Appeals court overturns dismissal of former deputy clerk’s lawsuit
A state appeals court has reversed the dismissal of a whistleblower lawsuit brought by a former Cameron County deputy clerk and sent it back to the trial court for further proceedings.
In 2014, Leticia Perez, a former deputy clerk with the Cameron County Clerk’s Office, sued the county and its attorney, Juan Gonzalez, alleging former County Clerk Joe G. Rivera fired her after she reported potential illegal activity to the FBI and Cameron County District Attorney’s Office, alleging Rivera exploited his post “to award improper and illegal contracts” to vendors.
There is no court record of criminal charges ever being brought against Rivera and authorities never announced any criminal charges against Rivera, who told The Brownsville Herald in 2014 after the lawsuit was filed that Perez’s litigation is “sour grapes,” adding that she was being used by a political operative opposed to his run for Cameron County judge.
According to Perez, she reported the possible illegal activity because she was concerned she could be arrested if she did not do so.
“In 2013, Perez saw a news story about the arrest of the chief administrator for the Hidalgo County Sheriff’s office,” 13 th Court of Appeals Justice Nelda V. Rodriguez wrote in the order. “She understood from the story that the administrator had been arrested for not reporting illegal activity.”
That’s when Perez contacted District Attorney Luis V. Saenz and his office arranged for her to meet with the FBI.
"In late 2013 or early 2014, Rivera told Perez that he was running for county judge and asked Perez to support his chosen replacement for the position of county clerk. Perez refused,” Rodriguez wrote.
At approximately the same time, the Cameron County Clerk’s Office was being audited for the problems that Perez reported to the DA and the FBI.
That audit regarded a contract with Kofile Preservation, Inc, which embarked on a project to restore and preserve the county’s historical books.
That audit determined there were several problems with the clerk office’s handling of the project, including the office not following the terms and conditions as outlined by Cameron County Commissioners Court, of installment payments approved by the County Clerk without proper verification of services performed by the vendor and the audit found the vendor actually picked up the books before Commissioners Court entered the contract, court records show.
In fact, the auditor found that Kofile not only picked up the books, but quoted the county a month before the clerk’s office requested authorization from the Commissioner’s Court to negotiate and nearly three months before that governmental body approved the contract, court records indicate.
But while that audit was being conducted, Perez claims Rivera “began a campaign of retaliation” against her for reporting what she thought was potential illegal activity and for refusing to support Rivera’s chosen successor.
“She was ‘harass[ed] and humiliat[ed]’ by Rivera in front of other County employees and others running for political office. She was removed from duties involving the contractors and vendors that were the subject of her report,” Rodriguez wrote. “Perez was not allowed to attend meetings involving the reported illegal activity. She was also told that she was not allowed to speak to the district attorney.”
So Perez claimed she sought advice from Gonzalez, an attorney with the county, believing that the two were friends.
“Gonzalez advised Perez to record her conversations with Rivera and told her how to proceed through the County’s grievance police,” Rodriguez wrote. “Gonzalez told Perez ‘that he would love to nail Rivera to the wall,’ but that he could not represent her directly because of his role with the county.”
According to Perez, Gonzalez then told Rivera that Perez was going to record their conversations, causing to Rivera to eventually fire Perez.
However, before that happened, Perez filed a grievance concerning her retaliation claims.
“Local policy required Rivera to hear and decide the grievance himself. Rivera determined that he had done nothing wrong. Rivera then fired Perez,” Rodriguez wrote.
In his letter of termination, Rivera wrote that after learning she was recording their conversations, he lost trust in their confidential working relationship and did not believe he could rely on her to be his chief deputy.
So, Perez filed the lawsuit and the county responded, arguing she failed to meet all the elements needed for a whistleblower claim to be successful and that she had not exhausted her administrative remedies because she never filed a second grievance concerning her termination.
“Perez responded that no second grievance was required or even allowed under County policy,” Rodriguez wrote.
As support, she cited the county’s own Personnel Policies Manual, which says “The grievance procedure provided in the following sections is not available to the employee who has been involuntarily dismissed from employment by the County . . . .”
Cameron County conceded this, but contended that “Perez was nonetheless required to make some sort of grievance to notify the County of her whistleblower claim. The trial court agreed with the County and dismissed Perez’s claims with prejudice.”
The 13 th Court of Appeals, which issued its ruling on Nov. 29, disagreed.
“The County’s grievance policy expressly excludes terminated employees such as Perez. Perez was not required to exhaust administrative remedies that were not available to her, and therefore exhaustion of remedies could not serve as a basis to grant the County’s plea to the jurisdiction,” the appeals court ruled.
The court also ruled that Perez sufficiently alleged a good faith report of a violation of law, which is necessary for her whistleblower claim.
“We reverse the trial court’s grant of the County’s plea to the jurisdiction and remand the trial court for further proceedings,” Rodriguez wrote.