City оf Fort Worth, Texas, Petitioner, v. Abdul Pridgen and Vance Keyes, Respondents
No. 20-0700
Supreme Court of Texas
May 27, 2022
Argued February 1, 2022
On Petition for Review from the Court of Appeals for the Fifth District of Texas
Argued February 1, 2022
JUSTICE
JUSTICE BLACKLOCK filed a concurring opinion.
JUSTICE BOYD filed a dissenting opinion.
This case concerns the proper interpretation of a “good faith report[] [of] a violation of law” under the Texas Whistleblower Act. The plaintiffs, two veteran law enforcement officers with the Fort Worth Police Department, contend that they were unlawfully disciplined for making such a report regarding another officer‘s conduct. They sued the City pursuant to the Act, which provides for a limited waiver of sovereign immunity. The trial court denied the City‘s motion for summary judgment, and the court of appeals affirmed, holding that the Act waived the City‘s immunity. We hold that, as a matter of law, the officers did not make a qualifying “report” under the Act. We therefore reverse the court of appeals’ judgment and render judgment for the City.
I. Background
Abdul Pridgen and Vance Keyes were veteran law enforcement officers employed by the Fort Worth Police Department. Pridgen served as Assistant Chief; Keyes as Deputy Chief. Both supervised the Department‘s Internal Affairs and Special Investigations Units. The Internal Affairs Unit is responsible for investigating allegations that police officers have violated general orders оr other internal Department rules or policies. The Special Investigations Unit investigates allegations of criminal misconduct involving City employees, including police officers. Keyes reported directly to Pridgen, who in turn reported to Chief of Police Joel Fitzgerald.
On December 21, 2016, Jacqueline Craig called the police to report that her neighbor choked her seven-year-old son because he left trash in the neighbor‘s yard. Officer William Martin responded to the call. When he arrived at the scene, Martin questioned the neighbor and then approached Craig. After Craig explained the incident, Martin asked, “Why don‘t you teach your son not to litter?” Craig stated that even if her son had littered, her
The video was streamed to Facebook Live and went viral. It received substantial negative media attention. Shortly thereafter, the matter was referred to the Internal Affairs Unit, prompting Pridgen and Keyes to begin their investigation. On December 25, 2016, Martin was served with an initial personnel complaint notifying him that he was under investigation for charges including excessive force, unlawful arrest, and discourtesy. On December 28, Pridgen instructed Captain Deven Pitt and Lieutenant Neil Noakes to serve Martin with an additional personnel complaint for violation of the Bias-Free Policing General Order.1 Internal Affairs conducted pre-disciplinary hearings on January 7 and 9, 2017.
Pridgen and Keyes reviewed Martin‘s body camera video, the Facebook Live video, and Martin‘s arrest affidavit and determined that Martin violated the law and should be terminated. They concluded that Martin used excessive force when he torqued Brea Hymond‘s arms while she was handcuffed, lied in his arrest affidavit when he asserted that Hymond pushed him from behind, and illegally arrested Craig and her daughters. Both Pridgen and Keyes assert thаt they conveyed these conclusions to Chief Fitzgerald on multiple occasions prior to Martin‘s receiving discipline. Keyes claims that he communicated these conclusions once over the phone, once while he was in the Chief‘s office, and once when Pridgen, Keyes, and the Chief were all in Pridgen‘s office. Pridgen avers he told Chief Fitzgerald about their conclusions over the phone and during an Internal Affairs meeting that took place the first week of January. Specifically, Pridgen states that at the meeting, Chief Fitzgerald went around the table asking the team what they thought. When the Chief got to Pridgen, Pridgen said, “you don‘t want to know my opinion.” Chief Fitzgerald responded, “no, I do want to know your opinion.” Pridgen thеn stated that Martin should be terminated because he “made a false arrest, he lied in his affidavit and used excessive force.” Chief Fitzgerald replied, “you‘re right, I don‘t want to know what you‘re thinking.”
On January 26, Martin‘s previously undisclosed body camera video and other confidential files were released and posted on “theroot.com” and on the Facebook page of Jacqueline Craig‘s attorney, Lee Merritt. Chief Fitzgerald immediately initiated an investigation into the source of the leak. He later testified that from the beginning, he suspected Pridgen was involved. And though the Chief initially directed Keyes to help identify the leak‘s source, within a day he notified Keyes that Valerie Washington, the assistant city manager, wanted Keyes and Pridgen removed from the leak investigation.2 Keyes emailed Chief Fitzgerald and Washington asking why he was removed but received no response.
