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          House Engrossed
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  State of Arizona
  House of Representatives
  Forty-fifth Legislature
  Second Regular Session
  2002
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     HOUSE BILL 2695
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AN ACT

AMENDING SECTIONS 38-531, 38-532 AND 41-785, ARIZONA REVISED STATUTES; RELATING TO DISCLOSURE OF INFORMATION BY PUBLIC EMPLOYEES.

(TEXT OF BILL BEGINS ON NEXT PAGE)

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 38-531, Arizona Revised Statutes, is amended to read:

38-531. Definitions

In this article, unless the context otherwise requires:

1. "CONTRIBUTING FACTOR" MEANS ANY FACTOR THAT, ALONE OR IN CONNECTION WITH OTHER FACTORS, AFFECTS A PERSONNEL ACTION.

1. 2. "Employee" means an officer or employee of this state or any of its departments, commissions, agencies or boards. Employee includes employees and officers of community college districts, school districts and counties of this state but does not include officers or employees of a municipal corporation established for the purpose of reclamation and distribution of water and the generation of electricity.

2. 3. "Former employee" means an employee who was dismissed OR IS OTHERWISE NO LONGER SERVING AS AN EMPLOYEE.

3. 4. "Personnel action" means ANY OF THE FOLLOWING DISCRIMINATORY ACTIONS:

(a) Appointment.

(b) Promotion.

(a) FAILURE TO APPOINT.

(b) FAILURE TO PROMOTE.

(c) Disciplinary or corrective action.

(d) Detail, transfer or reassignment.

(e) Suspension, demotion or dismissal.

(f) Reinstatement.

(g) Restoration.

(h) Reemployment.

(i) Performance evaluation.

(j) Decision concerning pay, benefits or awards.

(k) Elimination of the employee's position without a reduction in force by reason of lack of monies or work.

(l) Other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level.

5. "PROTECTED ACTIVITY" MEANS THE DISCLOSURE OF OR REFUSAL TO VIOLATE ANY LAW, RULE OR REGULATION, MISMANAGEMENT, A GROSS WASTE OF MONIES, AN ABUSE OF AUTHORITY OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.

4. 6. "Public body" means ANY OF THE FOLLOWING:

(a) The attorney general. ,

(b) The legislature. ,

(c) The governor. ,

(d) A federal, state or local law enforcement agency. ,

(e) The county attorney. ,

(f) The governing board of a community college district or school district. , the

(g) A COUNTY MANAGER, A COUNTY ADMINISTRATOR OR A COUNTY board of supervisors. of a county or an agency director.

(h) A DEAN, PRESIDENT OR CHANCELLOR OF A COMMUNITY COLLEGE.

(i) A DIRECTOR, DEPUTY DIRECTOR, CHIEF ADMINISTRATIVE OFFICER OR CHIEF ADMINISTRATIVE OFFICER'S DESIGNEE OF AN EMPLOYING AGENCY OF THIS STATE OR ANY OF ITS DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS.

5. 7. "Reprisal" means to take a personnel action the result of which is adverse to an employee.

Sec. 2. Section 38-532, Arizona Revised Statutes, is amended to read:

38-532. Prohibited personnel practice; violation; reinstatement; exceptions

A. It is a prohibited personnel practice for THIS STATE OR ANY OF ITS DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS, COMMUNITY COLLEGE DISTRICTS, SCHOOL DISTRICTS, COUNTIES OR an employee who has control over AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE, RECOMMEND, APPROVE OR IMPROPERLY INFLUENCE personnel actions to take reprisal against an employee for a disclosure of BECAUSE THE EMPLOYEE REFUSES TO VIOLATE ANY LAW, RULE OR REGULATION OR MAKES ANY DISCLOSURE, IS PERCEIVED TO HAVE MADE ANY DISCLOSURE OR IS ABOUT TO DISCLOSE OR MAY DISCLOSE ANY information of a matter of public concern by the employee THAT IS NOT SPECIFICALLY PROHIBITED BY STATUTE to a public body which the employee reasonably believes evidences:

1. A violation of any law, RULE OR REGULATION.

2. Mismanagement, a gross waste of monies, or an abuse of authority OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.

