Blowing the whistle on UIL violations….

Anita Connally’s Whistleblower suit against Dallas ISD is barely alive. But it is alive, and provides an interesting illustration of how the courts construe the Texas Whistleblower Act.

Ms. Connally was the Director of Compliance in DISD—UIL compliance.  In 2013 and 2014, she reported her concerns about the falsification of residency records to three different internal departments within DISD: the Office of Professional Responsibility, the Internal Audit Department and the Professional Standards Office (PSO).  In June, 2014, the PSO “issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing.” The report confirmed that a DISD coach had falsified a district record and provided “untruthful” statements in a subsequent investigation.  The report also confirmed improper recruiting of athletes and the falsification of residency records for those athletes.

According to the lawsuit, it was the day after this report was issued when the superintendent announced that he was terminating Ms. Connally.

Hmmmm. We have a Director of Compliance who has reported multiple UIL violations internally. All of them have been verified. And now she gets fired?

The district’s position was that Ms. Connally’s reports of wrongdoing were way too late. Yes, the district acknowledged, she pointed out some problems. But the violations had already occurred under her watch. The “horses had long left the barn.”  She was the Director of Compliance, and she failed to maintain compliance.

Ms. Connally was an at-will employee, so she was not entitled to the kind of due process a contractual employee would enjoy. She did file grievances over her termination, to no avail.

Then she filed the Whistleblower suit, alleging that her termination was an act of retaliation for her good faith reports of wrongdoing.  She alleged that Dallas was embarrassed by the public disclosure of that PSO report detailing multiple UIL violations, and that the district sought to save face by scapegoating her.

The made-for-TV movie that may emerge from this will undoubtedly be more interesting than the 34-page decision from the Court of Appeals.  The court’s decision does not identify good guys and bad guys, but rather, provides a dry, technical analysis of what it takes to make a Whistleblower case.

In a nutshell, it’s harder than you think. Being a person of good heart, speaking truth to power is not enough. You have to make your report to an entity that has “outward-looking powers to investigate violations of law against third parties outside of the entity itself.” Thus those reports to DISD’s internal departments were not sufficient to invoke the Whistleblower Act.

Ms. Connally pointed out that the head of the PSO in Dallas was himself a commissioned peace officer. Would reporting to that guy be sufficient? The court said no.  The report has to go to an “entity.” Thus “the focus is not on an individual’s general status as a peace officer, but whether the individual is ‘part of’ a governmental arm or entity authorized to conduct criminal investigations.”

At this point, Ms. Connally’s case is hanging by its fingernails.  No one to whom she has reported is a “law enforcement authority” as that term is used in the Whistleblower Act, and thus the court lacks jurisdiction to even hear the case.

However, Ms. Connally also made reports directly to the DISD police chief and his assistant.  The DISD police department qualifies as a “law enforcement authority.” Unfortunately for all sides to this case, no one kept a written record of what was reported.  Thus, the litigation produced conflicting affidavits.  The cops both swore that Ms. Connally made only vague references to some troubling activity with regard to high school athletics.  Ms. Connally, however, filed an affidavit alleging that she told both of the men of forgery and/or falsification of government records.

The court concluded that the Connally affidavit failed to make out a case of “forgery” but it was sufficient to allege that DISD employees had criminally tampered with government records. Bingo. There is an allegation of an employee blowing the whistle on criminal activity. That’s good enough to invoke the jurisdiction of the court.

This one has a long way to go, but this decision keeps Ms. Connally’s case alive by finding that the suit alleges at least one instance of a good faith report of criminal wrongdoing to a law enforcement authority.  That’s what it takes to give the court jurisdiction. To win her lawsuit, Ms. Connally will also have to prove that she was fired for making that report.

The case is Connally  V. Dallas ISD, decided by the Court of Appeals in El Paso on December 21, 2016.


File this one under: LIABILITY

Are we serving more kids in special ed?  Or fewer?