Hearing examiner did not exceed his powers in upholding indefinite suspension in firefighter's disciplinary appeal, San Antonio Court of Appeals rules

  
Mata v. City of San Antonio (Tex.App.- San Antonio [4th Dist.] April 18, 2012)
   

MEMORANDUM OPINION BY JUSTICE REBECCA SIMMONS

Appellant ["FIREFIGHTER" substituted for name] appealed the termination of his employment with the San Antonio Fire Department to a hearing examiner, who upheld the termination. FIREFIGHTER then appealed the hearing examiner's decision to district court, where the court denied his motion for summary judgment and granted summary judgment in favor of appellees City of San Antonio and San Antonio Firefighters' and Police Officers' Civil Service Commission (collectively the City). On appeal, FIREFIGHTER contends the trial court erred because the hearing examiner's decision was capricious and not supported by substantial evidence, or alternatively, that the hearing examiner exceeded his jurisdiction. We affirm the trial court's judgment.

BACKGROUND
 
On November 19, 2007, FIREFIGHTER, a San Antonio fire fighter, tested positive for cocaine use. The drug test was administered according to the terms of a collective bargaining agreement (CBA) between the City and the San Antonio fire fighters' bargaining agent, International Association of Firefighters, Local 624. The CBA allowed the City to randomly drug test each fire fighter once in a twelve-month period. Based on the positive results of FIREFIGHTER's drug test, San Antonio Fire Chief Charles Hood issued FIREFIGHTER a notice of proposed indefinite suspension. A meeting regarding FIREFIGHTER's discipline was scheduled for April 1, 2008. Local 624's Grievance Committee Chairperson Carlos Cordell accompanied FIREFIGHTER to the April 1st meeting in an effort to seek a lesser disciplinary penalty than employment termination. FIREFIGHTER, Chief Hood, and one witness signed the notice of indefinite suspension, Cordell did not. FIREFIGHTER's employment was thereby terminated,[1] and FIREFIGHTER did not appeal that decision.

However, after the suspension was signed, FIREFIGHTER, Cordell, Chief Hood, and several other attendees at the meeting discussed and reviewed the terms and conditions of a "Release and Settlement Agreement," or "last chance agreement," that would reinstate FIREFIGHTER as a fire fighter. This agreement permitted FIREFIGHTER to return to work conditioned on his execution of the agreement, his consent to submit to non-random drug testing, and his completion of a drug rehabilitation program. Cordell and FIREFIGHTER asked for a few changes in the terms of the agreement, which the City made. Notably, Cordell and FIREFIGHTER did not seek to change the non-random drug tests required by the last chance agreement. At the time, neither FIREFIGHTER nor Cordell questioned the legality of nor argued that the last chance agreement violated the terms of the CBA. FIREFIGHTER, Chief Hood, and one witness signed the last chance agreement, Cordell did not.

Later, following completion of a drug rehabilitation program, FIREFIGHTER again tested positive for cocaine use. The non-random drug test was conducted according to the terms of the last chance agreement. FIREFIGHTER was indefinitely suspended and his employment was terminated. FIREFIGHTER appealed the suspension to an independent third-party hearing examiner and contended the last chance agreement was unenforceable and void because the CBA did not permit non-random drug testing. FIREFIGHTER did not contest the accuracy of the drug test, nor did he assert that he did not use cocaine. The hearing examiner upheld FIREFIGHTER's termination.

FIREFIGHTER appealed the decision to the trial court and filed a motion for summary judgment claiming the hearing examiner acted arbitrarily and capriciously or exceeded his jurisdiction in upholding FIREFIGHTER's termination. The City responded with a motion for summary judgment contending (1) FIREFIGHTER is estopped from denying enforcement of the last chance agreement, (2) the hearing examiner neither exceeded his authority nor acted capriciously in upholding FIREFIGHTER's termination, and the examiner's decision should be confirmed as a matter of law, and (3) alternatively, if the court determined the random drug testing provision of the last chance agreement void, the agreement should be rescinded in its entirety and FIREFIGHTER's original termination upheld. The City also sought (1) a declaration that the last chance agreement was valid and enforceable, (2) a judgment confirming the hearing examiner's award, and (3) attorney's fees. The trial court granted summary judgment in favor of the City without stating the grounds upon which it was granted. FIREFIGHTER appeals the trial court's summary judgment.

STANDARD OF REVIEW

We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). "When both parties move for partial summary judgment on the same issues and the trial court grants one motion and denies the other, as here, the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented, and if the reviewing court determines that the trial court erred, renders the judgment the trial court should have rendered." Id.

In this case the parties agree on the underlying facts. They disagree on the enforceability of the last chance agreement and the interpretation of the CBA. Specifically, they disagree on the standard to employ in reviewing the hearing examiner's decision.

THIRD-PARTY HEARING EXAMINERS

The threshold issue on appeal is the determination of the applicable standard of review of the hearing examiner's decision. FIREFIGHTER contends the trial court should have reviewed the hearing examiner's decision under either a "substantial evidence or capricious" standard. The City argues review is severely restricted to whether the hearing examiner had jurisdiction to make his decision or exceeded his jurisdiction in making his decision.

A. Standard of Review of a Hearing Examiner's Decision
 
The statutory framework of the Fire Fighters and Police Officers Civil Service Act (the Act) establishes a process for fire fighters challenging disciplinary suspensions. See TEX. LOC. GOV'T CODE ANN. §§ 143.001-.363 (West 2008 & Supp. 2012); City of Houston v. Williams, 99 S.W.3d 709, 713 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Under this scheme, a fire fighter can elect to have his suspension reviewed by a hearing examiner or the Civil Service Commission. See TEX. LOC. GOV'T CODE ANN. §§ 143.010, 143.053, 143.057; City of DeSoto v. White, 288 S.W.3d 389, 392 (Tex. 2009). A hearing examiner's decision is ordinarily reviewable "only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means." See TEX. LOC. GOV'T CODE ANN. § 143.057(j); City of Pasadena v. Smith, 292 S.W.3d 14, 17 (Tex. 2009). However, the Act provides that a "collective bargaining contract [that] specifically provides otherwise" prevails over a "civil service provision." See TEX. LOC. GOV'T CODE ANN. § 174.006(a); City of San Antonio v. Scott, 16 S.W.3d 372, 376 (Tex. App.-San Antonio 1999, pet. denied).

B. The Standard Provided in Section 143.057 Governs this Dispute
 
FIREFIGHTER argues the CBA specifically provides for a substantial evidence or capricious standard of review and therefore this standard prevails over the standard set forth in section 143.057(j) of the Local Government Code. The City responds that the substantial evidence or capricious review is limited to the grievance process outlined in the CBA, and that disciplinary proceedings are specifically excluded from that process. To determine the proper standard of review of the hearing examiner's decision we must review the CBA. "The construction of an unambiguous contract is a question of law for the court, which we may consider under a de novo standard of review." Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); accord Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983).

Article 30 (Grievance Procedure) of the CBA prescribes a grievance procedure for disputes between the City and Local 624 or one of its fire fighters. Section (1)(D) of Article 30 contains an exception from the grievance procedure for certain disciplinary matters that are subject to the Local Government Code:

Disciplinary matters subject to the appeals procedure provided by Texas Local Government Code Chapter 143 shall not be subject to the grievance/arbitration procedure; provided that such matters, at the employee's election, will be subject to the Civil Service Commission or grievance/arbitration procedure under a just-cause standard, if Texas Local Government Code Section 143.057 is repealed or amended to eliminate the optional appeal of disciplinary matters to a Hearing Examiner. If the provisions of Chapter 143 are not repealed, and should the employee elect to proceed to the optional appeal of disciplinary matters to a Hearing Examiner, the examiner shall be one of the six (6) pre-selected, qualified neutrals as called for in Section 5(A) hereof. The powers, duties, and/or obligations of said arbitrator/hearing examiner shall likewise be as provided for in this Agreement and applicable provisions of the Texas Local Government Code, Chapter 143.