The remaining Internal Affairs officers concluded that five individuals, including Pridgen, had special authorization to access the body camera video and other leaked materials. Upon further investigation, they discovered that Pridgen had downloaded the files to a thumb drive on January 18. Video footage showed that Kеyes was in Pridgen‘s office at the time of the download. In early February, a forensic examiner with the Department concluded that the files Pridgen downloaded were identical to those posted online.
Pridgen acknowledges downloading the files, claiming that he intended to share the information with Chief Fitzgerald. He also concedes that he cannot produce the thumb drive. Keyes likewise admits that he was in Pridgen‘s office on January 18. However, both deny that they leaked the files to Merritt, and in his deposition, Merritt denied receiving the files from anyone in the Department.
Keyes and Pridgen were served with personnel complaints on February 14 and February 20, respectively, notifying them that they were under investigation for pаrticipating in the leak. In March, they were placed on detached duty, which required them to remain at their residences for eight hours a day. On May 19, Pridgen and Keyes were demoted to Captain. And on May 22, Keyes was suspended for three days without pay.
In November 2017, Pridgen and Keyes each sued the City pursuant to the Whistleblower Act, alleging that the City took adverse action against them in response to their “good faith reports” of “violation[s] of law.”
Pridgen and Keyes (hereinafter collectively referred to as Respondents) filed a motion to consolidate their suits, which the
In their respоnse to the City‘s motion, Respondents argued that (1) a question of fact exists regarding whether they reported violations of law in good faith, (2) evidence demonstrates that the City‘s disciplinary actions were linked to their reports, and (3) a question of fact exists regarding the City‘s affirmative defense that it had independent grounds to discipline them.
The trial court denied the City‘s motion, and the court of appeals affirmed. ___ S.W.3d ___, 2020 WL 3286753, at *4-9 (Tex. App.—Dallas June 18, 2020). The court of appeals held that Respondents “report[ed]” a violation of law to Chief Fitzgerald, as required by the Act. Id. at *4-5. In doing so, the court rejected the City‘s arguments that Respondents failed to make a protected “report” because Chief Fitzgerald (1) alreаdy knew about Martin‘s conduct from another source, (2) had already viewed the Facebook Live video, which was public knowledge, and (3) had already ordered an investigation of the incident. Id. The court likewise rejected the City‘s argument that Respondents offered only “opinions about discipline and the consequences of Martin‘s conduct,” which “are simply not the types of ‘reports’ the [Act] protects.” Id.
The court of appeals also held that Respondents satisfied the Act‘s “good faith” requirement because they provided evidence that they possessed an objectively reasonable belief that Martin‘s conduct violated the law. Id. at *5-6. Finally, relying on the causation factors we аrticulated in City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000), the court held that Respondents “offered evidence from which a jury could conclude that their protected activity . . . at least partially motivated [Chief] Fitzgerald to demote them, and that Fitzgerald would have reached a different decision in the absence of their protected activity.” 2020 WL 3286753, at *8.
The City petitioned this Court for review, arguing that it is entitled to judgment on multiple independent grounds, including: (1) Respondents did not “report” under the Act because they did not “disclos[e] . . . information“; (2) the court of appeals erred in relying only on evidence of Respondents’ subjective beliefs about the criminal nature of Martin‘s conduct in determining whether their beliefs were objectively reasonable; and (3) Rеspondents’ evidence was legally insufficient to establish that their discipline resulted from Chief Fitzgerald‘s unlawful motivation. We granted the City‘s petition.
II. Standard of Review
Governmental entities are typically immune from suit unless the state consents through an express legislative enactment. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019). The Texas Whistleblower Act provides a limited waiver of that immunity. Specifically,
Here, the City challenges the existence of these jurisdictional facts through a motion for summary judgment. We review such challenges de novo, considering “the facts alleged by the plaintiff and to the extent relevant, evidence submitted by the parties.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004) (citing Tex. Nat. Res. & Conservation Comm‘n v. White, 46 S.W.3d 864, 868 (Tex. 2001)). Where the facts underlying the merits and jurisdiction are intertwined, the plaintiff must produce evidence “creat[ing] a fact question regarding the jurisdictional issue.” Id. at 227-28. At this stage of litigation, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant‘s favor. Id. at 225. Accordingly, here, we must evaluate whether Respondents raised а genuine issue of material fact as to each element of their whistleblower claims under
III. Analysis
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.
