City of Houston v. Vitek

MAJORITY OPINION J. CURTISS BROWN, Chief Justice. This is an appeal from a summary judgment in favor of the plaintiff, Lawrence Vitek, awarding him back pay and attorney’s fees. The City of Houston claims that the trial court lacked jurisdiction to enter the award. We disagree, and affirm the judgment. On November 14, 1984, Lawrence Vitek was re-assigned from his position as Sludge Processor III at the Northside Wastewater Treatment Plant, to replace the “Section Chief” at the Process Operations Branch located the Sims Bayou Wastewater Treatment Sludge Disposal Plant. His supervisor, Mr. Lonnie Lange, interviewed Vitek, and requested that Vitek function as a “Plant Superintendent” at the Sims plant. This position possessed all of the responsibilities of the chief operator. Generally, the official job classification is “Section Chief,” but that is discretionary. On or about November 24, 1984, Vitek assumed the job functions of the “Section Chief” under the title “Plant Superintendent.” The position of “Section Chief” at the Sims plant was scheduled to be posted for competitive qualification in October of 1985. However, due to a hiring freeze, the scheduled posting did not occur until February 26, 1986. As of February 26, 1986, Vitek still had not been promoted to that position. In accordance with City ordinances, Vi-tek filed all necessary grievances. On May 29, 1986, he filed a Step I grievance. His supervisor responded that efforts were continuously being made to gain him an official “Section Chief” position. Dissatisfied with that answer, Vitek filed a Step II grievance. The Department Head was in complete agreement with Vitek, but noted that a position could not be opened up for him until the hiring freeze was ended. Vi-tek then filed a Step III grievance. The Hearing Examiner determined that Vitek’s grievance was fully justifiable. The Examiner noted that Vitek had been working out of classification for a period of 18 months, during which time he had been occupying the position of Section Chief, but without the title and the compensation. He noted that Vitek had been performing in an above standard capacity, and that he certainly could qualify for the position if it could be posted. [884] On August 29, 1986, Vitek requested that the Civil Service Commission review the Hearing Examiner’s order. The Commission reviewed the record of the hearing, and remanded the case to the Hearing Examiner. The remanded, “FINAL ORDER OF THE COMMISSION” stated: 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. The Hearing Examiner responded on March 31, 1987 that: ... in the opinion of this examiner, Mr. Vitek has been working out of classification since November 24, 1984 in a position which is generally performed by a Section Chief_ It is the further opinion of this examiner 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. On February 27, 1989, Vitek filed a Writ of Mandamus to force the Commission to issue payment. On May 9, 1989, the Commission again ordered the Examiner to answer the prior questions “Yes,” “No” or “I don’t know.” The Examiner responded that “Yes,” Mr. Vitek had been working out of classification, and for over two years and four months, but that he did not know whether Mr. Vitek had been improperly denied a temporary promotion. Based upon this information, the Civil Service Commission of the City of Houston purported to file a second final ruling. It denied Vitek back pay based upon the Examiner’s failure to find that Vitek had been improperly denied a temporary promotion. Vitek appealed the Commission’s second order to District Court. Both the City and Vitek moved for summary judgment. The Court denied the City’s motion for summary judgment, and found that, as a matter of law, Vitek was entitled to back pay. The City now appeals both the trial court’s denial of its motion for summary judgment and granting of Vitek’s motion for summary judgment. The City claims that the trial court lacked jurisdiction to hear the suit because Vitek had no legal right of appeal. A district court can only review an administrative decision if: (1) there is a statutory right of appeal; (2) the administrative order violates a constitutional right; or (3) the order adversely affects a vested property right. Sells v. Boose, 769 S.W.2d 641 (Tex.App. — Austin 1989, no writ), citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 386 (Tex.1967). There is no statute vesting jurisdiction in the district court to review the administrative decisions of the Civil Service Commission. Vitek contends that the Commission’s second order denying him back pay unconstitutionally divested him of a vested property right. We agree. Property rights are created and their dimensions defined by existing rules or understandings stemming from independent sources such as state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). An individual’s property interest is protected if he has a “legitimate claim of entitlement that is created, supported, or secured by rules or mutually explicit understandings.” Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex.App.— Dallas 1987, no writ), citing Roth, 408 U.S. at 578, 92 S.Ct. at 2709. The Commission’s initial “FINAL ORDER” remanded the case to the Hearing Examiner to answer three questions, and instructed the Examiner that if Vitek had performed the work of a Section Chief, then he should receive pay from the 91st [885] day. The Examiner determined that Vitek had been performing the work of a Section Chief, and concluded that he should be paid back pay from the 91st day until promoted. Once this determination was made, the order became final. Nothing was left inconclusive, or open for dispute. A final administrative order is one that leaves nothing open for future disposition. State v. Public Utility Comm’n., 840 S.W.2d 650, 654 (Tex.App.—Austin 1992, no writ). Decisions which are “definite, promulgated in a formal manner and one with which the agency expects compliance,” should be treated as final decisions. Id., citing 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-10 (1988). The February 26, 1987 order, remanding the case to the Hearing Examiner, was formally promulgated, definite, and one with which the Commission expected compliance. It specifically order the Examiner that if Vitek “had performed the work, then he should receive [the] pay.” Merely because an order is conditional, does not fail to make it final. See, North Alamo Water Supply Corp. v. Texas Dept, of Health, 839 S.W.2d 448 (Tex. App.—Austin 1992, writ denied). So long as the order does not require “subsequent agency approval,” it is a final order. Id. at 451. (emphasis added). Once the Examiner found that Vitek was entitle to payment, no further agency approval was required. The only action remaining was for the Commission to issue payment. In a subsequent order, the Commission defied the finality of its earlier ruling, and attempted to divest Vitek of his back pay. We hold that the Commission’s second order of June 7, 1989 was entered improperly and without jurisdiction. We find that as a matter of law the Commission’s “FINAL ORDER” of February 26, 1987 became binding on March 23, 1987, when the Examiner found that Vitek was entitled to payment. At that time, Vitek’s right to back pay became a legitimate claim of entitlement, protected by the 5th and 14th Amendments of the United States Constitution. Therefore, we find the trial court had jurisdiction to hear the suit, and overrule Appellants’ points of error. The judgment of the trial court is affirmed.