Opinion
No. 05-20-00945-CV
08-29-2022
CITY OF DENTON, Appellant v. Michael GRIM and Jim Maynard, Appellees
Alison R. Ashmore, Christopher D. Kratovil, Elizabeth Voss, Dykema Gossett, PLLC, Dallas, Darrell G-M Noga, Fee, Smith, Sharp & Vitullo, LLP, Dallas, for Appellant. Eric Nelson Roberson, Robert Edward Goodman Jr., Kilgore & Kilgore, PLLC, Dallas, for Appellees.
On Appeal from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-08139, The Honorable Martin Hoffman, Judge
Alison R. Ashmore, Christopher D. Kratovil, Elizabeth Voss, Dykema Gossett, PLLC, Dallas, Darrell G-M Noga, Fee, Smith, Sharp & Vitullo, LLP, Dallas, for Appellant.
Eric Nelson Roberson, Robert Edward Goodman Jr., Kilgore & Kilgore, PLLC, Dallas, for Appellees.
Before Justices Molberg, Pedersen, III, and Smith MEMORANDUM OPINION
Opinion by Justice Molberg
Appellant City of Denton appeals a final judgment entered against it after a jury verdict in favor of appellees Michael, Grim and Jim Maynard on their claims under the Texas Whistleblower Act (the Act). In four issues, the City argues the Act does not apply as a matter of law and the evidence is legally and factually insufficient. We disagree and affirm the trial court’s judgment.
See Tax. Gov’t Code §§ 554.001–.010. Under the Act, "[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." Id. § 554.002(a).
Appellees asserted claims against the City under the Texas Open Meetings Act and the Texas Whistleblower Act in their original petition. After amendment, appellees removed their claims under the Texas Open Meetings Act.
I. P rocedural B ackground
The facts are well known to the parties, and we do not detail them except as necessary to explain the basic reasons for our decision. See Tex. R. App. P. 47.4.
Grim and Maynard sued the City in July 2017, claiming the City violated the Act in various respects regarding their employment. In their live pleading, Grim and Maynard claimed the City violated the Act by "terminating [them] on the basis of deliberately falsified accusations, and defaming them after the fact" in retaliation for their prior reports to City Attorney Anita Burgess about a leak of certain confidential information regarding the proposed Denton Energy Center (DEC), information that was provided by then-current city council member Keely Briggs to the Denton Record-Chronicle (DRC), the local daily newspaper, and was then published online. Grim and Maynard claim Briggs’s disclosure to DRC violated the Texas Open Meetings Act (TOMA), see Tex. Gov’t Code §§ 551.001–.146, and the Texas Public Information Act (TPIA), see id., §§ 552.001–.376.
Grim testified the DEC was "a part of the entire Renewable Denton Plan, which consisted of renewable energy for the city and then a backup when the renewables weren’t available." In their briefs, both parties describe the DEC as an electrical generation plant that runs on natural gas.
The Act defines "public employee" as "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity." Tex Gov’t Code Ann § 544.001(4). It is undisputed that (i) Briggs was not an appointed officer and (ii) Briggs was not paid to perform her duties as a council member for the City.
In its answer, the City generally denied appellees’ claims and asserted various affirmative defenses but did not include a plea to the jurisdiction or mention immunity from suit or liability. According to the record before us, the City has not challenged jurisdiction or claimed immunity in the trial court or in this Court.
The case was tried to a jury. Fifteen witnesses testified, and more than eighty exhibits were admitted into evidence at trial.
At the close of appellees’ case-in-chief, and again after both sides rested, the City moved for a directed verdict, arguing appellees failed to put on evidence they made a good faith report of a violation of law by the employing governmental entity or a public employee, with no mention of whether appellees’ report had been made to an appropriate law enforcement authority. The trial court denied both motions.
During the formal charge conference, no objections were made to the charge, which instructed the jury, in part, "[a] party’s conduct includes the conduct of its employees or of another who acts with the party’s authority or apparent authority." The City did not object to that language and assigns no error regarding that instruction on appeal.
Over the City’s objection, the court submitted one broad-form liability question for each appellee with related definitions and instructions, and the jury answered "yes" to both:
Specifically, the City argued questions one and three should not be submitted to the jury because there was "no evidence [appellees] reported a violation of law by the employing governmental entity or a public employee," with no discussion of whether appellees’ report had been made to an appropriate law enforcement authority. The trial court overruled the objection.
It is undisputed that the City is a municipality that satisfies the definition of a "local governmental entity" under the Act. See Tex Gov’t Code Ann § 554.001(2) (In this chapter … "[l]ocal governmental entity means a political subdivision of the state, including a … municipality.").
[Question 1 for Grim; Question 3 for Maynard]:
Was [appellee’s] report of an alleged violation of law made in good faith and a cause of the termination of [his] employment?
The report was a cause of [his] termination if it would not have occurred when it did but for the report being made. [Appellee] does not have to prove the report was the sole cause of the termination. Rather, he must establish that he would not have been terminated had he not made a report of an alleged violation of law.
"Good faith," means that (1) [appellee] believed that the conduct reported was a violation of law and (2) his belief was reasonable in light of his training and experience.
Based on the jury’s "yes" answers to both questions, the jury was also asked the following question for each appellee, to which the jury answered "no":
[Question 2 for Grim; Question 4 for Maynard]:
Would the City have taken the same action inquired about in [question 1 for Grim; question 3 for Maynard] against [appellee] when it did based solely on information, observation, or evidence that is not related to the fact that [appellee] made a report of violation of law?
The jury then assessed Grim’s and Maynard’s damages from their firings.
Both sides filed post-trial motions after the jury’s verdict, and in the course of the parties’ briefing, a question arose regarding the constitutionality of section 554.003(c)’s statutory caps—an issue not presented here.
The court denied the City’s motion for JNOV, granted appellees’ amended motion for judgment, and indicated that, as requested, the court would notify the attorney general regarding the question Regarding constitutionality of the statutory caps. On July 31, 2020, the trial court entered a final judgment against the City and in appellees’ favor in an amount totaling $2,759,195.49, plus post-judgment interest at the rate of five percent per annum. The City timely moved for a new trial, arguing there was legally and factually insufficient evidence to support the jury’s findings as to the elements that are now at issue in this appeal. After the motion for new trial was denied by operation of law, the City timely appealed.
The docket sheet in the record reflects the court sent that notice about two weeks after the hearing. Forty-five days later, the attorney general filed a response, asking, in part, that the court enter judgment capping damages as required under government code section 554.003. The court entered judgment sixty-six days after the attorney general’s response.
Johnson does not end here but adds dicta about the remedial purposes of the Act. The dicta relates to the majority’s erroneous construction of the Act’s limited waiver of sovereign immunity and are discussed below.
II. I ssues
The City presents four issues on appeal. Generally, the City maintains the Act does not apply as a matter of law because the reported violation of law was committed by Briggs, a person the City argues is not the employing governmental entity or its equivalent (first issue), and because the report was made to Burgess, a person the City argues is not an appropriate law enforcement authority (fourth issue). Additionally, the City argues the evidence is legally and factually insufficient to support the finding that appellees’ reports caused their firings (second issue) and that they had a good faith belief the conduct they reported was a violation of law (third issue). The City asks us to reverse and render judgment in its favor.
The City presents the following four issues on appeal:
I. Did the District Court err in holding that, as a matter of law, an Individual member of the unpaid Denton City Council acting without the Council’s knowledge or sanction was either the "employing governmental entity" or "another public employee" within the meaning of the Whistleblower Act, thus rendering the Whistleblower Act applicable to this case?
II. Did the District Court err in concluding that there was legally and factually sufflcient evidence to sustain the jury’s finding that [appellees’] report of an alleged violation of law by an individual member of the Denton City Council caused them to be fired, when such firing—not by the City Council, but by the City Manager—occurred almost a year after the report and following an unrelated investigation of staff conduct with vendors?
III. Did the District Court err in concluding that there was legally and factually sufficient evidence to sustain the jury’s finding that [appellees] had a good faith belief that the conduct of the Council Member they reported constituted a violation of law?
IV. Did the District Court err in holding that, as a matter of law, the then-City Attorney constituted an "appropriate law enforcement agency" to whom to make a report within the meaning of the Whistleblower Act?
At the times relevant to this case, the City’s council members were unpaid. See. Tex. Gov’t Code Ann § 544.001(4) (" ‘Public employee’ means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity.").
III. A pplicable S tandards
A. Standard and Scope of Review
"Statutory construction is a question of law for the court to decide[,]" and we "review legal questions de novo." Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Our primary objective when construing a statute "is to determine the Legislature’s intent which, when possible, we discern from the plain meaning of the words chosen." Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022) (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)).
[1–3] Generally, the "truest manifestation" of that intent is "what lawmakers enacted, the literal text they voted on." Id. (quoting Alex Sheshunoff Mgmt. Serve., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006)). "If a statute is clear and unambiguous, we apply its words according to their common meaning without resort to rules of construction or extrinsic aids." Id. (quoting In re Estate of Nash, 220 S.W.3d at 917). "We use definitions the legislature prescribed and any technical or particular meaning the words have acquired." Id. (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)). "Otherwise, ‘[w]ords not statutorily defined bear their common, ordinary meaning unless a more precise definition is apparent from the statutory context or the plain meaning yields an absurd result.’ " Id. (quoting Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)).
