Charges Against Fire Captain Cannot Change At Hearing

Paul Kuykendall is a captain with the Grand Prairie, Texas Fire Department. In 2005, the City conducted an investigation of Kuykendall’s conduct, and concluded that he had exposed himself in front of another firefighter. The Fire Chief presented written recommendations to the Civil Service Commission that Kuykendall be demoted two ranks, from captain to driver-engineer. When the Civil Service Commission upheld the recommended discipline, Kuykendall requested a hearing before a hearing examiner.

In 2007, the hearing examiner decided that insufficient evidence supported the allegation that Kuykendall had exposed himself. However, the examiner determined that Kuykendall was involved in “inappropriate behavior” and “horseplay” that was “in poor taste and in violation of the City’s rules of conduct and standard operating procedures. As such, a suspension of 30 calendar days is in order.”

Kuykendall filed a challenge in the Texas Court of Appeals of the hearing examiner’s decision to impose a suspension. The Court agreed with Kuykendall, and ordered his suspension reversed.

The Court ruled that “the issues before the hearing examiner were whether Kuykendall committed the charged misconduct of exposure and, if so, the discipline to be imposed. Regardless of whether suspension could be imposed when the Department had recommended demotion, the hearing examiner had to find that Kuykendall committed the charged misconduct before he could impose either form of discipline. In this case, when the hearing examiner concluded that the necessary proof was not present to establish Kuykendall exposed himself, the examiner lacked authority to proceed to impose a punishment for wrongdoing, ‘horseplay,’ and ‘inappropriate behavior,’ not alleged in the Fire Chief’s written recommendation of demotion. Indeed, once the hearing examiner concluded the evidence was insufficient to support the charged conduct, the hearing examiner’s authority was limited to entering the appropriate order for reversing the demotion.”

Kuykendall v. City of Grand Prairie, 2008 WL 2548917 (Tex.App. 2008).

This article appears in the September 2008 issue