Texas Supreme Court Narrows WhistleBlower Protections

In a recent opinion, the Texas Supreme Court clarified one key aspect of whistle blower complaints.  The Texas Whistleblower statute applies to government employees only.  See Tex. Govt.C. Sec. 554.001, et seq.  The statute protects an employee who reports a possible violation of law.  The report or question must be to an "appropriate law enforcement authority."  Tex. Govt. C. Sec. 554.002.  Some court decisions have allowed reports to the employer in certain situations, such as if the employer has an office that is responsible for internal enforcement of the law in question.

But, now, according to the Texas Supreme Court, "appropriate law enforcement authority" means the entity that actually "promulgates regulations" or "enforces" the law in question or "pursues criminal violations."  In Texas A&M Kingsville v. Moreno, the employee reported a violation of the law regarding tuition waivers to the President of the University, and to the Texas Higher Education Coordinating Board.  Her supervisor, Dr. Saban, was claiming a tuition waiver for his daughter, to which he was not entitled.  Dr. Saban became angry, and accused Ms. Moreno of butting into his personal business.  But, the school required the supervisor to pay back the school the amount of the discounted tuition.  TAMU-K essentially agreed with Ms. Moreno. 

Twenty-one days later, Dr. Saban personally terminated Ms. Moreno.  She filed suit.  The employer moved for summary judgment, which was granted.  On appeal, the summary judgment was reversed.  TAMU-K appealed. 

The president has the authority to enforce the law within the university, noted the Supreme Court. The Supreme Court addressed her report to the HECB in a footnote.  In that footnote, the Court found that Ms. Moreno did not report a violation of law.  She merely asked questions about whether what Dr. Saban was doing satisfied the requirements of the tuition waiver law.  According to the Supreme Court, she did not mention the name of Dr. Saban or otherwise indicate her supervisor was violating the law. Yet, in her brief, the employee said the opposite, that she reported Dr. Saban's apparent improper use of tuition waiver to an official with the HECB. 

In resolving a motion for summary judgment, the court is supposed to accept the employee's version of the facts.  The Texas Supreme Court seems to have ignored that fundamental principle.   See decision here.  The Court appears to agree that the HECB would constitute the appropriate law enforcement authority for purposes of tuition waivers.  

But, disregarding the non-movant's version of the facts is a significant error.  The employee has evidence that Dr. Saban prevaricated.  Dr. Saban claimed that the A&M Chancellor, Mike McKinney, told him to terminate Ms. Moreno.  But, Mr. McKinney denied telling him to do so and said he would not do that.  Ignoring the non-movant's version of facts when the employee impeaches the key witness for the employer is an egregious error by the Court.  Indeed, to obtain the tuition waver, Dr. Saban completed a form in which he falsely claimed to be teaching more than part-time.  He had to know this representation was false when he made it. 

On several levels, the Supreme Court committed error in this decision.  Worse, these are the sort of errors that should have been apparent to the Court.  The Court issued this decision without oral argument,  a step usually reserved for cases in which the answer seems apparent.  This is not such a case.  The facts and the legal issues are complicated.  The Court devoted less attention to this suit than it deserved.  

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