The Texas Whistleblower Law has many limitations. One of those limits includes the requirement that the whistleblower must report the alleged violation of law to a law enforcement authority. For most laws, the local police force would be the appropriate authority. But, what about those many obscure white collar type crimes? We see one such violation in Office of the Attorney General v. Weatherspoon, 472 S.W.3d 280 (Tex. 2015). In this case, an Assistant AG, Ginger Weatherspoon says she was asked to submit a false affidavit regarding her dealings with a judge. She reported the unlawful request to her superiors within the Child Support Enforcement Division. She was later fired.
Ms. Weatherspoon filed suit under the Texas Whistleblower Statute. Tex.Govt.C. §554.0035. The OAG moved for a plea to the jurisdiction, which is like a motion for summary judgment. The trial court denied the motion. The Court of Appeals affirmed the denial. The Texas Supreme Court found in favor of the employer and reversed the denial of the plea. The main issue was other she reported the violation to the correct authority. She reported to the chief of her division, which in turn was required to make a report to the Office of Special Investigations. OSI was apparently the correct law enforcement agency. But, the Texas Supreme Court said that was not enough. Since, said the court, the division chief was not vested with authority to speak for the OSI or to conduct her own investigation.
The employee pointed out that if reporting to her division chief does not suffice, then OAG employees have no place to report. Since, they are subject to termination if they contact any law enforcement authority directly. The court essentially replied, “too bad.” The Whistleblower Act protects employees from reprisal, said the court. That should be dissuade employers from reprisal. See decision here.
The problem with that analysis is that the Texas Whistleblower statute is supposed to protect persons from reprisal, not lead them toward reprisal. The Court has taken the unrealistic view that employees should be willing to undergo financial hardship or worse in order to protect Texas citizens from law breakers. No other employer would have such a rule, that contacting law enforcement authorities directly is cause for dismissal. No one should have to risk her/her job to protect the public. The decision does not explain the basis for a rule prohibiting direct contact with any law enforcement agencies. We can only assume it has some nondiscriminatory purpose. But, if it has such a legitimate purpose, OAG employees should not be required to violate internal rules in order to comply with the Texas Whistleblower statute.