Vacancy Established Only When Appeals Exhausted

On March 6, 2001, J.L. Garcia was “indefinitely suspended” from his position of fire captain with the City of Harlingen, Texas Fire Department for insubordination, being absent without leave, and violating local rules. At the time of Garcia’s suspension, Eddie Alvarez was the only candidate on the promotional list to captain. Under Texas law, where a promotional eligibility list exists on the day a vacancy occurs, the vacancy must be filled from that list within 60 days.

Three days after his suspension, Garcia appealed the disciplinary decision to a hearing examiner. On October 18, 2001, the hearing examiner issued a decision affirming the indefinite suspension. By that time, the promotional list on which Alvarez was ranked first had expired, and a new promotional list had been assembled. Alvarez was ranked fourth on the new eligibility list. When the Fire Chief promoted the first-ranked candidate from the new eligibility list, Alvarez sued.

The Texas Court of Appeals held that, for purposes of the statute requiring that “vacancies” be filled within 60 days, the vacancy only occurred upon the issuance of the hearing examiner’s decision. As the Court put it, “the law provides that a suspended firefighter may appeal the suspension to the Civil Service Commission. In rendering the decision on the appeal of a disciplinary suspension, the Commission must state whether the suspended firefighter is (1) permanently dismissed from the Fire Department, (2) temporarily suspended from the Department, or (3) restored to the person’s former position or status in the Department’s classified service. Only after a finding by the Commission of the truth of specific charges against the firefighter may the Commission suspend or dismiss a firefighter for violation of civil service rules.”

In the eyes of the Court, the independent suspension did not create a vacancy until it was confirmed by the decision of the hearing officer for the Civil Service Commission. Thus, the Court concluded, Alvarez had no right to the promotion.

City of Harlingen v. Alvarez, 2005 WL 2387401 (Tex.App. 2005).

This article appears in the November 2005 issue