Supreme Court of Texas
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No. 20-0700
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City of Fort Worth, Texas,
Petitioner,
v.
Abdul Pridgen and Vance Keyes,
Respondents
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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JUSTICE BLACKLOCK, concurring.
I agree with the Court that to make a “report” under the
Whistleblower Act, “an employee must convey information, not just
conclusions.” Ante at 12. I also agree with the Court that the plaintiffs’
disputed statements did not amount to the “provision of information, as
opposed to mere opinions or suppositions.” Id. at 13. I disagree,
however, with the Court’s rejection of the city’s other arguments about
the Act’s requirements. If “an employee must convey information, not
just conclusions,” and if the plaintiffs did not satisfy this requirement,
then the case is over, and the Court need not opine on the validity of the
city’s other arguments.
Setting aside whether the Court should reach the city’s other
arguments at all, I am concerned the Court may not be correct to reject
them. In particular, the city argues that employees whose job is to
report on internal wrongdoing do not receive perpetual Whistleblower
Act protection for making run-of-the-mill reports as part of their normal
job duties. The city’s concern is quite understandable, from its
perspective. If an internal-affairs investigator, whose job is to make
reports of illegality, cannot be fired for making such reports, then how
can he be fired for doing his job poorly? No other class of employees
triggers automatic Whistleblower Act protection merely by doing their
day-to-day job. Federal courts routinely respond to this concern by
interpreting similarly worded statutes to require a report outside the
normal course of the employee’s duties. 1 Perhaps the Court is right that
the text of Texas’s statute cannot support such a rule. But perhaps not,
and resolving this issue is not necessary to decide the case.
I would also reserve for further consideration the city’s argument
that a qualifying “report” must disclose information unknown to the
recipient—or at least information the employee believes in good faith is
1 See, e.g., Kahn v. Dep’t of Just., 618 F.3d 1306, 1313 (Fed. Cir. 2010)
(“[A]n employee must communicate the information either outside the scope of
his normal duties or outside of normal channels to qualify as a protected
disclosure.”); Skare v. Extendicare Health Servs., Inc., 515 F.3d 836, 841 (8th
Cir. 2008) (no whistleblower protection for “an employee whose job duties
require him or her to ensure legal compliance”); Huffman v. Off. of Pers. Mgmt.,
263 F.3d 1341, 1352 (Fed. Cir. 2001) (“A law enforcement officer whose duties
include the investigation of crime by government employees and reporting the
results of an assigned investigation to his immediate supervisor is a
quintessential example” of conduct not protected by the federal Act.).
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unknown to the recipient. In addition, I am skeptical of the Court’s
statement that the Whistleblower Act protects those who “provide
relevant, additional information that will help identify or investigate
illegal conduct.” Id. at 15. The Act protects those who report “a violation
of law,” and the Court’s reformulation adds verbiage that may prove
problematic in future cases.
Finally, I do not agree with the Court that we should consider the
ostensible “objective the Legislature sought to attain,” which the Court
says is “ferreting out government mismanagement to protect the public.”
Id. at 14. By declaring this the Act’s “purpose” and favoring
interpretations of the statute that advance this “purpose,” the Court
risks opening the door to expansive readings of the Whistleblower Act
that may unduly interfere with the authority of politically accountable
government officials to run their offices. The concern with
“mismanagement in the public sector,” id., is not the only legitimate
value at stake here. Hiring and firing employees is a core
executive-branch prerogative. Undue legislative interference with
executive-branch personnel decisions risks undermining the people’s
ability to control government bureaucracy through democratic
processes.
I respectfully concur in the judgment and join the Court’s opinion
except for Part III.A.
James D. Blacklock
Justice
OPINION DELIVERED: May 27, 2022
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