Major Brady Case From Texas

Stephanie Brown is an officer with the Georgetown, Texas Police Department. In January 2013, Brown was investigated by the Department because Eric Poteet, with whom Brown had formerly been in a relationship, alleged that Brown had been taking his prescription medication and had ingested mescaline. As a result of this investigation, Wayne Nero, the Georgetown Police Chief, concluded that Brown had used Poteet’s prescription drugs, ingested mescaline, and been untruthful when questioned about using drugs. Chief Nero indefinitely suspended Brown on June 11, 2013.

Brown appealed to an independent hearing examiner. Before the hearing examiner announced his decision, Chief Nero met with the Williamson County Attorney and the Williamson County District Attorney and told them about Brown’s alleged misconduct. In response, the prosecutors issued a joint letter to Chief Nero on October 31 informing him that their offices would no longer “accept cases in which Brown has played a role.”

On November 1, 2013, the hearing examiner issued his decision. He concluded that the City had met its burden of proof with respect to the charge that Brown had used prescription drugs belonging to Poteet. However, he also determined that Brown had her own prescription for the drugs and did not use them for recreational purposes. The hearing examiner further concluded that the City had not met its burden of proof with respect to the charge that Brown had ingested mescaline or been untruthful during the investigation. Accordingly, the hearing examiner reduced Brown’s suspension to 15 days and ordered her reinstated with back pay and benefits.

On November 7, the City reinstated Brown and awarded her back pay. The next day, the City once again terminated Brown. In a letter to Brown, Chief Nero explained that because the county attorney and district attorney had decided “to no longer sponsor Brown as a witness” and had communicated “their refusal to accept Brown’s cases,” Brown could “no longer fulfill one of the essential job functions” for her position, “which is testifying in court proceedings.” Chief Nero also stated that because “this is a non-disciplinary termination,” Brown did not “have appeal rights under the Civil Service Act.”

Brown then sued the City, seeking a determination that her termination was a disciplinary action triggering appeal rights under the Civil Service Act and that the City wrongfully terminated her based on the same alleged conduct already ruled on by the hearing examiner. In a strongly-worded opinion, the Texas Court of Appeals agreed with Brown.

The Court noted that “there is no dispute that Brown’s first termination was a disciplinary suspension and was based on allegations that Brown used drugs and was untruthful during the Department’s investigation. It is also undisputed that Chief Nero communicated these same allegations and his own conclusions to the district and county attorneys and that these allegations were the basis of the prosecutors’ decision to no longer accept cases in which Brown played a role. Therefore, Brown’s second termination, which occurred just a day after she was reinstated as ordered by the hearing examiner, was ultimately based on the same allegations as her first termination – allegations that she had committed acts meriting a disciplinary suspension.

“The defendants now assert that they are not responsible for the prosecutors’ decision and that it is beyond their control. According to the defendants, because the prosecutors will not sponsor Brown as a witness, Brown is no longer qualified to serve as a Georgetown police officer and her termination was therefore not based on disciplinary grounds.

“Based on the record before us, it does not appear that Brown’s termination related to her qualifications. The defendants presented no evidence that she was incapable of testifying or of performing any other required function. Brown was not fired because she failed to maintain a license, pass an exam, or perform satisfactorily in the field. Rather, the evidence showed that the prosecutors’ decision not to accept Brown’s cases was based on Chief Nero’s accusations of untruthfulness, which the hearing examiner found to be groundless. And instead of abiding by the hearing examiner’s award, which was final and binding on all parties, Chief Nero allowed the unilateral decision of elected officials to circumvent the protections of the Civil Service Act.

“The Civil Service Act was intended to prevent the sort of factual scenario we have before us. According to the City, prosecutors have unbridled discretion to declare that they will not accept cases from an officer, and the police chief may – and, in fact, has a duty to – terminate that officer. Furthermore, according to the City, this termination is completely insulated from review by anyone – the Commission, a hearing examiner, or the courts. This cannot be how the Civil Service Act works, as this interpretation would allow the defendants to nullify Brown’s statutory right to appeal merely by relabeling her termination as non-disciplinary.”

The Court remanded the case to the trial court for a hearing consistent with the principles in the Court’s opinion.

Brown v. Nero, 2015 WL 5666172 (Tex. App. 2015).