[4] The proper points of error for evidentiary sufficiency challenges depend on whether the complaining party had the burden of proof, with legal sufficiency points of error designated as "no evidence points" or "matter of law points," and factual sufficiency points of error designated as "insufficient evidence points" or "great weight and preponderance points." See Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988, writ denied). In this case, appellees had the burden of proof on the issues the City challenges in this appeal. See Tex. Gov’t Code § 554.002(a) (public employee who sues under chapter 554 has burden of proof; except in some cases, a rebuttable presumption may apply); compare id. § 554.002(b) (describing employer’s affirmative defense). [5–9] When a party challenges the legal sufficiency of the evidence to support an adverse finding on which it did not have the burden of proof, the party must demonstrate that no evidence supports the finding. Graham. Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex; 2014) (per curiam). To determine whether legally sufficient evidence exists to support the finding, we "must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). "Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact." Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016). The "final test for legal sufficiency" is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827; see Office of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).
A party challenging the legal sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam).
The majority states: "In Johnson, our sister court reasoned that [the alderman’s] alleged violations of law was not by the employing governmental entity because they did not relate to the affairs of the city , itself, were detrimental primarily to the individuals involved, not to society in general, and were ‘not things the public would be concerned about simply because of [the alderman’s] status as an elected official.’ See Johnson, 48 S.W.3d at 895–97. In Rangel, our sister court reasoned that [the commissioner’s] alleged violation of law was by the employing governmental entity because her alleged misconduct in procuring additional benefits could fall within the official duties of a commissioner and her misstatement of income would be the type of conduct the public would be concerned about if committed by an appointed official. See Rangel, at 547–48." See Majority Op. at 134.
[10–15] When a party challenges the factual sufficiency of the evidence on an adverse finding on which it did not have the burden of proof, the party must demonstrate there is insufficient evidence to support the finding. Hoss v. Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011, no pet.). When determining the factual sufficiency of the evidence to support a jury verdict, we "must consider and weigh all the evidence and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (citations omitted); Harris Cty. v. Coats, 607 S.W.3d 359, 380–81 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Evidence is insufficient for factual sufficiency purposes if, after reviewing all the evidence in the record, we determine the evidence supporting the jury finding is so weak or the finding is so against the overwhelming weight of the evidence that the finding ,’is clearly wrong and unjust. Hoss, 338 S.W.3d at 651. The amount of evidence needed to affirm a judgment is far less than the amount necessary to reverse one. Shultz v. Shultz, No. 05-20-00819-CV, 2022 WL 336564, at *2 (Tex. App.—Dallas Feb. 4, 2022, pet. filed) (mem. op.) (citing Coats, 607 S.W.3d at 381). If we reverse a trial court’s judgment for factual insufficiency, we must "detail all the evidence relevant to the issue and clearly state why the jury’s finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust" and "how the contrary evidence greatly outweighs the evidence supporting the Verdict." Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842–43 (Tex. App.—Dallas 2011, no pet.) (citations omitted).
A party challenging the factual sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Daw Chem. Co., 46 S.W.3d at 242.
[16–18] In applying these sufficiency standards, we remain mindful that this Court is not a factfinder. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact—in this case, the jury—is the sole judge of witness credibility and the weight afforded their testimony; we defer to the jury’s determination regarding these matters and to its resolution of conflicting evidence. See City of Keller, 168 S.W.3d at 819–20; McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We "are not free to substitute [our] judgment for that of the jury simply because [we] may disagree with [its] verdict." Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
In McGalliard, the court stated: "The trier of fact has several alternatives available when presented with conflicting evidence. It may believe one witness and disbelieve others[,] may resolve inconsistencies in the testimony of any witness[,] and may accept lay testimony over that of experts." 722 S.W.2d at 697 (citations omitted).
B. Texas Whistleblower Act Generally
Under the Act, "[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) (emphasis added); Rodriguez, 605 S.W.3d at 191 (the Act "prohibits a government employer from taking an adverse personnel action against a public employee" who makes such reports); McMillen v. Tex. Health & Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex. 2016) (per curiam) (noting the Act "protects" public employees who make such reports).
[19–22] Many of section 554.002’s terms have been specifically defined in the Act. See Tex. Gov’t Code § 554.001. "Local government entity" includes a municipality, see id. § 554.001(2)(B), and "[l]aw" is "a state or federal statute," "an ordinance of a local governmental entity," or "a rule adopted under a statute or ordinance." Id. § 554.001(1). Also, though not specifically defined by the legislature, various courts have interpreted certain other phrases in section 554.002, including "good faith," and "reports a violation of law." Various courts have also interpreted the phrase "appropriate law enforcement authority."
" ‘Good faith’ means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the employee’s training and experience." Wichita Cty. v. Hart, 917 S.W.2d 779, 784 (Tex. 1996); see McMillen, 485 S.W.3d at 429 (to be in "good faith," employee’s belief about the reported-to authority’s powers must be "reasonable in light of employee’s training and experience") (quoting Needham, 82 S.W.3d at 321). The second part ensures "the reporting employee only receives Whistleblower Act protection if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law." Needham, 82 S.W.3d at 320 (citing Hart, 917 S.W.2d at 785).
The phrase "reports a violation of the law" has been interpreted as including "any disclosure of information regarding a public servant’s employer tending to directly or circumstantially prove the substance of a violation of criminal or civil law, the State or Federal Constitution, statutes, administrative rules or regulations." Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642 (Tex. App.—Corpus Christi-Edinburg 2001, pet. denied) (citation omitted); see Galveston Cty. v. Quiroga, No. 14-18-00648-CV, 2020 WL 62504, at *6 (Tex. App.—Houston [14th Dist.] Jan. 7, 2020, no pet.) (mem. op.) (quoting Llanes). While it may not be necessary to prove an actual violation or for a report to specify the law being violated, there must be some law prohibiting the complained-of conduct to give rise to a claim under the Act. Mullins v. Dall. Indep. Sch. Dist., 357 S.W.3d 182, 188 (Tex, App.—Dallas 2012, pet. denied) (citing Llanes, 64 S.W.3d at 642). "Other complaints and grievances, including alleged violations of an agency’s internal procedures and policies, will not support a claim." Id. (citation omitted). Whether the conduct a public employee reports constitutes a violation of law is a question of law. See Guillaume v. City of Greenville, 247 S.W.3d 457, 461–62 (Tex. App.—Dallas 2008, no pet.) (citation omitted).
A report is made to an appropriate law enforcement authority "if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate or enforce the law alleged to be violated in the, report; or (2) investigate or prosecute a violation of criminal law." Tex. Gov’t Code § 554.002(b). The supreme court has explained this as follows:
The Whistleblower Act speaks to an authority statutorily, empowered to regulate under or enforce the actual law allegedly violated—"the particular law the public, employee reported violated is critical to the determination"—or to investigate or prosecute a criminal violation. The upshot of our prior decisions is that for an entity to constitute an appropriate law-enforcement authority under the Act, it 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. Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-enforcement authority status.
Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013) (citation and internal footnote omitted); see McMillen, 485 S.W.3d at 429; Needham, 82 S.W.3d at 320.
[23] The Act "provides a general remedy for retaliation based on the report of any violation of law" and "is a broad remedial measure intended to encourage disclosure of governmental malfeasance and corruption." City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008) (citations omitted).
[24–26] The Act’s underlying purposes are twofold: (1) to enhance open government by protecting public employees from retaliation by their employers when an employee reports a violation of the law in good faith, and (2) to secure lawful conduct by those who direct and conduct the affairs of government. Herrera v. Dall. Indep. Sch. Dist., 609 S.W.3d 579, 588 n.15 (Tex. App.—Dallas 2020, pet. denied). The Act requires a "but-for" causation standard, under which the public employee "must prove that the adverse action ‘would not have occurred when it did’ if the employee had not reported the violation" but "need not prove that the report was the ‘sole’ or the ‘substantial’ reason for the adverse personnel action." Rodriguez, 605 S.W.3d at 192 (citing Tex. Dep’t of Human Sens. of State of Tex. v. Hinds, 904 S.W.2d 629, 634–36 (Tex. 1995)). An adverse action " ‘based solely’ on reasons unrelated to a good-faith report of a legal violation destroys the causal link." Id. (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)).
This "best protects employees from unlawful retaliation without punishing employers for legitimately sanctioning misconduct or harboring bad motives never acted upon." Hinds, 904 S.W.2d at 636.
[27] Because evidence of but-for causation is often circumstantial, courts are to examine all of the circumstances and consider a number of factors in determining whether the standard has been met, such as temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer’s stated reason to justify the adverse action is false. Apache Corp. v. Davis, 627 S.W.3d 324, 325–26 n.3 (Tex. 2021); see Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 790 (Tex. 2018) (citing Zimlich, 29 S.W.3d at 69); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–451 (Tex. 1996). However, if the basis for the suspension, termination, or other adverse personnel action is undisputed, these factors do not support an inference of the necessary but-for causation. See Apache Corp., 627 S.W.3d at 337 (stating this in a non-whistleblower case requiring but-for causation).
A public employee who sues under the Act has the burden of proof, except if the employee’s suspension, termination, or other adverse personnel action against the employee occurs not later than the ninetieth day after the date on which the employee reports a violation of law, the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report. Tex. Gov’t Code § 554.004(a).
It is an affirmative defense to a chapter 554 whistleblower suit that the employing state or local governmental entity "would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a [protected] report." Id. § 554.004(b).
IV. Analysis
A. Jurisdiction and Governmental Immunity
[28] Before we address the City’s issues, we acknowledge "the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided." Hillman v. Nueces Cty., 579 S.W.3d 354, 359 n.5 (Tex. 2019) (emphasis added) (quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)).
