City of Kyle, Helen Gallagher, Barney Knight and James Miller v. David Young

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00055-CV City of Kyle, Helen Gallagher, Barney Knight and James Miller, Appellants v. David Young, Appellee FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT NO. 97-0765, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING Appellants City of Kyle, Helen Gallagher, Barney Knight, and James Miller appeal from a district court order denying their motion for summary judgment based on official and absolute immunity. Because we conclude that the summary judgment evidence established the individual appellants' official immunity as a matter of law, we reverse the district court's denial of summary judgment, render judgment that appellants are immune as to certain claims, and remand for further proceedings. BACKGROUND FACTS This suit arises out of the termination of appellee David Young as Chief of Police of the City of Kyle. Appellants Gallagher and Miller are members of the Kyle City Council; appellant Knight is the City Attorney. Young began work as Chief of Police in February 1992. On February 4, 1997, the City Council met to evaluate Young's performance and to discuss allegations that, while acting as Chief of Police, Young had falsified a traffic citation and an employee's time sheet, obtained a cellular telephone account on a government contract for his personal use, and failed to appear in municipal court on August 1, 1996, to testify in the prosecution of traffic violations. No action was taken, and the meeting was recessed until February 10. On February 10, 1997, the Council reconvened to consider a motion to terminate Young's employment immediately for "lack of confidence." The motion carried by a vote of three-to-two. Appellants Gallagher and Miller and a third council member, Vic Whadford, voted to terminate Young. Council members Mattie Broadfoot and Chevo Pastrano voted against the motion. City Attorney Knight advised Young, who was present at the meeting, that he had five days to appeal the Council's decision. Young timely appealed the dismissal and was reinstated by the Mayor of Kyle, Lee Sturdivant. Young continued to work as Chief of Police and lost no pay or benefits. On February 14, Young reported to the Texas Rangers an incident involving the allegedly wrongful issuance of a check by the City to the son of a City employee. Ten days later, Young made a similar report to the F.B.I. The issue of Young's performance as Chief of Police was discussed again at a council meeting on February 18. Young was invited to open the issue of his employment status for discussion, but he declined to do so. By a three-to-two vote, the Council amended its ordinances to prevent the mayor from having the final decision on personnel matters. Three days later, the mayor overrode the amendatory ordinance. See Tex. Loc. Gov't Code Ann. § 52.003 (West 1999). On March 18, the Council again met to discuss Young's performance and voted three-to-two to dismiss him for "misconduct." The minutes indicate that Young was not present at the meeting. Again, the mayor overrode the Council's decision, and Young continued in his duties. This series of meetings and discussions of Young's employment status culminated in a specially-called council meeting on March 26. Although Young was present at the meeting, the parties disagree as to whether Young was represented by counsel. Young was invited to address the Council, but he left the meeting without speaking. After discussion in open session and executive session, appellant Knight stated that the parties had reached an agreement that Young would be temporarily suspended in exchange for an apology by Young and the mayor's agreement not to veto the suspension. Appellant Miller moved to suspend Young for seven weeks without pay. Prior to a vote on the motion, James Merks, one of the two lawyers present with Young, stated: Ladies and gentlemen of the council, my name is James Merks. I have a statement that David Young has asked me to present to you. He says, "I deeply apologize for all of the inconvenience this situation has created for the City of Kyle and the council members. I apologize for the deep concern it has caused everybody. I was wrong in approving the time sheets, and it's something that will never happen again." Thank you. The Council then voted unanimously to suspend Young. At the regular City Council meeting on May 20, 1997, the Council considered Young's reinstatement. Young's wife spoke to the Council and addressed the allegations against her husband. After a motion to reinstate failed, the Council voted three-to-two to dismiss Young "for cause." Young's appeal of the dismissal to the Council was denied. Young then sued the City, claiming that he was terminated in retaliation for reporting alleged wrongdoing by City employees and officials to the Texas Rangers and the F.B.I. (1) Young also alleged that the City and the individual appellants conspired to deny him procedural due process in violation of article I, section 19 of the Texas Constitution. Additionally, Young sued appellant Gallagher for defamation and intentional infliction of emotional distress, appellant Knight and the City for violating his rights to free speech and procedural due process guaranteed by the United States Constitution, and the City for unjust enrichment related to accrued vacation pay. Young filed a motion for summary judgment on the ground that he was wrongfully denied accrued vacation pay after he was terminated. The appellants filed a motion for summary judgment asserting the official immunity of the individual appellants and, derivatively, the immunity of the City, with respect to Young's state constitutional claims and his claim of conspiracy. The appellants also asserted absolute immunity for Gallagher and Miller from any complaint by Young concerning their actions taken as legislators for the City. The district court denied both parties' motions for summary judgment. DISCUSSION An appeal ordinarily may be taken only from a final judgment. See North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Generally, denial of a motion for summary judgment is not a final judgment and is therefore not appealable. