City of Houston v. Vitek , 1993 Tex. App. LEXIS 695 ( 1993 )

SEARS, Justice,

dissenting.

I respectfully dissent.

There exists no power in a district court to review an administrative decision unless: (1) there is a statutory right of appeal; or (2) the order violates a constitutionally protected interest. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385 (Tex.1967); Sells v. Roose, 769 S.W.2d 641 (Tex.App.—Austin 1989, no writ). In the case of the denial of a position or back pay, the constitutionally protected interest must be a vested property right. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Mokwa v. City of Houston, 741 S.W.2d 142 (Tex.App.—Houston [1st Dist.] 1987, writ denied). There is no statute vesting jurisdiction in the district court to review the administrative decisions of the Civil Service Commission. Therefore, the only way the trial court could obtain jurisdiction was if the Commission’s final decision, dated June 7, 1989, violated a vested property right. Appellee contends his right to back pay is a vested property right.

Any City employee can apply for any posted position. Vacancies in the classified department shall be filled, when practicable, by employees within the department. All applicants are tested for qualifications for the particular position. An eligibility list is created, consisting of the names of persons who had passed suitable tests, and arranged in order of merit. The Commission determines the qualifications of each employee, and then determines which employee is entitled to the promotion. In other words, an employee more qualified than Vitek could have received the promotion. A person holding an “acting” position does not automatically qualify for the promotion.

In August, 1986, after unsuccessful grievance procedures, Vitek requested that the Civil Service Commission review the Hearing Examiner’s adverse order. The Commission reviewed the record of the hearing, and remanded the case to the Hearing Examiner. The remanded order was styled “Final Order,” but stated as follows:

The Commission, having reviewed the record of the hearing conducted by the Hearing Examiner ... ORDERS this case remanded to the Hearing Examiner for taking of further evidence. Hearing Examiner to receive evidence on following issues: 1. Is grievant acting as the Section Chief? 2. If so, how long? 3. If he has been so acting for more than 90 days, has he been improperly denied a temporary promotion to that classification pending competitive process to fill permanently? 4. If he has performed the work, then he should receive pay from 91st day to present, (emphasis added).

The Hearing Examiner responded on March 31, 1987 that Mr. Vitek had been acting as the Section Chief for over 90 days, but he failed to answer whether Mr. Vitek had been “improperly denied a temporary promotion.” He stated that “inasmuch as Mr. Vitek performed the duties and responsibilities associated with those of a Section Chief his compensation should be adjusted accordingly from the 91st day.” The Commission received the response but took no immediate action: apparently, because the examiner failed to find appellant was improperly denied the promotion.

On February 27, 1989, Vitek filed a Writ of Mandamus to force the Commission to rule on the findings. On May 9, 1989, the Commission again ordered the Examiner to answer question number 3: “... has [Vi-tek] been improperly denied a temporary promotion ... The Examiner was further directed to answer either “Yes,” “No,” or “I don’t know.” The Examiner responded “I don’t know.”

The Civil Service Commission of the City of Houston then issued it’s final ruling on June 7, 1989. Based on the Examiner’s failure to find that Mr. Vitek had been improperly denied a temporary promotion, the Commission ruled that Mr. Vitek had not been improperly denied back pay.

Appellee maintains that the order denying him back pay was in violation of the earlier “Final Order” of the Commission. However, a final order is “one that leaves nothing open to dispute, and ... nothing unfinished or inconclusive.” Pope v. City of Dallas, 636 S.W.2d 244, 247 (Tex.App.— El Paso 1982, no writ). The February Order requested additional information in order to make ¿ final determination. By it’s very terms, it could not be final. The 4th “question” was not a question at all. It was more like an instruction that “implied” Vitek should receive back pay if the Examiner answered “Yes” to all three preceding questions. The Examiner did not affirmatively answer all three questions. Therefore, the Commission could not order the requested back pay. Subsequently, they sent it back to the Examiner to force an answer to the key question: was Vitek improperly denied a temporary promotion. When the Examiner could not answer this single question in the affirmative, the Commission denied the requested back pay. Clearly, there was never an order by the Commission granting Vitek back pay.

The majority opinion finds the initial order of the Commission was “conditional,” but could also be final. However, the finding that Vitek was entitled to back pay was conditioned on a finding that he was “improperly denied a temporary promotion.” This finding was never made and the condition was never met.

