When the state Legislature passed the Texas Whistleblower Act in 1983, lawmakers and citizens lauded it as an important step in protecting those who risk their careers, families and sometimes their lives to expose government waste and corruption.

Now, more than 30 years after the law’s passage, legal experts say weaknesses in the state law prevent it from protecting employees and taxpayers. Discrepancies between the state whistleblower law and city procedures, experts say, make it even more difficult for municipal employees to report wrongdoing.

“The basic philosophy of any whistleblower statute is to encourage and protect public employees who see wrongdoing to report it,” said Bill Aleshire, who represented former Killeen Finance Director Barbara Gonzales in her original whistleblower suit. “Texas is utterly failing in that because it provides such limited whistleblower protection at all levels of the law, state and local governments.”

A review by the Herald’s investigative team found these flaws with the state’s law.

The reporting chain: Whistleblowers are protected from retaliation only when they report problems to a law enforcement officer. That often is not reflected in cities’ policies, which have in-house reporting structures.

The type of offense: The problem reported must be a violation of the law for a Texas whistleblower to be protected from retaliation. That may not include reports of questionable spending or misuse of funds.

Documentation: There’s no form to properly document an official complaint and little information about how to file one.

Oversight: No Texas agency oversees the law or helps a person who is reporting possible government abuse.

Gonzales spent thousands of dollars and put her family through a high amount of stress, but still lost her whistleblower case against the city.

Gonzales, who has 23 years of governmental accounting experience, became Killeen finance director in 2007. She previously served as finance director in Copperas Cove, comptroller at Belton ISD and as an assistant finance director for Killeen for four years.

“There needs to be clarification about who you report to about any type of illegal activity from the municipalities,” Gonzales said. “Which agency do you report that to? There is no clarity for the municipalities and (that) allows them to do whatever they want to.”

In 2011, Gonzales began to notice what she considered to be questionable expenses and possible violations of state procurement laws, she said.

During the next two years, Gonzales said, she repeatedly notified City Manager Glenn Morrison when she thought the city inappropriately issued contracts or misspent money. Her notifications, she said, were something the city’s personnel policies and procedures direct employees to do.

In 2012, while Gonzales said she continued to question Morrison’s decisions, the city placed her on administrative leave after it initiated an investigation into its fleet services division.

The city’s audit of fleet services identified a culture of theft in the division Gonzales oversaw, and Morrison fired her, citing a “lack of confidence” in her termination letter. The city’s Personnel Review Board recommended reinstating Gonzales, ruling that while Gonzales had oversight of the division, she did not steal anything and did not know any thefts had occurred.

“We ruled in her favor because of the evidence that came to us and the witnesses who came forward,” said Brockley Moore, a member of the review board at the time. “We weren’t lawyers, but the internal and external audits didn’t find anything wrong with her. It was not Ms. Gonzales’ actions that caused the problems (in fleet services).”

Morrison, who had final say in the matter as the city manager, rejected the board’s decision.

“The decision-maker is the city manager,” said Rosa Hereford, another review board member. “I think the board is there just to show the person has rights. Our recommendation doesn’t make a whole lot of difference, and we were never told what the final decision was.”

After Morrison’s decision to fire her, Gonzales decided to file a lawsuit against the city under the Texas Whistleblower Act.

Raised in a Roman Catholic home with a father who worked as an investigator for the U.S. Department of Agriculture, Gonzales said her parents taught her to be honest and always “do the right thing.”

“I was brought up to always remember that if things don’t seem right, then don’t do them,” Gonzales said.

The case came with emotional and financial price tags, according to Gonzales, who estimates she spent about $250,000 and dipped into her retirement funds. She also could not completely cover the cost of her oldest daughter’s college education.

“It has taken a toll on the family because it has gone from one extreme to the other,” Gonzales said. “At the same time, I have prayed and felt like it’s what I had to do because things weren’t right. I wanted to do it because I wanted to make sure the taxpayers understood what was taking place with their funding.”

The city filed a motion to dismiss the case, but the 146th District Court ruled in Gonzales’ favor in May 2014. The city appealed that decision. It took more than a year for the Texas Third District Court of Appeals to make a decision, when it ruled on Nov. 3, 2015, in the city’s favor and effectively ended the case.