FIREFIGHTER argues that the terms "arbitrator" and "hearing examiner" are used interchangeably and that Article 31 of the CBA provides the standard of review for the hearing examiner's award:

If, at any time after a decision and/or award of the Civil Service Commission and/or an arbitrator, any affected party contests or challenges the decision or award in any other legal proceeding, the following shall apply:

. . . The decision and award of the arbitrator and/or the Commission must be upheld, unless the contesting party can establish the award was not supported in whole or in part by substantial evidence and/or that the award of the arbitrator and/or the Commission was capricious.

We do not agree with FIREFIGHTER's interpretation of the CBA and its interaction with the Local Government Code. The CBA is unambiguous. See Coker, 650 S.W.2d at 393 (holding language that can be given certain or definite legal meaning is unambiguous). By its very terms Article 31 provides the standard of review for the decision and award solely for arbitrators and the Civil Service Commission. It is silent as to hearing examiners. If the employee elects to appeal a suspension to a hearing examiner, Article 30(1)(D) of the CBA specifically subjects such disciplinary procedures to the provisions of Local Government Code section 143.057. Contrary to FIREFIGHTER's interpretation, Article 30(1)(D) of the CBA clearly distinguishes between a hearing examiner and an arbitrator under the grievance procedures. Article 30 contains a number of sections setting forth the procedures to be followed in a grievance proceeding including the submission of unresolved grievances to arbitration before an arbitrator. Article 30 section 5 clearly recognizes the difference between a "grievance . . . submitted to arbitration" and an "employee appeal to a Hearing Examiner." We presume these distinctions were intentional. See Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex. 1983) ("Generally, the parties to a contract intend every clause to have some effect. . . ."); accord Birnbaum v. Swepi LP, 48 S.W.3d 254, 257 (Tex. App.-San Antonio 2001, pet. denied). It is undisputed that (1) FIREFIGHTER's termination was subject to a disciplinary procedure, and (2) FIREFIGHTER elected to have his suspension reviewed by a hearing examiner. Therefore, FIREFIGHTER is subject to the standard of review set forth in Local Government Code section 143.057(j).

C. Did the Hearing Examiner Exceed His Jurisdiction?

If a fire fighter appeals his termination to a hearing examiner, "his ability to seek further review in a district court is severely limited." See City of DeSoto v. White, 288 S.W.3d 389, 391 (Tex. 2009). It is undisputed that the hearing examiner had jurisdiction to hear FIREFIGHTER's appeal; moreover, FIREFIGHTER makes no allegation that the hearing examiner's decision was procured by fraud, collusion, or other unlawful means. See TEX. LOC. GOV'T CODE ANN. § 143.057(j). Thus, the issue in this case is whether the hearing examiner exceeded his authority by enforcing the last chance agreement. See id. The supreme court has provided the following test to guide our inquiry: "[A] hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine." City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010) (quoting City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex. 2009)). FIREFIGHTER makes no argument that the hearing examiner's acts violated the nondelegation doctrine; therefore, we will address whether the hearing examiner's acts were not authorized by the Act or whether they were contrary to the Act. See Kelley, 309 S.W.3d at 542.

1. The Hearing Examiner's Decision Was Authorized by the Act

The hearing examiner's decision to uphold the indefinite suspension of FIREFIGHTER's employment was authorized by section 143.052 of the Act, which provides that the head of a fire department "may suspend a fire fighter . . . for the violation of a civil service rule." See TEX. LOC. GOV'T CODE ANN. § 143.052(b). A commission rule allowing for removal or suspension is valid if the ground for removal is a "violation of an applicable fire or police department rule." Id. § 143.051(12). The applicable rule in this case is San Antonio Fire Fighters' and Police Officers' Civil Service Commission Rule XIII(C)(12)(4.09) which states, "The use, possession, sale or acceptance of illegal drugs or narcotics by Members of the San Antonio Fire Department either on or off duty is prohibited."

FIREFIGHTER has not contested his cocaine use, nor has he challenged the reliability or accuracy of the drug tests that indicated his cocaine use. Thus, FIREFIGHTER violated the Fire Department's rules and the hearing examiner did not exceed his authority under the Act to uphold the suspension. See TEX. LOC. GOV'T CODE ANN. § 143.051(12), 143.052(b).

2. The Hearing Examiner's Decision Was Not Contrary to the Act

FIREFIGHTER contends that because the last chance agreement altered the CBA, the hearing examiner's decision violated the Act's "exclusive bargaining" requirement that only the Union could bargain on FIREFIGHTER's behalf. The Act provides, "fire fighters . . . are entitled to organize and bargain collectively with their public employer," id. § 174.023, and "[a] public employer shall recognize an association selected by a majority of the fire fighters of the fire department of a political subdivision as the exclusive bargaining agent for the fire fighters of that department unless a majority of the fire fighters withdraw the recognition," id. § 174.101.

Article 9 of the CBA, entitled "Maintenance of Standards," states that "[a]ll standards, privileges, and working conditions enjoyed by the City of San Antonio Fire Fighters at the effective date of this Agreement, which are not included in this Agreement shall remain unchanged for the duration of this Agreement." The hearing examiner found that "[t]he record indicates there is a history of settlement agreements in the San Antonio Fire Department." FIREFIGHTER does not dispute this history. Based on the examiner's findings and the plain language of the CBA, fire fighters had the privilege or work condition of entering into last chance agreements prior to the effective date of the CBA. Accordingly, the record shows that the execution of a last chance agreement was not contrary to the CBA. Thus, the hearing examiner's decision to uphold the suspension was not contrary to the "exclusive bargaining" provisions in the Code. See generally TEX. LOC. GOV'T CODE ANN. § 174.023-.109 (West 2008 & Supp. 2012).

In addition, the hearing examiner noted FIREFIGHTER's failure to challenge his first indefinite suspension:

Had Mr. FIREFIGHTER believed that the indefinite suspension issued to him for his first offense (April 1, 2008) was improper, the appropriate means of challenging the discipline was to file an appeal. The appeal of a subsequent disciplinary action (November 2008), is not the proper step, means, or forum for questioning the prior disciplinary action.

There is no evidence in the record that FIREFIGHTER appealed his first indefinite suspension. See TEX. LOC. GOV'T CODE ANN. § 143.052(d) (requiring a suspended fire fighter to appeal his suspension within ten days). See generally TEX. LOC. GOV'T CODE ANN. §§ 143.001-.363 (West 2008) (providing procedures to fire fighters for appealing disciplinary actions); City of Houston v. Williams, 99 S.W.3d 709, 713 (Tex. App.-Houston [14th Dist.] 2003, no pet.). After his first indefinite suspension, FIREFIGHTER was reinstated contingent upon his execution of the last chance agreement. In his appeal of his second indefinite suspension, FIREFIGHTER asked the hearing examiner for reinstatement because the last chance agreement was void. If the last chance agreement is void, then FIREFIGHTER's first indefinite suspension remains in place.[2] Thus, under the facts available to the hearing examiner, he could not have reinstated FIREFIGHTER. Cf. City of Pasadena v. Smith, 292 S.W.3d 14, 20 (Tex. 2009) ("[T]he Act does not empower a hearing examiner to make rules."). The Act's ten-day period to appeal a suspension would bar FIREFIGHTER's untimely appeal from the original indefinite suspension. See TEX. LOC. GOV'T CODE ANN. § 143.052(d); see also City of Temple Firemen's & Policemen's Civil Serv. Comm'n v. Bender, 787 S.W.2d 951, 951 (Tex. 1990) (per curium) ("We hold that a civil service commission's jurisdiction is not invoked unless a fire fighter or police officer files a notice of appeal with the commission within ten days after the occurrence of the action being appealed. . . ."); Downs v. City of Fort Worth, 692 S.W.2d 209, 212 (Tex. App.-Fort Worth 1985, writ ref'd n.r.e.) (citing the precursor statutes to sections 143.052, 143.053, and 143.057, and holding that compliance with the ten-day timeframe is mandatory).

