Opinion
Thе trial court granted the City of Dublin’s plea to the jurisdiction on John David Johnson’s Texas Whistleblower Act 1 claim and also granted the City’s motions for summary judgment on Johnson’s breach of contract and wrongful termination claims. We affirm in part and reverse and remand in part.
Johnson was employed as the chief of police by the City of Dublin for over 19 years. During part of that time, Johnson was also the city manager. The City attempted to terminate Johnson’s employment as chief of police on October 13,1997, pursuant to TEX. LOC. GOV’T CODE ANN. § 22.077(b) (Vernon 1999), which provides:
If the governing body lacks confidence in a municipal officer elected by the governing body, the governing body may remove the officer at any time. The removal is effective only if two-thirds of the elected aldermen vote in favor of a resolution declaring the lack of confidence.
In this case, five members of the council voted that they had “no confidence” in Johnson, two members opposed that position, and one member abstained. The abstaining council member was Johnson’s wife. 2
*403 Johnson initially filed suit against the City stating claims under the Whistleblower Act as well as claims alleging that the City breached its employment contract with him. Johnson alleged that his termination resulted from his good faith reports of violations which he had observed certain persons commit while employed by the City. The trial court granted the City’s plea to the jurisdiction on Johnson’s Whis-tleblower Act claim, and it аlso granted the City’s motion for summary judgment on Johnson’s breach of contract claim. Johnson amended his petition to further allege wrongful termination. The City sought judgment on that claim also, and the trial court granted that motion.
In their arguments to the trial court, the parties asserted that, following the vote of “no confidence” at the city council meeting, Johnson’s attorney asked if Johnson had the opportunity to speak at the meeting. Johnson complained that the mayor and two council members should not be allowed to vote. 3 Johnson alleged that he had notified law enforcement officers that there were certain bidding irregularities involving the City. He maintained that any vote by the mayor and those two council members would be retaliatory and that, therefore, they should not be able to vote. The mayor then read the resolution of the council to terminate Johnson’s employment. Johnson’s attorney asked once more if his cliеnt would have the opportunity to speak. An attorney associated with the City responded that Johnson’s attorney was speaking out of order. A citizen of the City asked the mayor if the decision to terminate Johnson was based on the investigation of the City’s attorney. The mayor said that it was not. Another citizen stated that he “couldn’t understand why there was no reason given for firing David Johnson. The Council needs to give David Johnson a chance to talk because this is going to go into a legal battle.” Before the meeting adjourned, one of the members of the council announced that he wanted to change his “no confidence” vote and vote against the resolution. He also stated that he was' resigning that night from the council, but the meeting was adjourned with no further action.
Johnson argues in his first point of error that the trial court erred in granting the City’s plea to the jurisdiction in connection with the whistleblower claim. In its plea to the jurisdiction, the City alleged that Johnson had not complied with the City’s written, employee grievance policies prior to filing his whistleblower claim. Therefore, it claims that the trial court did not have subject matter jurisdiction of this claim. 4
*404
The City relies upon
Gregg County v. Farrar,
(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.
(b) The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.
(c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by Section 554.005.
(d) If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect tо:
(1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or
(2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter. (Emphasis added)
In this case, the first step in the City’s grievance procedure requires that the employee enter into informal discussions with the employee’s supervisor. If the informal discussions are unsuccessful, the City’s formal grievance procedure is then initiated. That procedure requires that the employee prepare a written statement giving details of the grievance and stating the specific remedial action requested. The employee must present the written grievance to the immediate supervisor. If the employee does not obtain relief there, then the employee must file the written grievance with the department head. The final step requires that the employee submit a copy of the grievance to the city manager, who may present the grievance to the members of the city council.
Johnson argues that, since he was the chief of police, he was both the supervisor and department head of the department. Therefore, Johnson contends that the only other pеrson to whom he could have presented his grievance was the city manager and that both the “acting” city manager and the city council knew that Johnson believed he was terminated because of the criminal investigation he had commenced. Assuming that his argument is correct, the grievance procedure provides that, at some point, Johnson was required to submit a copy of his written grievance to the city manager. The City’s “policy on grievance” contemplates an employee submitting his grievance directly to the city manager by providing that, if an employee’s immediate supervisor is also the department head, the employee may submit his written grievance directly to the city manager. *405 Johnson never did that. 5
The court in
City of San Antonio v. Marin,
Under the current version of the statute, the same result occurs, except for the fact that the employee must now wait 60 days for a final deсision before filing suit. If 60 days has passed without a final decision, the employee may file suit without exhausting his administrative remedies or he may continue with the grievance procedure, just as an employee operating under the former version of the statute could.