B. IF DISCLOSURE TO THE PUBLIC IS SPECIFICALLY PROHIBITED BY STATUTE, the disclosure by an employee to a public body alleging a violation of law, RULE OR REGULATION, mismanagement, gross waste of monies, or abuse of authority OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY shall be in writing and shall OR AS AUTHORIZED BY STATUTE. A DISCLOSURE NOT PROHIBITED BY STATUTE MAY BE IN WRITING OR MAY BE IN ORAL STATEMENTS MADE DIRECTLY TO AND NOT MERELY IN THE PRESENCE OF A PUBLIC BODY ACTING IN THE PUBLIC BODY'S OFFICIAL CAPACITY OR AT A PUBLIC HEARING OR PROCEEDING. IF THE PUBLIC BODY TO WHOM THE ORAL DISCLOSURE IS MADE REQUESTS THE EMPLOYEE TO SUBMIT A WRITTEN SUMMARY OF THE ORAL DISCLOSURE, THE EMPLOYEE SHALL SUBMIT A WRITTEN SUMMARY OF THE ORAL DISCLOSURE WITHIN TEN WORKING DAYS AFTER THE DATE OF THE ORAL DISCLOSURE. AN ORAL DISCLOSURE THAT IS CONTAINED IN A RECORDED TRANSCRIPT OF STATEMENTS MADE AT A PUBLIC HEARING OR OPEN MEETING OR EXECUTIVE SESSION HELD BY A PUBLIC BODY CONSTITUTES A WRITTEN DISCLOSURE UNDER THIS SUBSECTION.

C. A DISCLOSURE UNDER THIS SECTION SHOULD contain the following information:

1. The date of the disclosure.

2. The name of the employee making the disclosure.

3. The nature of the alleged violation of law, RULE OR REGULATION, mismanagement, gross waste of monies, or abuse of authority OR SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.

4. If possible, the date or range of dates on which the alleged violation of law, RULE OR REGULATION, mismanagement, gross waste of monies, or abuse of authority OR SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY occurred.

C. An employee who knowingly commits a prohibited personnel practice shall be ordered by the state personnel board, a community college district governing board, a school district governing board or other appropriate independent personnel board established or authorized pursuant to section 38-534 to pay a civil penalty of up to five thousand dollars to the state general fund, a county general fund, a community college district unrestricted general fund or a school district maintenance and operation fund, whichever is appropriate. The employee who committed the prohibited personnel practice, not the governmental entity, shall pay the civil penalty. Upon a finding that an employee committed a prohibited personnel practice, the employer shall take appropriate disciplinary action including dismissal.

D. FAILURE TO PROVIDE ALL OF THE INFORMATION PRESCRIBED IN SUBSECTION B OR C OF THIS SECTION DOES NOT DISQUALIFY AN EMPLOYEE OR FORMER EMPLOYEE FROM THE PROTECTIONS PROVIDED BY THIS ARTICLE IF, ON REQUEST, THE EMPLOYEE OR FORMER EMPLOYEE PROVIDES SUFFICIENT INFORMATION TO ALLOW A PUBLIC BODY TO ASCERTAIN THE INFORMATION PRESCRIBED IN SUBSECTION C OF THIS SECTION.

E. EACH PUBLIC BODY SHALL POST AND KEEP POSTED IN CONSPICUOUS PLACES ON THE PUBLIC BODY'S PREMISES A NOTICE ADVISING PUBLIC EMPLOYEES OF THE EXISTENCE OF THIS ARTICLE. THE NOTICES WHEN POSTED CONSTITUTE SUFFICIENT NOTICE TO PUBLIC EMPLOYEES OF THE EXISTENCE OF THE PROCESS FOR DISCLOSING INFORMATION AND THE RIGHT TO DISCLOSE INFORMATION WITHOUT THE FEAR OF RETRIBUTION. THE NOTICE SHALL:

1. INSTRUCT THAT A VIOLATION OF ANY LAW, RULE OR REGULATION, MISMANAGEMENT, GROSS WASTE OF MONIES, ABUSE OF AUTHORITY OR SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC HEALTH OR SAFETY MAY BE DISCLOSED.