Here, there is no need to decide such challenges, as the merits were reached in the trial court, and ho such challenges have been raised. Despite this, both the City’s, amici and the dissent focus on jurisdictional and immunity grounds—a wayward path based on the procedural posture and issues presented.
The Texas Municipal League and the Texas City Attorney Association filed an amicus curiae brief on behalf of the City, generally arguing we should reverse and render judgment dismissing this case for want of subject matter jurisdiction because the legislature has not waived immunity for the types of reports appellees made here. The City has not raised any issue regarding jurisdiction or immunity, however. In fact, in the 28,981 words the City uses in its briefs, the word "jurisdiction" is never used, and "immunity" appears a mere five times. As we further explain in this section in the main body of the opinion, we need not decide any question regarding jurisdiction or immunity under the circumstances.
[29–37] As the Texas Supreme Court recently stated:
Governmental immunity protects the State’s political subdivisions, including its cities, against suits and legal liability. Governmental immunity therefore bars
Sovereign immunity, usually called governmental immunity when referring to political subdivisions, protects governmental entities against suits and legal liabilities. City of Hous. v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018); see Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012) (sovereign immunity embodies two concepts: immunity from suit, which completely bars actions against governmental entities unless the legislature expressly consents, and immunity from liability, which protects governmental entities from judgments); State v Lueck, 290 S.W.3d 876, 880 (Tex. 2009) ("Generally, governmental entities are immune from suit and liability under the doctrine of sovereign immunity."). Unless otherwise specified herein, our reference to "immunity" refers to immunity from suit, not immunity from liability.
suit against the City … unless the Legislature has waived the City’s immunity. Cities retain immunity unless the Legislature clearly and unambiguously waives it. We defer to the Legislature in waiving immunity because it is in a better position to weigh the conflicting public policy interests associated with subjecting the government to liability.
Governmental immunity encompasses two related but distinct concepts: "immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether." A statute can waive immunity from suit, immunity from liability, or both.
Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (internal citations omitted). Additionally, because only immunity from suit implicates a court’s subject-matter jurisdiction, "immunity from suit is properly raised in a plea to the jurisdiction while immunity from liability is not." Id.
Sovereign immunity "implicates subject-matter jurisdiction [but] does not necessarily equate to a lack of subject-matter jurisdiction." Rusk State Hosp., 392 S.W.3d at 95.
Immunity from liability is an affirmative defense that is waived if not pleaded. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (citing, in part, Tex R. Civ. P. 94) (other citations omitted).
[38, 39] In some cases, the legislature has waived immunity from suit "to the extent of liability," which merges the two concepts and collapses the jurisdictional and merits inquiries to some degree. Id. (citations omitted). When a statute does this, the inquiry is "direct[ed] … to the statute’s elements and may require a court to consider those elements at both the jurisdictional and merits stages." Id. (citing Lueck, 290 S.W.3d at 883). Thus, because the Act waives immunity from suit to the extent of liability, "the elements of section 554.002(a) can be considered to determine both jurisdiction and liability." See Lueck, 290 S.W.3d at 883.
Under the Act, "[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under [government code chapter 554] for a violation of [chapter 554,]" and "[a] public employee who alleges a violation of [chapter 554] may sue the employing state or local governmental entity for the relief [chapter 554] provide[s]." Tex. Gov’t Code § 554.0035; see City of Celina v. Scott, No. 05-21-00823-CV, 2022 WL 1101589, at *3 (Tex. App.—Dallas Apr. 13, 2022, pet. filed) (mem. op.) (noting the Act "waives immunity from suit to the extent a governmental entity is liable under its provisions").
Because of this, and because the City has not challenged jurisdiction or claimed immunity in any way, we see no need to consider section 554.002(a)’s elements for jurisdictional purposes and focus instead on liability. Cf. Univ. of Hous. v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam) (remanding case to court of appeals for consideration of whether trial court had jurisdiction over Barth’s suit under Lueck after noting university had challenged jurisdiction, unlike the situation here). Thus, to the extent the City challenges section 554.002(a)’s elements, we consider them not to determine jurisdiction, as the dissent does, but to determine liability.
"[W]hile a court is obliged to examine its subject-matter jurisdiction on its, own in every case," the Texas Supreme Court has "never suggested that a court should raise immunity on its own whenever the government is sued." Rusk State Hosp., 392 S.W.3d at 102 (Hecht, J., concurring). But the dissent would have us do just that, and in doing so, would have us take a path that bucks the modern trend of reducing the vulnerability of final judgments to attack based on an alleged lack of subject matter jurisdiction. See, e.g., Engelman Irrigation Dist. v. Shields Bros., 514 S.W.3d 746, 752 (Tex. 2017) (discussing trend, citing cases).
We decline to take that path. Instead, we consider the case on its merits and focus on the four issues the City presents. See Tex. R. Apr P. 47.1 (we "must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal"); Lueck, 290 S.W.3d at 883 (section 554.002(a) elements can be considered to determine both jurisdiction and liability).
B. Applicability of the Act
1. Employing Governmental Entity
The first question we must decide is whether appellees reported a violation of law by "the employing governmental entity." See Tex. Gov’t Code § 554.002(a). In its first issue, the City argues Briggs—who disclosed the confidential DEC information to DRC—acted personally and not in any official capacity and thus is not, as a matter of law, "the employing governmental entity."
We need not and do not decide whether Briggs could be considered a "public employee" under the Act because the City argues, and appellees agree, Briggs cannot be considered as another public employee under the Act because she was not paid for her services as a council member at the time of the alleged violation of law. See Tex R. App. P. 47.1 (our written opinion must be as brief as practicable but address every issue raised and necessary to the appeal). We express, no opinion on whether this is accurate. The Act defines "public employee" as "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity." Tex. Gov’t Code § 554.001(4). We also express no opinion on whether the phrase "who is paid to perform services for a state or local governmental entity," in section 554.001(4) modifies "employee," "appointed officer," "independent contractor," or some combination thereof. See id.
This argument is essentially the same as the City’s "no evidence" arguments in its motions for directed verdict and in its objections to the submission to the jury of the two liability questions.
Grim and Maynard dispute this and argue, Briggs’s conduct was not purely personal and was related to her role as a council member or to the public interest.
To support their positions, the parties cite the same cases but emphasize different facts, with the City, emphasizing Briggs’s status as an unpaid council member and its response to her disclosure, and Grim and Maynard focusing on the context in which she obtained and disclosed the confidential information to DRC.
See Hous. Auth. of City of El Paso v. Rangel, 131 S.W.3d 542 (Tex. App.—El Paso 2004, pet. granted, judgm't vacated w.r.m.); City of Cockrell Hill v. Johnson, 48 S.W.3d 887 (Tex. App.—Fort Worth 2001, no pet.).
Rangel and Johnson, which both parties cite, are distinguishable. Each involved an interlocutory appeal of a denial of a government entity’s plea to the jurisdiction and were based on different facts than those in the record before us. See Rangel, 131 S.W.3d at 544–45 (interlocutory appeal regarding denial of public housing authority’s plea to the jurisdiction on Rangel’s whistleblower claim based on reports of violations of law by two Unpaid commissioners, one who allegedly misappropriated public funds and one who allegedly unlawfully applied for increased public benefits for personal purposes); Johnson, 48 S.W.3d at 892, 895 (interlocutory appeal regarding denial of plea to the jurisdiction and summary judgment motion on Johnson’s whistleblower claim based on request to sheriff’s department, to investigate alleged sexual assault by Smith, a city alderman, and report to the distinct attorney’s office regarding Smith’s alleged use and sale of narcotics).
Rangel reported that the commissioner alleged to have unlawfully applied for increased public benefits "falsified documentation in order to obtain benefits from the Section 8 new construction and voucher programs" and "misrepresented information in order to be moved out of public housing and into a Section 8 home." Rangel, 131 S.W.3d at 545. Rangel alleged this violated federal rules and regulations and constituted welfare fraud. Id.
In deciding whether the alleged violations of law were by the "employing governmental entity" in those cases, our sister courts examined whether the alleged wrongful acts were in the scope of the wrongdoer’s duties based on the facts in each case. See Rangel, 131 S.W.3d at 547–48 (concluding actions by two commissioners fell within their official duties and the agency’s affairs and should be construed as acts of the employing governmental entity); Johnson, 48 S.W.3d at 895–97 (concluding alderman’s alleged assault, sexual assault, and drug-related activities were actions taken in personal capacity and report about those actions was not protected under the Act, when actions did not relate to affairs of the City itself, were detrimental primarily to the individuals involved, not to society in general, and were "not things the public would be concerned about simply because of [his] status as an elected official").
We agree with this general approach, which is not unlike many situations involving agency—situations which often involve a fact-intensive question of the extent to which the acts of one can be imputed to a third party in a particular context.
Here, the jury received a wealth of information about the context in which Briggs publicly disclosed confidential information about the DEC to DRC. Briggs testified she opposed the DEC proposal because of the financial and environmental risks to the City and because the City already had a coal plant. She also testified that to address these concerns, she posed a lot of questions to city staff, to the public, and to anyone she could because she is not an industry leader and looked to others to help her understand more information.
Briggs testified that initially, she requested information about the DEC as a steward for the taxpayer’s money and out of a concern regarding a particular payment the City had made. Briggs did not use the typical records request process members of the public would have used and instead requested "everything related to DEC" from the interim city manager.