While the term “exhaust” is no longer used in the amended statute:
[A]n employee is required to initiate the grievance procedure and give the employer an opportunity to reach a final decision within 60 days. Only then, does the statute permit the filing оf suit under the [Whistleblower] Act. (Emphasis added)
City of San Antonio v. Marin, supra at 441. The purpose of Section 554.006 is to afford the accused employer “the opportunity to correct its errors by resolving disputes before being subjected to the expense and effort of litigation.” City of San Antonio v. Marin, supra at 441. Therefore, in Marin, the appellees violated both the spirit and the letter of the Whistle-blower Act by filing suit two days after initiating the grievance procedure.
We hold that Johnson similarly failed to initiate action under the City’s formal grievance procedure. Because he failed to satisfy the mandatory statutory prerequisites to filing suit under the Texas Whis-tleblower Act, the trial court lacked jurisdiction of Johnson’s Whistleblower claim. See Gregg County v. Farrar, supra. The trial court properly granted the City’s plea to the jurisdiction. Johnson’s first point is overruled.
In his second point of error, Johnson argues that the “no confidence” vote of the City council was not in compliance with Section 22.077(b). Five of the eight elected aldermen vоted “no confidence”; two voted against the proposition; and Johnson’s wife abstained as she was required to do. Johnson argues that, because five is not two-thirds of the council, his termination was never properly in effect.
In its second motion for summary judgment, the City argued that, because Johnson’s wife was statutorily barred from voting, her seat on the council could not be included in the computation of whether two-thirds of the council voted for lack of confidencе. Therefore, the City argued that Johnson’s termination complied with Section 22.077(b) and that his wrongful termination claim should be dismissed as a matter of law. The trial court granted the City’s motion. On appeal, the City argues *406 that Johnson’s interpretation of Section 22.077(b) would, in effect, allow his wife’s vote to be a vote against the “no confidence” resolution. The City urges that such a position would nullify the provisions of the nepotism laws and that, as a matter of law, it is entitled to judgment that the vote wаs effective to terminate Johnson.
To be entitled to summary judgment, the party moving for summary judgment carries the burden of proving that no material fact issue exists and that the mov-ant is entitled to judgment as a matter of law.
M.D. Anderson Hospital v. Willrich,
There is not an abundance of Texas law in this area, and we believe that a detailed discussion of the Texas cases which touch upon this question would be helpful. In
Missouri K & T. Ry. Co. of Texas v. McGlamory,
No law passed by the Legislature, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency, which emergency must be expressed in a preamble or in the body of the act, the Legislature shall by a vote of two-thirds of all the members elected to each House, otherwise direct; said vote to be taken by yeas and nays, and entered upon the journals. (Emphasis added)
The court noted that there were 128 “elected” members in the house. The bill passed with less than 86 votes which is not two-thirds of the “elected” members of the house. Therefore, the bill did not take effect until after the expiration of 90 days after the session finally adjourned.
In
Nalle v. City of Austin,
In
State v. Etheridge,
City of Alamo Heights v. Gerety,
“[A]ll the members of the legislative body” means the same as “the members of the whole council”... and that it means all the members in esse and qualified to act.
City of Alamo Heights v. Gerety, supra at 780. The court also noted that a disqualification was to be treated the same as a vacancy when determining the number of members of the council. Again, “elected” council members was not a question in thе case.
Hannan v. City of Coppell,
*408 The difference in the statute in the case now before us and those involved in the cases which we have discussed above (with the exception of Missouri K. & T. Ry. Co. of Texas v. McGlamory, supra) is that in this case, as in McGlamory, there is the specific requirement that the vote be a certain fraction of the elected members of the body.
