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SCOTX Brief: Principal Reports Asbestos Hazards; Loses Whistleblower Protection


by: Edward Garris

Fri Dec 27, 2013 at 11:00 AM CST


The Texas Supreme Court continued its line of cases narrowing protections for whistleblowers.  Earlier this month, the court handed down an opinion deciding whether a whistleblower's report of alleged violations of law by a school district would receive protection under the Whistleblower Act if the reports were made only to other officials within the school district.  Existing - but recent - precedent from only a few months prior indicated that internal complaints were insufficient to fall within the ambit of the Whistleblower Act.

The problem goes to the language of the statute itself and the interpretation of "law-enforcement authority" status under the Act. The Court held that such reports - made internally - were not contemplated by the Act and did not give such internal compliance officers such authority.

Background

A principal at a pre-K school in the Ysleta Independent School District (YISD) reported asbestos hazards at the school to the chief academic officer.  The academic chief dismissed the report; the principal responded with a copy of a work order showing that floor tiles in the school had been replaced as part of asbestos abatement.  With his reports, the school principal claimed that the asbestos violations were a breach of employment contract and requested a transfer to another school.  The YISD suspended the principal; the principal filed a lawsuit under the Whistleblower Act.  

To see how the supreme court narrowed the law, read below the jump.  

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In his whistleblower claim, the principal claimed that the school district violated federal law concerning asbestos when it didn't respond to his reports. He then argued that his reports to school officials were sufficient to invoke the Whistleblower Act because the school district is a government entity, and a government entity is a law enforcement authority under the Act.  

The trial court and appeals court agreed with the principal.  The Texas Supreme Court disagreed.

The Texas Supreme Court held in this case - and in a new line of cases including University of Texas Southwestern Medical Center v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013), and Canutillo Independent School District v. Farran, 409 S.W.3d 653, 655 (Tex. 2013) - that in order to invoke the Whistleblower Act, a person making a claim must make a report to someone other than a person charged only with internal compliance.  A person charged with internal compliance is one who cannot enforce rules or laws outside of their organization - in this case, the school district.

To invoke the Act, a person making a claim - a whistleblower - must submit evidence that the political body to which they are making the report has authority to enforce laws beyond that particular political body itself.  If a putative whistleblower cannot do this, then he or she cannot show that the political body has "law enforcement authority" under the Act.

Because the school district officials to whom the principal reported the asbestos law violations could not enforce, investigate or prosecute violations of law by - or promulgate laws governing - other third parties, they did not have this authority. As a result, the principal could not be considered a whistleblower and invoke the protections of the Act, despite any allegations of asbestos abatement going on at the school or any other related hazards to public health.  



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