Recent Case Makes it Easier for Employees to Obtain Protected Status under Whistleblower Act


Marcelino Franco was a principal of a pre-kindergarten elementary school for the Ysletta Independent School District.  Franco reported asbestos hazards in the school to his immediate supervisor through two separate memoranda, the second of which contained supporting documentation.  When Franco’s supervisor failed to act, Franco addressed a third memorandum to the superintendent and the district’s board of trustees.  Ysleta Indep. School Dist. v. Franco, 2012 Tex. App. LEXIS 10727 at *1-2 (Tex. App. – El Paso Dec. 27, 2012, pet. filed).  This third memorandum was also supported with specific documentation. Thereafter, Franco was reassigned from the pre-kindergarten school to an elementary school and ultimately suspended.  Franco sued the school district, pursuant to the Texas Whistleblower Act.  Id. at *2, citing Tex. Gov’t Code §554.001, et seq.

Under the Whistleblower Act, a state or local governmental entity may not suspend or terminate an employee or take other adverse personnel action against an employee who makes a good faith report to an appropriate law enforcement authority that the entity or another employee has violated the law.  See Tex. Gov’t Code. Ann. §554.002.  The Whistleblower Act contains an express waiver of immunity from suit, allowing a public employee to sue the employing state or governmental entity for taking adverse personnel action against him for such a report.  Tex. Gov’t Code Ann. §554.0035.   In this case, Franco alleged that the district’s failure to respond to the asbestos hazards stated in his memorandum to the superintendent and the district’s trustees violated the Asbestos Hazard Emergency Response Act (the “Asbestos Act”), and that his memorandum to the superintendent and the trustees constituted a good faith report of a violation of law to the appropriate law enforcement authority.  Id. at *3-4.  The issue in this case was whether the superintendent and the district’s board of trustees constituted an “appropriate law enforcement authority” under the Texas Whistleblower Act to provide protection to Franco.

A report is made to “an appropriate law enforcement authority” if the authority is a part of a state or local government entity or the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or, (2) investigate or prosecute a violation of criminal law.  Id. at *5, citing Tex. Gov’t Code §554.002(b).   In turn, “good faith” means that:  “(1) the employee believed the governmental entity was authorized to (a) regulate under . . .enforce . . . (b) investigate or prosecute a  violation of . . .law; and (2) the employee’s believe was reasonable in light of the employee’s training and experience.”  Id. at *5, citing Tex. Dept. of Transp. v. Needham, 82 SW3d 314, 321 (Tex. 2002).

The El Paso Court of Appeals, after reviewing the evidence and indulging all reasonable inferences in favor of Franco, concluded that Franco produced sufficient evidence of his good faith belief that the District’s superintendent and trustees were authorized to regulate or enforce the Asbestos Act.  Specifically, Franco testified that he understood the district could not prosecute or investigate people for alleged violations of the Asbestos Act, but testified he believed the district was the governmental entity or the law enforcement authority to whom he was supposed to report Asbestos Act violations.  Id. at *6.  Franco further testified it was his belief that the superintendent and trustees were charged with enforcing the Asbestos Act.  The Court, after reviewing federal regulations that require education agencies to develop an asbestos management plan for each campus and to implement, maintain and update that plan, concluded that Franco produced sufficient evidence of his good faith belief that the district’s superintendent and trustees were authorized to regulate and enforce the Asbestos Act.

Franco is the latest in a growing line of cases that extend Whistleblower protection to employees who report violations of law and regulations to internal administrators who have authority to investigate the employer’s policies.  This is so, even though these administrators or officers lack the authority to prosecute the particular law that was reportedly violated.  By not having to report violations to an outside authority, arguably any report to an administrator with supervisory authority or a member of a political subdivision’s governing board for violations of state or federal law is sufficient to clothe an employee in Whistleblower Act anti-retaliation protection.  This leaves superintendents with having to conduct one more investigation and adds another layer of analysis before pulling the trigger to fire that troublesome employee.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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