Appellee also maintains that the ordinances of the City of Houston created a vested property right. The City of Houston is a home-rule municipal corporation organized under the laws of the State of Texas. “Under Article 11 § 5 of the Texas Constitution, the powers of a home-rule city are plenary, subject only to the limitations of the city’s own charter and ordinances.” City of Dallas v. Parker, 737 S.W.2d 845, 847 (Tex.App.—Dallas 1987, no writ). Therefore, Houston’s own charter and ordinance provisions govern the appointment, employment, promotion, removal, or suspension of municipal employees. Id. at 847. Chapter 14 of the City Ordinance controls all employment-aspects of municipal employees. Appellee claims that, as a municipal employee, he is entitled to back pay because § 14-27 and § 14-64 of the Ordinance warrant like pay for like work. However, Chapter 14 must be read in its entirety. The Chapter does not provide for like payment for like work unless the employee occupies the position “according to the provisions of the charter.” § 14-14.

Chapter 14 provides five ways by which an employee’s duties can be increased. It allows for (1) promotions; (2) temporary promotions; (3) temporary assignments; (4) transfers; and (5) re-assignment of duties.

A promotion is “a change in employment status ... to a position of more responsibility or higher classification or salary.” § 14-27. Promotions are made only by the Commission. § 14-131.

A temporary promotion is an interim promotion. § 14-134. It may be authorized only by the Commission, upon the written request of a department head. Id.

A temporary appointment is an appointment made from an appropriate eligibility list, to a department requiring temporary assistance. § 14-113. Only the “appointing authority,” the Mayor, has the power to appoint an employee to a position. § 14-27.

A transfer is a move from “one position to another position.” § 14-115. The transfer of an employee from one department to another “may be made only upon the approval of the civil service commission.” Id. “Any transfer of an employee from a position in a lower class to a position in a class carrying a higher maximum salary shall be deemed a promotion ... and [it] may [not] be accomplished except in the manner provided in these rules for making a promotion.” Id.

The re-assignment of duties is the “result of changing by a supervisor, section head, division or department head, of an employee’s duties or responsibilities either gradually or suddenly.” § 14-27. The Chapter provide that “all appointments and promotions ... shall be on the sole basis of merit and fitness which, so far as practicable, shall be ascertained by means of competitive examinations.” § 14-34.

Appellee claims that he was promoted to his position through a “de facto promotion.” The Ordinance does not provide for “de facto promotions.” All changes in an employee’s status, which provide for an increase in salary or title, are made pursuant to Chapter 14, and must be approved by the Civil Service Commission or the Mayor. Mr. Vitek’s assignment from the Northside Wastewater Treatment Plant to the Sims Bayou Wastewater Treatment and Sludge Disposal Plant was made by his supervisor, Lonnie Lange, and the branch manager, Eobert Borchardt. His assignment was never approved by the Civil Service Commission.

In Mokwa v. City of Houston, 741 S.W.2d 142 (Tex.App.—Houston [1st Dist.] 1987, writ denied), Mokwa sought to recover back pay from the City. She contended that on various dates, while classified as a Fingerprint Classifier, she worked as an Identification Supervisor. Her supervisor had requested that she perform the extra duties. The law applicable to the promotion of police officers provided that positions were to be filled only through competitive civil service examinations, or by a temporary designation by the “Head of the Department.” Mokwa at 146. The Head of the Department was the Chief of Police. Mokwa at 147. The First Court of Appeals held that “because Mokwa was never designated by the Chief of Police to fill any vacant higher position, she has no claim under” the relevant article for back pay. Mokwa at 147. I agree with the reasoning of the Court in Mokwa, and would hold that Vitek has no claim for back pay under the ordinances of the City of Houston because he was never designated for a higher position by either the Civil Service Commission or the Mayor.

Appellee next maintains that he should have been promoted by the City, because the Commission had the power to do so. However, “a state agency’s failure to follow its own procedural rules governing employment will not create a property interest which otherwise does not exist." Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex. App. — Dallas 1987, no writ). At the very most, Vitek had an expectancy of a promotion. An expectancy is not a vested property interest. Id.

The City of Houston has demonstrated that Vitek’s appeal of the administrative order was neither: (1) authorized by statute; nor (2) instituted to protect a vested property right. While sympathy and equity are in Mr. Vitek’s corner, the authority and case law is against him. Therefore, I find that the district court lacked jurisdiction to hear the appeal. I would reverse the judgment of the trial court awarding Vitek back pay and attorney’s fees, and render judgment in favor of the City of Houston.