In City of Fort Worth v. Nyborg, 999 S.W.2d 451 (Tex. App. - Fort Worth 1999, pet. denied), the Fort Worth City Council adopted an ordinance that created one additional captain's position and deleted one lieutenant's position. Id. at 453. Kneblick was promoted to fill the new position. Id.
Nyborg pointed out to the City that Kneblick's promotion created a vacancy in her lieutenant's position and that he was entitled to a promotion to lieutenant because he ranked first on the lieutenant's eligibility list. Id. The City and, later, the Fort Worth Firefighters and Police Officers Civil Service Commission rejected his claim. Nyborg, 999 S.W.2d at 453-54.
Nyborg then filed suit in district court, asking that the Commission's decision be set aside. Id. at 454. Both parties moved for summary judgment on the sole issue of whether the ordinance created a vacancy in the lieutenant's position during the period Nyborg was eligible for promotion to lieutenant. Id.
The trial court granted Nyborg's motion, finding that a vacancy arose in the lieutenant classification upon Kneblick's promotion to captain. Id.
On appeal, the Fort Worth court first defined the term "vacancy." "A vacancy occurs when an existing position is vacated or a newly created position is established by ordinance." Id. at 455.
The court, accordingly, found that the ordinance created a new captain's position, and therefore created a vacancy in the captain's position. Id. When Kneblick was promoted into the captain's position, she vacated her position as lieutenant, leaving a vacancy in the lieutenant's position. Id.
The court then went on to discuss whether the City was required to fill the vacant lieutenant's position. The City argued that it was not because the ordinance abolished the lieutenant's position before Nyborg was entitled to be promoted. The court, however, disagreed. In doing so, the court relied on the plain language of the Civil Service Act:
"If a municipality's governing body adopts an ordinance that vacates or abolishes a fire or police department position, the fire fighter or police officer who holds that position shall be demoted to the position immediately below the vacated or abolished position. If one or more positions of equal rank are vacated or abolished, the fire fighters or police officers who have the least seniority in a position shall be demoted to the position immediately below the vacated or abolished position. If a fire fighter or police officer is demoted under this subsection without charges being filed against the person for violation of civil service rules, the fire fighter or police officer shall be placed on a position reinstatement list in order of seniority. If the vacated or abolished position is filled or recreated within one year after the date it was vacated or abolished, the position must be filled from the reinstatement list. Appointments from the reinstatement list shall be made in order of seniority. A person who is not on the list may not be appointed to the position during the one-year period until the reinstatement list is exhausted." Nyborg, 999 S.W.2d at 456 (citing TEX. LOC. GOV'T. CODE ANN. § 143.085 (a)).
The City argued that section 143.085 was inapplicable to the case because the lieutenant's position was abolished before Nyborg was entitled to be promoted. Nyborg, 999 S.W.2d at 455.
The court concluded, however, that when an ordinance abolishes a position, the officer with the least seniority in that position must be demoted to the position immediately below the abolished position and placed on a reinstatement list. Nyborg, 999 S.W.2d at 456.
The ordinance at issue stated, "Upon the promotion of a Lieutenant into the newly created Captain's position, said Lieutenant's position shall be considered to be contemporaneously abolished." Nyborg, 999 S.W.2d at 455, 456.
The court found that, based on this language, the lieutenant's position was not abolished until Kneblick was promoted to captain, at which point Nyborg was entitled to be promoted to lieutenant. Nyborg, 999 S.W.2d at 456.
The court, therefore, held that the proper procedure in the case would have been to promote Nyborg to lieutenant, then demote him back to sergeant, and place him on the lieutenant's reinstatement list. Id.