Texas SC dismisses whistleblower claim over asbestos in school

David Yates Dec. 16, 2013, 3:32pm

The Texas Supreme Court has dismissed a whistleblower lawsuit alleging a Texas school was full of asbestos.

Former principal Marcelino Franco filed suit against the Ysleta Independent School District in 2002, alleging the El Paso-based district terminated him after reporting that suspected asbestos in Robert F. Kennedy Pre-K Center was making people sick. 

In his suit, Franco alleged that he discovered “various asbestos hazards” at the school and reported the matter to his supervisor in a "good faith" effort to comply with the Asbestos Hazard Emergency Response Act and the Whistleblower Act.

Franco feared that he, school personal and students were at risk of contracting cancer and subsequently requested a transfer to another school within the district, court papers state.

A district official responded that the district's facilities department was unaware of any asbestos at the school and told Franco that his accusations of asbestos and sickness would be investigated, according to documents.

Following more insistent communiqués and an additional transfer request, the school district indefinitely suspended Franco, prompting him to file his whistleblower claim.

Ultimately, both a trial court and appellate court denied the district’s plea to the jurisdiction, siding with Franco’s argument that the district is a government entity and a government entity is a law enforcement authority under the Whistleblower Act.

On Jan. 29, 2013, YISD filed a petition for review with the Texas Supreme Court, tasking justices to determine whether a report to personnel whose only power is to oversee compliance within the entity itself is enough to confer “law-enforcement authority” status.

Nearly a year later, the high court issued a per curiam opinion on Dec. 13, stating that “Franco has failed to show an objective, good-faith belief that YISD qualifies as an ‘appropriate law-enforcement authority’ under the Whistleblower Act.”

“Therefore, the courts … erred in denying the ISD’s plea to the jurisdiction,” the opinion states. “Accordingly, we grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and dismiss the case.”

The district is represented by Bruce A. Koehler and Steven L. Hughes, attorneys for the El Paso firm Mounce, Green, Myers, Safi, Paxson & Galatzan.

El Paso attorney Charles Mark Berry Jr. represents Franco.

Supreme Court case No. 13-0072

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