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Overturning a $1.2 million whistleblower judgment, the Texas Supreme Court held on May 9 that the Texas Department of Transportation is not an appropriate agency to which a public employee can report an alleged drunk-driving incident involving a co-worker. The court’s unanimous ruling in Texas Department of Transportation v. Needham interprets for the first time the term “appropriate law enforcement authority” as defined by the Legislature in 1995 amendments to the Texas Whistleblower Act. Also, the court adopted a test for determining whether an employee held a “good faith” belief that he or she reported a co-worker’s alleged misconduct to the appropriate authorities. Under Texas Government Code � 554.002(b), a governmental entity qualifies as an appropriate law enforcement authority if it’s authorized to regulate under and enforce “the law alleged to be violated in the report” or to investigate or prosecute “a violation of criminal law.” “It is clearly not enough that a governmental entity has general authority to regulate, enforce, investigate or prosecute,” Justice James Baker wrote for the court. “It’s an important decision,” says Linda Eads, a former state deputy attorney general who is now an associate professor at Southern Methodist University Dedman School of Law. “It’s going to cut down on frivolous whistleblower cases for sure,” Eads says. “We think they rewrote the statute,” says John Judge, attorney for Eddie Needham, a former TxDOT employee who claims he was demoted and placed on probation after blowing the whistle on an alleged DWI incident involving a co-worker. Judge, a shareholder in Austin’s Judge & Brim, says the Legislature “made it very clear” that an employee who has a good-faith belief that he is reporting to someone who has authority to regulate or enforce the law alleged to have been violated qualifies for protection under the Whistleblower Act. TxDOT has a substance abuse policy that prohibits employees from driving state vehicles while under the influence of alcohol or drugs, he says. The Texas Supreme Court’s opinion said Needham, a 23-year veteran in TxDOT’s information systems division, reported to a supervisor that a co-worker had been intoxicated while driving a state vehicle. The alleged DWI incident occurred on Jan. 10, 1996, but Needham waited until Feb. 23, 1996, to report it because he believed the worker’s crew chief should make the report and also feared retaliation, the opinion said. According to the opinion, the supervisor who received the report told Needham that TxDOT’s Human Resources Manual required Needham to report the incident to his immediate superior. The supervisor to whom Needham initially reported later told him to talk to a TxDOT employee who dealt with human resources issues, the court wrote. In March 1996, Needham was charged with 13 violations of TxDOT policies and procedures. The alleged violations included a charge that Needham unnecessarily traveled to College Station, Texas, where he alleged the DWI incident occurred, and secured lodging there rather than return to the agency’s Austin headquarters. Needham, who according to the Texas Supreme Court’s opinion never had received a reprimand during his years with TxDOT, claims the charges were made in retaliation for his report of his co-worker’s alleged misconduct. An Austin jury found in Needham’s favor after 98th District Judge Jeanne Meurer denied TxDOT’s motion for summary judgment on the Whistleblower Act claim. The 3rd Court of Appeals, in an unpublished opinion written by Chief Justice Marilyn Aboussie, affirmed the trial court. Justices Lee Yeakel and Jan Patterson joined Aboussie in the opinion. TRUST THE JURY Daniel Benson, a Texas Tech University School of Law professor who teaches evidence and Texas civil procedure, says the state supreme court “got it right” when it found that TxDOT was not an appropriate law enforcement authority. But Benson says he believes the court is wrong in its holding that there is not evidence to support a finding that Needham had a good-faith belief that TxDOT was an appropriate law enforcement authority under the Whistleblower Act to report a co-worker’s drunk driving. “They substituted their opinion for that of the jury,” Benson says. In its opinion, the 3rd Court said the trial record shows Needham initially reported to a person in authority at TxDOT and subsequently reported to his superior, as required by the agency’s manual. Perceiving that nothing had been done, Needham spoke again to the supervisor to whom he made the first report and was told to talk to a third individual at TxDOT, the 3rd Court’s opinion said. The jury was entitled to infer from the evidence that by searching out the proper individuals to whom he could report the alleged DWI incident that Needham subjectively believed that he was reporting to officials authorized to regulate or investigate under the law, the appeals court said in its opinion. Benson says appellate courts are supposed to trust the jury that hears and sees the witnesses. The jury in this case believed Needham had a good-faith belief that he was reporting to the appropriate agency, he says. The test the Texas Supreme Court applied to determine good faith requires the employee to believe that the governmental entity to which a report of misconduct is made is an authorized law enforcement authority and that the belief was “reasonable in light of the employee’s training and experience.” The Texas Office of the Attorney General declines to allow interviews with Assistant Attorney General Katherine Kasten and Deputy Solicitor Philip Lionberger, who represent TxDOT in Needham. Notes OAG spokesman Tom Kelley: “We believe this ruling maintains the integrity of the state’s whistleblower law and ensures that it will be applied only in cases for which the Legislature intended.”

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