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Click here for the full text of this decision FACTS:All municipal firefighters within specific classifications are paid at the same rate, though Local Government Code 143.041(b) and (c)(1) allow certain salary supplements, such as “longevity or seniority” pay. The fire department of Lubbock, a home- rule municipality, has six classifications for firefighters. Within the first five of these classifications there are three pay steps: A, B and C. The top classification level has the three steps, plus a fourth step: D. As a firefighter moves from one classification level to the next, he automatically starts at the “A” level of each. And, as a firefighter moves through the steps within the classification, the difference in pay between each step is considered the employee’s “seniority” pay. The length of service is not considered in determining seniority pay. When temporary vacancies in the department occur, some firefighters in lower classifications to fill in. When they are moved up to these higher classifications, they are paid a higher base salary, but because they are automatically placed in the “A” step within the classification, they are not given “seniority” pay. A group of firefighters sued the city, saying that in addition to a higher base pay in each classification, the city should also pay the lower classification “seniority” pay the employee would otherwise have earned during the period of reassignment. The trial court granted the city’s plea to the jurisdiction and its motion for partial summary judgment. The trial court ruled that the city’s pay system did not comply with Local Government Code 143.038. HOLDING:Reversed and rendered. The court first establishes that the city waived its immunity from suit. Local Government Code 51.075 says that home rule municipalities such as Lubbock “may plead and implead” in any court. Additionally, Lubbock’s charter gives the city authority to “sue and be sued” and to “plead and be impleaded” in any court. With regard to the “sue and be sued” language found in the city’s charter, the court finds that Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970), controls. In that decision, the court held that another statute that said that a state entities can “sue and be sued” complies with the legislative permission requirement waiving immunity from suit. The court points out that the majority of Texas appellate courts that have considered the same question have regarded Missouri Pacific as binding precedent and that similar “sue and be sued” provisions supply the requisite consent to sue the government entity involved. Furthermore, the language in the city charter outlining the power to “sue and be sued” is “quite clear, unambiguous and is within the purview of the Missouri Pacific teaching.” Despite finding that the city has waived its immunity, the court, however, rules that the city’s pay scheme did improperly pay its firefighters. The controlling provision is 143.038(b), which states: “The department head may designate a person from the next lower classification to temporarily fill a position in a higher classification. The designated person is entitled to the base salary of the higher position plus the person’s own longevity or seniority pay, educational incentive pay, and certification pay during the time the person performs the duties.” Furthermore, under Local Government Code 143.041(c)(1), all fire fighters or police officers in the same classification are entitled to same base salary and that “in addition to the base salary, each fire fighter or police officer is entitled to each of the following types of pay, if applicable: longevity or seniority.” And, under 141.032(b), “each member of the fire or police department is entitled to receive, in addition to all other money paid for services rendered in the department, longevity pay of $4 a month for each year of service in the department, not to exceed 25 years.” The city says 143.038(b), which permits the temporary assignment of employees to higher classification, “clearly provides” that, in addition to the base pay of the position, such employees are entitled to “longevity or seniority pay” but not both, and inasmuch as it continues to pay departmental longevity pay, the firefighters are not entitled to the seniority pay they claim. Meanwhile, the firefighters argue that “longevity” pay and “seniority” pay are two separate and disparate types of compensation. They argue that the two terms are in reality synonymous terms describing the same type of pay increment to which they are entitled. The court says the crux of the question is whether the word “or” in the statute is conjunctive, referring to a synonymous term, or is disjunctive and is used to indicate a separate term. Looking at dictionary definitions, the court says it is “compelled to the conclusion that the term”or’ as used in the statute is used in the disjunctive sense.” The court says that if the word is read to be in the disjunctive, it would effectively be substituting the word “and” for “or.” The court agrees that the code does not require “seniority pay” to civil service employees. “We also hold that the provision in section 143.038(b) of the Code that requires the City to pay the employee, while temporarily performing duties in a higher classification job,”the base salary of the higher position plus the person’s own longevity or seniority pay,’ means that he or she is statutorily entitled to either longevity or seniority pay but not both. Because the Code does not define the manner by which”seniority pay’ may be calculated, if the City voluntarily chooses to compensate the temporarily assigned employee in that way, it is allowed to devise its own compensation system as long as it does not violate Chapter 143 of the Code.” Although Lubbock is not required to pay “seniority pay” for time in a classification, and there is no set method for paying this type of compensation, it may voluntarily opt to do so and a step-based system by which a city pays its employees increments based on the length of service within a classification is a permissible way of doing so, the court writes. OPINION:Boyd, S.J.; Johnson, C.J., Reavis and Boyd, JJ.

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