Don’t Call it a Toolbox.

 That’s right, Dawg Blog Readers, Toolbox Tuesday is also taking an early summer break.  At least it is with me (this is still Christine.)  Jennifer Childress is extremely handy so she may have a Tool or two up her sleeve, but you’ll have to tune in next week to find out.

Today, we’re going to talk about whistleblowers.  Specifically, just what does it take to be a Whistleblower with a capital “W” under the Texas law?   Texas Government Code Section 554.002, the statutory home of state law whistleblower protection, prohibits state or local government entities such as school districts from suspending, terminating, or taking other adverse personnel action against an employee who in good faith reports a violation of law by that entity to an appropriate law enforcement authority.

This may sound like a simple enough standard, but it’s packed with quite a bit of legalese, the upshot of which is that lots of people blow the whistle without “blowing the Whistle” in a manner that entitles them to protection under the state law.  For example, I casually mentioned yesterday that calling the firm’s 800 number isn’t good enough and I was really just trying to offer a clever segue into today’s topic, but a recent case out of Houston ISD illustrates the point.

In September of 2016, Ms. Jessica de Valentino made a report to the Houston ISD hotline established for purposes of anonymously reporting fraud, waste and abuse.  She reported her supervisor, accusing her of stealing state and federal funds through fraudulent time reporting.  Per the court, Ms. de Valentino was discharged later that month.  She sued the District and, representing herself, had her Whistleblower claims dismissed.  Why?  Because she did not make a report to an appropriate law enforcement authority.

The court held this hotline report did not satisfy the requirement that a report be made to a law enforcement authority based on precedent from the Texas Supreme Court that a complaint to a school district official does not amount to a complaint to a law enforcement authority. Just what is an appropriate law enforcement authority?  An entity with authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity.  Or, an entity with authority to promulgate regulations governing the conduct.  Not an internal school hotline, and for that matter not the superintendent, assistant superintendent, internal auditor, nor school board.  Had Ms. de Valentino reported to the HISD Police Department, she might have been able to make a case.

This case, while it offers a somewhat interesting example of how not to make a good faith report of a violation of law to a proper law enforcement authority, isn’t just a Whistleblower case.  Like so many plaintiffs, Ms. de Valentino raised a slew of other claims, including defamation, intentional infliction of emotional distress, negligence, all stemming from the fact that she believed there must have been an illegal reason she was let go, as so many employees do.  Nearly all her claims were dismissed by the court, not because she couldn’t prove them, but because she didn’t even articulate them in such a way as to amount to violations of law.


 Tomorrow: Let’s Cheer Ourselves Up by Focusing on Teachers of the Year!