Spring 2015

Whistleblower

Anna Luisa Kell was employed as a high school assistant principal by El Paso ISD.  An investigation into former Superintendent Lorenzo Garcia produced evidence that Kell was involved in manipulation of grade placements at her high school as part of the scheme that resulted in Garcia’s felony conviction. The El Paso ISD Board of Trustees notified Kell that her contract was proposed for termination, but Kell never requested the appointment of an independent hearing examiner by TEA. Thirty days after providing Kell notice of her proposed termination, the board voted to terminate her contract.

Within 90 days of the board’s action to terminate her contract, Kell filed a local grievance under policy DGBA(LOCAL), which was denied by the Board of Managers. Kell then filed a Whistleblower suit against the district in state district court claiming that the reason for her termination was that she cooperated with the FBI investigation that ultimately lead to Garcia’s guilty plea. The district filed a motion for summary judgment asserting that Kell did not initiate action under the applicable appeal procedures as is required by Texas Government Code section 554.006. The trial court denied the district’s motion and the district filed an interlocutory appeal.

On December 1, 2014, LAF filed its amicus curiae brief with the Eighth Court of Appeals in El Paso.  On June 10, 2015, the Eighth Court of Appeals issued an opinion reversing the trial court and rendering judgment for El Paso ISD. The court addressed the question of whether Kell invoked the applicable administrative procedure under the Whistleblower Act by holding that the applicable procedure, as established by the Education Code and El Paso ISD’s own local policy, was the Chapter 21 hearing procedure. Because Kell never attempted to invoke a Chapter 21 termination hearing, she lost her right to judicial review under the Whistleblower Act.  El Paso Indep. Sch. Dist. v. Kell, No. 08-14-00056-CV (Eighth Court of Appeals—El Paso).  LAF’s Attorney: Ray Viada, Viada & Strayer, the Woodlands.