ONE OF FIRST WHISTLEBLOWER LAWSUITS WAS FOUGHT HERE

By Juan Montoya

In 1983, the Texas Legislature passed one of the first laws to protect public employees who reported violations of law.

The Texas Whistleblower Act of 1983 was passed to protect workers who reported the violations in good faith and, in so doing,  secure the lawful conduct of those who conduct or direct the affairs of public entities.

The law was new at the time and not too many public employees had made use of it.

But one of the first such cases brought to court happened right here in Brownsville. 

If you were around in 1984, you probably remember the case of Alfonso Peña, a dispatcher for the Brownsville Urban System (BUS). Peña sued the City of Brownsville and then-BUS director Ernesto Avalos under the Act. The case caused a sensation at the time because of the novelty of a public employee claiming protection under it.

Avalos, or Ernie, as his friends called him, was a popular figure among city employees. Retired from the U.S. Army as a Special Forces instructor who served several tours in Vietnam, he also ran a popular bar catering to blue-collar workers which he named Xochil, after his daughter.

Xochil's was a popular spot for BUS and city employees. Before being named director for BUS, Avalos had worked at city planning and had been promoted to BUS. 

On Aug. 11, 1984, Peña and Eduardo Gomez, a driver for BUS, reported to the city manager's office that Avalos and Nick Montano, Operations Manager for BUS, entered the bus compound in an intoxicated state, accompanied by two women, to fill up Avalos' car with gas. The car was issued to him by the city.

The city manager at the time was Kenneth Lieck. Lieck went on to the Brownsville Independent School District to purchasing and now is director of the Payroll Dept.

Peña gathered statements from witnesses to the incident, and on Aug. 20, Peña delivered those statements to the city manager. 

He also contacted Gary Thornburg of the Cameron County Good Government League on Aug. 28. The Good Government League was a political watchdog that investigated allegations of misuse of public funds. 

Dissatisfied with the results from the Lieck's office, Peña released a statement to the news media on Sept.  6. The statement to the news media not only included the August 11 incident involving Avalos and Montano, but included reports of the use of BUS employees to service the mayor's car during business hours and the pilfering of public funds by selling city property.

On Sept. 10, Montano, Avalos' right-hand man, organized a meeting of the bus drivers willing to make a statement against . The majority of the bus drivers at that meeting were legal residents, but not U.S. citizens. The gist of those statements collected by Montano was that Peña was a racist and continuously discriminated against legal residents from Mexico. 

Avalos was present at the meeting. Many of the legal residents were not fluent in English, and therefore their statements had to be translated. Although the statements purport to be translated by George Gonzales, a personnel clerk at BUS, Gonzales was unable to translate at trial. Gonzales testified that he had help from his family in translating the statements, but Avalos' secretary testified that she witnessed Avalos preparing the translations the morning of Sept. 11.

Upon arriving at work on Sept. 11, Avalos told Peña he was he was suspended for three days for insubordination because he had parked his car on the street instead of inside the BUS compound as Avalos required of all employees. According to the appeals court records, Peña was made aware of this infraction 20 minutes before quitting time.

Then, three days later, on Sept. 14, when Peña returned to work, Avalos notified him he was being demoted from his dispatcher position to bus driver for allegedly discriminating against fellow workers and the inability to comply with supervisor's orders.

Two days earlier, on Sept. 12, Avalos was quoted in the Brownsville Herald saying that:

"I have a total of eighteen statements from resident aliens.... The general consensus is that Pena is an agitator, a person with racist attitudes against Mexicans legally residing in the United States. The sworn statements also state that Pena has threatened to fire them as soon as he takes over..."

Peña sued the city and Avalos for libel and for retaliation under the Whistleblower Act.
Section 2 of article 6252-16a is entitled "Retaliation prohibited" and states:
"A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith."
During the trial, Avalos testified that his allegation that Peña was a racist was made to the media to reassure the public, specifically the political watchdogs, that there was no corruption at BUS. As concerns the media, Avalos testified that he was instructed not to submit written releases, but that he could "talk" to the media about problems.
Peña, represented by Harlingen attorney Noe Robles, then only 25, prevailed in the trial. Four years later, Robles went on to win election to Cameron County Court-at-Law No. 1.
Following the jury's decision in favor of Peña, the city and Avalos appealed to the 13th Court of Appeals.
Representing the city and Avalos were John E. Chosy, William Morrow, Carhinas and Morrow, and Juan Jose Martinez. Chosy is now employed with the as counsel for the City of Brownsville and the rest remain in private practice.
In its landmark decision on Aug. 29, 1986, the Court of Appeals upheld the trial court and affirmed the jury's decision. Peña recovered $15,000 from the city as damages for the Whistleblower violation, plus $5,000 in exemplary damages. He also got $10,000 as damages for libel and $20,000 in exemplary damages plus attorney's fees.
"I had lawyers calling me from all over Texas, Robles told a local daily. "It was new law and precedent was being set right here in Cameron County."
You can find that case in the law journals at 716 S.W.2nd 677.