Thе BOARD OF TRUSTEES OF the HOUSTON FIREFIGHTERS’ RELIEF AND RETIREMENT FUND, Appellant v. The CITY OF HOUSTON, Texas, Appellee
NO. 01-12-01167-CV
Court of Appeals of Texas, Houston (1st Dist.).
Opinion issued January 27, 2015
Rehearing Overruled July 14, 2015
468 S.W.3d 184
Harvey Brown, Justice
Fernando De Leon, Judith L. Ramsey, John B. Wallace, City of Houston Legal Department, Houston, TX, fore Appellee.
Panel consists of Justices Jennings and Brown.
OPINION1
Harvey Brown, Justice
This appeal concerns the construction of
The trial court granted the City‘s motion and issued a writ of mandamus against the Board but suspended enforcement of its order. The Board appeals the grant of the City‘s motion for summary judgment, issuance of the writ of mandamus, and the denial of its cross-motion for summary judgment. We reverse and render judgment in favor of thе Board.
Background
A. Government code provisions
The Board is the governing body of the Houston Firefighters’ Relief and Retirement Fund, the public retirement system for the City‘s firefighters.2 The Board is statutorily required to employ an actuary, and the actuary is required to make a valuation of the system‘s assets and liabilities at least once every three years.
In addition to the periodic audits by the Fund‘s auditor, a second audit is required by an independent auditor hired by the City, which makes retirement contributions to the Fund. Section 802.1012 requires that “[e]very five years, the actuarial valuations, studies, and reports ... most recently prepared for the retirement system ... must be audited by an independent actuary who ... is engaged for the purpose of the audit by the governmental entity.”
B. Parties’ dispute
The City‘s auditor first conducted an audit in 2008 based upon the Fund‘s valuations, studies, and reports as of July 1, 2007.3 In November 2011, Houston Mayor Annise Parker sent a letter to the Board Chairman stating that the City is required, under section 802.1012, to have an independent audit performed “at least every 5 years.” The Mayor advised that the City had engaged an actuarial firm “to conduct a more thorough audit by replicating the ... results of the July 1, 2011 actuarial valuations” and requested the Board to provide detailed information relative to the July 1, 2011 valuations.4
Two months later, the Board responded that section 802.1012‘s statutorily specified five-year interval had yet to elapse. The Board further objected to the level of information requested by the Mayor, stating that it did not consider a “replication audit” to be the usual and customary practice of audits performed by Texas municipalities.
Addressing concerns expressed by the Board regarding the confidentiality of member data, the Mayor sent a letter in February 2012 advising the Board that the City had amended its request and now sought group rather than individual data. Mayor Parker аlso stated that the timing of the City‘s request to audit the July 1, 2011 actuarial valuation was “in compliance with the law‘s timing requirement, as interpreted by the [PRB].” The Board, however, continued to assert that the next audit pursuant to section 802.1012 was required to commence no sooner than five years from the 2008 audit and, therefore, the City‘s request was premature.
In May 2012, pursuant to Government Code section 802.003,5 the City filed an
Shortly thereafter, the City moved for summary judgment, arguing that it was entitled to mandamus relief because (1) section 802.1012 imposes a nondiscretionary duty to disclose the requested materials, (2) the City had requested the Board to do so, and (3) the Board had refused. The Board responded to the City‘s motion and filed a cross-motion for summary judgment, in which it argued that (1) the statute creates no ministeriаl duty for which mandamus relief is available; (2) the Board neither failed nor refused to comply with the statute; and (3) the City failed to comply with its own statutory obligations in various ways before beginning the audit, including that it retained an auditor who assisted the City with lobbying activities instead of the required “independent auditor,” had not signed a confidentiality agreement (and neither had its retained actuary), and failed to meet with the Fund‘s manager to discuss the assumptions for the audit. The City amended its summary-judgment motion, and various responses and replies were exchanged by the parties.
After several hearings, the trial court granted the City‘s summary-judgment motion and denied the Board‘s cross-motion. It further ordered that
a writ of mandamus issue directing the Board to provide and disclose to the independent actuary ... all information and/or electronic data (including all “census data“) requested by the independent actuary in the audit pursuant to section 802.1012(c) of the actuarial valuations, studies, and reports most recently prepared for the Fund pursuant to Chapter 802.