2. EXPLAIN HOW TO MAKE A DISCLOSURE AND WHAT THE DISCLOSURE NEEDS TO INCLUDE.

3. IDENTIFY THE PUBLIC BODIES THAT ARE AUTHORIZED TO RECEIVE A WRITTEN DISCLOSURE AND THE OFFICER WHO IS AUTHORIZED TO RECEIVE AN ORAL DISCLOSURE.

F. COMPLIANCE WITH THIS ARTICLE SHALL BE A CRITICAL ELEMENT FOR THE PERFORMANCE STANDARDS OF ALL OFFICIALS WITH AUTHORITY TO TAKE A PERSONNEL ACTION. ON A FINDING BY A COURT, THE STATE PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL DISTRICT GOVERNING BOARD, AN ARBITRATOR OR AN APPROPRIATE INDEPENDENT PERSONNEL BOARD ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-534 THAT DETERMINES THERE ARE VIOLATIONS OF THIS ARTICLE, SHALL DOCUMENT THE FINDING IN THE PERFORMANCE APPRAISAL FOR ANY EMPLOYEE WHO COMMITTED THE PROHIBITED PERSONNEL PRACTICE. ON A FINDING THAT AN EMPLOYEE COMMITTED A PROHIBITED PERSONNEL PRACTICE, THE EMPLOYER SHALL TAKE APPROPRIATE DISCIPLINARY ACTION.

D. G. An employee or former employee against whom a prohibited personnel practice is committed may recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal resulting from the prohibited personnel practice as determined by the court OR OTHER FORUM SPECIFIED IN SUBSECTION K OF THIS SECTION. RELIEF ORDERED BY THE COURT OR OTHER FORUM MAY INCLUDE PREFERENCE FOR TRANSFER TO AN AVAILABLE OR THE NEXT AVAILABLE AGENCY POSITION OF THE SAME STATUS AND TENURE WITH THE SAME ESSENTIAL JOB SKILLS THAT IS CHOSEN AND VOLUNTARILY APPLIED FOR BY THE EMPLOYEE WHO HAS PREVAILED.

E. H. An employee, does THIS STATE OR ANY OF ITS DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS, COMMUNITY COLLEGE DISTRICTS, SCHOOL DISTRICTS OR COUNTIES DO not commit a prohibited personnel practice if he takes THE EMPLOYEE, THIS STATE OR ANY OF ITS DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS, COMMUNITY COLLEGE DISTRICTS, SCHOOL DISTRICTS OR COUNTIES TAKE reprisal against an ANOTHER employee if that FOR ANY OF THE FOLLOWING REASONS:

1. THE employee discloses information in a manner prohibited by law STATUTE. or

2. The materials DISCLOSED MATERIAL or information are IS prescribed as confidential by law STATUTE UNLESS DISCLOSED AS PROVIDED IN SUBSECTION B OF THIS SECTION.

3. BASED ON A FINDING BY CLEAR AND CONVINCING EVIDENCE, THE PERSONNEL ACTION WAS TAKEN BECAUSE OF LEGITIMATE NONDISCRIMINATORY REASONS THAT ARE NOT RELATED TO THE DISCLOSURE.

F. I. This section may not be used as a defense in a disciplinary action where the employee is being disciplined for cause pursuant to section 41-770, except in a hearing on a complaint brought pursuant to this section by an employee or former employee who believes he THE EMPLOYEE OR FORMER EMPLOYEE has been the subject of a prohibited personnel practice as prescribed in this section as the result of a disclosure of information AS PROVIDED IN THIS ARTICLE.

G. J. On request or at any time an employee alleges reprisal, an employer shall provide an employee who is subject to disciplinary or corrective action, suspension, demotion or dismissal with a copy of this section.

H. K. If an employee or former employee believes that a personnel action taken against him THE EMPLOYEE OR FORMER EMPLOYEE is the result of his THE EMPLOYEE'S OR FORMER EMPLOYEE'S disclosure of information under this section OR THE PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN THE DECISION RESULTING IN A PROHIBITED PERSONNEL PRACTICE AGAINST THE EMPLOYEE OR FORMER EMPLOYEE, he THE EMPLOYEE OR FORMER EMPLOYEE may make a complaint, AS APPLICABLE, to ONLY ONE OF THE FOLLOWING:

1. THE STATE PERSONNEL BOARD UNLESS THE EMPLOYEE OR FORMER EMPLOYEE IS EMPLOYED WITH A COMMUNITY COLLEGE DISTRICT, SCHOOL DISTRICT OR COUNTY.

