PD Commander’s Whistleblower Act claim revitalized by 14th Court of Appeals.

 

Gray v City of Galveston, NO. 14-12-00183-CV, (Tex. App. Houston [14th Dist.] May 21, 2013).

This is a Texas Whistleblower Act case, where a police lieutenant in Galveston alleges he was retaliated against for reporting the Chief of Police to the local District Attorney.  The City filed a plea to the jurisdiction which the trial court granted.  The Fourteenth Court of Appeals reversed and remanded holding that for pleading and jurisdictional purposes, Gray satisfied his allegation burdens.

Gray was the Commander of the Office of Professional Standards.  When another officer filed a complaint with his office that the Chief of Police threatened him to prevent him from speaking at a City Council meeting without running all matters by the Chief first (violating his First Amendment rights), Gray sent the complaint to the D.A. noting possible official oppression charges. Gray was subsequently transferred from his Commander position to the detective division and no longer reported directly to the Chief but to an officer of lesser rank.

The court noted that Gray’s pleadings were deficient in numerous respects, but it looked to the deposition testimony in the record to justify allowing the case to move forward. This twenty-four page opinion went through an analysis of almost every level of the Act and ultimately determined 1) a “good faith” report is one where a reasonable officer with the same training believed a violation of law occurred, even if mistaken (and First Amendment violations are tricky); 2) Gray’s transfer and subsequent reprimands were adverse personnel actions (but his ability to receive “on call” pay or outside jobs was not); and 3) Gray was not required to “exhaust” the administrative remedies under the collective bargaining agreement, but only to “initiate them”  which Gray did.   The court noted several fact questions were present requiring them to take Gray’s version of the evidence as true.

If you would like to read this opinion click here.