Briggs requested the information on or about August 25, 2016, and received two stacks of information, one of which was marked confidential. Briggs, reviewed some of the information with a fellow city council member, Sara Bagheri, who, along with Briggs and the mayor, was also opposed to the DEC. Briggs invited the DRC reporter to come to her house to get the documents, and once the reporter came to get them, Briggs let Bagheri know she had done it. Briggs testified she did not intend to provide confidential information to DRC but agreed she did so unintentionally. Before providing information to DRC, Briggs redacted certain information in an attempt to be "extra careful" but admitted she was "not careful enough, by a long shot."
On September 13, 2016, the same day Briggs successfully moved to, postpone a vote on the DEC contracts, the DRC published the information Briggs provided. A week later, by a vote of four to three, the city council approved the DEC contracts, with Briggs, Bagheri, and the mayor voting against them. We disagree with the City’s argument that Briggs’s conduct is more similar to the misconduct in Johnson than in Rangel. While we find both cases distinguishable, Briggs’s conduct is much more like commissioner Lozano’s alleged conduct in Rangel than to alderman Smith’s alleged conduct in Johnson.
In Johnson, our sister court reasoned that Smith’s alleged violations of law were not by the employing governmental entity because they did not relate to the affairs of the city itself, were detrimental primarily to the individuals involved, not to society in general, and were "not things the public would be concerned about simply because of Smith’s status as an elected official." See Johnson, 48 S.W.3d at 895–97. In Rangel, our sister court reasoned that Lozano’s alleged violation of law was by the employing governmental entity because her alleged misconduct in procuring additional benefits could fall within the official duties of a commissioner and her misstatement of income would be the type of conduct the public would be concerned about if committed by an appointed official. See Rangel, 131 S.W.3d at 547–48.
[40] Here, Briggs’s alleged misconduct in providing information to DRC about the DEC could fall within her official duties of a city council member, at least insofar as it related to her votes regarding the DEC contracts. Moreover, her disclosure of confidential information about the DEC to DRC would be the type of conduct the public would be concerned about if committed by an appointed city council member, as it could jeopardize pending or future contracts with the City or possibly expose the City to further liability.
[41] Based on the record before us, we conclude, as a matter of law, Grim and Maynard made a report of a violation of law by the "employing governmental entity." Briggs’s actions related to the public interest and her role as a council member, were not purely personal, and should be construed as acts of the City, at least for the purpose of determining coverage under the Act. See Office of Att’y Gen. of Tex. v. Brickman, 636 S.W.3d 659, 672–74, 672 n.13, 673 n.15 (Tex. App.—Austin 2021, pet. pending) (rejecting arguments similar to those made by the City here—that the legislature intended to insert principles of ultra vires into the Act implicitly excluding elected officials under the Act and that elected officials cannot be considered as employees of the agencies they direct—and stating, in light of the broad remedial nature of the Act, "it seems reasonable to conclude that the legislature intended the statute to be more inclusive, sweeping up appointed officials whose bad acts might otherwise not fall within the ambit of the Act, rather than less"); Rangel, 131 S.W.3d at 547–48 (conclusions regarding Lozano).
We need not decide, and express no opinion on, whether Briggs's actions would subject the City to any liability in any contract or tort claim brought by a third-party against the City regarding the disclosure.
Brickman states, "A suit under the Act is not transformed into an ultra vires suit by virtue of the fact that the reported violations of law might also be pled as ultra vires acts against [an elected official] personally." 636 S.W.3d at 672, n.13.
See also Magana v. Mills Elec. Contractors, Inc., No. 05-98-01004-CV, 2000 WL 1073610, at *1 (Tex. App.—Dallas July 24, 2000, no pet.) (mem. op.) (reversing summary judgment after concluding, in negligence case, that fact question existed on whether tortfeasor’s acts were committed in course and scope of employment). We cite Magana for the sole purpose of showing that course-and-scope evidence can create a fact question for a fact-finder. Although we decide the City’s first issue as a matter of law, at a minimum, the evidence created a .fact question for the jury based on the facts before us.
We overrule the City’s first issue. 2. Appropriate Law Enforcement Authority
In its fourth issue, the City argues that, as a matter of law, the Act does not apply because Burgess was not "an appropriate law enforcement authority" to whom to make a report. Grim and Maynard dispute this.
[42] We need not decide the City’s fourth issue because the City failed to preserve error, as the City did not request or receive any ruling on this element, based on the record before us. See Tex. R. App. P. 33.1. Also, to the extent the City argues the evidence on this issue is legally or factually insufficient, those two issues are inadequately briefed.
Rule 33.1 states, in part:
(a) In General. As a prerequisite to presenting a complaint for. appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the Request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
In the body of its appellate brief, the City includes a twelve-line paragraph arguing, in conclusory fashion, that "to the extent the question of whether city attorney Burgess was an appropriate law enforcement authority involves questions of fact, there was legally and factually insufficient evidence to support a factual finding that [she] was an appropriate law enforcement authority." Lacking, however, is any analysis of the law or its application to the facts. See Tex. R. App P. 38.1(i) (brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).
We overrule the City’s fourth issue.
The City did not raise its fourth issue in its motions for directed verdict, in its objections to the submission of the two liability questions that were submitted to the jury, or in the joint hearing on its motion for JNOV and appellees’ amended motion for judgment. The City's motion for JNOV is not included in the record.
C. Sufficiency of the Evidence
1. Good Faith Belief of Violation of Law
In its third issue, the City argues the evidence is legally and factually insufficient to sustain the jury’s finding that appellees had a good faith belief that Briggs’s conduct constituted a violation of law. Specifically, the City contends there was no evidence presented that Briggs violated any law or that appellees had a good faith belief she violated any law and that no legal actions were brought against Briggs. Although the City frames its argument as one challenging the legal and factual sufficiency of the evidence, because the City makes no attempt to make the required showing regarding factual sufficiency, we will limit our review to whether the evidence is legally sufficient to support the jury’s finding. As the City points out in its brief, appellees presented evidence at trial that they believed Briggs violated TOMA and TPIA when she disclosed emails containing competitive public power utility information, such as costs and pricing, to DRC. The City, however, maintains such release is not a violation of law because the government code does not prohibit its release but instead provides the competitive information is not subject to disclosure under the TPIA and that the public power utility governing body is not required to conduct an open meeting to discuss such competitive information. See Tex. Gov’t Code §§ 551.086, 552.133. Therefore, the City asserts it is optional to keep the information confidential, but it is not illegal to disclose it.
In Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 733 (Tex. 2020), the court stated, "A party attacking the factual sufficiency of a finding on appeal must ‘demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.’ " (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam)). In that case, the court concluded the appellant did this by discussing both supporting and countervailing evidence to support the challenged finding. See Lion Co-polymer Holdings, 614 S.W.3d at 733. Unlike the appellant in that case, see id., in this case, the City’s analysis is done only in "no evidence" terms, not through any comparison or weighing of the evidence and countervailing evidence to support or contradict that finding.
[43] Appellees argue the evidence shows they believed, based upon their training from former City Attorney Burgess, that Briggs’s disclosure of the competitive bidding information did violate TOMA and TPIA, constituted official misconduct, and was punishable as a misdemeanor. We agree the evidence supports appellees’ belief. While the government code may allow the public power utility governing body to choose whether to keep its competitive information confidential or release it to the public, the City had operated to keep the information confidential. This is evidenced by the fact that the City discussed such information in closed sessions and, when Briggs received the emails she requested from former interim City Manager Howard Martin, she received a stack marked confidential and one marked non-confidential. She too believed some information in the non-confidential stack was confidential and not subject to release and attempted to redact the information before providing it to the newspaper.
Furthermore, the government code also provides that information submitted to a governmental body by a vendor is excepted from release if the vendor shows the information would reveal an individual approach to pricing, cost data, and other internal information or would give advantage to a competitor. Id. § 552.1101(a). The statute farther provides, "[a] governmental body shall decline to release [the] information" unless the vendor chooses not to assert the exception to its release. Id. § 552.1101(c). Here, the two vendors whose information was released had confidentiality agreements in place with the City prior to making a bid and never authorized a release, Additionally, once the vendors learned of the disclosure, they sent letters to the City expressing their concerns that their information had been made public.
Moreover, the evidence at trial showed the city attorney’s office provided training to the council and the DME regarding the requirements of TOMA and the TPIA. The training warned city council members and city employees violations could constitute official misconduct and were punishable as misdemeanors. The City also had previously prepared a separate report that could be shared with the public regarding the DEC, redacting public utility competitive information from the original report. Thus, based on appellees’ experience and training that they received from the City, some evidence supports the finding that their belief Briggs violated the law was reasonable. See Hart, 917 S.W.2d at 784.
The City’s actions also support a finding that appellees had a good faith belief Briggs violated the law. Former City Attorney Burgess reminded city council members about the confidentiality of some of the items they were reviewing and the penalty for violating such confidentiality just a few days before Briggs provided the documents to the newspaper. And, after reviewing the documents, Burgess informed Briggs some of the information she released was the type of confidential information Burgess had previously warned the council about releasing, which was punishable as a Class B misdemeanor, and the city attorney’s office could not represent her because her interests appeared to be adverse to the City’s. The fact that Briggs was not ultimately prosecuted does not detract from appellees’ good faith belief she violated the law. As a result of appellees’ report, Burgess contacted the newspaper, and it removed the confidential documents from its website.
