City of Fort Worth, Texas v. Abdul Pridgen and Vance Keyes ( 2022 )

Supreme Court of Texas
══════════
No. 20-0700
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City of Fort Worth, Texas,
Petitioner,
v.
Abdul Pridgen and Vance Keyes,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════
Argued February 1, 2022
JUSTICE LEHRMANN delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Devine, Justice Busby, Justice Bland,
Justice Huddle, and Justice Young joined, and in which Justice
Blacklock joined except as to Part III(A).
JUSTICE BLACKLOCK filed a concurring opinion.
JUSTICE BOYD filed a dissenting opinion.
This case concerns the proper interpretation of a “good faith
report[] [of] a violation of law” under the Texas Whistleblower Act. The
plaintiffs, two veteran law enforcement officers with the Fort Worth
Police Department, contend that they were unlawfully disciplined for
making such a report regarding another officer’s conduct. They sued the
City pursuant to the Act, which provides for a limited waiver of
sovereign immunity. The trial court denied the City’s motion for
summary judgment, and the court of appeals affirmed, holding that the
Act waived the City’s immunity. We hold that, as a matter of law, the
officers did not make a qualifying “report” under the Act. We therefore
reverse the court of appeals’ judgment and render judgment for the City.
I. Background
Abdul Pridgen and Vance Keyes were veteran law enforcement
officers employed by the Fort Worth Police Department. Pridgen served
as Assistant Chief, Keyes as Deputy Chief. Both supervised the
Department’s Internal Affairs and Special Investigations Units. The
Internal Affairs Unit is responsible for investigating allegations that
police officers have violated general orders or other internal Department
rules or policies. The Special Investigations Unit investigates
allegations of criminal misconduct involving City employees, including
police officers. Keyes reported directly to Pridgen, who in turn reported
to Chief of Police Joel Fitzgerald.
On December 21, 2016, Jacqueline Craig called the police to
report that her neighbor choked her seven-year-old son because he left
trash in the neighbor’s yard. Officer William Martin responded to the
call. When he arrived at the scene, Martin questioned the neighbor and
then approached Craig. After Craig explained the incident, Martin
asked, “Why don’t you teach your son not to litter?” Craig stated that
even if her son had littered, her neighbor did not have a right to touch
him. Martin responded, “Why not?” Craig exclaimed that Martin should
2
not tell her how to parent her children. Martin stated, “If you keep
yelling at me, you’re going to piss me off [and] I’m going to take you to
jail.” As Craig yelled back, her teenage daughter stepped between Craig
and Martin. Martin shoved Craig’s daughter away, drew a taser, and
pressed it against Craig’s back, forcing her to the ground. While
handcuffing Craig, he pointed the taser at her daughter and told her to
get on the ground. When Craig’s daughter proceeded to sit, Martin
grabbed the back of her neck and pushed her down. He drew her arms
behind her back, handcuffed her, and then forcefully lifted her to her
feet. As Martin walked Craig and her daughter to his patrol car, Craig’s
older daughter, Brea Hymond, who had been filming the incident,
followed behind him. Once Craig and her younger daughter were inside
the vehicle, Martin turned around and grabbed Hymond’s arm. He
shoved her against the patrol car and, after a struggle, wrested the
phone from her grasp. He went on to handcuff her, arrest her, and place
her in a second patrol car.
The video was streamed to Facebook Live and went viral. It
received substantial negative media attention. Shortly thereafter, the
matter was referred to the Internal Affairs Unit, prompting Pridgen and
Keyes to begin their investigation. On December 25, 2016, Martin was
served with an initial personnel complaint notifying him that he was
under investigation for charges including excessive force, unlawful
arrest, and discourtesy. On December 28, Pridgen instructed Captain
Deven Pitt and Lieutenant Neil Noakes to serve Martin with an
additional personnel complaint for violation of the Bias-Free Policing
3
General Order. 1 Internal Affairs conducted pre-disciplinary hearings on
January 7 and 9, 2017.
