Union lacks jurisdiction in cop's suit over passed promotion, justices rule

David Yates Aug. 17, 2011, 10:37am

A Beaumont police officer's suit over a passed promotion will continue to be heard in civil court, thanks to an Aug. 11 ruling by the Ninth Court of Appeals.

As previously reported, officer Derrick Wayne Fowler filed suit against the city of Beaumont and the Civil Service Commission, claiming his supervisors and the union president wrongfully altered a 2000 contract orally without informing him and mishandled an examination, which if done correctly - would have promoted Fowler to police sergeant, grade II.

The suit, filed Aug. 24, 2007, in Jefferson County District Court, seeks to obtain a writ of mandamus from the court ordering the Commission to conduct a "lawful and contractual" examination, "and to make him whole again with back pay and benefits."

Last year, the city and CSC filed a plea to the jurisdiction on the grounds that the Beaumont Police Officer's Association was the sole and exclusive bargaining agent for police officers, and, consequently, Fowler lacked standing to sue for breach of the agreement, court papers say.

Judge Milton Shuffield, 136th District Court, denied the motion, forcing the defendants to challenge the denial by filing an appeal on Feb. 17.

On appeal, the city and CSC contended that Fowler couldn't survive a plea to the jurisdiction on grounds that the BPD union failed to fairly represent him during the grievance process.

However, the record shows that Fowler did not file a grievance regarding the 2003 promotional exam.

"In summary, we conclude that Fowler has standing to enforce the labor agreement," writes Chief Justice Steve McKeithen in the Ninth Court's opinion.

"For this reason, the trial court properly denied appellants' plea to the jurisdiction. We overrule appellants' sole issue and affirm the trial court's order denying appellants‟ plea to the jurisdiction."

Case background

Court records show that on Aug. 26 and 27, 2003, the city of Beaumont conducted an assessment to establish an eligibility list for the rank of sergeant, grade II, in the Beaumont Police Department.

Fowler claims Lt. Jeff Skinner and Union President Riley orally altered a 2000 contract executed between the city and the Beaumont Police Officer's Association "to use assessors that were not permitted by the written contract."

"This oral modification to the contract was not published and (Fowler) did not learn of the oral modification until two years later," adding that the revision violated the Business and Commerce Code. "Further, Lt. Skinner and Riley lacked the capacity to modify the three-year contract, orally or otherwise."

According to the suit, the defendants failed to give the examination in the presence of the other eligible promotional candidates and refused to allow candidates who wanted to remain during the grading of the examinations to do so. "Defendants wrongfully graded the exercises..."

Flower is represented in part by Beaumont attorney Larry Watts.

The city is represented in part by Port Arthur attorney Carl Parker.

Case No. A179-888

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