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Whistleblower Act


Case citation:  Texas A & M University-Kingsville v. Moreno, __ S.W.3d __, 2013 WL 646380 (Tex. 2013).

Summary:  Gertrud Moreno worked for Texas A&M-Kingsville (TAMUK) as an assistant vice president and comptroller.  After the university fired her, Moreno sued alleging that her termination violated the Texas Whistleblower Act, Texas Government Code § 554.002.  She claimed her supervisor, Thomas Saban, fired her for reporting to the TAMUK president that Saban’s daughter had received in-state tuition in violation of state law.

In response, the university filed a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over the claims because Moreno failed to plead allegations to support a Whistleblower claim.  The trial court granted the plea to the jurisdiction, but that decision was reversed on appeal.  TAMUK appealed to the Texas Supreme Court, arguing that Moreno’s internal report regarding the daughter’s in-state tuition fees did not amount to a good faith report of a violation of law to “an appropriate law enforcement authority.”

Ruling:  The Texas Supreme Court agreed with TAMUK that the university president, who received Moreno’s internal report, was not an “appropriate law enforcement authority.”  According to the Court, to meet the definition of an “appropriate law enforcement authority” requires that “the reported-to entity be charged with more than mere internal adherence to the law allegedly violated.”  Under the Texas Whistleblower Act, a law enforcement authority must have “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.”  The Court stated further that a supervisor is not an appropriate law enforcement authority where the supervisor lacks the authority to enforce the law against third parties generally.

Here, Moreno only offered evidence that the university president had authority within the university to compel compliance with state law governing tuition waivers.  Moreno alleged that Saban violated a state statute and that the president had power to enforce the statute at the university level only.  While the evidence showed that the president oversaw internal university compliance with the tuition requirement, the Court observed that “a whistleblower cannot reasonably believe his supervisor is an appropriate law-enforcement authority if the supervisor’s power extends no further than ensuring the governmental body itself complies with the law.”  Thus, Moreno’s internal report to the university president did not constitute a good faith report of a violation of law to an “appropriate law enforcement authority.”  The Court dismissed Moreno’s Whistleblower suit.

Things to Remember:  Courts continue to struggle with the identification of an “appropriate law enforcement authority” as that term is used in the Whistleblower Act.  This case provides an important precedent on that issue, as it comes from our State’s highest court.



Case citation:  Fernandez v. Ysleta ISD, Dkt. No. 021-R2-11-2012 (Comm’r Educ. January 9, 2013).

Summary:  David Fernandez worked as an administrator for the Ysleta Independent School District.  The district proposed Fernandez’s termination for failing to maintain effective working relationships with or good rapport among his colleagues.  It was alleged that Fernandez engaged in a sexual relationship with another administrator, who was married to a third administrator.  All three administrators were employees in the district’s central office.

A hearing was held before a certified hearing examiner, who ultimately concluded that good cause did not exist to support Fernandez’s termination.  The hearing examiner recommended that the district not terminate Fernandez’s contract.  In response, the district issued its own Decision and Order changing numerous findings of fact and conclusions of law.  The board concluded that good cause existed to terminate Fernandez’s contract and voted accordingly.  Fernandez appealed the board’s decision to the Commissioner of Education, arguing that the district improperly changed the hearing examiner’s findings of fact.  The district responded that Fernandez had not properly exhausted administrative remedies as to his claims.

Ruling:  The Commissioner affirmed the termination of Fernandez’s contract.  The Commissioner concluded that Fernandez had exhausted administrative remedies on the issue of whether the board improperly changed the hearing examiner’s findings of fact and added its own findings of fact.  However, to the extent that the appeal alleged that the board’s decision was “arbitrary, capricious, and unlawful,” Fernandez failed to exhaust administrative remedies by raising specific allegations in his petition for review to the Commissioner.

The Commissioner next concluded that even if Fernandez was correct that all of the board’s changes to the findings of fact were impermissible, he still would not prevail.  The ultimate issue to be decided in a term contract termination is whether good cause existed to support the termination.  The issue of good cause is a conclusion of law.  In this case, Fernandez did not challenge the board’s Conclusion of Law No. 12 that good cause existed to terminate the contract.  Thus, Fernandez did not exhaust administrative remedies as to the ultimate issue of good case.

Even assuming that Fernandez properly challenged the board’s good cause determination, Fernandez did not prevail.  The Commissioner defined “good cause” as the “employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances.”  Further, an employee’s act constitutes good cause for termination if it is inconsistent with the continued existence of the employer-employee relationship.

In this case, the record showed that Fernandez had an affair with another administrator, who was married to another district administrator in the same office.  According to the Commissioner, the evidence supported the finding that Fernandez failed to maintain effective working relationships with or good rapport among his colleagues.  The record showed that the misconduct occurred both on and off campus.  The Commissioner stated that regardless of where the conduct occurred, “[e]mployees are not free to poison office relationships while they are off premises.”  Because there was a “clear nexus” between the conduct and Fernandez’s employment, evidence supported the finding that he failed to maintain effective working relationships and good rapport with colleagues.  Further, Fernandez’s actions were inconsistent with the existence of the employer-employee relationship.  Recognizing the seriousness of Fernandez’s conduct, the Commissioner held that a person of ordinary prudence would not have engaged in the misconduct alleged against Fernandez.  The Commissioner upheld Fernandez’s termination.