Pridgen and Keyes reviewed Martin’s body camera video, the
Facebook Live video, and Martin’s arrest affidavit and determined that
Martin violated the law and should be terminated. They concluded that
Martin used excessive force when he torqued Brea Hymond’s arms while
she was handcuffed, lied in his arrest affidavit when he asserted that
Hymond pushed him from behind, and illegally arrested Craig and her
daughters. Both Pridgen and Keyes assert that they conveyed these
conclusions to Chief Fitzgerald on multiple occasions prior to Martin’s
receiving discipline. Keyes claims that he communicated these
conclusions once over the phone, once while he was in the Chief’s office,
and once when Pridgen, Keyes, and the Chief were all in Pridgen’s office.
Pridgen avers he told Chief Fitzgerald about their conclusions over the
phone and during an Internal Affairs meeting that took place the first
week of January. Specifically, Pridgen states that at the meeting, Chief
Fitzgerald went around the table asking the team what they thought
Martin’s discipline should be. When the Chief got to Pridgen, Pridgen
said, “you don’t want to know my opinion.” Chief Fitzgerald responded,
“no, I do want to know your opinion.” Pridgen then stated that Martin
should be terminated because he “made a false arrest, he lied in his
1 General Order 347.03, Bias-Free Policing, requires all Fort Worth
Police Department officers to “provide[] police services to the community in a
nonpartisan, fair, equitable, and objective manner without consideration of
race, color . . . or other individual characteristics or distinctions.”
4
affidavit and used excessive force.” Chief Fitzgerald replied, “you’re
right, I don’t want to know what you’re thinking.”
Though Chief Fitzgerald agreed that Martin used excessive force,
he and several other members of the Internal Affairs Unit disagreed
with Pridgen and Keyes about their other conclusions and did not think
Martin should be terminated. On January 9, 2017, Chief Fitzgerald
suspended Martin for ten days.
On January 26, Martin’s previously undisclosed body camera
video and other confidential files were released and posted on
“theroot.com” and on the Facebook page of Jacqueline Craig’s attorney,
Lee Merritt. Chief Fitzgerald immediately initiated an investigation
into the source of the leak. He later testified that from the beginning,
he suspected Pridgen was involved. And though the Chief initially
directed Keyes to help identify the leak’s source, within a day he notified
Keyes that Valerie Washington, the assistant city manager, wanted
Keyes and Pridgen removed from the leak investigation. 2 Keyes emailed
Chief Fitzgerald and Washington asking why he was removed but
received no response.
The remaining Internal Affairs officers concluded that five
individuals, including Pridgen, had special authorization to access the
body camera video and other leaked materials. Upon further
investigation, they discovered that Pridgen had downloaded the files to
a thumb drive on January 18. Video footage showed that Keyes was in
2 Washington denies this. In her deposition testimony, she stated that
Chief Fitzgerald was the one who wanted Pridgen and Keyes removed from the
leak investigation.
5
Pridgen’s office at the time of the download. In early February, a
forensic examiner with the Department concluded that the files Pridgen
downloaded were identical to those posted online.
Pridgen acknowledges downloading the files, claiming that he
intended to share the information with Chief Fitzgerald. He also
concedes that he cannot produce the thumb drive. Keyes likewise
admits that he was in Pridgen’s office on January 18. However, both
deny that they leaked the files to Merritt, and in his deposition, Merritt
denied receiving the files from anyone in the Department.
Keyes and Pridgen were served with personnel complaints on
February 14 and February 20, respectively, notifying them that they
were under investigation for participating in the leak. In March, they
were placed on detached duty, which required them to remain at their
residences for eight hours a day. On May 19, Pridgen and Keyes were
demoted to Captain. And on May 22, Keyes was suspended for three
days without pay.
In November 2017, Pridgen and Keyes each sued the City
pursuant to the Whistleblower Act, alleging that the City took adverse
action against them in response to their “good faith reports” of
“violation[s] of law.” TEX. GOV’T CODE §§ 554.001–.002. Specifically,
they alleged that Chief Fitzgerald unlawfully removed them from their
positions due to their “reports of Officer Martin’s violations of law.”
They sought past and future damages, reinstatement of their previously
held positions, restoration of seniority rights and fringe benefits, and
attorney’s fees. The City filed an answer and general denial in both
suits. It also raised several affirmative defenses, including that it
6
“would have taken the action against [the plaintiffs] . . . based solely on
information, observation, or evidence that is not related to the fact that
Plaintiff[s] allegedly made” the protected report, and that Pridgen and
Keyes lacked a good-faith belief that they were reporting a violation of
law.
