Kenneth S. Olson v. City of Killeen and Killeen Fire Fighters' and Police Officers' Civil Service Commission--Appeal from 169th District Court of Bell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00166-CV
Kenneth S. Olson, Appellant
v.

City of Killeen and the Killeen Fire Fighters' and Police Officers' Civil Service Commission, Appellees

 
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 160890-C, HONORABLE OLIVER KELLEY, JUDGE PRESIDING
PER CURIAM

This appeal addresses whether civil service act provisions governing employee discipline extend to nondisciplinary decisions. Appellant Kenneth S. Olson appeals from a judgment rendered in favor of appellees, City of Killeen and the Killeen Fire Fighters' and Police Officers' Civil Service Commission (collectively "the City"). We will affirm the judgment of the trial court.

 

BACKGROUND

Olson is a police officer with the Killeen Police Department and a member of the Killeen fire fighters' and police officers' civil service system. In October 1995, the Department was restructured. The reorganization resulted in a sergeant's vacancy. The City undertook the process of selecting the officer for the position by conducting a promotional examination. A notice was posted announcing that the examination was being held for the purpose of filling a vacant sergeant's position. The highest scoring candidate was promoted to fill the then-existing vacancy as sergeant.

In April 1996 a second vacancy arose. Olson, followed by another officer, Gary Clark, were the next two candidates eligible for the position of sergeant. The Chief of the Department advised Olson that he was going to bypass Olson and appoint Clark to the position because he offered a better management profile. Following their discussion, the chief filed a memorandum with the Civil Service Commission stating his reason for not promoting Olson. The chief then advised Olson by memorandum of his right to seek review by the Civil Service Commission. In addition, on June 24, 1997, the director of the Commission notified Olson in writing that he had ten days to file his appeal. Olson complied and filed a notice of appeal with the Commission requesting that an independent third party hearing examiner review his case. Olson's request for a hearing examiner was denied. Instead, the Commission offered Olson the opportunity to seek administrative review before the Commission.

Rather than seek administrative review, Olson filed suit in district court asserting that failure to promote him for the reason stated by the chief, i.e., to promote another candidate with better qualifications, required the City to issue him a "letter of disciplinary action" under section 143.057(a) of the Texas Local Government Code. The City counterclaimed seeking a declaratory judgment that (1) section 143.036(f) of the Code exclusively provides the notice requirements for a non-disciplinary promotional passover; (2) the City's passover of Olson is subject to review only by the Civil Service Commission; and (3) Olson has no right to appeal his passover to a third party hearing examiner. Both parties moved for summary judgment and the district court rendered a take nothing judgment in favor of the City. It is from this judgment that Olson appeals.

 

DISCUSSION

A party is entitled to a summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985); Tex. R. Civ. P. 166a(c). If a defendant conclusively negates one of the essential elements of the plaintiff's cause of action as a matter of law, summary judgment is proper. Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.--Houston [1st Dist.] 1989, writ denied); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1988, writ denied).

In its motion for summary judgment, the City asserted among other claims, that summary judgment was proper because the City had fully complied with section 143.036 of the Texas Local Government Code. Section 143.036 addresses promotional bypass and provides the following:

 

If the department head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appointing another person. The department head shall also file the reason in writing with the commission. On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the commission.

 

Tex. Local Gov't Code Ann. 143.036(f) (West Supp. 1997). Our review of the stipulated facts reveals that the Chief complied with the provisions of section 143.036(f) when he (1) personally discussed his reasons for not promoting Olson to the position of sergeant, (2) filed a written explanation for bypassing Olson with the Commission; and (3) advised Olson of his right to apply to the Commission for an administrative review of the chief's decision. Hence we conclude that no issue of genuine material fact exists to preclude the trial court's judgment. We now consider whether summary judgment was proper as a matter of law.

Appellant relies on section 143.057(a) of the Code and asserts that when a city bypasses a police officer for nondisciplinary reasons, the law requires that the officer receive a letter informing him of the reasons for the passover. However, section 143.057 of the Code concerns only disciplinary actions and provides the following:

 

In addition to the other notice requirements prescribed by this chapter, the letter of disciplinary action issued to a firefighter or police officer must state that in an appeal of an indefinite suspension, a promotional passover, or a recommended demotion, the appealing firefighter or police officer may elect to appeal to an independent third party hearing examiner instead of the commission.

 

Tex. Local Gov't Code Ann. 143.057(a) (West 1988). Sections 143.052(c) and 143.054(b) of the Code require that the department head provide the person suspended or demoted with a letter informing him of the reasons for the disciplinary action. Tex. Local Gov't Code Ann. 143.052(c), 143.054(b) (West 1988). The plain language of the statute clearly states that in the absence of disciplinary action, the department head need only discuss personally with the officer the reasons for the promotional passover. Tex. Local Gov't Code Ann. 143.036(f); see Richard Miller, Texas Firemen's & Policemen's Civil Service Law 143.057-1 (9th ed. 1996).

A review of the record reveals that the Chief's act of bypassing Olson for the promotion was based on nondisciplinary reasons. Absent a disciplinary action, the City was not required to issue Olson a letter of disciplinary action. Furthermore, absent a letter of disciplinary action, Olson was not entitled to appeal to an independent third party hearing examiner instead of the Commission. We find no error and conclude that the City was entitled to summary judgment as a matter of law.

 

CONCLUSION

The judgment of the trial court is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: August 28, 1997

Do Not Publish

ject to review only by the Civil Service Commission; and (3) Olson has no right to appeal his passover to a third party hearing examiner. Both parties moved for summary judgment and the district court rendered a take nothing judgment in favor of the City. It is from this judgment that Olson appeals.

DISCUSSION

A party is entitled to a summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985); Tex. R. Civ. P. 166a(c). If a defendant conclusively negates one of the essential elements of the plaintiff's cause of action as a matter of law, summary judgment is proper. Goldberg v. United States Shoe Cor