Opinion Released November 9, 2017

City of Donna v. Ramirez, No. 13-16-00619-CV (Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Contreras)

In this interlocutory appeal from a denied plea to the jurisdiction, the Thirteenth Court of Appeals analyzed the standing requirements under the Texas Open Meetings Act (“TOMA”), and considered whether the plaintiff raised a fact issue sufficient to invoke sovereign immunity under TOMA and the Texas Whistleblower Act.

Oscar Ramirez served as the city manager of the City of Donna and was allegedly terminated from his position in a special meeting of the city council on March 31, 2014. Ramirez claimed the termination occurred because he reported to the Chief of Police that a municipal judge and several members of the city council had ordered him to discount fees for city services such as water bills and cemetery fees.

Pursuant to the City’s charter, Ramirez requested a hearing before the city council regarding his termination, and the hearing was scheduled for a special meeting on April 14, 2014. Ramirez’s attorney repeatedly requested that the hearing be rescheduled, and the city secretary believed the hearing had in fact been rescheduled. The city secretary marked through the April 14, 2014 agenda inside the front door of city hall with the word “cancelled,” and sent text messages to each council member on April 14 notifying them that the meeting would not occur that day. Yet, the hearing proceeded on April 14, and the council affirmed its termination decision.

Ramirez filed suit against the City alleging violations of the Texas Whistleblower Act and the Texas Open Meetings Act. Ramirez also sued the City’s mayor and councilmembers in their individual capacities, seeking a declaratory judgment that the councilmembers interfered with day-to-day operation of the City and violated the Texas Constitution by ordering him to discount city fees.

The defendants filed a plea to the jurisdiction, claiming Ramirez could not establish a violation of TOMA or the Whistleblower Act, and thus could not establish a waiver of governmental immunity, and that the declaratory judgment action was not ripe. The defendants attached two depositions and sections from the City’s Charter to the plea. Ramirez responded with four pieces of evidence, including minutes and the agendas from the two city council special meetings, a copy of the meeting agenda marked “cancelled,” excerpts from five depositions, correspondence between Ramirez and the City regarding the termination, and Ramirez’s affidavit regarding his reports to the police chief.

The trial court held a hearing on the plea to the jurisdiction and denied the motion. The defendants filed an interlocutory appeal.

Held: Ramirez had standing to bring a claim under TOMA and raised a fact issue regarding the jurisdictional facts sufficient to invoke the corresponding waivers of sovereign immunity. The trial court’s interlocutory order denying the defendants’ plea to the jurisdiction was affirmed.

The court began by reiterating the rules governing pleas to the jurisdiction.  When a plea to the jurisdiction challenges the existence of a jurisdictional fact, the plea is reviewed similar to a traditional motion for summary judgment.

TOMA

First, the defendants claimed that Ramirez (1) did not have standing to bring his TOMA claim because he was present at the meeting; and (2) did not establish a violation of TOMA because the agenda for the April 14 meeting was posted in compliance with the stature.

Standing

Regarding standing, the Thirteenth Court noted that the issue was not presented to the trial court and was raised for the first time in the defendants’ reply brief. Nonetheless, since standing is a component of subject-matter jurisdiction, the court addressed the issue. The court noted that TOMA confers standing on “interested person[s],” and is intended to benefit all members of the interested public. The Thirteenth Court thus aligned with the majority of courts of appeals, which hold that a person does not need to have a unique injury separate from other members of the public to have standing under TOMA, and must only show that he shares the general public’s interest in ensuring that TOMA is enforced. Thus, Ramirez qualified as an “interested person” and had standing to bring suit under TOMA.

Violation

The court then proceeded to determine whether Ramirez identified a TOMA violation. The parties did not dispute that the original April 14, 2014 notice met the requirements of TOMA; the only disputed issue was whether marking through the notice at city hall with the word “cancelled” was a violation of TOMA. The defendants argued that all other notices—including those inside city hall and posted online—were not marked as “cancelled.” The Thirteenth Court of Appeals held however, that it could not overlook the “cancelled” notice, and that the notice did not inform the general public that a meeting would be held. Moreover, TOMA specifically requires notice to be posted “in the city hall,” so the additional postings could not remedy the “cancelled” notice. Taking as true all evidence in favor of Ramirez then, Ramirez created a genuine issue of material fact regarding a violation of TOMA.

Whistleblower Act

A plaintiff must plead the specific elements of the Whistleblower Act in order to invoke the Act’s waiver of sovereign immunity. Although the elements may be considered jurisdictional facts, the plaintiff’s burden does not involve a significant inquiry into the validity of his claim. The elements are: (1) that the plaintiff was a public employee; (2) that he made a good faith report of a legal violation by another employee or his employing entity; (3) he made the report to the appropriate authority; and (4) he suffered retaliation.

Here, the City disputes whether Ramirez made a good faith report of a legal violation, arguing that (1) Ramirez reported his own violation; and (2) Ramirez did not identify an actual violation of the law. Good faith is determined under both a subjective and objective standard, requiring that the employee believed he was reporting a violation and that the belief was reasonable. Ramirez presented evidence that he was ordered by multiple city officials to waive or discount fees for city services. Ramirez claimed that these actions were in violation of the Texas Constitution’s prohibitions on the use of public funds to give contributions or credits to individuals. The Thirteenth Court of Appeals agreed, and noted that Ramirez’s factual allegations also constituted potential abuses of official capacity in violation of the Texas Penal Code. Thus, taking Ramirez presented a fact issue on his claim under the Texas Whistleblower Act.

Declaratory Judgment

The defendants next argued that Ramirez failed to identify any basis for his declaratory judgment claims. However, the Texas Civil Practice & Remedies Code authorizes interlocutory appeal from an order denying a governmental entity’s plea to the jurisdiction, and the declaratory judgment claims were brought only against the government officials in their individual capacities. The Thirteenth Court of Appeals thus lacked jurisdiction to review the declaratory judgment issue.

Having rejected each of the defendants’ challenges to the interlocutory order, the Thirteenth Court of Appeals affirmed the trial court’s judgment.

Read the Full Opinion Here