CONCLUSION

For the reasons given above, we hold that the hearing examiner did not exceed his jurisdiction by upholding FIREFIGHTER's employment termination. Therefore, we affirm the trial court's summary judgment.

[1] "An indefinite suspension is equivalent to dismissal from the department." TEX. LOC. GOV'T CODE ANN. § 143.052(b) (West 2008).
[2] Cf. Summers v. Keebler Co., 133 Fed. App'x 249, 252 (6th Cir. 2005) ("For even if the last chance agreement were construed to violate the collective bargaining agreement, such a violation did not cause the Plaintiff's injury. The Plaintiff alleges she was injured by being discharged from her job. Without signing the last chance agreement in the first place after she had passed out on the job due to intoxication, she would have been justifiably terminated. Her signing of the last chance agreement saved her from being terminated.").

Arbitration award vacated in firefighters' dispute with city over pay

Beaumont Court of Appeals throws out arbitration decision, holding that the panel of arbitrators went beyond the scope of their authority. The City of Beaumont v. International Association of Firefighters, Local Union No. 399, No. (Tex.App.- Beaumont, Nov. 8, 2007)(Opinion by Justice Horton) (fire fighter litigation, arbitration) (Before Justices Gaultney, Kreger and Horton) Appeal from 58th District Court of Jefferson County Disposition: Reversed and dismissed without prejudice to further arbitration This case arises from the arbitration of a compensation dispute between the City of Beaumont ("City") and the International Association of Firefighters, Local Union No. 399 ("IAFF"). The arbitration was conducted pursuant to the Fire and Police Employee Relations Act ("FPERA"). See Tex. Loc. Gov't Code Ann. §§ 174.001-.253 (Vernon 1999 & Supp. 2006). In this appeal, we hold that the arbitration panel exceeded its authority by considering an issue for which proper notice was not given, by arbitrating an issue that was not in dispute, and by proceeding to arbitrate without enforcing all of the provisions which the parties had agreed would apply to their dispute. Accordingly, the judgment entered by the trial court must be set aside. We render judgment that the IAFF take nothing by its suit, without prejudice, however, to such rights it may have, if any, to initiate further arbitration proceedings under the governing contract. Procedural Background and The Arbitration Award The terms of the agreement governing the present dispute between the IAFF and the City are contained within a collective bargaining agreement dated effective October 1, 2001 ("the 2001 contract"). Under that contract, the parties agreed to commence collective bargaining on a new contract by no later than July 1, 2005. The 2001 contract contains an "Evergreen Clause," in which the parties' acknowledged the contract's four-year term, and further agreed "that [the contract] shall remain in full force until replaced by a successor agreement." The impasse procedure, Article XXXIV of the 2001 contract, contains the parties' agreement to arbitrate compensation disputes. It required "written notice to the other party containing specifications of the issue or issues in dispute." With respect to issues submitted to arbitration, Article XXXIV's impasse procedure further provided: 3. In making its decision, the Arbitration Panel may consider only the following: a) The requirements of Section 174.021, Local Government Code. b) The total compensation, including wages and benefits, and conditions of employment provided by the EMPLOYER to members of the bargaining unit. c) The total compensation and terms and conditions of employment of State Civil Service certified, full-time firefighters in all Texas cities. d) The rate of increase or decrease in the cost of living for the Houston area determined by the Consumer Price Index for the period beginning with the effective date of the current contract and ending with the most recent published report at the time of the commencement of the hearing. e) After all other possible considerations of comparison, the arbitration panel may give consideration to revenues available to the employer. 4. Information concerning hours of work and insurance benefits and costs may be considered by the Arbitration Panel for purposes of determining total compensation and terms and conditions of employment but may not be used specifically to support an amendment by the EMPLOYER of the hours of work of Beaumont firefighters or the coverage and costs of insurance benefits for such firefighters. The parties commenced negotiations for a new contract on June 3, 2005. By August 2005, the parties had reached an impasse, and the IAFF requested arbitration. On March 8, 2006, the IAFF notified the arbitrators of its issues for arbitration, as follows: 1) The appropriate wage increase for the contract years 2005-2008 (Article XXX and Addendum A); 2) Whether the contract should continue to include impasse procedure language inconsistent with the statutory command (Article XXXIV); 3) Whether the contract should be modified so that negotiations commence on February 1 to allow for timely resolution of contract language by agreement or arbitration (Article XXXV); 4) Whether retirees should pay the same health insurance premiums as active members (Article XXXI); 5) Whether vacations and holidays shall be awarded to members in the same way as civilian employees, pursuant to statute (Article XIII); 6) Whether the pension contribution of the City should be increased, since members do not participate in Social Security Retirement benefits and the City does not make contributions on their behalf in that regard (Article XV); 7) Whether various provisions for "extra" pay should be increased to reflect current economic realities (Article XVII - Educational Incentive Pay; Article XIX - Certification Pay; Article XX - Skills Incentive Pay; Article XXI - Clothing Maintenance; Article XXIX - Standby Pay)[;] 8) Whether Training and Arson/Prevention Division members shall be covered by a set work schedule as had been in effect January 1, 2005 (four days per week, ten hours per day) (Article XXIII); [and] 9) Whether members will be allowed to participate in IAFF "457" Retirement Plans and IAFF "Retiree Savings Health Plans (flex plan)" (New Article). Subsequently, during March and July 2006, the arbitration panel heard evidence regarding the parties' dispute. The panel issued its decision on July 21, 2006. The panel, consisting of three members, voted two-to-one in favor of the award. In explaining the majority panel's reasoning, the author of the award stated: "I shall not apply the requirement set forth in Article XXXIV, Section 3(c) of the expiring Agreement to the determinations reached herein." The award further explained that "this Board is not bound by provisions which are contrary to statute, even if the Employer wants them applied and the Union is prepared to accept their applicability in this proceeding to assure it does not lose on another, arguably more important issue." Thus, in reaching its decision on the IAFF's compensation award, the panel's award reflects that the arbitration panel did not follow the criteria to which the parties had agreed under Article XXXIV of their 2001contract. Judicial Review FPERA awards are subject to judicial review. The FPERA states: (a) An award of an arbitration board may be reviewed by a district court for the judicial district in which the municipality is located only on the grounds that: (1) the arbitration board was without jurisdiction; (2) the arbitration board exceeded its jurisdiction; (3) the order is not supported by competent, material, and substantial evidence on the whole record; or (4) the order was obtained by fraud, collusion, or similar unlawful means. Tex. Loc. Gov't Code Ann. § 174.253(a) (Vernon 1999). The district court entered its judgment confirming the arbitration award on October 23, 2006. We review a trial court's decision to affirm or vacate an arbitration award de novo. Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 229 (Tex. App.-Houston [14th Dist.] 1993, writ denied). Jurisdiction of Arbitration Panel In issue four of its brief, the City alleges that the trial court should not have confirmed the award because the arbitrators exceeded their authority. The scope of an arbitrator's authority to adjudicate a dispute is determined by the scope of the controlling arbitration clause. A party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement. See Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996). Whether a given issue is within the scope of the issues submitted to an arbitrator is a question of law. Babcock, 863 S.W.2d at 229-230. The agreement to arbitrate in the contract before us requires that "both parties shall submit all issues in dispute to arbitration." The contract defines the disputed issues as "all matters which the parties have been unable to resolve through collective bargaining." The contract further requires each party to provide "written notice to the other party containing specifications of the issue or issues in dispute[.]" It appears that the parties' 2001 contract contemplated that written notice occur prior to the arbitration hearing. The IAFF submitted a written notice defining the issues in dispute. In its first issue, the IAFF identified the contract years as the years 2005-2008, which would be the term of the future agreement. In its next issue, the IAFF asked: "Whether the contract should continue to include impasse procedure language inconsistent with the statutory command." In reviewing the issues for arbitration, we conclude that the IAFF's written statement of issues contains no written notice of any contention that section 3(c) (other Texas firefighters) should not be applied as a criteria for the compensation to be awarded for the term under consideration. Instead, the issue on which the IAFF provided notice concerned whether the future contract's terms "should continue to include impasse procedure language inconsistent with the statutory command[.]" Generally, subject to our later discussion, whether an existing contract term should be included in a new contract would be an issue on which the parties could engage in collective bargaining. With respect to the prospective 2005-2008 contract and whether it would include Article XXXIV 3(c)'s criteria, the IAFF's notice is sufficient. However, with respect to a claim that Article XXXIV 3(c)'s criteria should not be applied by the arbitrators in this arbitration proceeding, the notice is deficient. Even were we to conclude that the IAFF's statement of the issue was broad enough to create some ambiguity over whether notice was provided (although we do not), the rule of ejusdem generis provides that "when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation." Hilco Elec. Coop. v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81 (Tex. 2003). By referring to the contract years in issue one as being for the term 2005-2008, it is reasonable to conclude that "the contract" referenced in issue two is likewise a reference to the new contract to begin in 2005. In this case, the IAFF does not contend that the City waived the contract's written notice requirement, nor does the IAFF identify any amended pleading in which it notified the City of a claim that section 3(c) should not be applied in determining the compensation package of the firefighters