The whistleblower case seems cut and dry, according to a jury and reaffirmed by the 5th Circuit Court of Appeals in late August.

Two Denton Municipal Electric employees — Michael Grim, DME’s executive manager for power legislation and regulatory affairs, and Jim Maynard, a former DME energy project development manager — reported that a then-City Council member, Keely Briggs, had leaked information about a controversial proposed $265 million gas-fired power plant to the Denton Record-Chronicle and claimed they were fired for reporting it, according to Kilgore & Kilgore, the Dallas law firm that represented them.

Grim and Maynard filed a lawsuit against the city after they were placed on administrative lead.

“The day after they filed their lawsuit, they were fired,” Kilgore & Kilgore pointed out in a post Wednesday on the law firm’s website.

Stuart Birdseye, a spokesperson for Denton, reported in an email Thursday to the Record-Chronicle that the city has spent $1,291,295.39 of taxpayer money fighting what a jury decided in early 2020 when it agreed with Grim and Maynard’s claim: that the city had fired them in retaliation and violated the Texas Whistleblower Act.

The former DME employees were awarded nearly $4 million.

Now the city is seeking to spend more money and continue the fight at the Texas Supreme Court — if the justices decide to hear the city’s petition, that is.

The city is arguing that Briggs wasn’t acting as a council member when she leaked the documents to the Record-Chronicle, despite her obtaining the documents through her status as a council member and suggestions she sought to influence the vote on the power plant when she leaked them to the newspaper.

“The appeal involves an important question of law that has significant consequences for all cities in Texas, which is why the Texas Municipal League and Texas City Attorneys Association joined Denton in filing briefing with the appellate court,” Denton Mayor Gerard Hudspeth wrote in a prepared statement. “A decision by the Texas Supreme Court would clarify whether cities and taxpayers can be liable for the unauthorized actions of an elected official, and whether a report of such actions is contemplated by the Texas Whistleblower Act.”

Eric Roberson and Bob Goodman from Kilgore & Kilgore claimed there wasn’t an issue for the Texas Supreme Court to decide and that Briggs was acting as a council member even if she chose to share documents that had protected information in them.

“Every court of appeals that has looked at this issue has said a volunteer for a city on the city council or board of directors for a governmental entity is acting as the city when they’re trying to do their job even if they do the job negligently or illegally,” Roberson said.

On the law firm’s website, Kilgore & Kilgore offered background on the case similar to what the Record-Chronicle has reported in several stories. The Dallas law firm called it a situation that happens “in almost all whistleblower and retaliation cases.”

Here’s an account of what Kilgore & Kilgore claimed happened after Grim and Maynard reported that Briggs had leaked information about the $265 million gas-fired plant to the Record-Chronicle, as the Dallas law firm presented in a Wednesday post on the firm’s website:

In 2017, allegations about possible irregularities in the contracting process for the $265 million gas-fired power plant were in the air, the Dallas law firm reported.

Grim and Maynard had reported to then-City Attorney Anita Burgess that Briggs had leaked information to the local newspaper. Burgess took no action against Briggs, the Dallas law firm pointed out on its website.

Frustrated with the council’s decision to vote for the gas-fired power plant, the power plant’s opponents kickstarted races for City Council seats and won, taking political control of the council from those who had approved it.

In July 2017, they were both placed on administrative leave. The next day, they filed their lawsuit against DME, claiming they had been placed on leave “in retaliation for reporting a media leak of confidential contract information.” 

“Thereafter, both were terminated,” Kilgore & Kilgore wrote. “DME cited their inaccurate and misleading responses during their interviews on the matter as the reason for their termination.”

Kilgore & Kilgore explained that an employment retaliation claim faces some tricky legal questions and to bring a successful retaliation claim under the Texas Whistleblower Act requires that the plaintiff be a public employee in Texas and act in good faith when making the report.

In addition, the employee must show that:

• The report was made to an appropriate law enforcement authority.
• The reported action was unlawful.
• The employer must have taken what is legally defined as an adverse action against the employee in response to the report.

A few years after their suit was filed, the jury found in favor of Grim and Maynard’s claims that the city had violated the Texas Whistleblower Act. And while they were initially awarded about $4 million, it was reduced to approximately $3 million.

As Kilgore & Kilgore wrote in the Wednesday post, “The jury’s finding that their employer’s actions violated the TWA was affirmed on appeal.”

Roberson said the city asked Kilgore & Kilgore for an extension to file the paperwork for a petition to the Texas Supreme Court to hear the case. And as is customary in the Dallas legal world, Roberson said they agreed to give the city an extension.

At this point, it’s unclear if the Texas Supreme Court will hear the case and, if so, when they will hear it. Similar to the U.S. Supreme Court, several petitions are filed, Goodman and Roberson pointed out, but only a few are heard.