Pridgen and Keyes (hereinafter collectively referred to as
Respondents) filed a motion to consolidate their suits, which the trial
court granted. The City filed a traditional and no-evidence motion for
summary judgment, arguing that Respondents failed to allege
jurisdictional facts necessary to show a waiver of sovereign immunity
and asking the trial court to render judgment as a matter of law in the
City’s favor. The City argued that Respondents did not “in good faith
report[] a violation of law,” as the Whistleblower Act requires, because
(1) they merely conveyed “their opinions” regarding the Department’s
internal policies and the consequences they believed Martin should have
faced, and (2) they lacked a subjectively and objectively reasonable belief
that Martin violated the law. The City also opined that Respondents
failed to produce evidence showing they were fired because of their
“report[s],” as opposed to the leak of confidential documents.
In their response to the City’s motion, Respondents argued that
(1) a question of fact exists regarding whether they reported violations
of law in good faith, (2) evidence demonstrates that the City’s
disciplinary actions were linked to their reports, and (3) a question of
fact exists regarding the City’s affirmative defense that it had
independent grounds to discipline them.
7
The trial court denied the City’s motion, and the court of appeals
affirmed. ___ S.W.3d ___, 2020 WL 3286753, at *4–9 (Tex. App.—Dallas
June 18, 2020). The court of appeals held that Respondents “report[ed]”
a violation of law to Chief Fitzgerald, as required by the Act. Id. at *4–
5. In doing so, the court rejected the City’s arguments that Respondents
failed to make a protected “report” because Chief Fitzgerald (1) already
knew about Martin’s conduct from another source, (2) had already
viewed the Facebook Live video, which was public knowledge, and
(3) had already ordered an investigation of the incident. Id. The court
likewise rejected the City’s argument that Respondents offered only
“opinions about discipline and the consequences of Martin’s conduct,”
which “are simply not the types of ‘reports’ the [Act] protects.” Id.The court of appeals also held that Respondents satisfied the Act’s
“good faith” requirement because they provided evidence that they
possessed an objectively reasonable belief that Martin’s conduct violated
the law. Id. at *5–6. Finally, relying on the causation factors we
articulated in City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.
2000), the court held that Respondents “offered evidence from which a
jury could conclude that their protected activity . . . at least partially
motivated [Chief] Fitzgerald to demote them, and that Fitzgerald would
have reached a different decision in the absence of their protected
activity.” 2020 WL 3286753, at *8.
The City petitioned this Court for review, arguing that it is
entitled to judgment on multiple independent grounds, including:
(1) Respondents did not “report” under the Act because they did not
“disclos[e] . . . information”; (2) the court of appeals erred in relying only
8
on evidence of Respondents’ subjective beliefs about the criminal nature
of Martin’s conduct in determining whether their beliefs were
objectively reasonable; and (3) Respondents’ evidence was legally
insufficient to establish that their discipline resulted from Chief
Fitzgerald’s unlawful motivation. We granted the City’s petition.
II. Standard of Review
Governmental entities are typically immune from suit unless the
state consents through an express legislative enactment. Rosenberg
Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex.
2019). The Texas Whistleblower Act provides a limited waiver of that
immunity. Specifically, Section 554.0035 provides that “[a] public
employee who alleges a violation of [the Act] may sue the employing
state or local governmental entity,” and “[s]overeign immunity is waived
and abolished to the extent of liability for the relief allowed under [the
Act] for a violation of [the Act].” TEX. GOV’T CODE § 554.0035.
Accordingly, the elements of a whistleblower claim are jurisdictional
facts necessary for “determining whether the [plaintiff’s] claim falls
within the jurisdictional confines of section 554.0035.” State v. Lueck,
290 S.W.3d 876, 882 (Tex. 2009).
Here, the City challenges the existence of these jurisdictional
facts through a motion for summary judgment. We review such
challenges de novo, considering “the facts alleged by the plaintiff and to
the extent relevant, evidence submitted by the parties.” Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004) (citing
Tex. Nat. Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 868
(Tex. 2001)). Where the facts underlying the merits and jurisdiction are
9
intertwined, the plaintiff must produce evidence “creat[ing] a fact
question regarding the jurisdictional issue.” Id. at 227–28. At this stage
of litigation, we take as true all evidence favorable to the nonmovant
and indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Id. at 225. Accordingly, here, we must evaluate
whether Respondents raised a genuine issue of material fact as to each
element of their whistleblower claims under Section 554.002(a) of the
Act. See Lueck, 290 S.W.3d at 882; Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000).