In viewing the evidence in the light most favorable to the verdict, we conclude a reasonable and fair-minded juror could find appellees had a good faith belief Briggs violated the law by disclosing confidential information to DRC and, thus, the evidence is legally sufficient to support the jury’s finding on this issue. See City of Keller, 168 S.W.3d at 827.
2. But-For Causation
In its second issue, the City contends the evidence was also legally and factually insufficient to sustain the jury’s finding that appellees’ report of Briggs to Burgess was the cause of their termination when it was the city manager who terminated them, not Briggs, and their termination occurred almost a year after the report and after a separate investigation into their conduct with vendors. The City maintains Briggs did not know appellees reported her until they filed this suit against the City and Deputy City Manager Langley and City Manager Hileman did not know appellees made the report until after their termination. In short, the City asserts there was no elaborate termination scheme against appellees.
Appellees respond that the circumstantial evidence shows otherwise and supports the jury’s finding that appellees would not have been terminated but for their report of Briggs. Appellees contend the evidence shows they were treated differently than similarly situated employees, key individuals involved in the investigations leading to their termination knew about their report of Briggs, the investigations were designed to entrap appellees rather than truly investigate the procurement process, and the City’s reasons for the terminations were pretextual.
[44–46] In determining whether appellees presented sufficient evidence of causation, we may consider circumstantial evidence such as (1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the employee’s report, (3) failure to adhere to established company policies regarding employment decisions, (4) discriminatory treatment in comparison to similarly situated employees, and (5) evidence that the stated reason for the adverse employment action was false. Zimlich, 29 S.W.3d at 69. These factors do not replace the causation standard "that the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did," nor must every factor weigh in favor of the employee; "[s]ome of the factors may actually be a distraction." Apache Corp., 627 S.W.3d at 335–36 (quoting Hinds, 904 S.W.2d at 636). Additionally, an employee is not required to prove his protected conduct was the sole reason for his termination. Hinds, 904 S.W.2d at 634.
There is no dispute Briggs was against the DEC, a project to which appellees were dedicated. Approximately six months to a year before the city council ultimately voted to approve the DEC, Briggs asked for an independent review of the project and the broader Renewable Denton Plan. This review did not uncover any unfavorable information regarding the DEC. Shortly before the city council was to vote, Briggs requested emails from former interim City Manager Martin regarding DME and the DEC. She was concerned there had been improper conduct between DME employees and DEC vendors. After she disclosed the emails to the newspaper in September 2016, the city council was provided copies of the emails, the vote was delayed so that council members could review the emails, and ultimately the city council found no issues with the procurement process and approved the DEC.
In 2017, the City underwent multiple changes. City Manager Hileman was hired, and former interim City Manager Martin resigned; former City Attorney Burgess retired, and Assistant City Attorney Aaron Leal was promoted to City Attorney; and several members of the city council announced they would not be running again, causing the new majority of city council to be opposed to the DEC. The city council was responsible for hiring and firing the city manager and city attorney.
City Manager Hileman held a meeting on March 31, 2017, which included Deputy City Manager Langley and managers from DME, such as Grim, Bill Bunselmeyer, and Phil Williams, who was the General Manager of DME. Hileman told DME they needed to manage their expectations because the makeup of the city council had changed, and the new city council probably would not have approved the DEC. He instructed them there needed to be more transparency with the public and fewer closed sessions regarding City business. Hileman also encouraged them to let the past go and reset their feelings. Later that day, Hileman held a second meeting regarding who had authority to execute certain documents, such as confidentiality agreements, and was concerned Grim did not have authority to execute such agreements with vendors. Langley and Assistant City Attorney Collister were present. Hileman also told DME managers there was a lack of trust in DME, a lack of civility, and DME staff did not know how to interact with other staff. According to Grim, Hileman said legal was "keeping book on DME."
The City, with the city council’s approval, then hired outside investigators to investigate DME and the procurement process related to the DEC. During the two separate investigations, appellees, Williams, and Bunselmeyer were placed on administrative leave. According to Grim, he was interrogated for hours, after having to wait in Hileman’s office for multiple hours before the interrogation began. Ultimately, Williams was forced to resign and Bunselmeyer returned for a short time before retiring. Appellees were terminated. The termination letter to Grim provided:
The investigation has revealed information that has caused me to lose confidence in your ability to manage. I find that you were not candid and forthright during the interview on June 30, 2017, and this has caused me to, lose trust in you.
As a high level manager, this breach of trust cannot be repaired, and therefore, you are terminated effectively immediately.
The termination letter to Maynard provided:
The investigation has revealed that you did not comply with the order given to you on June 28, 2017. This order required you to cooperate and be truthful during the investigation. You provided
inaccurate and misleading responses during the interview.
As a result, I no longer trust you, Therefore, you are terminated effectively immediately.
Both letters were signed by Deputy City Manager Langley.
Appellees presented evidence that the investigation into their conduct with DEC vendors—the very same vendors whose information was disclosed to the newspaper by Briggs—was initiated by City Attorney Leal and Assistant City Attorney Collister when they told Hileman about Grim’s hunting trip with one of the vendors. Hileman then asked the city attorney’s office and Deputy City Manager Langley to investigate. Although Hileman and Langley denied knowing appellees were the ones who reported Briggs, Leal and Collister knew of the report as they were involved in email discussions immediately following the report regarding the confidentiality of the documents. Hileman and Langley also admitted at trial they knew the disclosure occurred. Langley learned about it from former interim City Manager Martin around the time it occurred. He denied knowing what was disclosed and testified he did not remember any city council discussion regarding the emails prior to their vote for the DEC. Hileman testified the mayor and former City Attorney Burgess told him about it when he became city manager.
The City relies on Rodriguez to support its argument that knowledge by some City employees of appellees’ report is not sufficient to show causation when there is no evidence the decision maker had knowledge of the report. See 605 S.W.3d at 193 ("Evidence of one decisionmaker’s improper motive, however, cannot be imputed to all of the decisionmakers—or to the final decision—without evidence that the improper motive influenced the final decision."). We find Rodriguez to be distinguishable from the circumstances here. In Rodriguez, the Office of the Attorney General had already received numerous complaints from Rodriguez’s coworkers about her management before she made her whistleblower report. Id. at 185–86. Here, there is no evidence there were any issues with appellees until after their report of Briggs, after City management changed, and after repeated investigations into the procurement process that never amounted to any finding of wrongdoing. Furthermore, Rodriguez’s termination had been requested by her new manager who knew nothing of Rodriguez’s prior report and who had numerous issues with Rodriguez’s ability to carry out her responsibilities. Id. at 190. The difference here is that the two people, Leal and Collister, who initiated the investigation into the procurement process even after the city council previously found no issues, did know about appellees’ report as they were assistant city attorneys and were involved in handling the reported violation and reviewing the documents Briggs disclosed to the newspaper. It was these repeated investigations into appellees that led to Langley’s decision to fire them.
[47] Interestingly, in the City’s investigation into whether there were issues with the procurement process, the City never interviewed Elton Brock, who was the City’s former purchasing manager and who was in charge of the procurement process. The evidence also showed the city attorney’s office had hired two outside counsel that were well versed in the purchasing process to oversee DME during the procurement process to prevent any issues from arising. The City’s investigation did not reveal any violations of the procurement process by appellees; however, it was suggested the procurement process "should have been re-started to re- solve appearances of impropriety." There was no evidence of fraud or criminal activity with either employees or vendors, and nothing was identified that would invalidate the contracts. There was also no evidence the City even had a specific policy regarding the procurement process. Instead, the City alleged that during the investigation appellees lied and the City lost faith in Grim’s ability to manage despite the fact that he had just been given an evaluation rating him at a "5" for "leading performance," the highest level, and despite Langley praising Grim during the investigation for, being open and honest. The jury was free to believe the City’s investigation was a sham and that the decision makers knew more about appellees’ report of Briggs than they admitted.
As to the second factor, the parties agree there is no evidence of a negative attitude toward appellees’ report of Briggs, and our review of the record confirms no one from the City expressed a negative attitude regarding the report.
We next turn to whether the City failed to adhere to established City policies regarding employment decisions. The City Charter provided: "Neither the council nor any of its members shall direct or request the appointment of any person to, or his or her removal from, office by any officer appointed by the city council under … this Charter or by any of his or her subordinates." Appellees presented evidence that would allow a factfinder to make a reasonable inference the city council was involved, at least to some extent, in the terminations of appellees despite the City’s repeated denial that such occurred.
Jose Gaytan, who worked at DME with appellees, testified Assistant City Attorney Collister, who initiated the investigation, said "that the council got the heads on pikes that they wanted" during a meeting that occurred after appellees were terminated. Stephen Johnson testified similarly, as he heard Collister say "the council has the heads on pikes they were looking for." Johnson testified he "was a little shocked by the statement."
Hileman’s response to an email Briggs sent regarding the investigation also shows Briggs may have been more involved than she admitted. A non-council member emailed Briggs and asked whether Hileman’s announcement about the DME investigation was going to come during Tuesday’s meeting. Briggs asked Hileman who responded, "I’m thinking this through and will discuss with the council on Tuesday. Strategy changed a little bit based on a meeting Friday."
And lastly, the reason given to Williams requiring his resignation was also linked back to the city council. According to Williams, Hileman told him he no longer had any support from the council and he needed to resign that day. Hileman said if Williams did not resign Hileman would write a bad review and Williams would be terminated. Hileman and Langley testified these comments were not made to Williams but, instead, they discussed Williams’s poor performance and gave him a choice whether to resign. However, the jury was free to disbelieve Hileman and Langley.