A. Qualifying “Report” under the Whistleblower Act
The City primarily argues that Respondents did not make a qualifying “report” under the Act. First, it asserts that “report[ing]” entails “provid[ing] information” as opposed to mere opinions or conclusions. Second, it claims that to “report,” one must “disclose” facts previously unknown
Respondents urge us to reject these restrictions, which they believe are nowhere to be found in the Act‘s text. Additionally, they claim that even if we adopt the City‘s “disclosure” rule, their “report” that Officer Martin committed perjury would comply. In their view, this conclusion was “new” because they were the only ones to convey it to Chief Fitzgerald. Similarly, they contend that they were the only officers who insisted that the Department pursue criminal charges against Officer Martin.
As discussed below, we agree with the City that to “report[]” under the Act, an employee must convey information, not just conclusions, and we agree that Respondents largely failed to satisfy this requirement. We disagree, however, that the Act contains an atextual “disclosure” requirement. We also disagree that public employees forfeit the Act‘s protection if they report as part of their job duties.
We begin by examining the statute‘s language. When construing statutes, we endeavor to “determine and give effect to the Legislature‘s intent.” Tex. Dep‘t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (citations omitted). We must enforce the Act “as written” and “refrain from rewriting the text that lawmakers chose.” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). Additionally, while we must necessarily construe key terms, we do so in the context of the statute as a whole, not in isolation. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
We first consider the word “report.” Because the Act does not define the term, we interpret it according to its common, ordinary meaning unless the statute‘s language indicates otherwise. Tex. State Bd. of Exam‘rs of Marriage & Family Therapists v. Tex. Med. Ass‘n, 511 S.W.3d 28, 34 (Tex. 2017) (citation omitted). When determining a statutory term‘s common, ordinary meaning, we typically consult dictionaries. Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011). Common dictionary definitions of “report” slightly vary, and, unsurprisingly, the parties each argue that the definition most favorable to their position controls.
Respondents point to Merriam-Webster‘s “to give an account of” and Cambridge Dictionary‘s “to give a description of something or information about it to someone.” See Report, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/report; see also Report, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/dictionary/english/report. The City, however, cites another Merriam-Webster definition: “to make known to the proper authorities.” See Report, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/report. We decline to arbitrarily choose between these definitions but believe they are helpful in “establish[ing] outer boundaries of what [report] could (or could not) mean.” Philip A. Rubin, War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles, 60 DUKE L.J. 167, 191 (2010) (“[D]ictionaries . . . should be used only to say what a word could mean, not what it must mean—they can only establish
Respondents urge us to refrain from reading any further restriction into the Act, pointing to opinions from the courts of appeals suggesting that “report” should be construed broadly in light of the Act‘s failure to otherwise constrain the term. See, e.g., Tex. Dep‘t of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393 (Tex. App.—Austin 2005, pet. denied) (holding that no specific phrasing is required to make a qualifying “report” under the Act); Montie v. Bastrop County, No. 03-16-00123-CV, 2016 WL 6156232, at *6 (Tex. App.—Austin Oct. 19, 2016, pet. denied) (holding that “reports” need not be in writing). Regardless of whether these cases are correct, they pertain only to the form a report may take, not its substance. And in interpreting statutes, we look not only to the statutory language, but also to the objective the Legislature sought to attain and the consequences of a particular construction. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex. 2020); In re Xerox Corp., 555 S.W.3d 518, 526 n.48 (Tex. 2018) (citing
In Neighborhood Centers, Inc. v. Walker, we explained that the Whistleblower Act was adopted “amidst a growing sense throughout the country that ‘mismanagement in the public sector’ was a mounting public concern, and that ‘employees who disclose mismanagement deserve legal protection.‘” 544 S.W.3d 744, 747 (Tex. 2018) (citation omitted). In light of this history, we concluded that the Act is aimed at “ferreting out government mismanagement to protect the public.” Id. at 748. Accordingly, the Act is not intended to protect all reports; it is intended to protect those that further this purpose.4 Therefore, to properly “report” under the Act, a public employee must convey information that exposes or corroborates a violation of law or otherwise provide relevant, additional information that will help identify or investigate illegal conduct.5
As discussed, there is no question that “disclosing” new information regarding illegal conduct mаy qualify as “report[ing] a violation of law.” However, we disagree that this is the only type of communication the Act protects. First, the word “disclosure” is conspicuously absent from the Act‘s text. It likewise does not appear in most dictionary definitions of “report.” This is particularly notable in light of the numerous other whistleblower statutes that explicitly employ the word “disclosure,” including the federal Act.6 Our precedent dictates that just as “every word of a statute must be presumed to have been used for a purpose[,] . . . every word excluded from a statute must also be presumed to have been excluded for a purpose.” City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 260 (Tex. 2018) (citation omitted). Accordingly, we decline to read a limitation into the statutе that the Legislature chose to omit.
