Peace officer’s general authority over criminal violations is not enough to qualify under Whistleblower Act as proper law enforcement authority in all cases

City of Sachse v. Dan Wood, 05-13-00773-CV (Tex. App. – Dallas, March 27, 2014).

This is a Whistleblower Act case where the Dallas Court of Appeals reversed the denial of a plea to the jurisdiction of the City.

Woods was a lieutenant in the City of Sachse’s fire department in charge of one of three shifts used by the department for EMS services. A former EMS employee, Fenn, reported the City to the Texas Department of State Health Services (DSHS) for alleged violations of the Texas Emergency Health Care Act, specifically EMS paramedics were utilizing expired medications on call-outs. The City conducted an investigation, with Wood also investigating his shift.  He noticed other deficiencies in paramedic paperwork and reported those to the City.  After the investigation 13 employees received some form of discipline, but Wood was terminated.  He sued under the Texas Whistleblower Act and the City filed a plea to the jurisdiction asserting he only reported violations to his supervisors, not appropriate law enforcement agencies. The trial court denied the plea and the City appealed.

Wood relies on his supervisor’s status as a peace officer and a captain of EMS asserting because, as a licensed peace officer his supervisor had a duty to investigate and report violations of law. However, DSHS is the licensing agency empowered to take disciplinary action against an EMS provider holding a DSHS license. DSHS issued a warning letter to the City but took no further action. Wood’s memoranda were all generated in response to his supervisor’s requests for information, detail inventory and personnel assignments. There is nothing in the record to indicate Wood could have, in good faith, believed his supervisor, not DSHS was the proper law enforcement agency for reporting.

Interestingly enough, the court further held Supervisor Knappage’s status as a licensed peace officer did not make him “an appropriate law enforcement authority” authorized to investigate or prosecute any violation of criminal law. See TEX. GOV’T CODE ANN. § 554.002 (West 2012). The entity constituting an “appropriate law enforcement authority” must have the authority to regulate, enforce, investigate, or prosecute the particular law that the employee had violated; general authority is not enough.  So simply because the supervisor is a peace officer does not create a bright line rule he/she is a proper law enforcement authority to make a report. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel, Justices Bridges, Fillmore and Lewis. Opinion by Justice Bridges. The attorneys listed for the City are Matthew W. Lindsey,  Marigny A. Lanier, and Robert F. Maris.  The attorneys listed for Wood are R. Jack Ayres Jr. and Christopher S. Ayres.