The City also contends appellees were not treated differently than similarly situated employees. Appellees presented evidence Williams and Bunselmeyer were also investigated for improper conduct with vendors but Williams was given the option to resign and Bunselmeyer was allowed to come back to work after he was placed on administrative leave. The City argues the four employees are not similarly situated because Williams and Bunselmeyer did not lie during the investigation. However, whether appellees lied during their interviews was hotly disputed at trial. The interviews were admitted as evidence and available for the jury to review.
Grim repeatedly denied he lied to Langley about the trips with vendors. Maynard admitted he lied during the beginning of his interview but that he then told the truth. According to appellees, they were never asked about the trips prior to their interviews in June. Both characterized the interviews as aggressive interrogations, and Maynard testified he believed the interrogation was a witch hunt and there was not anything he could do or say in the interrogation to keep his job; the outcome was predetermined.
The jury, as the sole judge of the credibility of the witnesses and the weight to be afforded their testimony, was free to believe the City’s investigation into appellees was merely a means to fire them for reporting Briggs. See City of Keller, 168 S.W.3d at 819–20; McGalliard, 722 S.W.2d at 697. We also disagree with the City that appellees were required to show Briggs was directly involved in their termination in order to, show their report of Briggs caused their termination. See Staub v. Proctor Hosp., 562 U.S. 411, 422, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011) (rejecting employer’s argument, that employer is liable only if the de facto decision maker is motivated by discriminatory animus; describing cat’s paw theory and holding, in USERRA case, "if [another] supervisor performs an act motivated by [unlawful] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable"); Zamora v. City of Houston, 798 F.3d 326, 332–33 (5th Cir. 2015) (discussing Staub and stating, "cat’s paw analysis remains viable in the but-for causation context"); see also Zimlich, 29 S.W.3d at 70 (discussing other cases that have approved of "conduit" theory but stating court need not consider whether liability could be based on such a theory). Although their terminations took place ten months after their report of Briggs, the timeline shows once Hileman came on as the new city manager, and once the makeup of city council changed to be opposed to the DEC and aligned with Briggs, the City began investigating appellees for improper contacts with vendors even though such had already been reviewed and discussed at length before the prior city council members voted to approve the DEC. The evidence also showed appellees were treated differently than other similarly situated employees. A reasonable factfinder could have concluded appellees’ terminations would not have occurred but for their report of Briggs. See City of Keller, 168 S.W.3d at 827. Therefore, the evidence is legally sufficient to sustain the jury’s finding on this issue.
See Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311.
We also conclude the evidence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust and is, therefore, factually sufficient to support the jury’s finding on causation. Cain, 709 S.W.2d at 176; Coats, 607 S.W.3d at 380–81.
We overrule the City’s second issue.
V. Conclusion
We affirm the trial court’s judgment.
Pedersen, III, J., dissenting.
DISSENTING OPINION
Opinion by Justice Pedersen, III
I respectfully dissent. As a straightforward matter of statutory construction, the Texas Whistleblower Act (the Act) does not apply.1a I dissent from the majority’s conclusion that City Council Member Keely Briggs was an "employing governmental entity" within the meaning of the Act. As part of this ground of dissent, I disagree with the majority’s incorrect statutory construction, as it widens the Act’s considered and limited waiver of sovereign immunity. Consequently, I would dismiss the case on this first ground.
If the Act applied, I would dissent because the majority fails to apply controlling Texas Supreme Court precedent, Office of the Attorney General of Texas v. Rodriguez, 605 S.W.3d 183 (Tex. 2020). Rodriguez demonstrates there is insufficient evidence of but–for causation. Hence, I would reverse the trial court’s judgment and render judgment in favor of appellant on this second ground.
Analysis
Inapplicability of the Texas Whistleblower Act
We review statutory construction de novo. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). The legal question in this case is whether Keely Briggs’s leaking information—in these circumstances—is clearly and unambiguously conduct the Legislature intended to fit within the Act’s limited waiver of sovereign immunity. It is not.
The Act
We recently discussed the Texas Whistleblower Act:
The Texas Whistleblower Act contains an immunity waiver which states that "[a] public employee who, alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter," and "[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter." Tex. Gov’t Code § 554.0035.
…
Under the Act, state or local governmental entities "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 other public employee to an appropriate law enforcement authority." Id. § 554.002(a).
City of Fort Worth v. Birchett, No. 05-00265-CV, 2021 WL 3234349, at *3–4 (Tex. App.—Dallas July 29, 2021, pet. denied) (mem. op.) (emphasis added).
Thus, to meet the Legislature’s limited waiver of governmental immunity, Briggs must have violated the law as an "employing governmental entity" or "another public employee." Id. Appellees concede Briggs was not "another public employee."2a Accordingly, discussion here is limited to whether Briggs was "the employing governmental entity"3a at the time she handed over the information. Briggs must have operated as "part of the City" when she leaked the information for the Act to apply. See City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 895 (Tex. App.—Fort Worth 2001, pet. denied) ("[T]hose adverse personnel actions were not proscribed by the Act unless [an elected official] was part of the City when he committed the alleged legal violations.").
The parties’ case law
In arguing whether Briggs was acting as an "employing governmental entity" under the Act when she disclosed the information, the parties mainly rely on two opinions, Johnson, 48 S.W.3d 887, and Housing Authority of City of El Paso v. Rangel, 131 S.W.3d 542 (Tex. App.—El Paso 2004, pet. granted, judgm’t vacated w.r.m.).
Johnson applied the appropriate legal standard, focused on whether a city alderman acted within his official capacity when he allegedly violated laws, and stated its issue:
If an elected official and the employing governmental entity are the same unit when the official is acting in his official capacity, is the official also part of the employing governmental entity when he is not acting in his official capacity?
Johnson, 48 S.W.3d at 895. Johnson involved an allegation that a city alderman assaulted his girlfriend’s daughter in his home and possibly was involved in additional "suspected criminal activity." According to Johnson: "[The alderman] would be part of the City’s government under the Act if he … committed a violation of the law in his official capacity as an alderman …." Id. (observing, "There is no allegation or evidence that [the alderman] committed any violation of the law in his official capacity as alderman."). Johnson stated:
[The whistleblower] has not directed us to any cases, and our research has not revealed any, in which a court has held that an elected official is part of the employing governmental entity when he is acting in his private, rather than official capacity. Instead the cases to which the Act has been applied have involved legal violations committed by an official in the scope of the official’s duties, or by a public employee.
Id. at 895–96 (footnotes omitted).
Johnson, addressing statutory construction and the Act’s limited waiver of sovereign immunity, recognized:
In addition, legislative consent to suit must be by clear and unambiguous language. There is nothing in the plain language of the Act that would indicate clear legislative intent to waive sovereign immunity from suit based on the private acts of elected officials. The Act’s provisions are exclusive, and the courts may not add to them.
Id. at 896.4a
The other opinion relied on by all parties, Rangel, involved possible application of the Act to two commissioners of a city housing authority. Rangel initially stated the correct legal standard:
An employee’s actions taken pursuant to his duties and authorized by state law are considered actions taken by the state. Conversely, acts outside the scope of an employee’s official duties are not acts of the State. We thus address whether the acts of [the housing commissioners] were within the scope of their duties as commissioners.
Rangel, 131 S.W.3d at 547 (citations omitted). The Rangel court considered whether two housing commissioners’ acts were taken in the commissioners’ official capacities and thus were acts of the "employing governmental entity." Id. at 547–49, The first housing commissioner controlled a direct or indirect interest in a housing authority project for pecuniary gain but failed to disclose his interest. See Tex. Loc. Gov’t Code Ann. § 392.042(d) (prohibiting such conduct). Rangel held the first commissioner acted in his official capacity in failing to disclose his interest. Rangel, 131 S.W.3d at 548.
Facts
Denton (hereafter "the City") has a council–manager form of government wherein the City Council serves as the legislative, policy–making branch. The City manager’s office has control over day-to-day operations of the City and its departments.
Keely Briggs served as one of the City’s seven elected council members.5a Briggs obtained information from Interim City Manager Howard Martin. Some of that information, when provided to Briggs, had been separated as confidential. Briggs redacted some information on her own to be "extra careful." Briggs failed to redact all confidential information.
Briggs invited a reporter of the Denton Record–Chronicle to her home for the reporter to pick up the documents. Briggs, at her home, turned over some information that she had obtained from Martin to the Denton Record–Chronicle. Briggs disclosed the information without the knowledge or approval of City Council. Briggs turned over the information without the knowledge or approval of the Interim City Manager Howard Martin. When asked why she released the information to the Denton Record–Chronicle, Briggs testified:
[Briggs]. I just wanted everybody to see what I would see.
[City’s Trial Counsel]. And what was that?
[Briggs]. Because the things that I saw made me feel so uncomfortable, and no one else was listening.
[City’s Trial Counsel]. Is it your belief that the citizens of Denton have a right to transparency?
[Briggs]. Yes.
[City’s Trial Counsel]. Was that what you were trying to accomplish, or something else?
[Briggs]. I was just trying—I was just— I wasn’t trying to accomplish anything. I just wanted to share the knowledge that I had and let everybody come from the same place, know where I was coming from.