Throughout the year, Gonzales’ sisters said, they saw her suffer with stress. Her parents offered to help pay bills, but she declined.

Legal experts

Randall “Buck” Wood, an Austin attorney who often represents governmental entities in front of the Texas Supreme Court, filed one of the first whistleblower suits in Texas soon after the law’s passage. Wood said the law’s original purpose was to make public and private entities think twice about firing an employee who reports fraud or waste of taxpayer funds.

“When it was passed, it was very, very difficult to get anybody to report anything because you automatically got fired,” Wood said. “There wasn’t really any statutory redress so you could get some relief. So, it’s been effective in deterring retaliation, and it’s been effective in getting information that otherwise would never have been exposed.”

Wood said, however, the Texas Supreme Court has weakened the act in the years since its passage.

Professor Michael Maslanka of the University of North Texas Law School said that even the most solid whistleblower cases are often dismissed simply because the problem is reported to the wrong person.

“Even if you are dead right, even if you are absolutely right and something is going wrong and there’s unlawful activity — none of it matters if you don’t report it to a law enforcement agency,” Maslanka said.

Richard Carlson, a professor at the South Texas College of Law, said whistleblowers have a number of law enforcement agency options to report to in addition to the police department.

“We are talking about a law enforcement agency that actually enforces the law in the fashion of a police force — it could also be the IRS (Internal Revenue Service), the SEC (Securities and Exchange Commission), or the EPA (Environmental Protection Agency),” Carlson said.

Texas has a weaker law than other states and the federal government, Carlson said.

According to the National Whistleblower Center, at least 30 states have piecemeal whistleblower legislation while 16 have state whistleblower protection acts. Texas is among those with piecemeal legislation, according to the whistleblower center.

“(Texas) employees are getting caught in the trap,” Carlson said. “They feel like they could actually get fired for going to the outside. That’s precisely what they should do — strangely, the only way you can get protection under the Texas law is to violate your employer’s own policies.”

Aleshire said an employee who reports abuse or misuse of funds to a company auditor does not get protection under the act because the Supreme Court has interpreted that an auditor does not count as an appropriate law enforcement authority.

Gonzales said she thinks city employees face particularly difficult circumstances because the city’s policy for reporting fraud contradicts the state whistleblower law. Under the city’s policy, employees report to the city auditor and city manager instead of a law enforcement official.

According to the city’s personnel policies and procedures manual:

“It is the responsibility of the City Auditor to immediately notify the City Manager of complaints received unless the complaint directly involves allegations concerning fraudulent activities of the City Manager. In such case, the Mayor will be notified immediately. The City Auditor has the primary responsibility of investigating all suspected fraudulent activities as defined in the policy. If an investigation substantiates that fraudulent activities have occurred, then the City Auditor will issue reports to appropriate designated personnel to include the City Manager and the Audit Committee.”

The city policy also notes “the appropriate law enforcement agency” will further investigate and prosecute substantiated fraudulent activity.

Killeen spokeswoman Hilary Shine said the city considers state whistleblower laws as entirely separate from its own personnel policies and procedures.

“Our policies have no effect on state law and in no way prohibit or discourage employees from reporting suspected criminal activity to law enforcement if they so choose,” she said.

Shine said the city complies with the Texas Whistleblower Act by posting a notice about the law “at various locations accessible to employees.”

The city has its own internal procedure through which employees may report fraud, which mirrors the fraud policy used by the Texas Attorney General’s Office, Shine said.

The city’s policy includes a provision protecting employees who make “good faith reports” from retaliation, she said.

“Our city attorney’s office and our outside counsel do not believe that any revision to the city’s fraud policy is needed to provide adequate protection to employees,” Shine said.

Gonzales disagreed and said both the city and state need to clarify their laws and procedures to help city employees understand who they need to report to as a whistleblower.

“The city’s policy conflicts with the state law. I think that it definitely hinders the employee,” Gonzales said. “I think (the city and state) need to clarify that. There needs to be clarification about who you report to about any type of illegal activity from the municipalities.”

There could be a solution for the whistleblower reporting loophole, Maslanka said, if Texas develops an oversight agency similar to the federal whistleblower process.

