Thursday, April 12, 2012

Bitter 10-year civil service feud affects entire state

Cops,firemen brought to neocon heel

Dear City of Waco, Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin again...The 10th Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But, for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.”

Oneevening in a year which now seems long-ago, 1999, an Austin patrolmanapprehended a driver under the influence of alcohol. Following afield sobriety test, he booked the man for DWI, a misdemeanor offenseto which the defendant eventually entered a plea of nolo contendere –Latin for “I do not wish to contest.”

Inthe rules that govern criminal jurisprudence, such pleas areautomatically considered identical to a plea of guilty; since the netresult is that the people of the state have no obligation to satisfythe burden of proof demanded by the Texas Code of Criminal Procedure,the defendant by his no contest plea has thereby rendered therequirement moot, and is therefore to be considered guilty.

LarryKelley, a self-described “thorn in the side” of establishmentmovers and shakers in one of the state's most conservative cities,was at the time an activist police executive who advocated civilservice procedures of mediation and arbitration over the “at will”pattern of labor relations followed by the vast majority of thestate's municipal and local governments.

Theall-seeing eye of the Austin patrol officer's dashboard camera caughtevery nuance of the roadside investigation and arrest. By then, thedays when a police officer could escort a driver under the influenceto his motel room, call a taxi – or make similarnon-confrontational arrangements – were long gone.

What'smore, Larry Kelley was not just any motorist who had been caughtdrinking.

Hewas at the time the Assistant Chief of Police of Waco, a communitythat is unique among Texas cities as a bastion of neoconservativesensibilities in the pre-election year on the cusp of a nationalpolitical turn to the right - 1999.

Ipleaded with that police officer to take me to my motel room. Youknow, there were a lot of things that could have been donedifferently, but he told me, 'Officer, it's your job or mine. If Ilet you slide, they will terminate me – so it's me or you.'”

Today,he never seeks to minimize his transgression. Though drunk driving isa misdemeanor, he will tell any interviewer, it's still a seriousoffense. He looks at the bright side. Getting busted was “probablythe best thing that ever happened to me,” he recalls.

Buthe is very camera shy, and totally resistant to interviews because,though his story started out as one of a highly placed lawenforcement official accused of a minor – yet serious – offense,it wound up being all about labor relations.

Asthe ten-year legal nightmare that followed his guilty plea andsubsequent dismissal from his job as a civil servant unfolded, herecalls, with every twist and turn in the slow motion pitcher's duelof claim, counter and cross claim, appeal, remand, motion, order andhearing, the television news shows insisted on showing thathumiliating footage of the chief being made to stand on one foot,lean back and touch his nose, recite the alphabet backwards – andall that jazz.

Inthe highly political series of courtroom confrontations thatfollowed, the City of Waco spend an estimated $600,000 on the appealsof civil judgments made by a mediator that would have reinstated achastened Chief Kelley in his job at a lower pay grade.

Ijust want to put all this behind me,” he said. He hopes it's hislast interview about the matter.

Heis a highly trained, highly motivated detective who has used moderntechniques of the laboratory, the information technology explosion ofthe cyberworld, and the streamlined methods of classification andcorrelation so available on the information superhighway to shepherdthe cases of many convicted murderers, conmen, robbers, burglars anddope salesmen through the system and on to the penitentiary and theparole board.

Buthe paid a high price for his misdemeanor offense.

Helost his career. It took ten years, but that's the way it turned out.

Itwasn't about law, and it wasn't really about me. It was aboutarbitration. I had the ability to reverse the indefinite suspension”imposed on him by the Chief of Police – a condition that reallyamounted to permanent dismissal from his job.

Themediator appointed to hear his appeal considered the penaltyexcessive. He changed the suspension from indefinite to 180 days andordered that he be put back to work at a lower pay grade.

TheTexas Supreme Court examined the City of Waco's allegation ofcomplaint that Section 143.057 of the Texas Local Government Code is“an unconstitutional delegation of authority” - not once, buttwice.

ChiefJustice Tom Gray made sure of that, according to Mr. Kelley, whoadded “He let his personal prejudices test arbitration. It took 10years, and it affects every police officer and fire fighter in thestate.

Thesection requires: §143.057. HEARING EXAMINERS. (a) In addition to the...theletter of disciplinary action,as applicable, issued to a fire fighter or police officer must statethat in an appeal of an indefinite suspension,...appealing firefighter or police officer may elect to appeal to an independent thirdparty hearing examiner instead of to the commission. The letter mustalso state that if the fire fighter or police officer elects toappeal to a hearing examiner, the person waives all rights to appealto a district court except as provided by Subsection (j)...A districtcourt may hear an appeal of a hearing examiner's award only on thegrounds that the arbitration panel was without jurisdiction orexceeded its jurisdiction or that the order was procured by fraud,collusion, or other unlawful means. An appeal must be brought in thedistrict court having jurisdiction in the municipality in which thefire or police department is located.

Theholding that the section is an unconstitutional delegation ofauthority forced a remand to the District Court at Waco, and thattriggered a trip to the Supreme Court, the members of whichconcurred.
Itwas an action that was forced by Chief Justice Tom Gray of the 10thDistrict Court of Appeals. By dissenting with the judgment of theWaco appeals court, one that was contrary to a previously existingopinion from another District Court of Appeals, he forced the issueinto the Supreme Court - not once, but twice.
Thisdoomed all subsequent appeals of firemen and policemen who appealtheir cases to mediators to failure, and thereby nullifies the entireconcept of mediation before civil service commissions.
TheTexas Commission on Judicial Conduct sanctioned his dissentingopinion because it contained material extraneous to the matter atlaw. Judge Gray wrote an open letter to the City of Waco wishing theadministration luck on their trip to Austin.
SaidChief Kelley, in parting, “Here I lost my job, my career, and theydidn't give him anything but a slap on the wrist.”
Onemight consider the public admonition handed down by the Commission asa little bit more than a slap on the wrist.
Theproceeding made many of his sarcastic and acerbic dissents a matterof public record in their sanction, which they held to be extraneousand prejudiced.

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