SE Texas Record

Sunday, October 13, 2019

Beaumont firefighter won’t get declaratory judgment that permanent suspension was illegal

By Charmaine Little | Oct 9, 2019


A City of Beaumont firefighter won’t get a declaratory judgment that his permanent suspension was illegal.

The Court of Appeals for the Ninth District of Texas at Beaumont affirmed the ruling from the 172nd District Court in Jefferson County, Texas on Oct. 3. Michael Scott Nix filed the appeal after the lower court granted the city plea to jurisdiction. Nix had previously requested declaratory and equitable relief after the city suspended him indefinitely from his position as a firefighter. While he said he was illegally suspended, the lower court and the appeals court disagreed.

In the appeal, Nix said that the lower court actually does have jurisdiction for the lawsuit as well as the authority to rule on declaratory and equitable relief in his lawsuit that claimed the city violated a notice and posting requirements of the Texas Open Meetings Act. Nix argued that TOMA offers a limited waiver of immunity violations concerning its regulations and greenlights lawsuits against government entities that ask for declaratory relief in violations related to TOMA. Nix said the lower court had subject matter jurisdiction to rule that a collective bargaining agreement for 2012-2015 and a settlement agreement Nix entered into with Beaumont Fire Chief Ann Huff and the Beaumont Firefighters Local 39 union is invalid because the city didn’t follow section 174.108 of the Texas Local Government Code and section 551.001 of the Texas Government Code. Still, the city argued that the lower court didn’t make a mistake in its decision as the CBA 2012-2015 isn’t related to the settlement agreement. The city also offered evidence that the CBA 2015-2020 has already been posted, and pointed out that it didn’t have to post the agreement.


Justice Hollis Horton

The appeals court said, “Although Nix is correct that the trial court has subject matter jurisdiction over claims seeking a declaration that an action taken in violation of TOMA is voidable, on this record, we cannot conclude that the trial court erred by granting the city’s plea.”

It added that the concern of whether the city posted the 2012-2015 CBA to comply with TOMA is not related to Nix’s appeal since Nix is challenging his 2017 suspension, “which is based on instances of sick leave abuse that occurred in 2017,” said the appeals court. It went on to say that the CBA that is relevant is the one for 2015-2020. And the city has given evidence to show that this CBA was actually posted. Nix also didn’t take issue with the argument that the notices were posted.

And based on TOMA, a governmental body isn’t obliged to have an open meeting to speak on employment, discipline or even dismissing a public employee, unless the worker asks for a public hearing. Considering this, the city didn’t have to have an open meeting or give a written notice when it discussed Nix’s settlement agreement.

On top of that, Nix “agreed in writing to voluntarily accept his 2015 disciplinary suspension, with no right to appeal the terms and conditions of the agreement or the Chief’s decision to indefinitely suspend his employment in 2015,” said the appeals court. Nix had the chance to appeal the Chief’s offer when he agreed to the settlement in 2015, but he opted not to do that.

The appeals court also determined that since Nix’s appeal for the 2017 suspension is pending, it can’t be determined that the city didn’t give him due process.

Chief Justice Steve McKeithen authored the opinion. Justices Hollis Horton and Leanne Johnson concurred.

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City of Beaumont