There can be legal risk in adopting policy by ordinance

Words have power. Meanings of words are important. Definitions can vary, however, and that can create interesting legal tangles. As an example, recall the statement in 1998 by then-President Bill Clinton, “It depends upon what the meaning of the word ‘is’ is.”

You can argue about whether Clinton’s statement was just so much rationalization. But in the legal profession, practitioners put a lot of stock in precision of language. That may have been what was on display then. And it was again in 2013 when the Texas Supreme Court was asked to make clear what constitutes a “law.” Specifically, the question was how to apply the word in the context of the Texas “Whistleblower Act.”

That act states that a public employee who is fired or disciplined after reporting an alleged violation of “law” to appropriate law enforcement authorities has a right to sue for damages and other relief. The law goes on to define “law” as:

  • A state or federal statute.
  • An ordinance of a local governmental entity; or
  • A rule adopted under a statute or ordinance.

In the 2013 decision in the case of University of Houston v Barth, the state’s high court noted that while some internal policies would not meet the definition of law, those adopted by statute or ordinance would.

The implication of this decision in the context of designing and setting policy is that the crafting of policies that are then adopted by ordinance could make it possible for a disciplined or terminated employee to pursue a damage claim under the Whistleblower Act.

To assess and mitigate the possible risk of that, legal observers recommend Texas cities undertake reviews of their ordinances and policies and make changes if necessary.