Report to internal IA department of school district not protected by Whistleblower Act, but report to PD officer was

 

Anita Connally v. Dallas Independent School District, 08-15-00310-CV ( Tex. App— El Paso, December 21, 2016)

This is a Texas Whistleblower Act case where the El Paso Court of Appeals affirmed-in-part and reversed-in-part the granting of the school district’s plea to the jurisdiction. This is a 32 page opinion.

DISD hired Connally in 2009 as its Director of Compliance, with part of her duties being to make recommendations for University Interscholastic League rules. In order to prevent illegal recruiting of student-athletes, the UIL requires the filing of a Prior Athletic Participation Form (“PAPF”) to ensure that a student-athlete transferring into a new high school actually lives within the new school’s attendance zone. This triggers a host of other forms to be signed and submitted. Connally pointed to several instances of what she categorized as inaccurate or fraudulent forms. She was not in charge of reviewing the forms so had no power to enforce compliance. Connally reported her suspicions of wrongdoing at various times to three departments within DISD: (1) the Office of Professional Responsibility (OPR); (2) the Internal Audit Department (IA); and (3) the Professional Standards Office (PSO) as well as to (4) the Chief and Assistant Chief of the DISD police department; and (5) the PSO’s manager, Jeremy Liebbe, who was a commissioned police officer and a former detective with the DISD police department.  Connally participated as an expert on UIL rules during the investigations. PSO issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing, including falsification of government forms.  Sometime later, Connally was terminated for reported performance issues. She sued under the Texas Whistleblower’s Act. DISD filed a plea to the jurisdiction which was granted.

The court first held none of the departments (OPR, IA, and PSO) were appropriate law enforcement authorities as they only had the power for internal review against employees. None of these departments had any outward facing authority to investigate criminal law violations against third parties. Likewise, the PSO manager, Liebbe, was not in the role of a police officer while he acted as a manager and had no outward facing authority regarding PSO roles. No law authorizes an individual police officer who is commissioned through a police agency, the unfettered authority to conduct an investigation of any nature he chooses without the permission or authority from the agency. Even though Liebbe briefly held his commission with the DISD police department after his transfer, there is nothing in the record to suggest that the DISD police department had authorized him to continue to investigate criminal law violations. The Texas Supreme Court made it clear that it is the governmental arm or entity to which the report is made that is the key focus, and that any report must be made to an individual within that governmental arm or entity. However, DISD police department has the authority to investigate virtually all violations of criminal laws occurring within its jurisdictional boundaries. While the UIL Rules are not criminal in nature, the falsification of a governmental record is a violation of §37.10 of the Texas Penal Code. This falls under the DISD PD authority, which is outward reaching. Therefore, the granting of the plea is sustained as to all reports except the falsification reports to the Chief and Assistant Chief. The claims associated with those reports are reversed and remanded for trial.

If you would like to read the opinion click here. The Panel includes Chief Justice McClure , Justice Rodriguez, and Justice Hughes. Justice Hughes delivered the opinion of the court. Attorneys for the appellant: Giana Ortiz and Daniel A. Ortiz . Attorneys for the Appellee: Kathryn Long and Carlos G. Lopez