The Denton Record–Chronicle published an article with the information available on its website. Appellees reported Briggs’s disclosure to the then–City Attorney, Anita Burgess. Council members expressed dismay at Briggs’s disclosing the information. Burgess sent Briggs a memorandum, explaining that due to Briggs’s disclosure of the information, the interests of the City and Briggs were "adverse":
Your release of this information ethically obligates me to advise you that the City organization’s interests appear to be inconsistent with yours as it concerns this release, and that your interests appear to be adverse to (he [sic] City. Please
understand that, when there is an adversity of interests, a lawyer for an organization cannot provide legal representation for a constituent individual of the organization who is adverse. Furthermore, any discussions between me and my staff and you may not be privileged insofar as they relate to this topic. Finally, it may be in your best interests to consult with an attorney of your choosing regarding this release of information. The City is constitutionally prohibited from paying for this consultation and representation al [sic] at this time.
Burgess sent the remaining six members of the City’s council a memorandum, which attached the above-described memorandum to Briggs and provided:
The City Council is aware of the release of confidential information by one council member to the Denton Record-Chronicle. This release included confidential data in four different categories: [Denton Municipal Electric] competitive information; attorney-client privileged information; information made confidential by virtue of a confidentiality agreement with vendors; and RFP/RFQ information made confidential by state law.
City Council did not ratify or otherwise retroactively approve Briggs’s turning over the information. Briggs’s disclosure of the information did not result, in legal or other adverse action against her.
Application
Applying the plain and unambiguous language of the Act, Johnson, and Rangel to these facts and circumstances, I cannot conclude Briggs was acting in her official capacity or as part of the City when she leaked the information.
Briggs did not act as a part of the City—she acted apart from the City. Briggs kept her plan secret from other City officials and workers. She did not seek approval or permission from City Council or Martin. There is no evidence that Briggs informed anyone connected with the City of her intended surprise disclosure. Moreover, Briggs excluded others from her plan by taking it upon herself to redact what she guessed might be confidential or sensitive information, although the City had tasked others with making such determinations and producing such documents. Briggs invited a reporter from the Denton Record-Chronicle to her home to disclose the documents. Briggs testified her purpose was purely personal. She made a personal statement, not a statement as a part of the City or on behalf of the City or in her official capacity: "I just wanted to share the knowledge that I had and let everybody come from the same place, know where I was coming from."
When City officials and City employees, including appellees, realized what, Briggs had done, they took immediate action. Appellees reported Briggs’s leak to City Attorney, Burgess. As appellees express in their brief here, they worked with the city attorney on "damage control," including having the Denton Record-Chronicle remove the leaked documents. One City Council member called Briggs’s disclosure "rogue." Council members expressed dismay at Briggs’s disclosure. Burgess soon officially notified Briggs that the City’s interests and Briggs’s interests were "adverse" and "inconsistent" because Briggs had disclosed the documents. Moreover, the city attorney officially notified the City Council that Briggs’s interests were "adverse" and "inconsistent" with those of the City when Briggs disclosed the information. The Denton City Council did not ratify or later approve Briggs’s disclosure. These reactions of City officials and City workers hardly evidence that Briggs acted as a part of the City or in her official capacity, quite the contrary. Based on the evidence at trial, no reasonable fact finder could conclude that Briggs could be considered a part of the City, or as having acted in her official capacity, when she leaked the information. Briggs apparently kept her unofficial intentions to herself until it was too late for the City to do anything about it. This is consistent with Briggs’s statement that she simply wanted people to know where she "was coming from." In short, Keely Briggs’s actions were unauthorized, unapproved, unannounced, unofficial, and unratified.
The Legislature did not clearly and unambiguously waive sovereign immunity for Briggs’s actions in this case. "We may find a waiver of immunity only where legislative intent to waive immunity is clear and unambiguous." Ellis v. Dallas Area Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711, at *2 (Tex. App:—Dallas Mar. 13, 2019, pet. denied) (mem. op.); see Tex. Gov’t Code Ann § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). I cannot conclude that the Texas Whistleblower Act clearly and unambiguously waives the City’s immunity. See Tex. Gov’t Code Ann § 554.002; Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011) ("[W]hen a waiver of immunity has been necessary to make sense of a statute, we have held it to be clear and unambiguous"). Appellees request we adopt a rule that personally motivated acts of a single council member of a municipality—acting individually and without the knowledge, consent, approval, or ratification of any of the remaining council members or other government official and that were concluded to have been in conflict with and adverse to the interests of the City—may subject the municipality to a waiver of its governmental immunity under the Act. Apart from clear and unambiguous legislative consent to such a rule, which is absent here, I cannot adopt appellees’ interpretation of the Act. See Tex. Gov’t Code Ann § 311.034.
Improper standard in Johnson, Rangel, and the majority opinion
I also disagree with the majority because it uses an erroneous legal standard to determine whether Briggs was acting in her official capacity to conclude whether she was an "employing governmental entity."
Johnson and Rangel state appropriate standards—up to a point. However, Johnson added dicta, discussed below, addressing the remedial purposes of the Act. Rangel, when considering a second housing commissioner, unfortunately applied Johnson’s dicta.
Johnson, having determined the alderman was not acting in his official capacity when committing his reported acts, added dicta, not present in the Act, concerning the remedial purpose of the Act, as follows:
We believe our decision on this issue is in keeping with the Act’s remedial purpose of securing lawful conduct on the part of those who direct and conduct the affairs of public bodies. To achieve this purpose, the Act is directed toward public employer’s violations of the law that are detrimental to the public good or society in general. The legal violations [the alderman] is alleged to have committed in his personal capacity do not relate to the affairs of the City itself. In addition, they were detrimental primarily to the individuals involved, not to society in general; In short, they are not things the public would be concerned about simply because of [the alderman’s] status as an elected official.
Johnson, 48 S.W.3d at 896 (emphasis in original, footnotes omitted). This dicta— based and developed on the remedial purpose of the Act—constitutes an improper legal standard applied in Rangel and relied on by the majority here.
Before proceeding from consideration of Johnson to Rangel, it is worth bearing in mind the Third Court of Appeals’ observation about over-emphasizing the Act’s remedial purpose—as occurred in Johnson and in Ranged—when construing the Act:
Although the Legislature did not expressly say so in the Whistleblower Act, this Court and various of our sister courts have previously inferred that the Act should be "liberally construed" in light of its "remedial" goal of enhancing openness and legal compliance in government.… But whatever utility this concept might have in guiding the Act’s other applications, the Texas Supreme Court has recently emphasized that, as with other statutes, the Act " ‘shall not be construed as a waiver of immunity unless the waiver is effected by clear and unambiguous language.’ " The high court has likewise reminded us that it is the Legislature’s sole prerogative as to whether, how, or to what extent to waive immunity under the Act and that both this principle and the immunity doctrines themselves are founded on judicial deference to legislative policy judgments regarding the appropriate use of Texas’s governmental resources. In short, our analytical starting point is that immunity bars [Plaintiff’s] suit against [Defendant], and whether it should be otherwise turns not on the Act’s overarching policy goals, however salutary judges may perceive them to be, but solely on whether the Legislature has clearly and unambiguously waived immunity with respect to the facts [Plaintiff] has presented.
Hunt Cty. Cmty. Supervision & Corr. Dep't v. Gaston, 451 S.W.3d 410, 419 (Tex. App.—Austin 2014, pet. denied) (footnotes omitted).
The problem with Rangel is the same problem observed by the Third Court of Appeals in Gaston: undue emphasis and reliance on the remedial purpose of the Act. See id. In Rangel, the second commissioner allegedly misreported her income to obtain Section 8 housing and used her position as commissioner to facilitate approval of her application for higher benefits. See Rangel, 131 S.W.3d at 548. A statute considered by the court did not forbid the alleged wrongful act, but Rangel stated—rather indefinitely—that "the misconduct involved in the procurement of additional benefits which could fall within the official duties of a commissioner." See id. (emphasis added). To find the commissioner’s act was an act of an "employing governmental entity," the Rangel court relied on Johnson's dicta—related to the remedial goals of the Act and italicized below—to decide the second commissioner was acting in her official capacity when allegedly violating the law:
"… [Johnson v.] City of Cockrell Hill, 48 S.W.3d at 890. The court found that the legal violations alleged to have been committed by the alderman did not relate to the affairs of the City itself and that the actions were detrimental to the individuals involved, not to society in general. Id. at 896. The court also decided that the alderman’s actions were not matters the public would be concerned about simply because of the alderman's status as an elected official Id. The facts here are distinguishable. [The second commissioner’s] actions in misstating her income were detrimental to society in general and would be the type of conduct the public would be concerned about if committed by an appointed commissioner of HACEP. The govern
ing board is charged with the authority to rent or lease housing to those with low income in accordance with authority guidelines. See Tex. Loc. Gov’t Code Ann § 392.005. The misfeasance committed by [the second commissioner] clearly relates to the affairs of HACEP and was not merely detrimental to those parties involved. Society as a whole is detrimentally affected by such a misrepresentation because deserving candidates may be turned away and denied housing. And the public would be concerned if one of HACEP’s own commissioners fraudulently misrepresented her personal income in order to gain better housing because the commissioner holds her position as a tenant.
We conclude that the actions of [the two commissioners] fall within the official duties and affairs of HACEP and their misconduct should be construed as acts of the employing governmental entity.
Id. The Rangel court mistakenly utilized Johnson’s judicial interlineation beyond the statute’s text as a legal standard to determine that the second commissioner acted in her official capacity; See Johnson, 48 S.W.3d at 896; see also Tex. Gov’t Code Ann. § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.").