for the contract term in issue. In determining the effect of the absence of the required contractual notice, we observe that contractual provisions must be considered with reference to the entire instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The provision requiring written notice of issues to be arbitrated is clear, specific, and unambiguous. In light of the absence of FPERA guidelines about the notice a party must provide on disputed issues, parties to FPERA agreements likely consider it wise to provide a contractual notice requirement so they will know what issues are to be arbitrated. When a contract provides a written notice provision, and an arbitration panel unilaterally decides issues that were not submitted, the arbitrators' action effectively deprives the parties of their contractually required notice. On the record before us, we conclude that the City did not receive the notice to which it was entitled. Therefore, the application of section 3(c)'s criteria to the compensation award was not an issue submitted by the parties to arbitration. In deciding an issue that was not submitted to it, the arbitrators exceeded the scope of authority delegated to them to arbitrate disputes under the FPERA. See Tex. Loc. Gov't Code Ann. § 174.156 (Vernon 1999). Additionally, the contract limited the arbitrators to deciding "matters which the parties have been unable to resolve through collective bargaining." Whether wage rates of other Texas full-time certified firefighters were factors to be considered in determining a compensation award was a question already resolved for the 2005 contract; the 2001 contract expressly provided that the wages of other Texas full-time certified firefighters could be considered. Thus, the criteria for determining the firefighters' compensation award had already been agreed to by the parties. It was not an issue in dispute. While the IAFF contended that the criteria should not continue to be included in new contracts, that issue is different from whether parties had previously agreed under the 2001 contract's criteria that the wages of other firefighters would be a factor to consider in determining the compensation award for the 2005 contract term under consideration. The parties had agreed on that issue, as Article XXXIV's section 3(c)'s presence in the 2001 contract was not disputed. It has long been settled that an arbitration award that exceeds the authority conferred by the arbitration agreement is void. Fortune v. Killebrew, 86 Tex. 172, 23 S.W. 976, 978 (1893) ("An award in excess of the authority of the arbitrators is void, unless the matter in excess is such as may be disregarded, and a valid award be left standing.") In Gulf Oil Corp. v. Guidry, 327 S.W.2d 406, 408 (Tex. 1959), the Texas Supreme Court held that Fortune "settles the law in this state to be that when arbitrators attempt to determine matters not submitted to their determination, as to such matters the award is void." In Guidry, the Supreme Court further explained that "the authority of arbitrators is derived from the arbitration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication." Id. "Arbitrators therefore exceed their authority when they decide matters not properly before them." Barsness v. Scott, 126 S.W.3d 232, 241 (Tex. App.-San Antonio 2003, pet. denied). By altering binding terms of the existing contract, as contrasted to forging new terms of a prospective contract, the panel went beyond its authority. Generally, we do not believe the FPERA's arbitration provision authorizes arbitrators to retroactively alter the terms of an existing contract. In discussing the appropriate role of the arbitrator, the United States Supreme Court has said: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Because the parties had agreed in their contract to allow wages of other Texas firefighters to be considered, we conclude that whether Article XXXIV section 3(c) of the 2001 contract could be considered in setting the compensation award for the 2005-2008 term was not an issue in dispute. As previously stated, the arbitrators, by deciding to ignore section 3(c), considered an issue that had already been resolved. By doing so, the panel exceeded its authority. Finally, we also conclude that the parties did not agree to arbitrate disputes without the panel's application of the agreed criteria to the award. Whether the agreement encompasses the claims raised is an issue of law. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006). Generally, in deciding the meaning of contract terms that contain an arbitration clause, courts apply ordinary state law rules of contract construction. Webster, 128 S.W.3d 227-28. The section of the contract that established the criteria to apply regarding the firefighters' compensation package is found within the contract's arbitration provision for arbitrating compensation issues. Because the challenged criteria under which the parties agreed to arbitrate is found in the same section of the contract that relates to the agreement to arbitrate, we conclude that the arbitration agreement was conditional on the arbitrators' following the parties' agreed criteria. We conclude that there was no agreement to arbitrate absent the application of the agreed criteria. If arbitrators had the authority to decide what portions of the arbitration clause are enforceable, they could effectively grant themselves the power to compel parties to arbitrate claims upon which there was no agreement to arbitrate. We do not believe that arbitrators have such power under the FPERA, because the statute "does not require compulsory arbitration." Tex. Loc. Gov't Code Ann. § 174.163 (Vernon 1999). Thus, the ambit of what the parties agreed to arbitrate is a matter of their agreement, and their agreement was conditional on the arbitrators' application of the agreed criteria. In other words, whether the asserted invalidity of section (3)(c) affects the parties' agreement to arbitrate in the first instance depends upon whether the allegedly invalid criteria was an independent or a mutually dependent promise. See Hanks v. GAB Bus. Serv., Inc., 644 S.W.2d 707, 708 (Tex. 1982). This question is determined by the intent of the parties at the time the contract was formed, as evidenced by the language of the contract. Greenstein v. Simpson, 660 S.W.2d 155, 160 (Tex. App.-Waco 1983, writ ref'd n.r.e.) (citing Nutt v. Members Mut. Ins. Co., 474 S.W.2d 575, 577-78 (Tex. Civ. App.-Dallas 1971, writ ref'd n.r.e.)). The test is whether or not the parties would have entered into the agreement absent the unenforceable part. Rogers v. Wolfson, 763 S.W.2d 922, 925 (Tex. App.-Dallas 1989, writ denied). Nevertheless, an agreement containing more than one promise is not necessarily rendered invalid by the illegality of one of the promises. In such a case, the invalid provisions may be severed and the valid portions of the agreement upheld provided the invalid provision does not constitute the main or essential purpose of the agreement. Williams v. Williams, 569 S.W.2d 867, 871 (Tex. 1978). The issue of severability is a question of law. John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 86 (Tex. App.- Houston [14th Dist.] 1996, writ denied); see also Rogers, 763 S.W.2d 922, 925-26. The criteria for determining wages is contained in the same article as the arbitration agreement. This placement provides strong evidence that the parties reasonably expected the arbitrators to consider the criteria in determining a compensation award. We conclude that the promise to arbitrate in article XXXIV of the contract is a mutual condition dependent on the arbitration panel's application of criteria that included article XXXIV section 3(c). The existence of the severability clause in the contract does not change our conclusion that the clauses are mutually dependent promises. The severability clause reads: If any article or section of this agreement or any provision should be held invalid by operation of law, or by any tribunal of competent jurisdiction, or if compliance with or enforcement of any article or section should be restrained by such tribunal pending final determination as to its validity, the remainder of this agreement shall remain in full force and effect and shall not be affected thereby. Nevertheless, a severability clause does not transmute an otherwise dependent promise into one that is independent and divisible. See Patrizi v. McAninch, 153 Tex. 389, 269 S.W.2d 343, 348-349 (1954). We conclude that a promise to arbitrate under certain conditions is not a promise to arbitrate if those conditions are removed. As a result, we hold that if Article XXXIV's criteria is unenforceable (an issue we do not reach), then the dependent promise to arbitrate would also be unenforceable. By construing the contract in a way that modified the scope of the parties' agreement to arbitrate, the arbitrators exceeded their authority. Issues Not Reached We expressly do not address several of the issues raised by the parties in their briefs. Because we resolve the dispute on the question of whether the arbitration panel exceeded its authority, it is unnecessary that we reach whether the FPERA permits or prohibits contracts that allow consideration of the compensation or conditions of employment of other public employees. See Tex. Loc. Gov't Code Ann. §§ 174.021, 174.022, 174.156 (Vernon 1999). Should the parties choose to do so, they may perfect that issue for consideration by the courts. In its brief, the City asks that we reverse the trial court's judgment based on twelve additional issues. The City's additional issues range from a procedural challenge to a constitutional argument that the retroactive nature of an award for back-pay violates the Texas Constitution. We are mindful that generally, "we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds." In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Additionally, we are not required to resolve issues that would give the City no greater relief than the relief we have granted on issue four. See Tex. R. App. P. 47.1. As a result, we do not address the City's remaining issues. See id. Relief Granted For the reasons stated, we conclude that the arbitration panel exceeded its authority in several respects. It arbitrated an issue on which the City was not given written notice as required by the parties' contract. It arbitrated an issue that had been settled previously by collective bargaining and which was not an issue in dispute. It proceeded to arbitrate while refusing to apply the criteria under which the parties had agreed to arbitration in the first place. Where an arbitration panel exceeds its authority by deciding issues not submitted to it, the Texas Supreme Court has declared that the arbitration award, as to such matters, is void. Guidry, 327 S.W.2d at 408. We believe the rule applies to each of the reasons the arbitration panel exceeded its authority here. Thus, the appropriate remedy here is to reverse the judgment in its entirety, and render judgment that the IAFF take nothing, without prejudice, however, to such rights as the IAFF may have, if any, to further arbitration under the governing contract. Guidry, 327 S.W.2d at 411. REVERSED, ARBITRATION AWARD VACATED, DISMISSED WITHOUT PREJUDICE. ____________________________ HOLLIS HORTON Justice Submitted on September 20, 2007 Opinion Delivered November 8, 2007 Before Gaultney, Kreger, and Horton, JJ.

