 2012 WL 1364594, at *5 (Tex. App.—San Antonio Apr. 18, 2012, pet. denied) (mem. op.) ("After his first indefinite suspension, Mata was reinstated contingent upon his execution of the last chance agreement. In his appeal of his second indefinite suspension, Mata asked the hearing examiner for reinstatement because the last chance agreement was void. If the last chance agreement is void, then Mata's first indefinite suspension remains in place.").
The Act governs the employment and discipline of police officers.See Tex. Loc. Gov't Code §§ 143.001-.403. However, as allowed by the Act, the City entered into a Meet and Confer Agreement ("the M&C Agreement") with the Austin Police Association, APD officers' union. See id. §§ 143.306, .307. The M&C Agreement, which addresses disciplinary actions and when disciplinary decisions may be appealed, supersedes any contrary statute, ordinance, or rule, including provisions under the Act. See id. § 143.307 (meet and confer agreements preempt any contrary statute, ordinance, rule, or executive order); Agreement Between the City of Austin & the Austin Police Ass'n, art. 18, § 17 (effective Oct. 1, 2008) (disciplinary provisions of M&C Agreement preempt any statute, ordinance, policy, or rule "in conflict with this Agreement and the procedures developed hereunder, including for example and not by way of limitation, any contrary provisions of Chapters 141, 142, and 143 of the Texas Local Government Code, including but not limited to the provisions of Section 143.072, the provisions of Subchapter D of Chapter 143 and all specific provisions referred to in this Article"). We construe the M&C Agreement as we would any other contract, reviewing its meaning de novo and reading the entire agreement "in an effort to harmonize and effectuate all of its provisions so that none are rendered meaningless." Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at *3 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.). "We do not give controlling effect to any single provision; instead, we read all of the provisions in light of the entire agreement." Id.
The Act provides a limited waiver of governmental immunity from suit for appeal of a Commission decision, see Tex. Loc. Gov't Code § 143.015, but that provision does not apply because Stewart's attempted appeal was not referred to a hearing examiner to begin the appeal process and thus did not result in a Commission decision.
See generally Agreement Between the City of Austin & the Austin Police Ass'n (effective Oct. 1, 2008).
See City of Houston v. Williams, 353 S.W.3d 128, 149 (Tex. 2011) (meet and confer agreement constitutes a contract).
Article 18 of the M&C Agreement addresses disciplinary actions and has specific provisions governing different kinds and durations of suspensions. See Agreement Between the City of Austin & the Austin Police Ass'n, art. 18, §§ 1-17 (Disciplinary Actions, Demotions and Appeals). Under the M&C Agreement, if an officer is subject to indefinite suspension, the Police Chief and the officer may enter into a last chance agreement; if the officer agrees to such an agreement but then commits a same or similar act of misconduct within the agreed probationary period, the officer "will be indefinitely suspended without right of appeal." Id. § 7(a)(3). Section 7 does not refer to a third-party fact-finder having any authority to make a determination of same or similar misconduct. See id. § 7. By contrast, an officer placed on suspension for up to three days may appeal "to arbitration of the Civil Service Commission" in an appeal limited to "whether or not the charges against the officer are true or not true," id. § 1(a)(2). Further, a suspension of up to three days shall be reduced to a written reprimand after either two or three years, depending on whether the officer was previously disciplined for "substantially similar conduct"; whether the prior conduct was substantially similar is specified as an issue that "may be presented to an arbitrator under the other provisions of this Article." Id. § 1(c)(3).
Article 18, section 3 of the M&C Agreement, titled, "Mutually Agreed Temporary Suspensions of Sixteen (16) to Ninety (90) Days," also includes a waiver of appeal, stating that if an officer accepts the mutually agreed suspension, "there shall be no appeal either to the Police Civil Services Commission, to the District Court or to a Hearing Examiner." Agreement Between the City of Austin & the Austin Police Ass'n art. 18, § 3.
Stewart insists that Washington committed an ultra vires act when he refused to refer Stewart's appeal to a hearing examiner under section 143.057(d) of the Act. He argues that although the Last Chance Agreement contained a waiver of his right to appeal, that waiver was narrow and conditional and was not "triggered" because the predicate condition, his commission of an act of same or similar misconduct, had not occurred. Thus, he asserts, he was entitled to appeal from his termination and to have a hearing examiner decide whether he committed an act of same or similar misconduct. We disagree.
Although the Act provides a process for appealing from an indefinite suspension or other disciplinary action, those statutory provisions were preempted by the M&C Agreement. Further, the Act does not provide for an officer to be given the opportunity to enter into a last chance agreement—such agreements are purely the creation of the M&C Agreement and thus are governed by the M&C Agreement's disciplinary provisions, which specify when discipline may be appealed and issues that may be appealed. See generally id. art. 18.
