The Texas Appeals Court has recently confirmed that employees of elected officials are protected under the Texas Whistleblower Act. In September 2020, high-ranking officials at the Texas Attorney General’s Office (the “OAG”) reported what they believed to be criminal misconduct by Texas Attorney General Ken Paxton to the FBI, the Texas Rangers, and other law enforcement agencies. In particular, the officials reported that Paxton used his official position to benefit Nate Paul, a local businessman and contributor to Paxton’s campaign, and included allegations of bribery, tampering with government records, obstruction of justice, and abuse of office. The officials were fired within weeks after notifying the OAG of these reports and thereafter brought suit against the OAG under the Texas Whistleblower Act.
In its attempt to dismiss the complaint, the OAG argued that the Whistleblower Act should not apply to reports of violations by the Attorney General or, in fact, any elected official in Texas (including Paxton). In addition to making textual arguments, the OAG contended that the legislature did not intend for the Whistleblower Act to assist in keeping elected officials accountable because voters are already a powerful check on their accountability. The Texas Appeals Court refused to recognize such an exception to the Act. In addressing the OAG’s accountability argument, the court explained that if there are no protections for whistleblowers, “an employee who knows of significant abuses of power might be less willing to report the illegal conduct if her job is not protected, meaning it becomes less likely that the official’s misconduct will ever come to the voters’ or the legislature’s attention in the first place.” This, the Court argued, is key to why whistleblower protections are so important and why it is especially critical to apply these protections to reports involving the Attorney General.
Both elections and law enforcement investigations are useful approaches to fight public corruption and obtain accountability for elected officials. Notably, however, attorneys general are often the ones responsible for public corruption investigations, which leads to the possibility of conflicts of interest. Although Paxton’s own office examined his alleged misconduct and published a report concluding that he did nothing wrong, public trust is not necessarily best served by having an attorney general’s office investigate itself.
The Texas Appeals Court noted that public trust also would suffer were it to adopt the OAG’s proposed exception as it “would carve out from the Act . . . those who serve at the apex of their respective agencies or branches of government” and “have greater potential to engage in acts that, unchecked, might violate the law and the trust of the public.” Trust is extraordinarily important for state attorney generals because they often function outside of the public eye, exercising considerable control over rulemaking and other administrative processes that often receive little public scrutiny. In the case of Nate Paul, for example, it is alleged that Paxton issued an OAG legal opinion that would have stopped several foreclosure sales of Paul’s properties. It is also alleged that Paxton pushed to release various non-public government records to Paul for his benefit. Absent whistleblower protections for employees who witness these incidents, it is difficult to see how such conduct could reliably be brought to the attention of investigators or the public. Accordingly, the Court not only found against excluding elected officials such as Paxton from the whistleblower act, but concluded that “whistleblower protections should apply to [elected officials’] misconduct with greater force.”