City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006)

The City of Houston vs. Donald Clark, No. 04-0930 (Tex. Jun. 16, 2006)(O'Neill) ═══════════════════════════════════ On Petition for Review from the Court of Appeals for the Fourteenth District of Texas ═══════════════════════════════════ Justice O’Neill delivered the opinion of the Court. In this case, we must decide whether Chapter 143 of the Local Government Code, known as the Fire Fighter and Police Officer Civil Service Act, authorizes municipalities to appeal adverse decisions of independent hearing examiners. We hold that it does. Accordingly, we reverse the court of appeals’ judgment of dismissal and remand the case to that court for consideration of the City of Houston’s appeal. I. Background Donald Clark, a senior fire alarm dispatcher for the Houston Fire Department, was suspended for fifteen days without pay for violating basic dispatch protocols. His error caused unnecessary delay in dispatching an emergency vehicle in response to the shooting of a Houston police officer. At the time Clark’s suspension was imposed, Houston Fire Chief Lester Tyra was himself serving a seven-day suspension because of an investigation into Clark’s placement at the emergency dispatch center. As a result, Clark’s suspension was handed down by the acting fire chief. Clark elected to appeal his suspension to an independent hearing examiner, as was his right under the Local Government Code. See Tex. Loc. Gov’t Code § 143.1016(a). At the parties’ request, the independent hearing examiner simultaneously considered the merits of Clark’s appeal and his motion to dismiss, which asserted that the Code only authorized the fire chief, not the acting fire chief, to suspend fire department personnel. The independent hearing examiner denied Clark’s appeal on the merits, finding that the fire department’s decision to suspend him was justified. But the examiner granted Clark’s motion to dismiss,[1] concluding that Section 143.117(a) of the Code empowered only the fire chief to temporarily suspend fire department personnel.[2] The City appealed the independent hearing examiner’s decision to the district court, asserting that the examiner had exceeded his jurisdiction and incorrectly applied the law in granting Clark’s motion to dismiss. It also sought a declaratory judgment that an acting fire chief may issue a temporary suspension under Chapter 143 of the Code. Clark filed a summary-judgment motion arguing that the district court’s decision in another case, City of Houston v. Rivera, No. 90-045333 (190th Dist. Ct., Harris County, Tex. Feb. 12, 1992), collaterally estopped the City from asserting that an acting fire chief has the authority to suspend a fire fighter. The City filed a cross-motion for summary judgment asserting seven grounds in support.[3] The trial court granted Clark’s summary-judgment motion and denied the City’s. The court of appeals, finding the factual differences between the circumstances of this case and Rivera sufficient to prevent collateral estoppel from barring the City’s claim, reversed the trial court’s judgment and remanded the case for further review. City of Houston v. Clark, No. 01-01-00828-CV, 2002 Tex. App. LEXIS 8854, at *9-10 (Tex. App. —Houston [1st Dist.] Dec. 12, 2002, no pet.). On remand, the trial court again granted summary judgment in Clark’s favor, this time noting that the reference to “department head” in Section 143.117(a) did not include an acting fire chief who was neither appointed by the Mayor nor confirmed by the City Council, and therefore, the acting fire chief was not empowered to suspend members of the fire department. The trial court’s order reversed Clark’s suspension and reinstated his wages and lost time. The City appealed the trial court’s decision, but the court of appeals dismissed the appeal for want of jurisdiction, holding that Section 143.1016(j) of the Code did not afford the City a right to appeal an independent hearing examiner’s decision. 142 S.W.2d at 353-54. The court of appeals concluded that the absence of an explicit reference to a municipality’s right to appeal a hearing examiner’s decision, contrasted with numerous references throughout Chapter 143 to the appellate rights of fire fighters and police officers, could only mean that “no such right or procedures were intended or exist.” 142 S.W.3d at 353; 354, n.3. The court of appeals expressly disagreed with other Texas appellate decisions holding that cities could appeal an adverse independent hearing examiner’s decision under Chapter 143. Compare id., with City of Garland v. Byrd, 97 S.W.3d 601, 607-08 (Tex. App.–Dallas 2002, pet. denied) (holding that there are no limitations on who may appeal a hearing examiner’s decision); Nuchia v. Woodruff, 956 S.W.2d 612, 616-18 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (holding that the city had a right to judicial review under the Declaratory Judgment Act to determine if a hearing examiner exceeded his authority, but not reaching whether there was a right to an appeal under Section 143.1016(j)); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.—Tyler 1998, no pet.) (holding that a municipality may appeal an independent hearing examiner’s decision to a trial court under Section 143.1016(j)); City of San Antonio v. Longoria, No. 04-04-00063-CV, 2004 WL 2098074 (Tex. App.—San Antonio Sept. 22, 2004, no pet.) (mem. op.) (reaching the merits of an appeal by the City of a hearing examiner’s decision); but see City of Waco v. Kelley, ___ S.W.3d ___, ___ (Tex. App.—Waco 2004) (holding that the City of Waco had no right to appeal an independent hearing examiner’s decision), rev’d, ___ S.W.3d ___ (Tex. 2006) (per curiam). We granted the City’s petition for review to resolve this split of authority over municipalities’ appellate rights under Section 143.1016(j) of the Local Government Code.[4] II. The Parties’ Arguments The City contends the court of appeals erred in foreclosing any recourse by cities to appeal an independent hearing examiner’s decision in district court. The City asserts that the decision leaves it without any remedy, even if the examiner’s decision is arbitrary or capricious, or if such a decision is procured unlawfully or by fraud. According to the City, construing the statutory scheme to foreclose any right of appeal would indicate an unconstitutional delegation of legislative authority. See, e.g., Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997) (designating eight factors to consider in determining whether a delegation of legislative power is constitutional, including whether a private examiner’s decision is subject to meaningful review); see also Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998) (holding that the Legislature can delegate authority to private entities if there is protection against the arbitrary exercise of power). The City further claims the hearing examiner in this case exceeded his jurisdiction by, in effect, issuing a declaratory judgment that an acting fire chief must be appointed by the Mayor and confirmed by the City Council in order to suspend fire department personnel under Section 143.117 of the Code. Clark responds that the City has no right to appeal an independent hearing examiner’s decision under Section 143.1016(j). Clark notes that while cities might have recourse to district court to vindicate constitutional rights, the City raises no such rights in this case. Alternatively, Clark argues that, even if the City is determined to have a right to appeal under Section 143.1016(j), such an appeal is limited to the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion or other unlawful means. See Tex. Loc. Gov’t Code § 143.1016(j). Clark contends the City’s challenge to the examiner’s decision in this case implicates none of these narrow grounds. III. Discussion Section 143.1016 of the Local Government Code establishes procedures governing the review of certain disciplinary actions against fire fighters and police officers. See Tex. Loc. Gov’t Code § 143.1016. That provision affords an aggrieved officer the choice of appealing an adverse disciplinary action to an independent third party hearing examiner rather than to the Fire Fighters’ and Police Officers’ Civil Service Commission. Id. § 143.1016(a). In exchange, the aggrieved officer accepts a significantly circumscribed right to appeal the examiner’s decision, as described in Section 143.1016(c): The hearing examiner’s decision is final and binding on all parties. If the fire fighter or police officer decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided by subsection (j). Id. § 143.1016(c). Subsection (j) states in pertinent part: A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Id. § 143.1016(j).