The trial court subsequently suspended enforcement of its summary judgment and mandamus order pending appeal.7
The Duty at Issue Was Not Ministerial, Precluding Summary Judgment and Mandamus for the City
The Board argues that the trial court erred in granting the City summary judgment and issuing a writ of mandamus because (1) the City never established as a matter of law that the Board failed to perform a ministerial duty; (2) no effective demand for рerformance was made or refused; and (3) the preconditions for an audit under section 802.1012 have yet to occur. The Board also argues that the
A. Standard of review
We review a trial court‘s grant of summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
B. Requirements for mandamus relief
An original proceeding in a trial court for a writ of mandamus is a civil action subject to trial and appeal on substantive law issues and rules of procedure as any other civil action. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n. 1 (Tex. 1991). Texas law generally authorizes mandamus relief to compel a public official or body to either perform a ministerial duty or to correct a clear abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The movant typically must establish that (1) a public official or body failed to perform a ministerial duty or committed a clear abuse of discretion and (2) there is no adequate remedy at law. See Republican Party v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997) (orig. proceeding). However, when mandamus relief is provided by statute, the petitioner is relieved of the burden to prove that there is no adequate remedy at law. See In re Transcon. Realty Inv‘rs, Inc., 271 S.W.3d 270, 271 (Tex. 2008) (per curiam). Here,
An act is ministerial, or nondiscretionary, when “the law clearly spells out the duty to be performed with sufficient certainty that nothing is left to the exercise of discretion.” See Anderson, 806 S.W.2d at 793. A writ of mandamus may issue when the facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. In re Amos, 397 S.W.3d 309, 312 (Tex. App.-Dallas 2013, orig. proceeding); In re Dacus, 337 S.W.3d 501, 504 (Tex. App.-Fort Worth 2011, orig. proceeding). When the public official or body has a legal duty to perform a nondiscretionary act, a demand for performance of that act has been made, and the official or body refuses to perform, a party is entitled to mandamus relief against the official or body. See id.; Sheppard v. Thomas, 101 S.W.3d 577, 581 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). Whether a statute creates a ministerial duty is a question of law. Associated Press v. Cook, 17 S.W.3d 447, 461 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
C. Section 802.1012 requires non-ministerial action by the Board
While conceding that the statute “does not expressly say so,” the City contends that the Board has a nondiscretionary duty to disclose any materials that an independent actuary requests in connection with an audit under section 802.1012(c). The Board maintains that, while section 802.1012 may imply a duty on its part to cooperate with an independent actuary and produce information reasonably necessary for conducting an audit, it does not impose a ministerial duty to provide all materials requested by the City because the statute does not define what are reasonably necessary documents for an independent actuarial audit.8
Section 802.1012, entitled “Audits of Actuarial Valuations, Studies, and Reports,” provides, in relevant part:
(c) Every five years, the actuarial valuations, studies, and reports of a public retirement system most recently prepared for the retirement system as required by Section 802.101 ... must be audited by an independent actuary who:
(1) is engaged for the purpose of the audit by the governmental entity[...]
...
(d) Before beginning an audit under this section, the governmental entity and the independent actuary must agree in writing to maintain the confidentiality of any nonpublic information provided by the public retirement system for the audit.
(e) Before beginning an audit under this section, the independent actuary must meet with the manager of the pension fund for the public retirement system to discuss the appropriate assumptions to use in conducting the audit.
It is undisputed that the language of section 802.1012 does not expressly require the Board to disclose the underlying materials requested by the City.9 The
The Board acknowledgеs that section 802.1012 implies a duty to cooperate with the independent actuary but disputes that such an obligation is “ministerial.” The Board contends, that, because section 802.1012‘s language does not preclude it from exercising its discretionary authority to negotiate the terms and scope of the production and the protections to be afforded its members’ confidential information, the Board‘s disclosures cannot be merely “ministerial.” Further, the Board is statutorily сharged with protecting the confidentiality of the Fund members’ and beneficiaries’ non-public information. See
The City relies on this Court‘s decision in In re Robinson, 175 S.W.3d 824 (Tex. App.-Houston [1st Dist.] 2005, orig. proceeding), for authority that the Board has a ministerial duty to disclose whatever information the auditor requests. In Robinson, registered voters sought writs of mandamus to compel the Houston City Council and the Mayor to enter an order declaring the adoption of three propositions as new amendments to the city charter and to certify the new amendments to the Texas Secretary of State. Id. at 826-27. After concluding that the word “shall” in
Unlike Robinson, neither the language of section 802.1012(c) nor the legislative intent prescribe or define a specific duty to act and, to the extent it implies a duty, it fails to do so with the “precision” and “certainty” necessary to make the action ministerial. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 832 (Tex. 1980) (“ministerial duty” exists when law defines duty “with such precision and certainty as to leave nothing to the exercise of discretion or judgment.“) (quoting Comm‘r of Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). Whether the scope of the information requested by the City‘s actuary extends beyond information “reasonаbly necessary” for the purposes of the audit is a question of degree. It is not specified in the statute with sufficient detail to remove all exercise of discretion by the Board.
In his affidavit, Mickey McDaniel, the actuary engaged by the City, explained that there are different levels of actuarial audits and that each level requires different information. While a “replication-level” audit requires the census data used by the system‘s actuary, “a high-level audit” involves “evаluation of the most recent available actuarial valuation and other related studies and reports without access to the detailed employee census data [ ] underlying them.” McDaniel stated that, due to time constraints, the City only performed a “high-level review audit” of the Fund‘s actuarial valuations in 2008 and, therefore, did not seek access to participant census data. But for its second audit, the City requested information to conduct a “replicаtion-level” audit. The differences between the two audits suggest that the statute permits the actuary and the public retirement system discretion to negotiate the scope of the audit.
Further, assuming that section 802.1012 requires public retirement systems to disclose some participant information, it does not require a replication-level audit, which would require the disclosure of the individual participants’ personal data reviewed by the Board‘s auditor. Because section 802.1012 does not direct, with precision and certainty, that such information be provided, some level of discretion exists.
Finally, the City‘s reliance on section 802.1012(d) to contend that all requested information be produced is also misplaced. Section 802.1012(d) requires the City and the independent actuary to “agree in writing to maintain the confidentiality of any nonpublic information provided by the [Fund] for the audit.” See
Accordingly, we conclude that the summary judgment evidence does nоt demonstrate, as a matter of law, that the Board has a ministerial (i.e., nondiscretionary) duty “to provide and disclose to the independent actuary ... all information and/or electronic data (including all ‘census data‘) requested by the independent actuary” for a replication-level audit, as stated in the trial court‘s December 21, 2012 order. See Anderson, 806 S.W.2d at 793. Having failed to establish this element of its claim for its requested mandamus relief, the City was not entitled to summary judgment. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Because the Board disproved an essential element of the City‘s cause of action, i.e., that the Board has a legal duty to perform a ministerial act under section 802.1012, it was entitled to summary judgment on the City‘s claim.
Conclusion
We reverse the trial court‘s December 21, 2012 order (1) granting the City‘s amended motion for summary judgment and issuing a writ of mandamus and (2) denying the Board‘s cross-motion for summary judgment, and we render judgment in favor of the Board.