III. Analysis
Section 554.002(a) of the Texas Whistleblower Act provides:
A state or local governmental entity may not suspend or
terminate the employment of, or take other adverse
personnel action against, a public employee who in good
faith reports a violation of law by the employing
governmental entity or another public employee to an
appropriate law enforcement authority.
TEX. GOV’T CODE § 554.002(a). The employee bears the burden of
proving this claim. Id. § 554.004(a). 3 Thus, in a Whistleblower Act suit
by a public employee against his governmental-entity employer, the
employee must show that he (1) reported (2) a violation of law by the
employer or another public employee (3) to an appropriate law
3 If a governmental employer takes adverse action “not later than the
90th day after the date on which the employee reports a violation of law,” there
is a rebuttable presumption that the action was taken in response to the
employee’s report. TEX. GOV’T CODE § 554.004(a). Because the relevant
adverse actions here occurred approximately five months after Respondents
allegedly made their reports, the presumption does not apply.
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enforcement authority, (4) the report was made in good faith, and (5) the
adverse action would not have occurred when it did if the employee had
not reported the illegal conduct. Id. § 554.002(a); Zimlich, 29 S.W.3d at
67 (discussing the required causal link between the report and the
adverse employment action).
A. Qualifying “Report” under the Whistleblower Act
The City primarily argues that Respondents did not make a
qualifying “report” under the Act. First, it asserts that “report[ing]”
entails “provid[ing] information” as opposed to mere opinions or
conclusions. Second, it claims that to “report,” one must “disclose” facts
previously unknown to the report’s recipient. It argues that because
Respondents conveyed conclusions to Chief Fitzgerald based on facts he
already knew, they were merely repeating, not “reporting.” Finally, the
City argues that to make a protected report, whistleblowers must be
“illuminat[ing] some governmental misdeeds” and not “simply doing
their jobs.” In the City’s view, Respondents were executing their
assigned task of investigating Martin’s conduct, not blowing the whistle.
Respondents urge us to reject these restrictions, which they
believe are nowhere to be found in the Act’s text. Additionally, they
claim that even if we adopt the City’s “disclosure” rule, their “report”
that Officer Martin committed perjury would comply. In their view, this
conclusion was “new” because they were the only ones to convey it to
Chief Fitzgerald. Similarly, they contend that they were the only
officers who insisted that the Department pursue criminal charges
against Officer Martin.
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As discussed below, we agree with the City that to “report[]”
under the Act, an employee must convey information, not just
conclusions, and we agree that Respondents largely failed to satisfy this
requirement. We disagree, however, that the Act contains an atextual
“disclosure” requirement. We also disagree that public employees forfeit
the Act’s protection if they report as part of their job duties.
We begin by examining the statute’s language. When construing
statutes, we endeavor to “determine and give effect to the Legislature’s
intent.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 316 (Tex.
2002) (citations omitted). We must enforce the Act “as written” and
“refrain from rewriting the text that lawmakers chose.” Jaster v. Comet
II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). Additionally,
while we must necessarily construe key terms, we do so in the context
of the statute as a whole, not in isolation. Youngkin v. Hines, 546 S.W.3d
675, 680 (Tex. 2018).
We first consider the word “report.” Because the Act does not
define the term, we interpret it according to its common, ordinary
meaning unless the statute’s language indicates otherwise. Tex. State
Bd. of Examiners of Marriage & Family Therapists v. Tex. Med. Ass’n,
511 S.W.3d 28, 34 (Tex. 2017) (citation omitted). When determining a
statutory term’s common, ordinary meaning, we typically consult
dictionaries. Epps. v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011). Common
dictionary definitions of “report” slightly vary, and, unsurprisingly, the
parties each argue that the definition most favorable to their position
controls.
12
Respondents point to Merriam-Webster’s “to give an account of”
and Cambridge Dictionary’s “to give a description of something or
information about it to someone.” See Report, Merriam-Webster,
https://www.merriam-webster.com/dictionary/report; see also Report,
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/report.
