Part of police detective’s Whistleblower suit can go forward, while part is time barred says Amarillo Court of Appeals

The City of Lubbock, Texas v. Lazaro Walck, 07-15-00078-CV (Tex. App. – Amarillo, November 16, 2015).

This is an interlocutory appeal in a Texas Whistleblower Act case where the Amarillo Court of Appeals reversed and rendered in part, dismissed in part, and affirmed in part the denial of the City’s Plea to the Jurisdiction.

Walck was a detective in the City’s police department. During 2013, while enrolled in a masters-degree program at Texas Tech University, Walck sought an interview with the city manager as part of a class project, unrelated to his work as a police officer. The city manager notified the City’s chief of police of the request. Walch received an email notifying him that he was not to contact the City Manager without first seeking permission from his supervisors. Walck responded by sending emails to the city council and mayor complaining about the situation. Afterwards Walck was transferred from his position of burglary-unit detective to administrative assistant pending a formal internal affairs investigation. His permission to obtain outside employment as a security officer was also revoked. Walck filed a grievance. The City Manager, after a hearing, reinstated the outside employment permit. Later, the internal affairs investigation revealed Walck violated City policy by conducting school activities while on duty and using city equipment. However, after a grievance hearing the assistant city manager rescinded the reprimand. After he was moved back into his detective position, Walck’s attorney demanded compensation for Walck and threatened litigation. Afterwards, Walck filed suit. The City answered and filed a plea to the jurisdiction with supporting evidence.  The trial court denied the plea and the City appealed.

The court first held suit based on the suspension of Walck’s outside work permit as an adverse personnel action is barred by 90 day limitations. Tex. Gov’t Code Ann. §554.005.  Viewing the record in his favor, the continuing violation doctrine cannot aid Walck since the work permit issue was a discrete and individualized act.  The plea should have been granted as to the outside work permit claim. Next the court held the initiation of the grievance procedure under §554.006(a) is a jurisdictional requirement for the filing of suit. However, Walck neither refused to fully participate in the process nor did he represent to the assistant city manager he was satisfied with the relief he had received.  As a result, the fact he was reinstated and accepted the reinstatement is not dispositive and jurisdiction exists.  Finally, while the Plaintiff’s prayer states it seeks civil penalty not to exceed $15,000 against Chief Roger Ellis, individually, the Chief was not a party and was not sued. Because Chief Ellis is not before the trial court, resolving whether §554.008 properly can be read as granting Walck a private right of action against Chief Ellis would amount only to an advisory opinion.  That issue was therefore dismissed.

If you would like to read this opinion click here. Panel: Chief Justice Quinn, Justice Campbell and Justice Hancock. Memorandum Opinion by Justice Campbell.  The attorney listed for Walch is Phil. A. Johnson. The attorney listed for the City is Jeff Hartsell.