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Does Texas have worst whistleblower law in the nation?

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On Dec. 13, the Texas Supreme Court said there would be no relief under the Texas Whistleblower Act for Marcelino Franco, a former principal in the Ysleta Independent School District.

Franco was worried about friable asbestos making staff and students sick in a pre-kindergarten academy.

"Staff members are suffering from recent cancers, liver ailments, respiratory ailments and several advise (me) that they just feel sick. Absenteeism is high," Franco told his superior, Gloria Polanco-McNealy, in a 2002 letter that set off a chain of events that he claims led to his firing.

Polanco-McNealy claimed the school district's facilities department was unaware of the problem. Franco directed her to the district's Asbestos Management Plan and disagreed that the facilities department was unaware.

After Franco's firing, he sued and a trial court agreed that Franco had given notice to the persons necessary to enforce the Asbestos Hazard Emergency Response Act. The district court of appeals upheld the trial court's ruling, holding that "Franco produced sufficient evidence of his good faith belief that the (school district's) superintendent and trustees were authorized to regulate under or enforce the Asbestos Act."

The Texas Supreme Court reversed the district court of appeals and dismissed Franco's lawsuit. It's over for him.

Anyone who reads the five-page per curiam (anonymous) opinion of the state supreme court will see the tone of this decision is, "here we go again." In fact, with the flurry of related opinions to come out this year, it's obvious the state Supreme Court is frustrated with the state's lower courts.

On Feb. 22, Justice Don Willett wrote University of Texas Southwestern Medical Center at Dallas v. Larry M. Gentilello, M.D., which was basically a reiteration of the 2002 opinion, Texas Department of Transportation v. Needham.

What Willett said in Gentilello was that individuals who submit internal reports to their supervisors in government agencies that do not have law enforcement powers do not get the benefit of the Whistleblower Act's protection if they suffer retaliation.

Dr. Gentilello told his supervisor he was concerned about lax supervision. Trauma residents were treating and operating on patients without supervision of an attending physician. This violated Medicare and Medicaid standard of care requirements.

Willett said, Gentilello "should have known that his supervisor's purely internal authority was not law enforcement but law compliance -- in other words, (Dr. Robert) Rege was only capable of ensuring that UTSW followed federal directives."

An appropriate law enforcement authority must be actually responsible for regulating under or enforcing the law allegedly violated, Willett said.

The Texas Supreme Court came to the same conclusion in the Aug. 30 opinion of Canutillo ISD v. Yusuf Elias Farran.

So, what's going on? This situation keeps coming up. Lower courts keep allowing these whistleblower claims to proceed and the supreme court keeps saying the Texas Whistleblower Act does not protect government employees on these types of claims.

"Other states' whistleblower laws accommodate internal reports to supervisors; Texas law does not," Willett said in Gentilello. "Under our Act, the jurisdictional evidence must show more than a supervisor charged with internal compliance or anti-retaliation language in a policy manual urging employees to report violations internally."

And there's the rub. Other states' whistleblower laws accommodate internal reports, but Texas law does not. The question never asked is why is Texas the outlier? Is Texas doing it right, or are the "other states" doing it right?

Willett may be correct in his interpretation of the law, but given the fact that trial judges and district courts of appeal have repeatedly tested the supreme court's interpretation, this is open to debate.

Why do other states treat internal reports differently? I can think of a few reasons.

First, because negligence and similar causes of action under civil law depend on the victim being able to show that their superiors were properly notified and given an opportunity to cure a wrong.

Take the example of a state agency charged with protecting children in its custody that have been abused. The agency is responsible for placing these children in a safe environment. The agency places a child in an environment that is not safe, and is repeatedly warned by -- say by a psychologist under contract -- that the child is in danger.

Instead of removing the child from that dangerous environment, the agency terminates its contract with the psychologist. What recourse does the psychologist have?

The psychologist warned the agency, made them fully aware of the situation. The psychologist can claim there was negligence on the part of the agency.

But just as importantly, the psychologist was doing his/her job. The psychologist was making the proper moral choice in advising those in a position to act in the most expedient and knowledgeable manner.

Having employees and contractors act differently is not in the public interest.

Second, there is the issue of using resources reasonably and efficiently. In general, courts require that the forum fit the issue. You don't go to a felony court for a misdemeanor case. Similarly, an employee with a discrimination complaint is required to try to go through his/her employer's chain of command.

If that doesn't resolve the issue, the employee goes to an Equal Employment Opportunity Commission administrative judge. And only after that fails to resolve the issue is the employee allowed to go to a district court.

In Gentilello's case, the state Supreme Court implied that the good doctor should have circumvented the hospital's internal resolution processes and gone straight to a federal law enforcement agency, such as the FBI or the U.S. Department of Health and Human Services.

In Franco, the court implied that the principal should have gone to the Environmental Protection Agency. Only then, would he be protected by the Texas Whistleblower Act.

Only in the instance where the government agency regulates and enforces criminal law does the employee of that agency get to use internal reports and rely on protection of the Texas Whistleblower Act.

The Supreme Court keeps saying that in all these instances a "reasonable person" would know that the government agency they work for -- unless it is a law enforcement agency -- does not have the authority to enforce the law being violated.

Really? Your trial court and district appellate judges didn't know that.

If this is the way the law is to be read, then the law is missing critical language. It should also say that it applies to "a report made to a government agency or private entity under contract to a government agency that is required to comply with criminal and civil law."

As it is, Texas has a law on the books that deters government employees from bringing to their own agency's attention any kind of legal wrongdoing. At its best, the law requires the employee to simultaneously give notice to a law enforcement agency notice of a wrongdoing, at the same time that the employee goes to his/her supervisors.

Why should it be necessary to conduct two parallel investigations? How efficient can that be?

This is not in the public interest.



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