In creating last chance agreements as a disciplinary option, the M&C Agreement explicitly states that if an officer subject to such an agreement "commits the same or a similar act of misconduct, the officer will be indefinitely suspended without right of appeal." Id. § 7(a)(3). Although section 7 does not specifically include a determination of same or similar misconduct in its waiver of the right to appeal, the fact that the parties included such language in the section addressing shorter suspensions and excluded it from section 7 leads us to believe that the exclusion was purposeful and that the parties did not intend that an officer given a last chance after committing misconduct serious enough to warrant immediate termination should be able to appeal if it was later and again determined that he should be terminated.See Transcontinental Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 667 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) ("When parties include exclusions in prior indemnity clauses and omit them in a new clause, the court will assume the omission was purposeful and that broader coverage was intended."); see also Steeger v. Beard Drilling, Inc., 371 S.W.2d 684, 688 (Tex. 1963) ("It is the duty of the Court to construe the contract as an entire instrument, and to consider each part with every other part so that the effect and meaning of one part on any other part may be determined. This process makes clear the intent of the parties and the extent to which they intended to be bound."). We agree with appellants that allowing an officer who enters into a last chance agreement as an alternative to immediate termination and is later determined by an internal investigation to have committed the same or similar misconduct while on probation to essentially "unwaive" his right to appeal would defeat the purpose of the waiver language included in both the M&C Agreement and this Last Chance Agreement.
Compare id. art. 18, §§ 1(a)(2) (if officer appeals suspension up to three days long, appeal is "limited to ruling on whether or not the charges . . . are true"), 1(c)(3) ("Any controversy over whether or not the prior conduct was substantially similar may be presented to an arbitrator under the other provisions of this Article."), with id. art. 18, §§ 3 (if officer agrees to suspension between sixteen and ninety days long, "there shall be no appeal"), 7(a)(3) (if officer accepts last chance agreement but commits same or similar misconduct during probationary period, "the officer will be indefinitely suspended without right of appeal").
This is not a case in which an officer was terminated based on unsupported allegations of misconduct. Whether Stewart had committed acts of same or similar misconduct was investigated and determined to be true by a superior officer and an internal affairs investigation.
Although Stewart insists that he is not appealing from the Last Chance Agreement but instead from his indefinite suspension, he was terminated pursuant to the Last Chance Agreement. Stewart agrees that the M&C Agreement is valid and in place and he does not assert on appeal that the Last Chance Agreement is void. He further agrees that the Last Chance Agreement was developed pursuant to the M&C Agreement and that he is subject to the terms of the Last Chance Agreement. The issue before us is very narrow: under these circumstances, do the appeal provisions of chapter 143 of the Act apply? We hold that they do not.
An internal affairs investigation determined that Stewart had committed acts of same or similar misconduct, and Chief Acevedo acted within his authority to agree and place Stewart on indefinite suspension. Stewart waived his rights to appeal Chief Acevedo's authority to place Stewart on indefinite suspension, including his right to contest the determination of same or similar misconduct. Thus Washington did not commit an ultra vires act in refusing to process Stewart's notice of appeal and begin the process of setting the appeal before a hearing examiner.
Stewart asserts that his claim that he is entitled to appeal to the hearing officer is a "typical ultra vires claim" and that in a similar case, our sister court of appeals ruled that a firefighter's suit seeking an appeal from his termination was properly before the trial court, overruling the city's argument that the termination was non-appealable. See Stubbs v. City of Weslaco, No. 13-14-00054-CV, 2015 WL 124310 (Tex. App.—Corpus Christi Jan. 8, 2015, no pet.) (mem. op.). He also asserts that another court of appeals overruled a city's argument that a firefighter had contractually waived his right to appeal. See Zambrana v. City of Amarillo, No. 07-13-00058-CV, 2014 WL 5037808 (Tex. App.—Amarillo Oct. 8, 2014, no pet.) (mem. op.). However, neither of those cases is applicable here. In Stubbs, the court stated that the firefighter's claims that the civil service director should process his appeal under the Act were properly within the trial court's jurisdiction. 2015 WL 124310, at *5. However, that was a case in which the firefighter was terminated for not complying with the city's medical leave policy and in which the director had refused to process the appeal on grounds that the firefighter had addressed his letter of appeal to the wrong person and had not been terminated for disciplinary reasons; there was no discussion of a meet and confer agreement or a last chance agreement that waived appellate rights. See id. at *2-5. In Zambrana, a firefighter agreed to a fifteen-day suspension after he was charged with domestic abuse. 2014 WL 5037808, at *1. The suspension agreement stated that it would serve as the firefighter's resignation if he was convicted of a certain level of offense. Id. When that came to pass and the city interpreted the agreement as a notice of resignation, the firefighter sought to appeal and was told that the appeal would not be processed because the agreement was a resignation instead of a disciplinary termination. Id. The court of appeals reversed because the city's "plea to the jurisdiction" challenged the merits of the firefighter's claims but did not argue that the trial court lacked subject matter jurisdiction. Id. at *3. The court noted in passing that the firefighter waived his right to appeal in the agreement, but there was no discussion related to that issue and, thus, there is no way to apply that case to the facts presented here.
Conclusion
Because the act complained of by Stewart was not an ultra vires act, the trial court lacked jurisdiction over Stewart's complaints.See Houston Belt & Terminal Ry., 2016 WL 1312910, at *5-6. We therefore reverse the trial court's order and render judgment dismissing Stewart's claims for want of jurisdiction.
Stewart insists that appellants' arguments go to the merits of Stewart's claims and are not mere jurisdictional arguments, but in considering jurisdiction, we must examine the facts surrounding the act alleged to be ultra vires. Those facts establish as a matter of law that Washington did not have a ministerial duty to forward Stewart's appeal and that his refusal to do so was not an ultra vires act. --------
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Reversed and Rendered Filed: April 14, 2016