Additionally, the City‘s interpretation precludes protection for corroborative reports, which may be equally helpful in “ferreting out government mismanagement to protect the public.” Walker, 544 S.W.3d at 748. Indeed, the City‘s argument presumes that once officials receive an initial report of illegal conduct, further, consistent reports add no benefit. But corroboration is eminently valuable when evaluating the reliability of an informant‘s tip. This is a maxim of federal Fourth Amendment jurisprudence. See, e.g., Jones v. United States, 362 U.S. 257, 271 (1960) (“Corroboration through other sources of information reduce[s] the chances of a reckless or prevaricating tale.“), overruled on other grounds by United States v. Salvucci, 448 U.S. 83 (1980). It is also common sense. Three consistent accounts of misconduct from three different sources represent far more compelling evidence of wrongdoing than a single report. However, the City‘s “disclosure” requirement would disincentivize employees from sharing information after an initial report has been made. In fact, even if employees possessed additional evidence, threat of adverse action may chill them from sharing it. Accordingly, the City‘s disclosure requirement would obstruct the Legislature‘s goal of addressing misconduct through incentivizing verifiable reports. We reject it.7
Finally, the City argues that employees do not “report[] a violation of law” under the Act when they convey information “as part of their jobs.” The City warns that holding otherwise would create “a de facto class of whistleblowers who are protected simply because they do their job.” We similarly reject this interpretation.
Like the “disclosure” limitation, this restriction does not appear in the Act‘s text. Moreover, the Act‘s structure and purpose cut against such a limitation. As mentioned, the Act is intended to help “ferret[] out government mismanagement to protect the public.” Walker, 544 S.W.3d at 748. And the Act protects only “[p]ublic employee[s]” who are “paid to perform services for a state or local governmental entity.”
Additionally, though we have never explicitly stated that the Act covers such reports, we have implied as much. In University of Texas Southwestern Medical Center at Dallas v. Gentilello, we emphasized that we were not holding that a report “can never be made internally.” 398 S.W.3d 680, 686 (Tex. 2013). To illustrate this point, we provided the following example:
A police department employee could retain the protections of the Whistleblower Act if she reported that hеr partner is dealing narcotics to her supervisor in the narcotics or internal affairs division. In such a situation, the employee works for an entity with authority to investigate violations of drug laws committed by the citizenry at large.
Id. Accordingly, we found that the fact that employees might discover a violation of law in the course of their professional duties presented no obstacle to seeking the Act‘s protection. Id. Our opinion in Texas Department of Human Services v. Okoli, 440 S.W.3d 611 (Tex. 2014), further supports this point. Okoli followed job-specific training in reporting a supervisor‘s allegedly fraudulent activity. Id. at 612-13. Though we held that the agency was immune, we noted that Okoli would have qualified for the Act‘s protection, even though he reported internally, if he had
B. Application
We now turn to whether Respondents raised a genuine issue of material fact as to whether they made a qualifying report under the Act. We hold that they did not.
Respondents each communicated with Chief Fitzgerald throughout Martin‘s investigation. Though they characterize their communications in slightly different ways in their testimony, their briefing provides this summary: “Pridgen and Keyes repeatedly reported to Fitzgerald that Martin had committed crimes of assault, perjury and official oppression and that criminal charges should be pursued.”
