House of Representatives

HB 2561

public employees; information disclosure

Sponsors: Graf

X	Committee on Retirement & Government Operations
	Committee on Public Institutions and Rural Affairs
	Caucus and COW
	As Passed the House

HB 2561 makes numerous statutory changes regarding disclosure of information by public employees (whistleblowers).

History

As many as 30 states, including Arizona, have enacted whistleblower statutes. While these statutes vary from state to state they do have common elements. Arizona statute defines which employees are protected. Secondly, whistleblower statute describes an employer prohibited practice that may result in liability. An employer prohibited practice is retaliatory actions towards the whistleblower in the form of a personnel action. Finally, the statute establishes the procedures a whistleblower must follow when reporting suspected employer misconduct.

Currently, state employees, except employees and officers of a state university and the Arizona Board of Regents (ABOR), who report a violation of any law, mismanagement, a gross waste of monies or an abuse of authority, are protected under whistleblower statute from reprisal. The State Personnel Board (Board) is required to hear and review appeals regarding whistleblower complaints from employees of the state. Additionally, the Board hears complaints from employees of community college districts, counties and school districts if an independent board to consider whistleblower complaints has not been established.

The Board is responsible for hearing appeals filed by employees or former employees who have been dismissed, demoted, or suspended for over 40 hours. The Board also hears and reviews complaints filed under whistleblower statutes. Once an appeal and/or complaint is received, it is set for a hearing. Hearings are conducted by contract attorneys and are tape-recorded. After the hearings are completed, the hearing officer submits the Findings of Fact, Conclusions of Law, and Recommendation. This document is mailed to the parties for their review and opportunity to file any objections to the report. The Personnel Board members are subsequently provided with copies of case files and a final determination is made by the Board at its next monthly meeting. After the Board rules on a case, the parties may appeal the decision of the Board in the Superior Court. The administrative record is transmitted to the Superior Court for review. The court process involves a trial de novo, which means the parties present their case in court again instead of the court reviewing the administrative record on appeal.

Provisions

Definition Section

· Defines contributing factor as any factor that, alone or in connection with other factors, tends to affect in any way the outcome.

· Broadens the definition of employee to include an applicant for a position and former employee to include an employee who is no longer serving as an employee and a retiree who voluntarily retired.

· Includes in the scope of the definition of personnel action an action to recommend, take or fail to take, or threaten to take or fail to take, any discriminatory action, and includes:

1. Change in working conditions, which are inconsistent to salary or grade.

2. Accommodation for health or disability needs, including voluntary or involuntary psychiatric examination or counseling.

3. Improper, unjustified, excessive or extraordinary investigations or evaluations.

4. The implementation or enforcement of any nondisclosure policy, form or agreement for any restrictions on disclosures that are inconsistent with, supercede or alter the definitions, requirements, rights, obligations, sanctions or liabilities of this article.

· Adds the definition of protected whistle-blowing disclosure as any activity for which it is a prohibited personnel practice to discriminate or retaliate under this article, including any communication of information, unless specifically prohibited by statute.

· Includes the following in the definition of public body:

1. A county and its managers.

2. A dean, president or chancellor of a community college or university.

3. A deputy director, assistant director or similar upper management personnel of a state agency of this state or any of its departments, commissions, agencies or boards.

· Adds the definition of reasonable belief as an objective standard that does not require the employee to prove the reported misconduct actually occurred but consists of sufficient information under the circumstances for the employee to conclude in good faith it is material, relevant evidence that the specified misconduct could has occurred. A reasonable good faith belief exists per se if the information is based on the employee’s expertise and personal knowledge, is supported by the views of similarly situated employees or outside experts, results in government fact-finding proceedings or is the subject of independent analysis consistent with reasonable belief.

· Expands the definition of reprisal to a personnel action, resulting in adversity to an employee because of the protected activity under this article.

Whistleblower Process

· States that it is a prohibited personnel practice for a public body or an employee who has authority to take or influence in any way reprisal against an employee, because an employee refuses to comply with an illegal order, makes any disclosure, is perceived to have made a disclosure or is about to make a disclosure of any information of public concern that is not specifically prohibited by statute, including a violation of any rule or regulation and a violation that is of substantial and specific danger to public health or safety.

· Requires that if a disclosure is prohibited by statute, the disclosure shall be handled in writing or as authorized by statute.

· Allows disclosures that are not prohibited by statute to be in writing or oral statements made directly to and not merely in the presence of a public body or officer acting in an official capacity or at a public hearing or proceeding.