The City, however, cites another Merriam-Webster definition: “to make
known to the proper authorities.” See Report, Merriam-Webster,
https://www.merriam-webster.com/dictionary/report. We decline to
arbitrarily choose between these definitions but believe they are helpful
in “establish[ing] outer boundaries of what [report] could (or could not)
mean.” Philip A. Rubin, War of the Words: How Courts Can Use
Dictionaries in Accordance with Textualist Principles, 60 DUKE L.J. 167,
191 (2010) (“[D]ictionaries . . . should be used only to say what a word
could mean, not what it must mean—they can only establish outer
boundaries.”). The common thread throughout these definitions is
provision of information, as opposed to mere opinions or suppositions.
Therefore, we agree with the City that, to “report” under the Act,
employees must convey facts. Communicating unsupported opinions or
legal conclusions is insufficient.
Respondents urge us to refrain from reading any further
restriction into the Act, pointing to opinions from the courts of appeals
suggesting that “report” should be construed broadly in light of the Act’s
failure to otherwise constrain the term. See, e.g., Tex. Dep’t of Assistive
& Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 400–01 (Tex. App.—
Austin 2005, pet. denied) (holding that no specific phrasing is required
to make a qualifying “report” under the Act); Montie v. Bastrop County,
13
No. 03-16-00123-CV, 2016 WL 6156232, at *6 (Tex. App.—Austin
Oct. 19, 2016, pet. denied) (holding that “reports” need not be in writing).
Regardless of whether these cases are correct, they pertain only to the
form a report may take, not its substance. And in interpreting statutes,
we look not only to the statutory language, but also to the objective the
Legislature sought to attain and the consequences of a particular
construction. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex.
2020); In re Xerox Corp., 555 S.W.3d 518, 526 n.48 (Tex. 2018) (citing
TEX. GOV’T CODE § 311.023). Indeed, “we consider the context and
framework of the entire statute and meld its words into a cohesive
reflection of legislative intent.” Cadena Comercial USA Corp. v. Tex.
Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017).
Therefore, we must consider the context in which “report” appears
within Section 554.002 and our own precedent.
In Neighborhood Centers, Inc. v. Walker, we explained that the
Whistleblower Act was adopted “amidst a growing sense throughout the
country that ‘mismanagement in the public sector’” was a mounting
public concern, and that “employees who disclose mismanagement
deserve legal protection.” 544 S.W.3d 744, 747 (Tex. 2018) (citation
omitted). In light of this history, we concluded that the Act is aimed at
“ferreting out government mismanagement to protect the public.” Id. at
748. Accordingly, the Act is not intended to protect all reports; it is
intended to protect those that further this purpose. 4 Therefore, to
4Both the concurrence and the dissent assert that our interpretation
goes beyond the Act’s text. See post at 3 (Blacklock, J., concurring); post at 2
14
properly “report” under the Act, a public employee must convey
information that exposes or corroborates a violation of law or otherwise
provide relevant, additional information that will help identify or
investigate illegal conduct. 5
In so construing the Act, we reject the City’s additional proposed
constraints on the Act’s “report” requirement. First, the City urges us
to adopt the Thirteenth Court of Appeals’ interpretation of the Act and
define “report” as “[a] disclosure of information . . . tending to directly or
circumstantially prove the substance of a violation of criminal or civil
law.” Castaneda v. Tex. Dep’t of Agric., 831 S.W.2d 501, 503–04 (Tex.
(Boyd, J., dissenting). However, by purporting to stick to the Act’s plain
language, they each reach different conclusions. This is because words are
meant to be read in context. See, e.g., In re Academy, Ltd., 625 S.W.3d 19, 25
(Tex. 2021) (“We consider statutes as a whole, reading the chosen words ‘in
their context and with a view to their place in the overall statutory scheme.’”
(citation omitted)). Our interpretation adheres to the Legislature’s intent
precisely because it considers the statute as a contextual whole.
5 While not directly relevant to the disposition of this case, we note for
clarity that the “good faith” limitation modifies all the Act’s components,
including the report requirement. TEX. GOV’T CODE § 554.002(a). We have
interpreted “good faith” under the Act to have subjective and objective
components. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996) (holding
that to properly report a “violation of law,” an employee must personally
believe the conduct reported was a violation of law, and the employee’s belief
must have been reasonable in light of his training and experience). Applying
the good-faith restriction to the report requirement as we have construed it,
we hold that an employee “reports” “in good faith” when (1) the employee
believes the reported information will facilitate identifying or investigating a
violation of law by the employing governmental entity or another public
employee, and (2) the employee’s belief is reasonable in light of the employee’s
training and experience. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314,
321 (Tex. 2002) (“[W]hen feasible, we should consistently interpret terms used
throughout a statute.”).
