Travis County Commissioners Court
September 21, 2004
Item 54
Number 54 involves a claim from stewart and mclane regarding appeal of deputy
con stphabl precinct 5 from a grievance panel decision in the employee's favor.
Under chapter 9 --
>> not -- [inaudible].
>> you are thinking of the previous one.
>> the termination was not in the employee's favor. But the
question here is the interpretation of chapter 9 of the Travis County code.
And what happened is the employee wants to appeal to see -- the adverse decision
of the grievance panel.
>> that's correct, judge.
>> okay. Now, two things come to light. First is that elected
officials are a little different at Travis County and there is a long line
of a.g. Opinions and cases that basically bestow upon them certain autonomy.
And our chapter 9, though awkwardly worded, cannot give us more authority
than in fact we have. And I think the intention there was where the elected
official was in place basically to handle the appeal, we would have to defer
to the elected official and not the Travis County. We did look at the wording.
It could have been clearer, but I don't know that clearer language would take
from the elected official authority really to make the call on the avenues
of appeal for the elected officials' employee. Now, if the employee worked
for the Travis County Commissioners court, clearly our policy would be invoked.
But any of the numerous elected officials at Travis County really retain pretty
much the total say-so over employees that they hire and have the right to
fire under shropshire.
>> if I could, I brought some materials for the Commissioners
to view in my discussion.
>> thank you. You give me three, i'll pass them down for
you.
>> and essentially with regard to the issue of the authority
of the elected official, the elected official in this case has agreed to abide
by the terms and the conditions in the yellow book. They sign an agreement
in the book that says that they agree to it. So as far as their autonomy is
concerned, i'd say that's waived. Acknowledgement is found at the back of
the yellow book. It says i've received, read and understand all matters set
forth in the Travis County code chapters 9 and 15 and agree to abide by its
provisions realizing change in the appointment may unilaterally be implemented
by the Travis County kpheurb. [indiscernible] contact and employment guaranteeing
a specific term or tenure of signing this. Prior to this I was given an opportunity
to ask any questions about matters described in this manner. By placing my
signature I specifically agree to all terms and conditions described in the
text of the statement of general policies appearing at the beginning of this
manual. So as far as the case law that would tend to say something different,
I don't think it applies because constable elfant clearly signs his intention
to abide by what is written in this manual. And the most important thing that
we have to deal with today is the interpretation of the appeal provision which
is found in 9.257. It's under tab 1 in your materials. If you'll look on the
second page at provision k, it says within 10 working days after the decision,
the grievant and the person grieved against may appeal a decision of the panel
to the county judge and the Commissioners court or the elected official. What
makes this such that it cannot be an appeal back to the constable is the simple,
ordinary meaning of the words appearing in the text. And if you'll look again
on 9.954, the next page under tab 1, first of all, it states the Commissioners
court shall resolve any questions regarding interpretation of this chapter.
Underneath that is another provision regarding conflict with the constitution.
It says that where possible you are going to give meaning to the provision
as well as possible if it conflicts with the constitution. Then on the next
page, on e it says working phrases shall be read in context and construed
according to the rules of gram March and common usage. With that I would like
you to turn to the last page and I have highlighted the definition of the
word "appeal." If you look at the word "appeal" and its common usage, this
is a copy out of black's law dictionary, something that all attorneys generally
agree is a good source for the common meaning of words appearing in statutes.
This says resort to a superior court to review the decision of an inferior
court or administrative agency. A complaint to a higher tribunal of an error
or injustice committed by a lower tribunal which is sought to be corrected
or reversed. There are two stpaeupblges of appeal in the federal and many
state court systems, appeal from a trial court to eupbt need 80 appellant
court and supreme court, there may be several levels of appeal within an administrative
agency. This is an appeal within an administrative agency. And appeal by its
very definition can't go back to the person that made the decision in the
first place. That would not give meaning to the word "appeal." It could contradict
it. Not only would it contradict the word "appeal," but it would also completely
obliterate any sense of fairness in this. There would be no appeal. Not only
would it conflict with the word appeal that you would basically say that although
there's an appeal provision in there, if you have an elected official you,
really don't have appeal.