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). Section 51.014 of the Texas Civil Practice and Remedies Code, however, specifically allows appeal of some interlocutory orders, including an order denying a motion for summary judgment based on an assertion of immunity by an individual who is an employee of the State or a political subdivision of the State. (2) In this case, appellants moved for summary judgment based solely upon the official immunity of the individual appellants with respect to Young's state constitutional claims and his claim of conspiracy. (3) Government employees, including city officials, are entitled to official immunity from suit arising from the performance of (1) their discretionary duties (2) in good faith, so long as (3) they are acting within the scope of their authority. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); see also Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). The purpose of official immunity is to insulate the functioning of government from the harassment of litigation. See Kassen, 887 S.W.2d at 8. Where official immunity protects a government official, the government entity for which he acts derives immunity therefrom by operation of the respondeat superior principle. See Dewitt v. Harris County, 904 S.W.2d 650, 653-54 (Tex. 1995); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993). This derived immunity is not to be confused with the entity's governmental immunity, which protects the government entity directly. See Kassen, 887 S.W.2d at 8. By virtue of the assertion of immunity by the individual appellants, we exercise jurisdiction over both the City's and the individuals' interlocutory appeal. Official immunity is an affirmative defense; thus, we must determine whether the appellants conclusively proved all essential elements of the defense as a matter of law. See Chambers, 883 S.W.2d at 653; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). If appellants carried the burden of establishing each of the three elements of official immunity, we must then determine whether Young produced proof creating a material fact issue as to any element. In deciding whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the nonmovant will be taken as true, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is not entitled to judgment as a matter of law on an affirmative defense if the plaintiff supplies evidence such that reasonable minds could differ on any material fact issue relevant to the defense. See Kassen, 887 S.W.2d at 9. The parties agree that the individual appellants were government officials acting within the scope of their authority. But Young contests whether appellants' summary judgment evidence conclusively established that the individual appellants were performing discretionary functions in good faith. Young first contends that appellants failed to present any evidence to show that their participation in council meetings at which his employment status was discussed and voted upon involved the performance of discretionary duties. A government employee's official actions are cloaked with official immunity when the employee's job requires the exercise of personal judgment and discretion. See Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992). In contrast, a government employee's performance of duties that are merely ministerial in nature is not cloaked with official immunity. See id. Ministerial acts involve obedience to orders or the performance of a duty in which the actor has no choice. See Chambers, 883 S.W.2d at 654; Albright v. Department of Human Servs., 859 S.W.2d 575, 579 (Tex. App.--Houston [1st Dist.] 1993, no writ). Investigating and acting on gathered facts has been characterized as a discretionary function. See Albright, 859 S.W.2d at 579; see also Fowler v. Szostek, 905 S.W.2d 336, 342 (Tex. App.--Houston [1st Dist.] 1995, no writ). Our review of the summary judgment record reveals that Gallagher and Miller were carrying out discretionary functions when they investigated the allegations against Young and voted to terminate his employment as Chief of Police. In affidavits attached to appellants' motion for summary judgment, Gallagher and Miller recounted the events leading up to Young's termination. Both council members described receiving information at the council meeting on February 4, 1997, concerning alleged misconduct by Young in his capacity as Chief of Police. They testified that the Council discussed the allegations and that Young participated in the discussion. Both Gallagher and Miller explained that when the Council reconvened on February 10 and concluded the discussion, they voted to terminate Young's employment. Gallagher and Miller also noted that their votes to terminate at this meeting and each subsequent meeting were based on a consideration of the issues first brought forward on February 4 regarding