“Federal law often has an agency that you complain to and that does the investigation such as the Department of Labor,” he said. “Here in Texas there is not an agency that you can go to file a complaint with.”

At the state level, if lawmakers do not take action to strengthen the Texas Whistleblower Act, Carlson said it would behoove whistleblowers and their attorneys to use the federal whistleblower law and First Amendment protections.

“Sometimes state and local government whistleblowers are protected by the First Amendment,” Carlson said. “Not always — the First Amendment is not perfect protection but I think in the future, state and local whistleblowers and their attorneys are more likely to sue in federal court under the First Amendment rather than under the state whistleblower law.”

Experts Carlson, Maslanka and Aleshire expressed discontent with the Texas Legislature and Texas Supreme Court for watering down what is supposed to protect those who seek to blow the whistle on behalf of Texas taxpayers. Aleshire said Killeen’s state representative should step up and act to strengthen the law.

“This is a good time considering it’s more than a year before the next legislative session, for some legislator — might as well be from Killeen — to take an interest in this and ask the legislative council to compare the Texas statute to others to see what suggestions might be made to give broader protection to whistleblowers, because that gives broader protection to taxpayers,” Aleshire said. “That’s the link that is often missed. They look at whistleblowers like they’re money hungry people trying to get something for nothing from the government. That’s not the case in true whistleblower cases. True whistleblowers are trying to protect taxpayers and the law ought to protect whistleblowers, but it doesn’t.”

Carlson said ultimately, the public must hold its elected officials accountable for protecting whistleblowers.

“I think that maybe when the public becomes more aware of how bad our whistleblower act has become maybe there will be a greater outcry for reform,” Carlson said.

Moving on

Just a few weeks after the appeals court’s decision, Gonzales joined her parents and sisters for Thanksgiving dinner. Instead of dwelling on the past, Gonzales and her sisters said they remained thankful for what they have and enjoyed being together for the holidays.

On Dec. 12, the family finished decorating its Christmas tree. Gonzales said she remains disappointed about losing her case, but she has moved forward with her life and has found a new job.

“There are other things that are more critical,” Gonzales said. “I had been blackballed, but now it’s a different environment. Despite all that has happened, God provides. We have other things to support. You are always going to have another challenge in life.”

Contact Holden Wilen at hwilen@kdhnews.com or 254-501-7463​

Contact Lauren Dodd at ldodd@kdhnews.com | 254-501-7568

Contact Clay Thorp at cthorp@kdhnews.com | 254-501-7552​

(10) comments

SoGladImGone

I'm an ex-employee of the City of Killeen. I quit earlier this year.

Between the corrupt leadership, cronyism, masquerading, fault - finding for excellence, and generally unfair practices, it was time to go.

Glenn Morrison is not the only corrupt City of Killeen leader who warrants investigation.

I'm sad, yes. But God always has the last word.

Informed Taxpayer

I have been watching this story unfold in the paper during the past few years and I have to say that I am very upset that Mr. Morrison has not been fired for the way he has run the City of Killeen. I know a few employees of the city of Killeen. If even half of the stories I’ve been told about Mr. Morrison are true, I am concerned about the fate of the city’s future, as well as about the message this sends to the city employees, regarding the type of behavior that gets rewarded in the city and the absence of respect city management, including the council, shows for its employees.

If the city council members do not investigate Mr. Morrison for his wrong doings and hold him accountable, a recall election is not only reasonable for those members, it’s needed.

Max167

It's good to see that sometimes it works out, but unfortunately for the taxpayers, Killeen seems to prefer to spend a lot of money (taxpayer money) to exhaust the resources of conscientious employees who try to do the right thing. The tax payers end up losing twice (the cost of the law firms and the fact that they don't get to learn about the city manager's transgressions). And since Glenn keeps breaking the laws and wasting taxpayer money, he's the gift that keeps on giving.

skardell

I was the original counsel in the Weatherspoon. Case illustrates the shortcomings of the law. These cases can be successfully resolved, however, even if your client is a high profile whistleblower, and the defendant is a public entity with a reputation for fighting these types of cases to the bitter end. Google "DISD-Don Smith-settlement-Kardell" or click here: [link removed]

(Edited by staff.)