15
App.—Corpus Christi 1992, writ denied) (emphasis added), superseded
by statute on other grounds, TEX. GOV’T CODE § 554.002. “Disclosure,”
the City says, entails provision of novel information. Accordingly, in the
City’s view, the Act requires that employees possess a good-faith belief
that they conveyed previously unknown information to the relevant
authority. Redundant reports, even if made by separate employees,
would not count.
As discussed, there is no question that “disclosing” new
information regarding illegal conduct may qualify as “report[ing] a
violation of law.” However, we disagree that this is the only type of
communication the Act protects. First, the word “disclosure” is
conspicuously absent from the Act’s text. It likewise does not appear in
most dictionary definitions of “report.” This is particularly notable in
light of the numerous other whistleblower statutes that explicitly
employ the word “disclosure,” including the federal Act. 6 Our precedent
dictates that just as “every word of a statute must be presumed to have
been used for a purpose[,] . . . every word excluded from a statute must
6See ARIZ. REV. STAT. ANN. §§ 38-531 to 38-534 (2021); ARK. CODE ANN.
§§ 21-1-601 to 21-1-610 (2021); COLO. REV. STAT. §§ 24-50.5-101 to 24-50.5-107
(2021); CONN. GEN. STAT.§ 4-61dd (2021); D.C. CODE §§ 1-615.51 to 1-615.59
(2021); FLA. STAT. § 112.3187 (2021); GA. CODE ANN. 45-1-4 (2021); IDAHO
CODE §§ 6-2101 to 6-2109 (2021); IOWA CODE § 70A.28 (2021); KAN. STAT. ANN.
§ 75-2973 (2021); KY. REV. STAT. ANN. § 61.102 (2021); MD. CODE ANN., State
Pers. & Pens. §§ 5-301 to 5-314 (2021); MASS. GEN. LAWS ch. 149, § 185 (2021);
MINN. STAT. §§ 181.931–.937 (2021); MO. REV. STAT. § 105.055 (2021); NEB.
REV. STAT. § 81-2705 (2021); N.J. STAT. ANN. § 34:19-3 (2021); N.Y. PUB. AUTH.
LAW § 2986 (2021); OKLA. STAT. tit. 74, § 840-2.5 (2021); OR. REV. STAT. ANN.
§§ 659A.199–659A.236 (2021); WASH. REV. CODE §§ 42.40.010–42.40.910
(2021); WIS. STAT. §§ 230.80–.89 (2021) Whistleblower Protection Act of 1989,
Pub. L. No. 101–12, 103 Stat. 21. (2021).
16
also be presumed to have been excluded for a purpose.” City of
Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 260 (Tex. 2018)
(citation omitted). Accordingly, we decline to read a limitation into the
statute that the Legislature chose to omit.
Additionally, the City’s interpretation precludes protection for
corroborative reports, which may be equally helpful in “ferreting out
government mismanagement to protect the public.” Walker, 544 S.W.3d
at 748. Indeed, the City’s argument presumes that once officials receive
an initial report of illegal conduct, further, consistent reports add no
benefit. But corroboration is eminently valuable when evaluating the
reliability of an informant’s tip. This is a maxim of federal Fourth
Amendment jurisprudence. See, e.g., Jones v. United States, 362 U.S.
257, 271 (1960) (“Corroboration through other sources of information
reduce[s] the chances of a reckless or prevaricating tale.”), overruled on
other grounds by United States v. Salvucci, 448 U.S. 83 (1980). It is also
common sense. Three consistent accounts of misconduct from three
different sources represent far more compelling evidence of wrongdoing
than a single report. However, the City’s “disclosure” requirement
would disincentivize employees from sharing information after an initial
report has been made. In fact, even if employees possessed additional
evidence, threat of adverse action may chill them from sharing it.
Accordingly, the City’s disclosure requirement would obstruct the
17
Legislature’s goal of addressing misconduct through incentivizing
verifiable reports. We reject it. 7
Finally, the City argues that employees do not “report[] a
violation of law” under the Act when they convey information “as part of
their jobs.” The City warns that holding otherwise would create “a de
facto class of whistleblowers who are protected simply because they do
their job.” We similarly reject this interpretation.