Young's performance as Chief of Police. Furthermore, in a deposition submitted as part of appellants' summary judgment proof, City Attorney Knight testified that he discussed the allegations against Young with Gallagher before the February 4 meeting. Knight observed that when personnel matters are discussed at council meetings, his job is to "make sure that the process is one that is reasonable, fair and open, where everybody gets a chance to get all the facts and make the judgments." Finally, Knight testified that Young's termination on May 20 was based on a discussion of the same allegations considered at the February 4 meeting. It is evident that in investigating the allegations made against Young, the individual appellants had to determine facts, draw conclusions, and make decisions. See Heikklia v. Harris County, 973 S.W.2d 333, 336 (Tex. App.--Tyler 1998, pet. denied). A state employee or official who is required to pass on facts and determine his actions by the facts found is performing discretionary duties. See Lazaro v. University of Texas, 830 S.W.2d 330, 332 (Tex. App.--Houston [14th Dist.] 1992, writ denied). Because we find no evidence in the summary judgment record to raise a material fact as to appellants' exercise of discretion, we conclude that appellants have conclusively proved that they were performing discretionary acts, not ministerial ones. We turn now to whether appellants' summary judgment proof establishes as a matter of law that the individual appellants performed their discretionary duties in good faith. The test for good faith of a government official is whether, under the same or similar circumstances, a reasonable government official could have believed that her actions were lawful based upon the information she possessed at the time of her conduct. See Chambers, 883 S.W.2d at 656. The test focuses on the objective reasonableness of the official's actions, not on whether the official acted with subjective good faith. This element of the official immunity test is designed to ensure that officials who act in good faith, even negligently, are protected. See id. at 655, 656 n.5. In order to controvert summary judgment proof on the element of good faith, the plaintiff must show that "no reasonable person in the defendant's position could have thought that the facts were such that they justified [the] defendant's acts." Id. at 657. Our review of the summary judgment proof reveals that appellants carried the initial burden of showing that they acted in good faith. Attached to appellants' motion for summary judgment were the official minutes of regular council meetings held on February 4 and 18, March 18, May 20, and June 3 and 17, as well as special meetings held on February 10 and March 26. At each of these meetings, Young's actions and his employment status were discussed in varying degrees of detail. Taken together, the minutes reflect a deliberative process of which Young was largely aware. Although Young contends that he was not permitted to address the Council or to present proof, the minutes of the meetings establish that he was offered opportunities to respond to the allegations and simply declined to do so. In an affidavit submitted by Gallagher, she explained that at the February 4 council meeting, the Council received information concerning four matters related to Young's performance as Chief of Police: (1) the falsification of a time sheet for employee Mary Ellen Porter, the City Animal Control Officer, for work she did not perform on January 13 and 14, 1997; (2) the existence of cellular telephone contracts entered into on behalf of the City by Young for telephones not approved by the City Council; (3) a discrepancy regarding a warning ticket that had been issued by Officer Ronald Harvel; and (4) Young's failure to appear in municipal court as a witness in the prosecution of traffic violations. Gallagher testified that she believed Young's involvement in these matters constituted official misconduct and specifically denied voting to terminate Young based on personal motivations. She testified that "[a]ll of the actions that I took with regard to the employment of David Young as Chief of Police for the City of Kyle were taken with the best interest of the City in mind and I acted as responsibly as possible as a representative of the people of the City of Kyle." Gallagher also explained that she became aware that Young had reported suspicious activity in the government of the City of Kyle to the Texas Rangers and the F.B.I. in August 1997, several months after the Council voted for the last time to terminate Young. Miller's affidavit corroborates much of the information in Gallagher's affidavit. This evidence suggests that both Gallagher and Miller believed that they had a valid basis for voting to terminate Young. Similarly, the summary judgment proof suggests that City Attorney Knight acted in good faith. In his deposition, Knight testified that he had advised the Council on multiple occasions that it had sufficient evidence before it to consider a wide range of options, ranging from no action to termination. Knight denied encouraging the Council to terminate Young and testified that he had tried unsuccessfully to broker a probation deal. Because the individual appellants in their summary judgment proof established good faith, the burden shifted to Young to submit an affidavit or otherwise show that no reasonable person in appellants' position could have believed his or her conduct to be reasonable in light of the information possessed by the official at the time the conduct occurred. See Chambers, 883 S.W.2d at 656. The nonmovant's hurdle seems difficult to leap because even an intentional, ill-motivated action may be explained by some plausible, yet hypothetical, rationale. See O'Bryant v. City of Midland, 949 S.W.2d 406, 412 (Tex. App.