The, majority’s reliance on the Johnson dicta that was repeated in Rangel
The majority states it agrees with Johnson’s, and Rangel’s general approach to determine whether acts were, done in Briggs’s official capacity and relies on , Johnson’s dicta to make the determination. Majority Op. at 130. For example, the majority parenthetically describes Johnson as "concluding alderman’s alleged assault, sexual assault, and drug-related activities were actions taken in personal capacity and report about those actions was not protected under the Act, when actions did not relate to affairs of the City itself, were detrimental primarily to the individuals involved, not to society in general, and were not things the public would be concerned about simply because of [his]status as an elected official." See Majority Op. at 133 (emphasis added). The majority also compares Johnson and Rangel in terms of Johnson’s dicta concerning the remedial purpose of the Act.6a As noted, Johnson stated its dicta only after already having appropriately concluded: "There is no allegation or evidence that [the alderman] committed any violation of the law in his official capacity as alderman." See Johnson, 48 S.W.3d at 895. I disagree with the majority’s use of Rangel insofar as the majority and Rangel utilize Johnson’s dicta—concerning the remedial purpose of the Act—as a proxy for analyzing whether an official is acting in his or her official capacity.
The majority reaches two basic conclusions that Briggs was an "employing governmental entity"—each reliant on the dicta in Johnson and used in Rangel. 1. "Here, Briggs’s alleged misconduct in providing information to DRC about the DEC could fall within her official duties of a city council member, at least insofar as it related to her votes regarding the DEC contracts"; and
2. "Moreover, her disclosure of confidential information about the DEC to DRC would be the type of conduct the public would be concerned about if committed by an appointed city council member as it could jeopardize pending or future contracts with the City or possibly expose the City to further liability."
See Majority Op. at 134. I address each in turn.
First, the majority follows Rangel and states that Briggs’s disclosure "could" have fallen within her official duties. Rangel’s "could" test is quite vague and can lead to an expansion of the Act’s limited immunity. The majority’s conclusion that Briggs’s conduct "could fall" within her official duties is an application of this erroneous expansion. Second, the majority moves from "could" to the "related to" dicta stated in Johnson (and improperly applied in Rangel) as a standard to determine whether Briggs acted in her official capacity. Finally, the "related to" standard in Rangel judicially expands the Act’s limited waiver of immunity beyond that enacted by the Legislature. The majority’s adoption of Rangel's "related to" standard—a broad standard, indeed—requires that future plaintiffs need only inconclusively posit that a complained-of act "could" fall within an elected Official’s duties and might be "related to" an official’s function. The majority’s continued expansion, suggested by Rangel, of the Act’s limited waiver of immunity is error. Moreover, the majority apparently does not attach significant weight to evidence relating to official capacity, including: (1) evidence that Briggs acted without the knowledge, consent, approval, or ratification of any of the remaining council members or other government official; (2) evidence that Briggs’s conduct was determined by the relevant city official to have been in conflict with and adverse to the interests of the City, or (3) other evidence, outlined above, that Briggs was hot acting in her official capacity.
The majority’s second basis for its decision, "possible public concern," is taken directly from Johnson’s dicta related to the remedial goals of the Act—not from Johnson’s previous determination whether the alderman there was acting in his official capacity. See Johnson, 48 S.W.3d at 896 (stating, "In short, they are not the things the public would be concerned about simply because of [the alderman’s] status as an elected official."); see. also Rangel, 131, S.W.3d at 548 (noting, "And the public would be concerned if …. "). I find the "possible public concern" test to be an extra-statutory, judicially created standard to determine whether the Act’s limited waiver of sovereign immunity extends here.
Accordingly, I disagree with the majority’s analysis insofar as it relies on Johnson's dicta, improperly relied on in Rangel, to determine that Briggs acted in her official capacity.
The majority’s reliance on Office of the Attorney General of Texas v. Brickman also provides an unsupported judicial broadening of the Act’s limited waiver of immunity. The majority quotes Brickman as stating in light of the broad remedial nature of the Act, "it seems reasonable to conclude that the legislature intended the statute to be more inclusive, sweeping up appointed officials whose bad acts might otherwise not fall within the ambit of the Act, rather than less." Majority Op. at 134 (quoting Office of the Attorney Gen. of Tex. v. Brickman, 636 S.W.3d 659, 673 n.15 (Tex. App.—Austin 2021, pet. pending)).
First, the two opinions cited in Brickman for support of the proposition do not suggest that the Act is properly applied in "sweeping up appointed officials whose bad acts might not otherwise fall within the ambit of the Act, rather than less." See Brickman, 636 S.W.3d at 673 n.15 (citing Tex. Dep’t of Hum. Servs . v. Green, 855 S.W.2d 136, 142 (Tex., App.—Austin 1993, writ denied)) (superseded by statute on other grounds) (stating, "A liberal construction does not restrict the statute, but enlarges its scope and effect to effectuate the true legislative purpose."); Castaneda v. Tex. Dep’t of Agric., 831 S.W.2d 501, 503 (Tex. App.—Corpus Christi-Edinburg 1992, writ denied), (same). Green simply refused to interpret the Act to limit a public employee’s cause of action for retaliation to a suit-against individual supervisors rather than against governmental entities. Green, 855 S.W.2d at 141. Castaneda refused to add text onto the Act, specifically the additional requirement that the whistleblower "initiate" a report. Castaneda, 831 S.W.2d at 503.
Second, Brickman and the majority opinion would sweep elected government officials who do not act in their "official capacity"—as with Briggs here—into the Act. Opinions relied on by the majority suggest this is not an intent behind the Act. See Rangel, 131 S.W.3d at 547 (noting that "acts outside the scope of an employee’s official duties are not acts of the State."); Johnson, 48 S.W.3d at 895–96 ("[Whistleblower] has not directed us to any case, and our research has not revealed any, in which a court has held that an elected official is part of the employing governmental entity when he is acting in his private, rather than official, capacity. Instead, the cases to which the Act has been applied have involved legal violations committed by an official in the scope of the official’s duties, or by a public employee.").
Last, Brickman contradicts Texas law. How does a legislature intend a statute to sweep up defendants who do not fall within the ambit of the statute! See Tex. Gov’t Code Ann. § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."); Johnson, 48 S.W.3d at 896 ("[Legislative consent to suit must be by clear and unambiguous language. There is nothing in the plain language of the Act that would indicate clear legislative intent to waive sovereign immunity from suit based on the private acts of elected officials.").
The Court should not adopt Brickmaris judicial expansion of the Legislature’s limited waiver of sovereign immunity provided by the Act.
* * *
In sum, I would hold as a matter of law that Briggs did not act in her official capacity at the time she gave the information to the Denton Record-Chronicle. She was not acting as the City when doing so. Hence, Briggs was not an "employing governmental entity" under the Act. The Act cannot be construed to clearly and unambiguously provide its considered and limited waiver of immunity based on Keely Briggs’s personal conduct. I would dismiss appellees’ lawsuit.
But-For Causation
If the Act applied here, I would dissent due to the majority’s refusal to apply controlling precedent of the Texas Supreme Court, Office of the Attorney General of Texas v. Rodriguez, 605 S.W.3d 183 (Tex. 2020).
The majority asserts, "We find Rodriguez to be distinguishable from the cir- cumstances here" See Majority Op. at 139. The majority distinguishes Rodrigues, in part, because: "The difference here is that the two people, Leal and Collister, who initiated the investigation into the procurement process even after the city council previously found no issues, did know about appellees’ report as they were assistant city attorneys and were involved in handling the reported violation and reviewing documents Briggs disclosed to the newspaper. It was these reported investigations into appellees that led to Langley’s decision to fire them." Majority Op. at 139.
But Rodrigues provides:
In determining causation, we focus on those with authority in the decision-making process that resulted in the adverse employment action and whether there is evidence "that the decisionmaker or decision-makers" acted with a retaliatory motive. Evidence of one decisionmaker’s improper motive, however, cannot be imputed to all of the decisionmakers—or to the final decision—without evidence that the improper motive influenced the final decision.
Rodrigues, 605 S.W.3d at 193.
The facts the majority uses to distinguish Rodrigues directly implicate Rodrigues, There is evidence that Deputy City Manager Langley and City Manager Hileman were decisionmakers in terminating appellees’ employment. There is no evidence that Langley or Hileman acted with retaliatory motive. There is no evidence of improper motive concerning City Attorney Leal or Assistant City Attorney Collister. Even if Leal or Collister harbored a retaliatory motive, such motive could not be imputed to decisionmakers Langley and. Hileman—or to their final decision to terminate appellees’ employment—without evidence that the improper motive influenced the final decision. See id. There is no such evidence. Rodrigues demands evidence, not speculation, surmise, or suspicion. Nor is there other circumstantial evidence of but-for causation. See id. at 192–93 (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000) (noting circumstantial evidence may show a retaliatory motive when it demonstrates: (1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the employee’s report of the conduct, (3) failure to adhere to established company policies regarding employment decisions, (4) discriminatory treatment in comparison to similarly situated employees, and (5) evidence that the stated reason for the adverse employment action was false.)).
The majority also distinguishes. Rodrigues because appellees’ employment was terminated for conduct occurring after their report. Majority Op. at 136. But see id. at 196 ("The Whistleblower Act does not prohibit employers from terminating an employee based on conduct that arises after the employee reports a legal violation.").
Accordingly, I would dismiss this case because the Act does not apply.
Alternatively, if the Act applied, I would reverse the trial court’s judgment and render judgment for the City because Rodrigues demonstrates there is insufficient evidence of but-for causation.