>> let me ask you one simple question.
>> yes.
>> let's read k again. So you are saying that if there were
an employee of the Commissioners court, let's say somebody who works for the
road division, that they could then take it to a grievance panel and then
pick any elected official within Travis County to have their grievance heard
by them?
>> I don't know.
>> well, I think clearly not because the language doesn't
say an elected official, it says the elected official. So if I go by what's
in here, it says it can go to the court or the elected official, and clearly
I think it means because the converse would be equally not true that somebody
that works for the Commissioners court could go pick the elected official
that they chose to have their grievance. The reverse is also true. Then going
immediately to the next page, Commissioners court shall, not may, shall resolve
questions regarding interpretation of this chapter. I think clearly the judge
was trying to lay out in a rather nice way that if there is a question, does
it go to the Commissioners court or the elected official. We're saying it
goes to the elected official. And we've resolved the question and that should
be the end of it.
>> are you saying that I知 not having a hearing this morning
on this issue or -- today?
>> a question was raised.
>> for us to decide whether the hearing would be before the
constable or the Commissioners court.
>> that's right.
>> so this would not be the hearing itself.
>> right.
>> but what I知 saying is our interpretation of this policy
and the law has been that as elected officials, they are the ones who conduct
the appellate hearings of their employees. And our interpretation of sh opshire
is do not have authority to exercise that authority. Now [indiscernible] we
have a whole lot of personnel policies. Compensation, benefits, a whole lot
of stuff. But as to the ultimate call on employees that work for the elected
official, our interpretation really has pretty much always been it's the elect
official's call.
>> and if constable elfant or any other elected official
said they are waivering and it ought to go to Commissioners court, why is
the elected official even mentioned in here at all?
>> I assume that it would mean one working for elected official
could choose. But essentially there is no appeal back to the person who made
the decision in the first place. That would be pan take mount to appeal to
go an appellate court and bringing it back to the trial court for redetermination
on appeal if you don't get what you want in the appellate court. That's not
an appellate decision.
>> being an elected official and being, I guess, the [inaudible]
of district court as appropriate. I知 not saying it ought to be like that
and it's a good thing, but I think the case really ties our hands a lot more
than I wish it did. We put these policies in place, we are saying here are
the Commissioners court policies, [inaudible] for elected officials too. And
we got most of the elected officials to say rather than adopting our own policies,
we'll just buy into the Commissioners court policy. But I don't know that
any of them concluded I知 giving up certain rights by doing this. I think
they saw it as a voiding certain responsibility from employees. At the same
time word comes from a specific employee that -- I don't know that tpheuf
us ever thought that we would have the ultimate call about terms and conditions,
about whether to settle grievances, et cetera, for the employees of the elected
officials. When you go through administrative process, at some opponent you
will resolve your differences. My understanding has always been few don't
go back to elected officials, it's kind of like after the elected official
makes the call. I think that's how we have interpreted it since i've been
with the county.
>> well, then, my last argument is obviously this violates
the constitution. And that it violates fundamental fairness of due process
do knee my someone appeal that's been pretty clearly stated in the manual
of some kind. I mean certainly it says if there's a right to an appeal there.
But to put the man back to the position of asking for appeal before the person
that made the decision is violative of the constitution, I have three cases
that specifically state that partial at by the decision-maker in an appeal
and administrative setting violates the constitution because it violates fundamental
fair -- the fundamental fairness of the due process clause because that person
is biased. It pre-judged the facts.
>> where do you factor in the right to access the judicial
system? That's real extensive so I知 not saying that's the best alternative,
but I am saying that's there. So if the Commissioners court is not available,
[indiscernible] governed by the elected official [indiscernible] when you
are looking at [indiscernible] or the district court system.