--Austin 1997, pet. granted). Although the nonmovant must satisfy an "elevated" standard of proof, the burden is intended to accommodate the competing interests involved. See id. Summary judgment proof is to be viewed in the light most favorable to the nonmovant, with all doubts resolved in favor of the nonmovant. See Nixon, 690 S.W.2d at 548-49. The synthesis of these two principles results in the following standard: a nonmovant seeking to defeat summary judgment on the issue of good faith must show that no reasonable person in the official's position could have thought the nonmovant's version of the facts justified the action. See O'Bryant, 949 S.W.2d at 412. In other words, in summary judgment proceedings in which the parties disagree about the reasons underlying an official's actions, the court must take the nonmovant's responsive allegations as true and evaluate the evidence supporting those allegations. See Dalrymple v. University of Texas Sys., 949 S.W.2d 395, 402 (Tex. App.--Austin 1997), rev'd in part on other grounds, 42 Tex. S. Ct. J. 815 (June 24, 1999). Young alleged in an affidavit attached to his response to appellants' motion for summary judgment that "in early January or February 1997," council member Pastrano informed him of an allegedly improper payment made by the City to the son of a City employee. Young testified that on February 14, he reported the alleged wrongdoing to the Texas Rangers, and on February 24, he made a similar report to the F.B.I. Young claimed that Gallagher and Miller voted to terminate him primarily because of these reports. Young also alleged that he received no notice of the issues to be discussed at the February 4 council meeting, nor was he ever notified by the Council of the specific conduct on his part that supported the Council's decision to terminate him. Young explained that throughout the series of council meetings at which his performance as Chief of Police was discussed, he was denied the opportunity to call witnesses or to question adverse witnesses. In particular, Young alleged that at the February 10 council meeting, Gallagher told him that the Council did not want to hear from Young's witnesses because they were his friends. Finally, Young testified that on February 18, 1997, City Attorney Knight told him that if he made any statement to the Council about the allegations raised against him, he would waive his right to sue the Council. Young's testimony was corroborated by the testimony of his wife, Linda Young. Ronald Ray Harvel, a City of Kyle police officer, testified that on or about February 4, 1997, while eating breakfast at a Shoney's restaurant with Young and Jim Clifton, another member of the Kyle police force, Young informed the two officers of the suspicious City compensation check. Harvel explained that he believed Clifton, in hopes of undermining Young and securing the job of Chief of Police, conveyed Young's statements about the check to Gallagher and Miller, who then decided to fire Young because of his knowledge of illegal activity taking place within City government. Council member Pastrano alleged in his affidavit that at a lunch meeting with Gallagher one week before the February 4 council meeting, Gallagher informed him that the Council needed to discuss issues regarding Young in an executive session. Pastrano explained that although Gallagher did not elaborate upon the specific issues at that time, she told him that she had agreed with Miller and Whadford to "get rid" of Young and that Jim Clifton would be the next Chief of Police. Pastrano testified that Gallagher brought up the issues regarding Young during the executive session of the February 4 council meeting, and that council member Whadford, along with other council members, "aired out these issues in open session." Pastrano alleged that at the council meetings on February 4 and 10, Officer Clifton presented testimony damaging to Young, while witnesses favorable to Young were not permitted to testify. Finally, Pastrano alleged that Gallagher, Miller, and Whadford did not "have an open mind" about the allegations against Young and that City Attorney Knight instructed the Council at the end of its executive session on February 4 that it had only two options--terminate Young or accept his voluntary resignation. Council member Mattie Broadfoot corroborated much of Pastrano's testimony, alleging that Young was not given a fair opportunity to present his side of the story because he was not given adequate notice as to the grounds for his termination, nor was he permitted to cross-examine Clifton or present evidence on his own behalf. Broadfoot also alleged that during one of the council meetings at which Young's termination was discussed, City Attorney Knight stated, "Jim Clifton would make a good Chief of Police." While it is undeniable that ill will existed between Young and the individual appellants, the critical question is whether Young established that no reasonable person could have thought his actions warranted termination. After reviewing Young's proof, we conclude that no fact issue exists as to the "good faith" element of the official immunity defense. It is uncontroverted in the evidence before us that Gallagher and Miller voted to terminate Young before learning