Like the “disclosure” limitation, this restriction does not appear
in the Act’s text. Moreover, the Act’s structure and purpose cut against
such a limitation. As mentioned, the Act is intended to help “ferret[] out
government mismanagement to protect the public.” Walker, 544 S.W.3d
at 748. And the Act protects only “[p]ublic employee[s]” who are “paid
to perform services for a state or local governmental entity.” TEX. GOV’T
CODE § 554.001(4). Indeed, the public employees best equipped to
expose, corroborate, or otherwise provide relevant information
regarding government illegality are those tasked with investigating
misconduct allegations. Moreover, these employees often need the Act’s
protections most, since they may be required to make unpopular reports.
7 That is not to say, however, that employees qualify for the Act’s
protection merely by repeating stale information or undisputed facts. An
employee must in good faith believe the information provided will assist in
identifying or investigating a violation of law. Once the governmental
authority has conclusively identified, verified, and addressed a prior report of
illegality, further reports are unlikely to facilitate these objectives unless they
convey new, relevant information. Along the same lines, a report will not fall
within the Act’s ambit when it merely repeats facts derived from a credible or
self-verifying source that is public or broadly available to law enforcement (like
a video or police report).
18
Additionally, though we have never explicitly stated that the Act
covers such reports, we have implied as much. In University of Texas
Southwestern Medical Center at Dallas v. Gentilello, we emphasized
that we were not holding that a report “can never be made internally.”
398 S.W.3d 680, 686 (Tex. 2013). To illustrate this point, we provided
the following example:
A police department employee could retain the protections
of the Whistleblower Act if she reported that her partner is
dealing narcotics to her supervisor in the narcotics or
internal affairs division. In such a situation, the employee
works for an entity with authority to investigate violations
of drug laws committed by the citizenry at large.
Id. Accordingly, we found that the fact that employees might discover a
violation of law in the course of their professional duties presented no
obstacle to seeking the Act’s protection. Id. Our opinion in Texas
Department of Human Services v. Okoli, 440 S.W.3d 611 (Tex. 2014),
further supports this point. Okoli followed job-specific training in
reporting a supervisor’s allegedly fraudulent activity. Id. at 612–13.
Though we held that the agency was immune, we noted that Okoli would
have qualified for the Act’s protection, even though he reported
internally, if he had conveyed information to an official with outward-
looking law enforcement authority. Id. at 616–17.
B. Application
We now turn to whether Respondents raised a genuine issue of
material fact as to whether they made a qualifying report under the Act.
We hold that they did not.
Respondents each communicated with Chief Fitzgerald
throughout Martin’s investigation. Though they characterize their
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communications in slightly different ways in their testimony, their
briefing provides this summary: “Pridgen and Keyes repeatedly
reported to Fitzgerald that Martin had committed crimes of assault,
perjury and official oppression and that criminal charges should be
pursued.”
First, we conclude that these “reports” were not geared toward
exposing, corroborating, or otherwise providing information pertinent to
identifying or investigating governmental illegality. Respondents did
not supply Chief Fitzgerald with new information about Martin’s
conduct. Rather, Chief Fitzgerald learned about the incident
independently through then-Deputy Chief Ramirez. And the record
shows that Pridgen, Keyes, and Chief Fitzgerald all had access to the
same sources: Martin’s body camera video, the Facebook Live video, and
Martin’s arrest affidavit. Indeed, Chief Fitzgerald, city officials, and
news media discussed the Facebook Live video at a press conference two
days after the incident. Additionally, Respondents did not corroborate
facts that were unverified or subject to dispute. Two videos depict the
Craig arrest from multiple perspectives—the Facebook Live video,
which was public, and the body camera video, which was available to all
members of the Internal Affairs team, including Chief Fitzgerald. And
Martin’s affidavit, an official law-enforcement record, was similarly
available to all parties and reviewed in the course of the investigation.
Nor could Respondents have reasonably believed that they were
exposing, corroborating, or otherwise providing new or corroborative
information about Martin’s conduct. They knew that Chief Fitzgerald
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was aware of the incident and knew he had access to the same sources
of information depicting it.
