"It's narrower than that," he says. "They were able to go after them only because it was a public hospital and the nurses were county employees. The misuse of official information applies only to public service."
Had the nurses been employed at a private, not-for-profit hospital, Willmann says, "I don't think they'd have found anything else they could have charged them with."
"The prosecutors looked at the initial complaint, which was harassment, and when they found they couldn't make that complaint stick they looked around and found this misuse of official information," he says. "It's hard to figure out how this could be a misuse of official information if it is shared with a regulatory oversight agency."
Willmann says TNA will go to the Texas Legislature when it next meets in 2011 to seek a remedy. "We are just beginning to sort it out," he says. "It's hard to come up with an easy way to limit prosecutorial discretion. We are dealing with what I would characterize as an abuse of prosecutorial discretion, and that may be hard to draft into law."
As for Mitchell and Galle, who lost their jobs during the criminal investigation, they have filed a civil lawsuit in federal court against Arafiles, Winkler County, Texas, the county-owned hospital, the sheriff, and the prosecutor, alleging that the criminal prosecution was baseless and vindictive and a violation of their First Amendment rights.