DocketNumber： 01-07-00026-CV
Filed Date： 7/24/2008
Status： Precedential
Modified Date： 9/3/2015
Opinion issued July 24, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00026-CV
ANTHONY JACKSON AND JAMES NUÑEZ, Appellants
V.
CITY OF TEXAS CITY AND DEBBIE LESCO, CITY CIVIL SERVICE DIRECTOR, Appellees
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 06CV0899
DISSENTING OPINION
I respectfully dissent. The majority opinion deprives fire fighters of the procedural protections given to them by the legislature under the Civil Service Act ("the Act"). See Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 2008). Fire fighters Anthony Jackson and James Nuñez were terminated for not complying with the Emergency Medical Technician (EMT) requirements described in their employment agreements, and seek the right to appeal guaranteed by the Act, which gives fire fighters the right to challenge terminations that result from discipline. See City of Sweetwater v. Geron, 380 S.W.2d 550, 552-53 (Tex. 1964) ( "[T]he State has pre-empted the field for removal of firemen and policemen for disciplinary reasons."). The majority opinion declines to give fire fighters Jackson and Nuñez the right to appeal their terminations because it contends they were terminated for failing to abide by the terms of the employment contract entered through collective bargaining. The majority opinion is erroneous in this determination, for three reasons.
First, the majority opinion contends the terminations are for non-disciplinary reasons because the discharges are for failing to abide by the terms of the employment contract. Each of the employment contracts states, "It is understood that failure to satisfactorily complete the EMT Basic or Paramedic training and qualify for State Certification . . . constitute cause for disciplinary action up to and including termination of the employee." Thus, the terms of each of the employment agreements provide that termination for failure to abide by the EMT requirements is considered "disciplinary action." Because the applicable employment agreements describe the terminations as discipline, the majority opinion errs by ignoring the terms of the agreements in its decision to call the terminations non-disciplinary actions. See Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 2008).
Second, the grounds for termination of Jackson and Nuñez plainly fall within the Act, which applies to terminations for acts of incompetency or neglect of duty. See Tex. Loc. Gov't Code Ann. § 143.051 (Vernon 2008) ("A commission rule prescribing cause for removal or suspension of a fire fighter or police officer is not valid unless it involves . . . (3) acts of incompetency; [or] (4) neglect of duty . . . ."). The terminations of Jackson and Nuñez were for acts that fall within the categories of incompetency or neglect of duty, in that they were incompetent by failing to meet the required EMT requirements as those requirements were set out in the "Conditions of Employment" or they neglected their duty to meet the required EMT requirements as those requirements were set out in the "Conditions of Employment." Thus, the majority opinion errs by stating that the failure to meet the EMT requirements constitutes only a violation of the employment agreement and is not also a violation to which the Act applies. Because the terminations of Jackson and Nuñez were for acts properly classified as acts of incompetency or neglect of duty, the Act applies. See id.
Third, the majority opinion errs in its assessment that the Act's requirements are inapplicable because the agreements fail to mention the Act. Under the Act, the provisions of the Act prevail over a collective bargaining agreement "unless the collective bargaining contract specifically provides otherwise." See Tex. Loc. Gov't Code Ann. § 174.006(a) (Vernon 2008). The collective bargaining agreements here do not specifically provide that the Act is inapplicable. See id. Because the agreements here fail to specifically provide that the Act does not apply, the Act necessarily applies since its provisions "prevail over a collective bargaining agreement." See id.
Here, the Act applies because (1) the terminations were undisputedly discipline; (2) the discipline was for matters of incompetence or neglect of duty; and (3) the employment agreements fail to state that the Act is inapplicable. The majority opinion errs by its determination that the Act is inapplicable and by refusing to give the firefighters the procedural protections to which they are entitled under the Act. All that the firefighters want at this juncture is the procedural right given to them by the legislature, which is the right to have a civil service review of their terminations. It is not for us or the trial court to determine whether their terminations were actually proper. I conclude that the trial court erred by dismissing the claims filed by Jackson and Nuñez. I would reverse the trial court's order and remand to the trial court for further proceedings.
Elsa Alcala
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Justice Alcala, dissenting.