What is the Texas Whistleblower Act? Chief of Police Files Suit Against City of Harlingen
Under Texas Government Code Section 554.002, an employee of a state or local government is protected from retaliation for reporting, in good faith, a violation of law. When a state or local governmental unit retaliates against an employee who reports a violation of law, the Whistleblower Act waives immunity and allows the employee to sue for damages, reinstatement, and other inductive relief.
The Whistleblower Act has two purposes: (1) to protect public employees from employer retaliation when reporting in good faith a violation of law; and (2) to secure lawful conduct from those conducting the affairs of the state or local government units. The elements of a whistleblower-retaliation action are the following:
- The plaintiff was a public employee.
- The plaintiff made a good-faith report that her employer or another public employee violated the law.
- The plaintiff made the report to an appropriate law enforcement authority.
- The plaintiff was terminated, suspended, or suffered an adverse personnel action because of the report.
An employee must be a paid person who performs services for a state or local governmental unit.
A good-faith report is required. To prove a claim under the Act, the plaintiff must establish that she made a good-faith report of a violation of law committed by the governmental unit or another public employee. The “report” does not need to be in any particular form. However, the employee must make the report to an entity responsible for enforcing the law. For example, it is appropriate for a pharmacy technician to make her report to the Texas Board of Pharmacy if she believe in good faith her pharmacy is dispensing medications without a license to do so. The report does not necessarily have to be made to law enforcement, though this is proper as well.
The Act defines a “law” as a state or federal statute, an ordinance of local governmental unit, or a rule adopted under a statute or ordinance. An administrative rule is considered a law under the Act. The plaintiff must report the violation of law in good faith. This standard is both subjective and objective. “Good faith” means that (1) the plaintiff believed the conduct violated the law, and (2) the plaintiff’s belief was reasonable in light of her training and experience. In other words, the plaintiff does not have to be correct in her belief. She must only show her belief was reasonable.
Ellzey & Associates, PLLC recently filed a case under the Texas Whistleblower Act. The following article covers the nature of the claim:
HARLINGEN — Valley International Airport’s former police chief has filed a lawsuit claiming he was fired for conducting an investigation into any ties between the city, airport and Texas Regional Bank.
In the lawsuit filed in 455th state District Court by Houston-based attorneys Jarrett Ellzey and Richard Hinojosa, David Osborne, a former Harlingen police commander, names the city and airport as defendants, demanding $500,000 in damages.
In the 14-page original petition filed in December, Osborne claims he was fired last November “because he reported a violation of law defendant requested him to perform in the course and scope of his employment,” the lawsuit states.
The lawsuit claims Osborne was investigating any ties to the city, the airport and Texas Regional Bank, which employs two airport board members.
In part, the investigation stemmed from the airport’s contract with a tenant, the lawsuit states.
During his investigation, Osborne also probed any city ties with the South Texas Emergency Care Foundation, it states.
Two weeks before he was fired, the airport gave Osborne a 5.25 percent raise based on “exemplary performance reviews,” the lawsuit states.
When “persons subject to the investigation began asking questions as to (why he) was providing detailed information to a city commissioner, VIA terminated him with a pretext basis offered during an informal call ex post facto,” the lawsuit states, identifying the commissioner as Richard Uribe.
The day he was fired, Harlingen Police Department officials requested Osborne sign criminal trespassing warnings prohibiting him from entering Uribe’s home and restaurant before Marv Esterly, the airport’s aviation director, fired him, the lawsuit states.
“On termination date, three HPD supervisors told Osborne to sign two criminal trespassing warnings. One was for Uribe’s home and the second was for his restaurant. Osborne agreed to sign. Then one of the HPD sergeants asked Osborne to disarm,” the lawsuit states.
“Esterly said effective immediately Osborne was being terminated as chief of police,” it states. “He handed Osborne a termination notice stating reasons for termination: Dishonesty, misconduct and bringing discredit to the airport.”
The lawsuit states the Texas Rangers were investigating Uribe’s allegations against Osborne.
“Osborne was called late on the day of his termination by a Texas Ranger who told him that he had been assigned to investigate allegations Uribe brought against Osborne but that he could not find any criminal misconduct,” the lawsuit states.