Things to Remember:  Four things are worth noting about this case.  First, it illustrates the significance of “good cause” being classified as a “finding of fact” or a “conclusion of law.”  Prior to the last legislative session, “good cause” was a factual issue, which meant, as a practical matter, that it was almost impossible for a school district to overturn the hearing examiner’s conclusion.  If “good cause” was still determined as a “finding of fact” it is likely that Mr. Fernandez would still be employed by the District.  The 2011 legislature re-classified “good cause” as a “conclusion of law” which is what enabled the board to overturn the hearing examiner’s decision. Second, this case was actually decided on a procedural basis—Mr. Fernandez did not challenge the critical conclusion of law in his Petition, and thus he failed to exhaust his administrative remedies.  Third, this means that the Commissioner’s remaining observations are what the lawyers call “dicta,” meaning they do not create precedent. Fourth, that “dicta” gives clear insight into the view of our new Commissioner, Michael Williams. The message is clear: “employees are not free to poison office relationships while they are off premises.”    


Case citation:  Peters v. Dallas ISD, Dkt. No. 022-R2-11-2012 (Comm’r Educ. January 22, 2013).

Summary:  Adrian Peters worked as an assistant principal for the Dallas Independent School District.  In 2012, Peters was involved in an altercation with a student that led the district to propose his termination. The district based its decision on the use of force against the student, as well as three other incidents in which Peters allegedly confronted teachers in an unprofessional manner.  Peters received a hearing before a certified hearing examiner, who determined that good cause existed to terminate Peters.  The board accepted the hearing examiner’s recommendation and voted to terminate the contract.

On appeal to the Commissioner, Peters argued that the termination was invalid (1) because the board subcommittee voted while in closed session, (2) the hearing examiner requested more compensation than allowed by law, and (3) good cause did not exist to support termination.  The main issue involved whether Texas Education Code § 22.0512 protected Peters from adverse disciplinary action.

Ruling:  The Commissioner upheld the contract termination for the use of force against the student.  Texas Education Code § 22.0512 provides that a professional employee may not be subject to disciplinary proceedings for the employee’s use of physical force against a student to the extent justified under Texas Penal Code § 9.62.  This section of the Penal Code provides that one entrusted with the care, supervision, or administration of a student for a special purpose may use force, but not deadly force, when and to the degree the professional employee reasonably believes force is necessary to further the special purpose of education or to maintain discipline in a group.  In these types of cases, the district has the burden to prove that the employee used unjustified force under Texas Penal Code § 9.62.

According to the Commissioner, the issue is not whether the employee believed his actions were reasonable but whether the employee reasonably believed his actions were necessary.  Factors to consider are (1) the age, sex, and condition of the child; (2) the nature of the student’s offense or conduct and the student’s motives; (3) the influence of the student’s example on other students; (4) whether the force was reasonably necessary to compel obedience to a proper command; and (5) whether the force was disproportionate to the offense, unnecessarily degrading, or likely to cause serious injury.  These factors are referred to as the Hogenson factors, based on the case Hogenson v. Williams, 524 S.W.2d 456, 460 (Tex. Civ. App. – Texarkana 1976, no writ).

In this case, the record showed that the student left his classroom without permission.  Peters confronted the student in the hallway and instructed the student to apologize to the teacher for leaving class.  The student refused to do so and cursed at Peters.  A struggle ensued when the student tried to walk away from Peters.  According to the Commissioner, some force was necessary to compel the student’s obedience at that point.  The evidence included testimony that Peters twisted the student’s arm behind his back in such a way that risked harm to the student.  The student continued yelling and cursing and a counselor intervened.  Peters continued to hold the student and indicated that he “didn’t care” when the student tried to get Peters to let go.  After considering all of the Hogenson  factors, the Commissioner concluded that Peters did not have a reasonable belief that the force used was necessary.  Thus, Education Code § 22.0512 did not protect Peters from termination.

The Commissioner also rejected Peters’s claims that the board subcommittee improperly voted in closed and that the hearing officer requested more compensation than allowed by law.  Peters did not object to the vote at the time.  Thus, Peters did not preserve any error on appeal.  Peters also did not properly brief the issue of the hearing examiner’s request for compensation.  Because he failed to identify the specific procedural error and any effect it may have had on the outcome of the hearing, the claims were without merit.  The Commissioner, therefore, upheld the termination based on the excessive force against the student.

Things to Remember:  This is the latest of many recent cases in which educators assert their immunity when using force with students.  The Commissioner notes that the statute protecting teachers from disciplinary action arising from the use of force is broad and provides “a high level of protection for a teacher.”  Putting it simply, the Commissioner notes that, “If a parent could lawfully use force, a teacher could lawfully use force.”  Nevertheless, the force used here was deemed unreasonable.