of his reports to the Texas Rangers and the F.B.I. Gallagher and Miller testified, and council members Pastrano and Broadfoot confirmed, that the Council discussed the allegations against Young before voting on punishment. Although Pastrano alleged that at the end of the executive session Knight restricted the Council to two possible punishments, termination or voluntary resignation with severance pay, Knight testified that during the session he presented the Council with a wide range of punishment options, including no action. The evidence supporting Young's allegations that the individual appellants conspired to deny him procedural due process and to wrongfully terminate him is not sufficient to raise a fact issue as to whether the termination was motivated by antipathy rather than an evaluation of the charges. Bad blood does not equal bad faith. Viewing the actions of appellants in response to the allegations against Young in an objective manner as we must, we hold that the evidence established that a reasonable person in the shoes of appellants could have concluded that Young's actions were a valid basis for termination. CONCLUSION We hold that the summary judgment evidence conclusively established that a reasonable person in appellants' position could have believed his or her conduct was reasonable in light of the information possessed by the official at the time the conduct occurred. Therefore, the individual appellants are entitled to official immunity from Young's state constitutional claims as well as his conspiracy claim, and the City is entitled to immunity from these claims based on the immunity of its officials. Because we conclude that official immunity is dispositive of the issues herein, we decline to address appellants' argument that Gallagher and Miller are also entitled to absolute immunity. We reverse the district court's denial of summary judgment and render judgment that appellants are immune from Young's state constitutional claims and conspiracy claim. We remand all other causes of action asserted by Young in his original petition to the district court for further proceedings. Jan Patterson, Justice Before Justices Jones, Kidd and Patterson Reversed and Rendered in Part; Reversed and Remanded in Part Filed: September 30, 1999 Do Not Publish 1. See Tex. Gov't Code Ann. § 554.002(a) (West Supp. 1999). 2. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West Supp. 1999). 3. We will discuss Young's whistleblower claim and other claims only to the extent that they relate to the appellants' assertion of official immunity to the claims on appeal. rminate Young or accept his voluntary resignation. Council member Mattie Broadfoot corroborated much of Pastrano's testimony, alleging that Young was not given a fair opportunity to present his side of the story because he was not given adequate notice as to the grounds for his termination, nor was he permitted to cross-examine Clifton or present evidence on his own behalf. Broadfoot also alleged that during one of the council meetings at which Young's termination was discussed, City Attorney Knight stated, "Jim Clifton would make a good Chief of Police." While it is undeniable that ill will existed between Young and the individual appellants, the critical question is whether Young established that no reasonable person could have thought his actions warranted termination. After reviewing Young's proof, we conclude that no fact issue exists as to the "good faith" element of the official immunity defense. It is uncontroverted in the evidence before us that Gallagher and Miller voted to terminate Young before learning of his reports to the Texas Rangers and the F.B.I. Gallagher and Miller testified, and council members Pastrano and Broadfoot confirmed, that the Council discussed the allegations against Young before voting on punishment. Although Pastrano alleged that at the end of the executive session Knight restricted the Council to two possible punishments, termination or voluntary resignation with severance pay, Knight testified that during the session he presented the Council with a wide range of punishment options, including no action. The evidence supporting Young's allegations that the individual appellants conspired to deny him procedural due process and to wrongfully terminate him is not sufficient to raise a fact issue as to whether the termination was motivated by antipathy rather than an evaluation of the charges. Bad blood does not equal bad faith. Viewing the actions of appellants in response to the allegations against Young in an objective manner as we must, we hold that the evidence established that a reasonable person in the shoes of appellants could have concluded that Young's actions were a valid basis for termination. CONCLUSION We hold that the summary judgment evidence conclusively established that a reasonable person in appellants' position could have believed his or her conduct was reasonable in light of the information possessed by the official at the time the conduct occurred. Therefore, the individual appellants are entitled to official immunity from Young's state constitutional claims as well as his conspiracy claim, and the City is entitled to immunity from these claims based on the immunity of its officials. Because we conclude that official immunity is dispositive of the issues herein, we decline to address appellants' argument that Gallagher and Miller are also entitled to absolute immunity. We reverse the district court's denial of summary judgment and render judgment that appellants are immune fr