Citizen360

This is a perfect example of "the system" failing the taxpayers. The truth gets pushed aside by "smoke and mirrors" and still no one has answered the questions and concerns posed by Mrs. Gonzales. What could justify spending $10k+ on a dinner? Why does City staff and City Council continue to ignore a budget with numerous deficits within? The City continues to rob Peter to pay Paul by moving funds from various enterprise funds to subsidize the General Fund all because we make bad decisions to spend money that we don't have. Example, the 8% raise to KPD knowing well that the General Fund could not satisfy such an increase. Or spending a million dollars to renovate a building which was bought with the intent to demolish? Or spending five million for a fire station with no personnel. We can do better and the citizens of Killeen deserve better. To current councilmembers who voted to approve this budget (filled with deficits) without an in depth review and without reviewing side by side with the Comprehensive Plan, shame on you.

Max167

Someone should also look very seriously at the numbers.

The Water and Sewer Ending Fund Balance was $24,489,299 in October when he placed Former Director of Finance, Barbara Gonzales, on admin. leave - as opposed to the latest financial statements (which seem very past due), reflecting a balance of $14,691,916 as of of 8/31/2015. A drop in the W & S fund of almost TEN MILLION dollars.

The General Fund ending Fund Balance was $21,353,694 in October 2012, meeting fund balance policy versus the 8/31/15 balance of $18,574,421 not including encumbrances - which does NOT meet the fund balance policy.

There may be additional risks to Mr. Morrison's "reign." Is no one watching anything he does?

Pete

I wonder why this "fox guarding the henhouse" scenario (Whistleblower having to report to auditor who reports to City Manager who then fires Whistleblower) didn't get changed during the city charter review a couple of years ago. Is this part of the charter? If it is part of the charter, was it made available for public review/comment? I seem to remember not everything in the charter was open to public/review comment, although I may be wrong.

Like most everything in Texas, their is a loophole for the people in power to stay there, even if everyone knows dirty things are going on.

Tell me why city employees', lives are more important than the lives of the citizens they swear to serve. The tens or hundreds of thousands of dollars recently spent on "security" to city buildings, while the average citizen has to take their chances at work because their place of employment don't have access to the bottomless pockets of city (taxpayer) funds.

Oh well, can't fight city hall. Why? Cause they'll outspend you! Public Servants? Yeah right! Self Servants first and public servants when they feel like it.

Concerned Citizen

It's a shame that the review board that recommended Gonzales be reinstated couldn't also recommend that Glenn be introduced to the door. He should have been investigated and terminated, since there is cause to get rid of him. It's not too late for that. I believe his IQ might also start with a decimal point. And he probably thinks that's a good thing.

Vets Count

Every time I turn around I hear of more bad acts on the part of our infamous city manager. From the illegal raise he gave to Ms. Shine, who commented on the lawsuit as if she didn't have a dog in this fight. He required the finance director to break the rules - rules intended to protect our taxpayers and the city's funds. Now I'm hearing of bids that don't comply w/ state laws. What's next? Maybe I'm old because I'm having a hard time remembering why he's still here.

Max167

Glenn Morrison's wrongdoings have been plentiful and public; costly both with respect to the city's reputation and taxpayer funds. With his illegal actions having been reported for a minimum of two years - far longer than that if you consider the Megian Douglas fiasco (his employee/girl friend that he had to fire and pay off w/ taxpayer monies - see the old KDH articles), why has he not been investigated?

Countless illegal acts surfaced from this lawsuit and rather than risk his dirt becoming more public - actions that were so egregious he would've been held accountable for them had they come to light, he had the city shell out an unbelievable amount of $ to private law firms to keep it quiet, resulting in the only person who had the taxpayers' interest at heart all along, Ms. Gonzales, having to pay hundreds of thousands of dollars to try to make his actions known to the public.

Glenn was not investigated. If he had been, he likely would've been fired, which would've been in the best interest of the tax payers.

The person who should've been commended and rewarded for her actions was wrongly and unjustly punished. The guy with the moral integrity of a vulture was rewarded with a raise. He needs to go and Ms. Gonzales should be reinstated, as was recommended by the Personnel Review Board. What does it take for something to be done?

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