>> I understand that, but what I知 looking at is a regulation
that has the force and effect of law.
>> as to a whole lot of employees, yes. As to a lot of others,
no.
>> well, let's go back to 9.954-a. This chapter shalling
construed strictly so that no rights are created that are not specifically
created by this chapter. Show me specifically in this chapter where an elected
official is defer to go the Travis County Commissioners court to decide appeals.
Not there.
>> within 10 working days after the decision the grievant
and the persons grieved against may appeal a decision of the panel to the
county judge and the Commissioners court. It says it that simple. I don't
know how much more simple it can be.
>> or the elected official.
>> I understand, but that's not clearing the matter up for
me. I find it's choosing the Commissioners court.
>> and we are the ones strictly in here that are allowed
to resolve any questions regarding the interpretation. And we choose that
it clearly goes to the elected official because we do not have rights that
are not specifically given in here that pre-date everything that date back
to sh rofplt pshire versus renfro.
>> I think because he signed an acknowledgement he would
follow these rules and regulations.
>> in which case if any elected official did that, why is
there any mention of an elected official being the appeal point. It would
simply say the Travis County Commissioners court. There is a reason the elected
official is in there, not an elected official, the elected official and that's
clearly meant to tie back to the elected official who adopted the procedures.
>>
>> [one moment, please, for change in captioners]
>>
>> sign... Sign a piece of paper they agree to have binding
participation in a case. They're enforceable through the courts.
>> arbitration is.
>> and that is what I liken this to.
>>
>> the one thing that so much of this argument is based on
is that acknowledgement at the back. That is not the acknowledgement that
the elected official signs. That the acknowledge thament the employee signs
saying I知 gotten a copy of these. That is not something that binds the electricked
officials, that is something that the county uses to say, you know, I never
knew that, well, look, you signed the thing that said you read the personnel
policies that we gave you. So that -- that whole statement is not what the
elected official has said.
>> I do believe i've seen signed acknowledgements by elected
officials and then written exactly in those words.
>> the point, there, though, still remains is this court
only has the authority that the constitution gives it of this state as well
as that elected official. He does not -- even if he wanted to, he does not
have the authority to waive and convey to this court the authority to hire
and fire his employees. That's what the renfro versus shropshire case is about,
you don't have that authority, he can't give it to you. Constitutionally,
that is what that case is about.
>> let the record. [multiple voices] we would like to have
that authority.
>> it's quite interesting reading and that case is cited
around the state of Texas in practically every single conference of urban
counties meeting that I ever guilty to. It's clear we can set the budget and
the second the budget is adopted and we're in a fiscal year we cannot say
anything about how those dollars are being spent or anything that goes on
with the employees. Our next window is the following budget year whether we
choose to keep the budget at that amount or not or the number of slots in
that department, but we cannot say anything about how those dollars are spent
the second the budget is adopted and the budget has clrly been adopted more
than a year ago.
>> you did good work here.
>> you need to read shropshire v renfro.
>> our hands are more tied -- I wish you were rite on our
authority.
>> well, all I can say is that that case does not deal with
situations where constables are agreeing to abide by the rules.
>> well, you need to reread shropshire v renfro, it's quite
specific about the Commissioner's court's authorities with elected...
>> right.
>> thank you.
>> thank you.
>> do we need --
>> thanks for your patience also.
>> do we need an actual motion?
>> I think that would be...
>> I would make that motion that the questions before us
whether the authority to appeal is to the Commissioner's court or to the elected
official and the elected official who in this case is [inaudible]
>> discussion? All in favor. That passes by unanimous vote.
>> thank you.
>> did you want to direct that... Verify [inaudible]
>> I think we ought to put it on our loyal list of things
to do, the early part of f.y. '05 which begins October 1. I think we ought
to revisit it and clarify it.
>> thank you, Commissioners.
>> thank you.
>> thank you.
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Last Modified: Thursday, October 27, 2005 9:40 AM