Second, Respondents’ testimony demonstrates an objective not to
unearth or prove unlawful conduct, but to persuade Chief Fitzgerald to
classify Martin’s known actions as criminal conduct and to terminate his
employment. To that end, Respondents’ communications with Chief
Fitzgerald consisted principally of recommendations about the
appropriate legal conclusions to be drawn from Martin’s actions. 8 For
instance, Pridgen claims he told Chief Fitzgerald that “Martin lied in
his Affidavit, he made a false arrest, and [he] used excessive force.”
Similarly, Keyes states he told Chief Fitzgerald that “Brea Hymond had
been falsely arrested,” “excessive force had occurred,” and “Officer
Martin had filed a false affidavit.” Such statements do not provide
relevant information about Martin’s actions. Rather, they amount to
opinions and conclusions, which the Act does not protect. Other
descriptions of Respondents’ communications with Chief Fitzgerald
pertain to Martin’s punishment. But the Act does not protect
recommendations about appropriate internal discipline; it protects
reports of illegal conduct. Wichita County v. Hart, 917 S.W.2d 779, 786
(Tex. 1996). Accordingly, Respondents’ reports did not aim to expose,
corroborate, or otherwise provide information pertinent to identifying or
investigating governmental illegality. They merely voiced opinions and
8To the extent they went beyond recommendations and contained
information, they still do not qualify as “reports” for the reasons explained
above.
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encouraged Chief Fitzgerald to assign Martin’s actions a particular legal
designation. As such, they do not fall within the Act’s purview.
Respondents argue that at the very least, their statements that
Officer Martin perjured himself constitute qualifying reports because
they were the first to bring Officer Martin’s false affidavit to Chief
Fitzgerald’s attention. The City disputes this assertion, and
Respondents did not testify to that effect in their depositions or
declarations. Even if true, however, the record shows that at most
Pridgen and Keyes voiced an opinion to Chief Fitzgerald about broadly
known (indeed, public) and easily verifiable information. Accordingly,
there were no facts for Respondents to expose or corroborate. Chief
Fitzgerald had all the information needed to confirm whether Officer
Martin lied, and he knew about the allegation. Since “reporting” under
the Act requires, at a minimum, provision of information regarding
illegal conduct, this type of communication does not suffice. 9
Indeed, as Respondents appear to concede, the purpose of their
communications with Chief Fitzgerald was not to help identify or
investigate Martin’s allegedly illegal conduct. Rather, they were voicing
opinions about how Chief Fitzgerald should classify and punish such
behavior. And while providing these recommendations may have fallen
within Respondents’ job responsibilities, such opinions and conclusions
do not trigger the Act’s protections. Accordingly, we cannot conclude
9 Additionally, it is irrelevant that Respondents were the only ones to
recommend that the Department pursue criminal charges against Officer
Martin. Suggesting potential punishment does not equate to “report[ing] a
violation of law.”
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that Respondents “in good faith report[ed] a violation of law,” and
therefore the Act does not apply. 10
In sum, we hold that Respondents failed to raise a genuine issue
of material fact as to whether they “report[e]d a violation of law” under
the Whistleblower Act. Therefore, the Act does not waive the City’s
immunity from suit, and we need not address the City’s additional issues
regarding the Act’s good-faith and causation requirements.
IV. Conclusion
Respondents failed to present evidence that they “report[ed] a
violation of law” under the Whistleblower Act. Therefore, the City
retains immunity from suit. We accordingly reverse the court of appeals’
judgment and render judgment for the City.
Debra H. Lehrmann
Justice
OPINION DELIVERED: May 27, 2022
10 We emphasize that we pass no judgment on Respondents’ decisions
to convey their recommendations to Chief Fitzgerald. That they failed to meet
the Act’s narrow requirements for whistleblower protection does not mean they
acted in “bad faith” as that term is commonly understood. As we explained in
Hart, an employee’s subjective motivations for “report[ing]” are irrelevant for
purposes of the Act. 917 S.W.2d at 785–86. An employee motivated by malice
toward another individual could qualify for the Act’s protection if he reasonably
believed the individual violated the law and the report would assist in ferreting
out illegality. Id. At the same time, an employee with the noblest intentions
may forfeit the Act’s protections by failing to make a qualifying report to the
proper authority. We merely conclude that Respondents’ communications are
not the type the Act protects.
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