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City of Donna v. Ramirez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 9, 2017


         On appeal from the 398thDistrict Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa.


          LETICIA HINOJOSA Justice.

         Appellants City of Donna (Donna or the City), David Simmons, Jose Garza, Simon Sauceda, Irene Munoz, and Sonia Gallegos bring this interlocutory appeal from the trial court's denial of their plea to the jurisdiction seeking to dismiss claims brought by appellee Oscar Ramirez. [1] By seven issues, which we have reorganized as three issues, appellants argue the trial court erred in denying their plea to the jurisdiction because Ramirez failed to identify: (1) a violation of the Texas Open Meetings Act; (2) a reported violation of law sufficient to support a Whistleblower claim; and (3) a claim to support a declaratory judgment action. We affirm.

         I. Background

         A. Pleadings

         Ramirez, Donna's former city manager, brought causes of action against the City under the Texas Whistleblower Act, see Tex. Gov't Code Ann. § 554.002 (West, Westlaw through 2017 1st C.S.), and the Texas Open Meetings Act (TOMA). See id. § 551.002 (West, Westlaw through 2017 1st C.S.). Ramirez alleged he was terminated after he reported to the Donna Chief of Police and a municipal judge that Donna city officials ordered him to waive or discount certain municipal fees or charges for city services. Ramirez also alleged that the City's agenda notice concerning his termination appeal violated TOMA's notice provisions. Finally, Ramirez brought a declaratory judgment action against David Simmons, the City's mayor, and city councilmembers, Garza, Sauceda, Munoz, and Gallegos, in their individual capacities.

         B. Plea to the Jurisdiction

         Appellants filed a plea to the jurisdiction seeking dismissal of all counts on the basis that Ramirez could not identify a violation of TOMA or the Whistleblower Act, and, therefore, Ramirez could not establish a waiver of Donna's governmental immunity. Appellants further argued that Ramirez's requests for declaratory relief were not ripe. Appellants attached to their plea to the jurisdiction the depositions of Ramirez and Donna city secretary Martha Alvarado and sections from Donna's Home Rule Charter.

         Ramirez filed a response to the plea to the jurisdiction, attaching the following evidence: (1) the agenda for the April 14, 2014, special meeting of the city council, which depicts the handwritten notation "Cancelled"; (2) the agenda and minutes for both the March 31, 2014 and April 14, 2014, special meetings of the city council; (3) excerpts from the depositions of Alvarado, Garza, Ramirez, Munoz and Sauceda; (4) correspondence between Ramirez's counsel and the City concerning Ramirez's termination; and (5) Ramirez's affidavit.

         C. Jurisdictional Record

         1. Alleged TOMA Violation

         The exhibits and testimony in the jurisdictional record establish that Ramirez was hired to serve as Donna's city manager on December 6, 2010. Donna's city council voted to terminate Ramirez's employment at a special meeting held on March 31, 2014. Ramirez, through his attorney, filed a written request for a hearing before the city council concerning his termination. Ramirez's request was authorized by Donna's city charter, which provides that the city manager "may be removed at the will and pleasure of the Council by a majority vote[, ]" and "[i]f removed he/she may demand, within seven days of such action, written charges and the right to be heard thereon at an open or closed meeting of the Council to be held prior to the effective date of such action." The charter further provides that "[s]aid hearing shall be held within 15 days of the Council action to remove the City Manager[, ]" and that "[u]pon termination of such hearing, a special City Council meeting shall be held to determine the final resolution of the removal."

         The City scheduled a special meeting to discuss Ramirez's termination on April 14, 2014, the fifteenth day following his removal. The agenda notice provided that there would be a "[h]earing as requested by Dale & Klein, LLP on behalf of Oscar Ramirez as per Section 1, Article VI of the City of Donna Home Rule Charter." The agenda also stated that there would be "[c]onsideration and possible action or confirm or withdraw action taken on March 31, 2014 regarding removal of City Manager." The agenda provided that the city council would meet in executive session for "[d]iscussion on appeal letter submitted by Dale & Klein, LLP on behalf of Oscar Ramirez."

         Prior to the scheduled meeting, Ramirez's attorney requested in writing that the City reschedule the hearing. A representative for Ramirez's attorney contacted city secretary Alvarado the day of the hearing and again requested that the meeting be rescheduled. After speaking with the acting city manager, Alvarado believed the hearing had been rescheduled, and she wrote "Cancelled" on the agenda notice posted near the front door inside the city hall. Alvarado made the notation in the hour leading up to the scheduled hearing. Alvarado sent text messages to each city councilmember notifying them of the cancellation. Separate agenda notices posted outside the back entrance of the city hall and on the City's website remained unchanged.

         The hearing proceeded as originally scheduled, and the city council affirmed its earlier decision to terminate Ramirez's employment. Ramirez and multiple city officials saw that "Cancelled" was written on the agenda notice posted inside the city hall both before and after the hearing.

         2. Alleged Whistleblower Violation

         Ramirez testified by affidavit as follows:

In good faith, I reported to Donna Police Chief Ruben "Ram" De Leon and Donna Municipal Judge Javier F. Garza multiple times prior to my termination that one or more publicly elected Donna officials had ordered me to waive and/or discount certain bills and/or charges for certain city services, e.g., sewer and water bills, fees for pavilion rental at city park, and/or cemetery fees. I made these reports orally.

         Ramirez further testified that appellants Simmons, Sauceda, Garza, and Munoz "ordered [him] to waive and/or discount certain bills and/or charges for certain city services prior to [his] termination." Ramirez stated that he believed the actions of the named city officials "violated the Texas Constitution, " and that he reported the violations to the "appropriate law enforcement authorities." Ramirez also testified by deposition that he reported to the aforementioned authorities "[t]he illegal request to waive fees and make adjustments to remove-to remove municipal fees." He further clarified "[t]hat individual council members were asking [Ramirez] ...

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