Whistleblowers, beware….

Texas law has a number of provisions that are designed to protect public employees who report wrongdoing and illegalities in their midst.  Probably the best known is the Texas Whistleblower Act.  The term “whistleblower” gets a lot of press because of instances like the Enron scandal, but the actual Whistleblower Act’s focus is on public employees, only, and that focus is a pretty narrow one.  Just last week, the Texas Supreme Court made things a bit easier on public employees.  Or did it?

First, a little background.  In a case decided in 2013, University of Texas Southwestern Medical Center v. Gentilello, Dr. Gentilello, a faculty member at the UT Southwestern medical school claimed that he was stripped of his faculty chair positions after he expressed concerns to a supervising faculty member that residents–basically, new doctors who haven’t completely earned their full right to independent practice yet–were treating and operating on patients without the supervision of an attending physician and that this was a violation of Medicare and Medicaid requirements under federal law. (The report triggered a substantial investigation and a $1 million-plus settlement.) He had reported his suspicions to a supervising faculty member.  (Because of the procedural stage at which this case was disposed, the causal link was neither proved nor disproved.)

Gentilello asserted that his loss of status was retaliation for his report and filed suit under the Texas Whistleblower Act. UT Southwestern filed a plea to the jurisdiction, arguing that Gentilello couldn’t satisfy the particular jurisdictional prerequisites of the Whistleblower Act and one of them, in particular.  The Act says that, for a report to be protected, it has to be made to “an appropriate law enforcement authority.”  Dr. Gentilello argued that the supervising faculty member to whom he made his report was an appropriate authority because federal regulations charge hospitals with self-enforcement of this kind of thing.  That made supervisors effectively compliance officers.  But the Texas Supreme Court held that enforcing compliance and enforcing the law are two different things.  Consequently, a report to a supervisor wasn’t good enough to meet the “appropriate law enforcement authority” standard.

I’ve been pretty critical of this interpretation because it leaves any employee with a very unappetizing choice–report to a supervisor and forego the protection of the Whistleblower Act or call the cops, and risk being a workplace pariah in the event he got any of his facts wrong.  The employee who goes to “an appropriate law enforcement authority” is almost always going to be going outside of his own public agency to either a police or other regulatory agency.  (The Court mentioned a few exceptions, mostly involving employees who were already working in law enforcement agencies.)  Breaking ranks like this is a difficult thing to do, but when internal reporting is rarely sufficient, it is either that or turn a blind eye to wrongdoing and, thus, be complicit.

As of last week, the Court arguably made things a little bit easier on employees.  In McMillen v. Texas Health & Human Services Commission, the Court held that an attorney who served as deputy counsel for the Office of the Inspector General (OIG) in the Health and Human Services Commission could claim whistleblower status after he was let go following his report of wrongdoing to higher-ups within his own office.  The Commission argued that Gentilello carried the day because an internal report wasn’t good enough to invoke the Whistleblower Act.  But the Court’s per curiam opinion disagreed.  (Interestingly, the Court seemed to take a dim view of McMillen’s work product, noting that his report claiming the Commission was violating the law failed to cite case law or statutory authority.  Probably a justifiable dig, all things considered.)  Holding that the OIG’s authority to enforce “state law relating to the provision of” health and human services ranged beyond the confines of the Commission, itself, the Court held that the OIG was, in fact, an appropriate law enforcement authority.  The key distinction from Gentilello was the ability of the OIG to do more than just keep its own house in order.

So, while McMillen–the case–certainly made it easier on McMillen–the employee–it may not do much for other public employees.  The employee who wants to rely on the McMillen exception had better have a pretty good understanding of exactly what his employer is able to do or not do and the parameters of his supervisor’s authority.  That seems rather burdensome to me.  McMillen himself was a licensed attorney, and he was supposed to be able to figure out what the law means.  The average public employee probably isn’t as well equipped.  Ultimately, McMillen is more of a sideshow than any sort of main event.  Would-be whistleblowers, beware.