· Allows a public body or officer to request a written summary of the oral disclosure within 30 days after the oral disclosure.

· States that an oral disclosure contained within a recorded transcript of statements made at a public hearing, an open meeting or executive session held by a public body or officer constitutes a written disclosure.

· Removes the civil penalty of $5,000 for an employee that knowingly commits a prohibited personnel practice.

· Prohibits the disqualification of employee protection upon failure to provide all required information, if on request the employee provides sufficient information to allow a public body or officer to ascertain the disclosure information.

· Specifies that compliance with this article is a critical element in the performance standards for any official authorized to take or recommend personnel action.

· Requires protected activity found to be a contributing factor to be referred for investigation of appropriate disciplinary action by the employer, upon the finding of a court, the state personnel board, a community college district governing board, a school district governing board or an appropriate independent personnel board.

· Allows an employee against whom a prohibited personnel practice has been committed to collect any relief necessary, including interim relieve pending an appeal, to alleviate consequences resulting from the prohibited personnel practice determined by the court or other forum. Relief ordered by the court or other forum may include a transfer to an available or next available agency position of the same status and tenure that has been chosen and voluntarily applied for by the prevailing employee.

· Specifies that a public body does not commit a prohibited personnel practice against another employee if the reprisal against another employee is as follows:

1. Disclosed material prescribed as confidential by statute, unless written.

2. Based on a finding by clear and convincing evidence that the personnel action was taken because of legitimate nondiscriminatory reasons unrelated to the disclosure.

· Requires an employer to compensate an employee regular work time for time reasonably spent reporting, responding to an investigation or inquiry or preparing for and attending proceedings with the exception of employees after termination of employment, unless determined that the former employee was subject to prohibited retaliation.

· Allows an employee who believes a personnel action was taken to make a complaint, as applicable, to one of the following entities:

1. The state personnel board

2. The Superior Court.

3. An arbitrator selected by mutual consent.

· Requires that a complaint by the employee must be made within one year of the effective date of the personnel action taken against the employee or former employee, rather than within 10 days.

· Allows an action for injunctive relief to be filed with the Superior Court at any time.

· Requires the court, pursuant to its rule, or appropriate board to make a determination concerning whether the disclosure was a contributing factor in the decision to take prohibited personnel action against an employee or former employee. If so determined, the costs and attorney fees and any other authorized relief shall be returned to the employee.

· Requires the appropriate boards to adopt rules governing the procedures of this article by March 1, 2001. The rules shall not diminish any rights established by administrative procedure and shall include:

1. The right to prehearing discovery.

2. The right to amend a complaint.

3. The right to join subsequent allegations of reprisal.

4. A provision that requires any hearing of a personnel action that is subject to appeal or review separate from a complaint shall be combined or joined with the hearing, upon the request of the employee or former employee.

· Allows an employee who first made a complaint to an appropriate board to file action with the Superior Court to enforce relief remedies within one year after the final decision from the appropriate board.

· Allows an employer to take appropriate personnel action against an employee who has been found by the court or appropriate board to have knowingly made a false accusation that a public officer or employee with control over personnel actions has engaged in a violation of law, rather than subjecting the employee to a civil penalty of up to $25,000 and dismissal of employment by the employer.

· Specifies that the provisions of this section are in addition to and not limited by other laws that protect employees who disclose information.

· States that nothing in the severability of employment relationships section of law (23-1501) shall limit the rights of an employee to proceed before a court or appropriate board or proceed pursuant to section 23-1501 or any other law that protects employees who disclose information.

· Requires that an appeal by an employee seeking relief from dismissal or suspension for more than 40 hours or demotion must be filed within 30 days after the effective date of such action, rather than 10 working days.

· Voids any nondisclosure policy, form or agreement that is inconsistent with the definitions, requirements, obligations, rights, sanctions and liabilities of this article.

· Allows any party to appeal the judicial review of an administrative decision to the Superior Court, if the order was a result of a prohibited personnel practice.

· States that this article shall be interpreted wherever possible to be consistent with interpretation of Arizona statutes and precedents governing employees, including the Prohibition on Insubordinate Conduct, the Federal Civil Service Reform Act, the Federal Merit System Principles and the Federal Whistleblower Protection Act, and construed to accomplish its purpose and to promote justice.

· Makes technical and conforming changes, including conforming the interpretation language to 41-785 (Appeals to the personnel board).

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45th Legislature

First Regular Session 5 February 19, 2001

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