[5] In this case, we must decide whether Section 143.1016(j) affords the City a right of appeal from an independent hearing examiner’s decision, or whether the Legislature intended the limited appeal in subjection (j) to apply exclusively to fire fighters and police officers. A In interpreting Section 143.1016(j), our primary objective is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In discerning that intent, we begin with the “‘plain and common meaning of the statute’s words.’“ Id. (quoting State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). Words and phrases are to be read in context and, in construing a statute, we may consider the consequences of a particular construction. Tex. Gov’t Code §§ 311.011, 311.023(5). Section 143.1016(j), by its own terms, does not allocate the right to appeal an independent hearing examiner’s decision to any particular party, although it does expressly restrict the scope of that appeal. This general right is in stark contrast to other portions of the Code, which explicitly afford appellate rights only to fire fighters and police officers. See Tex. Loc. Gov’t Code §§ 143.010(a) (“[I]f a fire fighter or police officer wants to appeal to the commission . . . , the fire fighter or police officer need only file an appeal with the commission . . . .”); 143.015(a) (“If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside.”); 143.034(a) (allowing promotional candidates from the fire or police department to appeal to the commission if they are dissatisfied with the review of their examination); 143.053(b) (allowing a suspended fire fighter or police officer to appeal a suspension to the Commission); see also id. §§ 143.1015(a); 143.1016(c); 143.117(e); 143.120(a). In the context of the entire Code, we believe this distinction is meaningful. See PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004) (“When the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended” and “we must honor that difference”). Throughout Chapter 143, fire fighters and police officers are uniformly granted the right to appeal adverse recommendations, proposed solutions or decisions when the decisionmaker is the Commission or a Commission appointee. See City of Houston v. Jackson, ___ S.W.3d ___, ___ (Tex. 2006) (discussing the various appeals tracks afforded aggrieved officers under the grievance procedure codified in Sections 143.127-143.134). In those instances, the decisionmakers are closely aligned with the municipalities that have chosen to be governed by Chapter 143 of the Code. See, e.g., Tex. Loc. Gov’t Code ' 143.006(b) (explaining that the Commission consists of three members appointed by the municipality’s chief executive and confirmed by the governing body of the municipality). The allocation of appellate rights only to aggrieved officers in such situations acknowledges this implicit alignment. However, an appeal from an independent hearing examiner’s award differs categorically from the appeal of a decision made by the fire or police department, a Commission-appointed grievance examiner, or the Commission itself. Selected only after the aggrieved officer’s and the department head’s mutual agreement,[6] an independent hearing examiner has no implicit Commission alignment. Id. § 143.1016(d). Consequently, there would be no apparent reason for the Legislature to foreclose a right of appeal to either party. We believe the general language the Legislature chose to describe the right of appeal under Section 143.1016(j) was deliberate and not intended to foreclose a municipality’s appellate rights. Clark contends that, had the Legislature intended to authorize the City to appeal an independent hearing examiner’s decision, it would have expressly provided for such a right. Of course, the flip side is also true; the Legislature could have as easily expressly limited appellate rights under Section 143.1016(j) solely to aggrieved officers, as it did many times throughout other sections of the Code. Instead, Section 143.1016(j) states generally that “[a] district court may hear an appeal of a hearing examiner’s award,” specifically foreclosing the right to neither party. Id. § 143.1016(j) (emphasis added). Clark next argues that Section 143.1016(j) does not create a right to appeal, but merely defines the contours of the right established in Section 143.1016(c). In essence, Clark suggests that the portions of Section 143.1016(c) informing fire fighters and police officers of their limited right of review on appeal would be rendered surplusage if all parties before a hearing examiner were provided the same right to appeal under Section 143.1016(j). We disagree. The specific reference to fire fighters and police officers in Section 143.1016(c) is best understood when viewing the Code in its entirety, as we must. See, e.g., Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). The Legislature’s apparent purpose in Section 143.1016(c) was to ensure that fire fighters and police officers are fully aware of a significant consequence that will result if they elect to have an independent hearing examiner, rather than the Commission, hear their appeal.[7] Appeals from an independent hearing examiner’s decision are severely circumscribed, while appeals from a Commission decision to district court are reviewed de novo. Id. § 143.015(a)-(b). Since at this early stage it is up to the aggrieved officer which course to pursue, the legislative warning is understandable. Section 143.1016(c) merely reinforces the notion that aggrieved officers should proceed with caution when considering their various appeal options. We also note that, while affording police officers and fire fighters a unilateral right of review makes sense when appeal is from the decisions of Commission appointees or the Commission itself, see, e.g., Tex. Loc. Gov’t Code § 143.006(b), Clark has offered no reason why the Legislature would grant only a unilateral right to appeal a decision made by an independent hearing examiner who is not appointed by or affiliated with the municipality. Clark points to the fact that police officers and fire fighters give up de novo district court review when they choose to proceed before an independent hearing examiner, but that appeals route is equally foreclosed to the Commission once the grievant’s selection of an independent hearing examiner has been made. As we have said, “[t]he Legislature can . . . delegate authority to private entities ‘if the legislative purpose is discernible and there is protection against the arbitrary exercise of power.’“ Proctor, 972 S.W.2d at 735 (quoting Office of Pub. Ins. Counsel v. Tex. Auto. Ins. Plan, 860 S.W.2d 231, 237 (Tex. App.—Austin 1993, writ denied). Under Clark’s interpretation, cities could be hamstrung by an independent hearing examiner’s arbitrary or even fraudulent decision without recourse. We cannot see how the public interest is served by such a result. See Tex. Gov’t Code ' 311.021 (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended . . . and public interest is favored over any private interest.”). In addition, interpreting Section 143.1016(j) to foreclose municipalities’ appellate rights could well render the Legislature’s delegation of authority to independent hearing examiners constitutionally suspect. See Texas Boll Weevil Eradication Found., 952 S.W.2d at 472. When faced with multiple constructions of a statute, we must interpret the statutory language in a manner that renders it constitutional if it is possible to do so; “[s]tatutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the constitution].” Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); see also Tex. Gov’t Code § 311.021 (stating “[i]n enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended”). Our interpretation of the statutory language is based on its plain language and context, and further avoids a constitutionally suspect construction. Our holding also finds support in the historical roots of the hearing examiner provisions currently codified in the Local Government Code, to which we now turn. B Section 143.1016 was added to the Local Government Code in 1989, just two years after the Code was created as a result of the Legislature’s directive to reclassify and rearrange Texas’ statutes in a more logical order.[8] Section 143.1016, which incorporates a hearing examiner provision specifically for municipalities with a population of 1.5 million or more, was based on the language of Section 143.057, the hearing examiner provision applicable to all municipalities governed by Chapter 143 of the Code.[9] The Bill Analysis from the legislation enacting Section 143.1016 explains that the bill “[a]mends Chapter 143, Local Government Code, by adding Section 143.1016. This section duplicates Sec. 143.057 except as described as follows.” Sen. Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 688, 71st Leg., R.S. (1989). The “as follows” describes certain differences between Sections 143.057 and 143.1016, but none relate to the provisions affecting appeals from an independent hearing examiner’s decision. In fact, the appeals provisions in Sections 143.1016(c) and (j) are identical to those found in Sections 143.057(c) and (j). Therefore, it seems likely that the Legislature intended to provide the City of Houston the same right to appeal an independent hearing examiner’s decision under Sections 143.1016(c) and (j) as that provided other municipalities under Sections 143.057(c) and (j). That being the case, the historical development of the hearing examiner provision codified in Section 143.057 informs our analysis of municipalities’ right to appeal an adverse independent hearing examiner’s decision under Section 143.1016(j). See Tex. Gov’t Code ' 311.023(4) (“In construing a statute . . . a court may consider . . . former statutory provisions, including laws on the same or similar subjects.”). The history of independent hearing examiners in the section of Texas’ civil statutes governing cities, towns and villages can be traced to a 1983 amendment to article 1269m, which created the following sections: Sec. 16c. HEARING EXAMINERS. (a) In a city having a population of less than 1,500,000 according to the most recent federal census, in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. To exercise this choice, the appealing employee must submit a letter to the director stating his decision to appeal to an independent third party hearing examiner. (b) The decision of the hearing examiner is final and binding on all parties. If the employee decides to appeal to an independent third party hearing examiner, the employee automatically waives all rights to appeal to district court. . . . (f) A state district court may hear appeals of an award of a hearing examiner only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. An appeal must be brought in the state district court having jurisdiction in the municipality in which the department is located. Act of May 30, 68th Leg., R.S., ch. 420, § 9, 1983 Tex. Gen. Laws 2246, 2265-67 (emphasis added). The 1983 legislation added new Section 16c to apply to all civil service cities of less than 1,500,000. House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 1015, 68th Leg., R.S. (1983). The Bill Analysis explains that Section 16c provides for “the use of independent third-party hearing examiners instead of the Commission[. I]f the appealing employee elects to use the [hearing] examiner he waives all right to appeal to District Court.” Id. at page 3. Therefore, after 1983, an employee could choose an independent hearing examiner to hear an appeal of a disciplinary suspension, but was required to waive all rights to appeal the examiner’s decision to the district court. And yet, Section 16c(f) unambiguously envisions a limited appeal of the examiner’s decision to state district court. In light of the wholesale prohibition of employee appeal rights, the limited appellate right referenced in 16c(f) could only have referred to that of the municipality. In 1985, the Legislature amended Section 16c in two separate bills. The first amendment expanded the use of independent hearing examiners to City of Houston employees by eliminating the provision’s restriction to those cities with a population of less than 1.5 million: (a) In a city in this state that has adopted this Act [having a population of less than 1,500,000 according to the most recent federal census], in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. To exercise this choice, the appealing employee must submit a letter to the director stating his decision to appeal to an independent third party hearing examiner. Act of May 27, 1985, 69th Leg., R.S., ch. 958, § 7, 1985 Tex. Gen. Laws, 3227, 3231 (emphasis in original). The Bill Analysis describes the change to Section 16c(a) as: “Amends Section 16(c) of [article] 1269m by adding cities of 1,500,000 or more to those who may elect to appeal to a hearing examiner.” Sen. Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 540, 69th Leg., R.S. (1985). With this amendment, the right to have an independent hearing examiner hear the appeal of a disciplinary suspension was extended to City of Houston employees. The second amendment to Section 16c required that municipalities inform employees in the letter of disciplinary action that they would have the right to appeal an examiner’s decision, as limited by Section 16c(f), which right had been expressly precluded in the 1983 legislation. Section 16c(a) was amended, in pertinent part, as follows: (a) In a city having a population of less than 1,500,000 according to the most recent federal census, the letter of disciplinary action issued to an employee shall state, in addition to other notice requirements prescribed by this Act, that in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. The letter must also state that if the employee elects to appeal to a hearing examiner, the employee waives all rights of appeal to a district court except as provided by Subsection (f) of this section. To exercise this choice, the appealing employee must submit [a letter] to the director a written request as part of the original notice of appeal required under Section 16b(b) of this Act stating his decision to appeal to an independent third party hearing examiner. Act of May 26, 1985, 69th Leg., R.S. ch. 910, § 5(a), 1985 Tex. Gen. Laws 3046, 3052. This second amendment requires the department to provide notice to the employee of (1) a right to appeal the disciplinary action to an independent hearing examiner, and (2) the consequences on the scope of the employee’s appellate rights—described in Subsection (f), which mirrors the limitations of Section 143.1016(j)—if the employee chooses that route. In explaining this amendment to Section 16c(a), the Bill Analysis describes the change as “adding requirements to the content of a letter of disciplinary action.” House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 1657, 69th Leg., R.S. (1985). The effect of this amendment is problematic in that Section 16c(b) was not amended at all in 1985, and continued to say that, if the employee decides to appeal to a hearing examiner, “the employee automatically waives all rights to appeal to district court.” Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 9, 1983 Tex. Gen. Laws 2246, 2266. Clearly, the two provisions are not compatible and it was unclear whether employees were authorized to appeal a hearing examiner’s decision after 1985. But the inconsistency was short lived, as the Legislature amended Section 16c(b) to explicitly afford employees the right to appeal an examiner’s decision, as circumscribed by Section 16c(f), which eliminated the tension between the provisions. In 1987, Texas’ civil statutes affecting cities, towns, and villages were recodified into the Local Government Code by Senate Bill 896. See Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 906. The Bill Analysis explained the Texas Legislative Council’s mandate to codify Texas’ civil statutes and noted that the purpose of the bill was “a nonsubstantive revision of the Texas statutes relating to local government, primarily cities and counties.” Sen. Comm. on State Affairs, Bill Analysis, Tex. S.B. 896, 70th Leg., R.S. (1987). Senate Bill 896’s proposed language for Section 143.057(c) merely strips out Section 16c(b)’s denial of any right to appeal and inserted the right to an appeal as limited by current Section 143.057(j). See Tex. Loc. Gov’t Code §§ 143.057(c), (j). Nothing in the text of the bill, the Bill Analysis, or the Revisor’s Notes indicates that the text of current Section 143.057(c) was altered during the recodification process to read “the employee automatically waives all rights to appeal to district court except as provided by Subsection (j).” Id. § 143.057(c) (emphasis added). Nevertheless, the change appears to have been made in the 1987 recodification. Whether or not the Legislature intended to provide employees the right to appeal a hearing examiner’s decision in 1985 or 1987, the fact remains that appeals to district court were allowed in 1983 even though employees were unambiguously denied such a right. This historical reconstruction strongly suggests that when the Legislature created the independent hearing examiner option in 1983, municipalities, indeed only municipalities, were afforded a limited right to appeal the examiner’s decision, and there is nothing to indicate that municipalities do not retain that right today. We conclude that Chapter 143 does not preclude the City of Houston from appealing the independent hearing examiner’s adverse decision in this case. That appeal, however, is restricted by the scope of review described in Section 143.1016(j), i.e., that the hearing examiner was without jurisdiction or exceeded that jurisdiction or the order was procured by fraud, collusion or other unlawful means. Tex. Loc. Gov’t Code § 143.1016(j). The City claims its appeal fits within Section 143.1016(j)’s limited scope because the hearing examiner acted without or exceeded his jurisdiction by erroneously deciding that an acting fire chief is not authorized to suspend fire department personnel. Clark responds that the acting fire chief had no authority to suspend, but even if he did, the hearing examiner’s decision to the contrary was nevertheless within the examiner’s jurisdiction and thus unassailable under Section 143.1016(j). Because the court of appeals dismissed the City’s appeal, it did not reach these issues. Of course, if the right of appeal provided by Section 143.1016(j) does not afford a city meaningful review of the merits of a decision, as Clark appears to argue, delegation of grievance decisions to an independent hearing examiner may raise constitutional problems. See Tex. Boll Weevil Eradication Found., 952 S.W.2d at 472. The City takes a much broader view of the issues the provision would allow to be raised on appeal. But the precise scope of the appeal provided by Section 143.1016(j) and its effect on cities have not been fully presented in this Court. See Proctor, 972 S.W.2d at 735 (declining to decide whether the Legislature impermissibly delegated authority to hear appeals to a private decisionmaker under Section 143.057(d) of the Local Government Code since that question was not properly framed by the City). Having concluded that the court of appeals erred in dismissing the appeal, we remand the case to that court for consideration of the parties’ arguments on these issues and others. IV. Conclusion We hold that Section 143.1016(j) of the Local Government Code affords the City of Houston the right to appeal the independent hearing examiner’s adverse decision in this case, and the court of appeals erred in dismissing the City’s appeal. Accordingly, we reverse the court of appeals’ judgment dismissing the City’s appeal for want of jurisdiction and remand the case to that court for further proceedings. __________________________________________ Harriet O’Neill Justice OPINION DELIVERED: June 30, 2006 [1] The court of appeals noted that any contradiction in the simultaneous decisions was not material to the outcome of the appeal. 142 S.W.3d 350, 354. We agree. [2] Section 143.117(a) of the Code provides: “The head of the fire or police department may suspend a fire fighter or police officer under the department head’s supervision or jurisdiction for disciplinary reasons for a reasonable period not to exceed 15 days.” Id. § 143.117(a). The Code defines “department head” as “the chief or head of a fire or police department or that person’s equivalent, regardless of the name or title used.” Id. § 143.003(2). [3] The City argued: (1) the hearing examiner ignored the provisions of Chapter 143 of the Local Government Code and improperly interpreted the term “department head”; (2) Rivera does not control the present case under the doctrine of stare decisis; (3) the hearing examiner had jurisdiction to decide the merits of the suspension; (4) the hearing examiner did not have jurisdiction to determine that the acting fire chief did not have the authority to issue a suspension; (5) only the City had the authority to determine who could act as the equivalent of the fire chief; (6) the hearing examiner did not have standing to compel the City to follow procedures it was not legally required to follow; and (7) the City enjoyed governmental immunity. [4] We note the similarity between Sections 143.1016 and 143.057 of the Local Government Code. Section 143.057 applies to all municipalities governed by Chapter 143, while Section 143.1016 applies only to those municipalities with a population of 1.5 million or more. See Tex. Loc. Gov’t Code § 143.101. As we explain herein, Section 143.1016 was modeled on the language of Section 143.057. In particular, the language governing appeals of independent hearing examiner decisions in Sections 143.1016(c) and (j) exactly duplicates that of Sections 143.057(c) and (j). Therefore, our decision today is not limited to the City of Houston; it applies with equal force to all municipalities governed by Chapter 143 of the Local Government Code. [5] The Legislature’s use of the phrase “arbitration panel” is difficult to explain in the context of appeals to individual independent hearing examiners under Section 143.1016, since the hearing examiner, not an arbitration panel, provides a final decision. For purposes of this case, we presume Section 143.1016(j)’s reference to “arbitration panel” includes an independent hearing examiner. [6] If no agreement can be reached, the Code provides a mechanism for the selection of an arbitrator from the American Arbitration Association or the Federal Mediation and Conciliation Service. Id. [7] As a further warning, the Legislature required the letter of disciplinary action issued to a fire fighter or police officer to state that if the fire fighter or police officer opted for an independent hearing examiner to oversee the appeal, the person waives all rights to a district court appeal except as provided in Section 143.1016(j). Tex. Loc. Gov’t Code § 143.1016(a). [8] Act of May 25, 1989, 71st Leg., R.S., ch. 854, § 4, 1989 Tex. Gen. Laws 3829; see Tex. Gov’t Code § 323.007 (requiring the Texas Legislative Council to plan and execute a permanent statutory revision program, but without altering the sense, meaning, or effect of the statutes). [9] See Tex. Loc. Gov’t Code § 143.057; see also id. § 143.002 (explaining that this Chapter applies only to a municipality: (1) that (A) has a population of 10,000 or more; (B) has a paid fire department and police department; and (C) has voted to adopt this chapter or the law codified by this chapter; or (2) whose election to adopt this chapter and whose acts subsequent to that election were validated by the law enacted by House Bill 822, Acts of the 73rd Legislature, Regular Session, 1993).