Texas Civil Service Arbitrators Can Impose No Greater Than 15-Day Suspension

Kenneth Miller was a lieutenant with the Houston, Texas Police Department. In 2006, a coworker alleged that Miller had sexually harassed her. Following an investigation, the Department “indefinitely suspended” Miller. An “indefinite suspension” is the functional equivalent of a termination.

Under Texas civil service law, a terminated employee has the option of appealing to an independent hearing examiner, who elsewhere might be termed an arbitrator. The Arbitrator who heard Miller’s case overturned his indefinite suspension and reinstated him without back pay. Miller challenged the Arbitrator’s decision, arguing that the Arbitrator did not have the authority to reinstate him without making him whole for lost wages and benefits.

The Texas Court of Appeals partially upheld Miller’s appeal. The Court found that under the Texas civil service law, “the head of the Police Department may impose an involuntary disciplinary suspension for a reasonable period not to exceed 15 days. A hearing examiner is tasked with the same powers. When a hearing examiner finds the charges against an officer are true, the examiner’s jurisdiction is limited to imposing a dismissal from the Department, imposing a temporary suspension of 15 days or less, or restoring the officer’s former position or status together with wages and benefits lost as a result of the suspension.

“The hearing examiner in this case was authorized to reduce Miller’s indefinite suspension to a temporary suspension, but he was not authorized to impose a temporary suspension of more than 15 days. Because the examiner exceeded his jurisdiction in effectively imposing a 92-day suspension, we remand this case to the trial court for further proceedings consistent with this opinion.”

Miller v. City of Houston, 2010 WL 1029950 (Tex. App. 2010).

NOTE: It remains a bit of a mystery exactly how the Miller case will turn out, since the Court did not order a reduction in Miller’s suspension to 15 days, but rather remanded the case to the trial court for further proceedings. One option might be to send the case back to the Arbitrator to choose between a 15-day suspension and the indefinite suspension initially imposed by the City.

This article appears in the June 2010 issue