First, we conclude that these “reports” were not geared toward exposing, corroborating, or otherwise providing information pertinent to identifying or investigating governmental illegality. Respondents did not supply Chief Fitzgerald with new information about Martin‘s conduct. Rather, Chief Fitzgerald learned about the incident independently through then-Deputy Chief Ramirez. And the record shows that Pridgen, Keyes, and Chief Fitzgerald all had access to the same sources: Martin‘s body camera video, the Facebook Live video, and Martin‘s arrest affidavit. Indeed, Chief Fitzgerald, city officials, and news media discussed the Facebook Live video at a press conference two days after the incident. Additionally, Respondents did not corroborate facts that were unverified or subject to dispute. Two videos depict the Craig arrest from multiple perspectives—the Fаcebook Live video, which was public, and the body camera video, which was available to all members of the Internal Affairs team, including Chief Fitzgerald. And Martin‘s affidavit, an official law-enforcement record, was similarly available to all parties and reviewed in the course of the investigation.
Nor could Respondents have reasonably believed that they were exposing, corroborating, or otherwise providing new or corroborative information about Martin‘s conduct. They knew that Chief Fitzgerald was aware of the incident and knew he had access to the same sources of information depicting it.
Second, Respondents’ testimony demonstrates an objective not to unearth or рrove unlawful conduct, but to persuade Chief Fitzgerald to classify Martin‘s known actions as criminal conduct and to terminate his employment. To that end, Respondents’ communications with Chief Fitzgerald consisted principally of recommendations about the appropriate legal conclusions to be drawn from Martin‘s actions.8 For instance, Pridgen claims he told Chief Fitzgerald that “Martin lied in his Affidavit, he made a false arrest, and [he] used excessive force.” Similarly, Keyes states he told Chief Fitzgerald that “Brea Hymond had been falsely arrested,” “excessive force had occurred,” and “Officer Martin had filed a false affidavit.” Such statements do not provide relevant information about Martin‘s actions. Rather, they amount to opinions and conclusions, which the Act does not protect. Other descriptions of Respondents’ communications with Chief Fitzgerald pertain to Martin‘s punishment. But the Act does not protect reports of illegal conduct. Wichita County v. Hart, 917 S.W.2d 779, 786 (Tex. 1996). Accordingly, Respondents’ reports did not aim to expose,
Respondents argue that at the very least, their statements that Officer Martin perjured himself constitute qualifying reports because they were the first to bring Officer Martin‘s false affidavit to Chief Fitzgerald‘s attentiоn. The City disputes this assertion, and Respondents did not testify to that effect in their depositions or declarations. Even if true, however, the record shows that at most Pridgen and Keyes voiced an opinion to Chief Fitzgerald about broadly known (indeed, public) and easily verifiable information. Accordingly, there were no facts for Respondents to expose or corroborate. Chief Fitzgerald had all the information needed to confirm whether Officer Martin lied, and he knew about the allegation. Since “reporting” under the Act requires, at a minimum, provision of information regarding illegal conduct, this type of communication does not suffice.9
Indeed, as Respondents appear to concede, the рurpose of their communications with Chief Fitzgerald was not to help identify or investigate Martin‘s allegedly illegal conduct. Rather, they were voicing opinions about how Chief Fitzgerald should classify and punish such behavior. And while providing these recommendations may have fallen within Respondents’ job responsibilities, such opinions and conclusions do not trigger the Act‘s protections. Accordingly, we cannot conclude that Respondents “in good faith report[ed] a violation of law,” and therefore the Act does not apply.10
In sum, we hold that Respondents failed to raise a genuine issue of material fact as to whether they “report[ed] a violation of law” under the Whistleblower Act. Therefore, the Aсt does not waive the City‘s immunity from suit, and we need not address the City‘s additional issues regarding the Act‘s good-faith and causation requirements.
IV. Conclusion
Respondents failed to present evidence that they “report[ed] a violation of law” under the Whistleblower Act. Therefore, the City retains immunity from suit. We accordingly reverse the court of appeals’ judgment and render judgment for the City.
Debra H. Lehrmann
Justice
OPINION DELIVERED: May 27, 2022