In City of Alamo Heights v. Gerety, supra at 779, Justice Pope, writing for the court and citing McGlamory from Texas as well as many other states, stated that:
Some statutes, in stating a necessary vote, contemplate an irreducible number of positions, a full and unreduced complement of the total body. That result is achieved in the case of a statute which refers not only to all the members, but also adds words to show it speaks of the total number of positions which always remains constant. This is illustrated by cases which have construed provisions requiring a specified fraction of a whole body “elected.” When the word “elected” is added, the cases have held that the total number of positions which constitutes that body is irreducible for any cause. (Emphasis added)
The Gerety court also stated that, in cases where an irreducible number is contemplated, “even a vacancy does not reduce the total number included in the body.” City of Alamo Heights v. Gerety, supra.
The Gerety court further stated that the cases which have discussed the issue of a disqualification “have treated disqualification аs though it were a vacancy.” Although we are dealing with the issue of a disqualification in this case, we are also interpreting a provision that clearly requires a vote of two-thirds of the elected aldermen. If disqualification is treated as a vacancy and if a vacancy does not reduce the total number to be included in cases such as those enumerated in City of Alamo Heights v. Gerety, supra, then neither does disqualification reduce the total number to be included in such cases.
The City claims that including the place of Johnson’s wife in calculating the required vote in effect allowed her to cast a vote against the proposition. The assertion is that such would be tantamount to a violation of Section 573.062(b) relating to nepotism. However, any other holding would be contrary to Section 22.077(b) which, we hold, requires that her position be included in determining the vote which is required under that section. Further, as the Gerety court stated, one “charged with the burden of obtaining a required number of affirmative or favorable votes does not discharge it by non-votes and negative votes of members composing the body.” City of Alamo Heights v. Gerety, supra at 780.
Statutes which deal with the same general subject or which have the same general purpose are considered to be
in pari materia
and are to be construed as though they were one.
Texas State Board of Pharmacy v. Kittman,
[I]t is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.
Furthermore, language such as that contained in Section 22.077(b) is to be strictly construed. State v. Etheridge, supra at 829. In Etheridge, the court, in discussing the appropriate application of strict construction, specifically referred to the forerunner of Sеction 22.077(b).
We hold that the word “elected” in Section 22.077(b) means that the required number is irreducible for any cause. Since the City Council of Dublin consisted of eight elected members, the “no confidence” resolution was not properly adopted by “two-thirds of the elected aldermen” when five voted for it, two against it, and the remaining member abstained from voting pursuant to Section 573.062(b). Johnson’s second point is sustained.
Because the City did not show that it was entitled to judgment on Johnson’s wrongful tеrmination claim as a matter of law, the judgment of the trial court granting summary judgment on that claim is reversed and remanded for a trial on the merits. In all other respects, the judgment of the trial court is affirmed.
Notes
. TEX. GOV'T CODE ANN. § 554.001 et seq. (Vernon 1994 & Supp. 2001).
. Since he had been employed with the City for more than 30 days prior to his wife’s taking office on the city council, Johnson fell within the exception to the state laws on nepotism. TEX. GOV'T CODE ANN. § 573.062(a) (Vernon 1994). TEX. GOVT CODE ANN. § 573.062(b) (Vernon 1994) prohibited Johnson's wife from participating "in any deliberation or voting on the...dismissal” of Johnson. The City argues that Johnson’s interpretation of Section 22.077(b) would result in an effective violation of the nepotism *403 laws because counting Johnson’s wife’s seat while not allowing her to vote is the same as allowing her to vote to preserve her husband’s employment with the City. The City urges that the only interpretation which harmonizes the two statutes is to read Section 22.077(b) as requiring a two-thirds vote of the aldermen legally eligible to vote.
. In our original opinion, the punctuation and the omission of the article "the” left the impression that this court thought that the may- or was someone other than the actual mayor; we did not.
. If the rule heretofore was that a trial court must judge a plea to the jurisdiction solely on the allegations in a plaintiff’s petition, it apparently is no longer. See
Hernandez v. Texas Workers' Compensation Insurance Fund,
. On the date of Johnson’s termination, the city manager had been terminated, and the mayor had been appointed "interim” city manager until another city manager could be hired. Although he argued the unconstitutionality of such arrangement in the trial court, Johnson does not present that argument on appeal.