2. An appropriate independent personnel board, if one is established or authorized pursuant to section 38-534, or to a community college district governing board or A school district governing board. If an independent personnel board has not been established or authorized, or if a school district governing board, or a community college district governing board OR COUNTY does not hear and decide personnel matters brought pursuant to this section, the employee or former employee may make a complaint to the state personnel board.

3. AN ARBITRATOR THAT IS SELECTED BY MUTUAL CONSENT.

4. THE SUPERIOR COURT FOR A TRIAL DE NOVO, EXCEPT THAT THE EMPLOYEE MAY APPEAL ANY DECISION PURSUANT TO SUBSECTION M OF THIS SECTION.

L. A complaint made pursuant to this subsection K OF THIS SECTION shall be made within ten WORKING days of the effective date of the PERSONNEL action taken against him THE EMPLOYEE OR FORMER EMPLOYEE. The state personnel board, a school district governing board, a community college DISTRICT governing board or other AN appropriate independent personnel board ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-534 shall, pursuant to the rules governing appeals under section 41-785, SHALL make a determination concerning:

1. The validity of the complaint.

2. Whether a prohibited personnel practice was committed against the employee or former employee as a result of disclosure of information by the employee or former employee OR WHETHER THE PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN THE DECISION RESULTING IN A PROHIBITED PERSONNEL PRACTICE AGAINST THE EMPLOYEE OR FORMER EMPLOYEE.

I. M. If A COURT, the state personnel board, a community college district governing board, a school district governing board, AN ARBITRATOR or other AN appropriate independent personnel board established or authorized pursuant to section 38-534 determines that a prohibited personnel practice was committed as a result of disclosure of information by the employee or former employee OR THE DISCLOSURE WAS A CONTRIBUTING FACTOR IN THE DECISION TO TAKE A PROHIBITED PERSONNEL PRACTICE AGAINST THE EMPLOYEE OR FORMER EMPLOYEE, it shall rescind the personnel action and order that all lost pay and benefits be returned to the employee or former employee. The employee, OR former employee, employee alleged to have committed a prohibited personnel practice pursuant to subsection A of this section AGAINST WHOM A PROHIBITED PERSONNEL PRACTICE IS ALLEGED TO HAVE BEEN TAKEN or THE employer EMPLOYEE WHO COMMITTED THE PROHIBITED PERSONNEL PRACTICE may appeal the decision of the state personnel board, a community college district governing board, a school district governing board, AN ARBITRATOR or other AN appropriate independent personnel board established or authorized pursuant to section 38-534 to the superior court as provided in PURSUANT TO title 12, chapter 7, article 6. Notwithstanding section 12-910, an appeal to the superior court under this subsection shall be tried de novo.

J. N. For purposes of a hearing by the state personnel board, a school district governing board, a community college district governing board, AN ARBITRATOR or other AN appropriate independent personnel board ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-534 conducted under this section, the employee, former employee, employee alleged to have committed the prohibited personnel practice pursuant to subsection A of this section and employer may be represented by counsel. In addition, representation by counsel in such hearings shall meet any other requirements stipulated by the state personnel board, a school district governing board, a community college district governing board or other appropriate independent personnel board or as required by law.

K. O. An employee or former employee may also seek injunctive relief as is otherwise available in civil actions.

L. P. This section shall not be construed to limit or extend the civil or criminal liability of an employee or former employee for any disclosure of information or to limit an employee's right to a separate pretermination hearing with the employee's employer, as provided by law.

M. Q. An employee who knowingly makes ON A FINDING BY THE COURT, AN ARBITRATOR, THE STATE PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL DISTRICT GOVERNING BOARD OR AN APPROPRIATE INDEPENDENT PERSONNEL BOARD ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-534 THAT AN EMPLOYEE OR FORMER EMPLOYEE KNOWINGLY MADE a false accusation that a public officer or employee who has control over personnel actions has engaged in a violation of any law, RULE OR REGULATION, mismanagement, a gross waste of monies, or an abuse of authority, is personally subject to a civil penalty of up to twenty-five thousand dollars and dismissal from employment by the employer. OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY, THE EMPLOYER MAY TAKE APPROPRIATE PERSONNEL ACTION.

R. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO, AND ARE NOT LIMITED BY, ANY OTHER LAW THAT PROTECTS EMPLOYEES WHO DISCLOSE INFORMATION. NOTHING IN SECTION 23-1501 LIMITS THE RIGHTS OF AN EMPLOYEE TO PROCEED PURSUANT TO THIS ARTICLE BEFORE A COURT, AN ARBITRATOR, THE STATE PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL DISTRICT GOVERNING BOARD OR AN APPROPRIATE INDEPENDENT PERSONNEL BOARD ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-534 OR TO PROCEED PURSUANT TO SECTION 23-1501 OR ANY OTHER LAW THAT PROTECTS EMPLOYEES WHO DISCLOSE INFORMATION.

Sec. 3. Section 41-785, Arizona Revised Statutes, is amended to read:

41-785. Appeals to the personnel board; notice of charges; hearings

A. Any employee who has completed the employee's original probationary period of service as provided by the personnel rules may appeal to the personnel board seeking relief from dismissal from state service, suspension for more than forty working hours or demotion resulting from disciplinary action. The appeal shall be filed not later than ten working days after the effective date of such action. The employee shall be furnished with specified charges in writing when the action is taken. Such appeal shall be in writing and must state specific facts relating directly to the charges on which the appeal is based and shall be heard by the personnel board within thirty days after its receipt. The personnel board shall provide the employing agency with a copy of the appeal not less than twenty days in advance of the hearing.

B. Hearings on such appeals shall be open to the public, except in cases where the employee requests a confidential hearing, and shall be informal with technical rules of evidence not applying to the proceedings except the rule of privilege recognized by law. Both the employee and the employing agency shall be notified of any hearing or meeting date not less than twenty days in advance of the hearing or not less than ten days in advance of a meeting and may select representatives of their choosing, present and cross-examine witnesses and give evidence before the personnel board. The personnel board may appoint a hearing officer to conduct the hearing and take evidence on behalf of the board and exercise the rights prescribed by section 12-2212. The personnel board shall prepare an official record of the hearing, including all testimony recorded manually or by mechanical device, and exhibits. Either party may request that the record be transcribed. If a party requests that the record be transcribed, an entity, other than the personnel board, selected by the requesting party shall transcribe the record at the cost of the requesting party. If the disciplinary hearing would involve evidence the state is prevented by law from disclosing, then a confidential hearing upon the state's request shall be granted.

C. The board may reverse an agency's action on appeal only if the board finds the action to be arbitrary, capricious or otherwise contrary to law.

D. The board may reduce the disciplinary penalty chosen by an agency only if the board finds the penalty to be excessive or made for reasons that are arbitrary, capricious or otherwise contrary to law.

E. Within forty-five days after the conclusion of the hearing, the board shall enter its decision and shall at the same time send a copy of the decision by certified mail to the employing agency and to the employee at the employee's address as given at the hearing or to a representative designated by the employee to receive a copy of the decision.

F. Any party may appeal the decision of the board pursuant to title 12, chapter 7, article 6 to the superior court in the employee's county of residence on one or more of the following grounds, that the order was:

1. Founded on or contained error of law which shall specifically include error of construction or application of any pertinent rules.

2. Unsupported by any evidence as disclosed by the entire record.

3. Materially affected by unlawful procedure.

4. Based on A violation of any constitutional provision.

5. Arbitrary or capricious.

6. THE RESULT OF A PROHIBITED PERSONNEL PRACTICE.

G. AN appeal shall be available to the court of appeals from the order of the superior court pursuant to title 12, chapter 7, article 6 as in other civil cases.

H. An employee may represent himself BE SELF-REPRESENTED or MAY designate a representative, not necessarily an attorney, before any board hearing or any quasi-judicial hearing held pursuant to this section providing that no fee may be charged for any services rendered in connection with such hearing by any such designated representative who is not an attorney admitted to practice.

Sec. 4. Legislative findings and purpose

Consistent with the federal code of ethics for government service and the code of ethics for state and other public body service, the legislature finds and declares that state employees have a duty to lawfully report fraud or other violations of law, rule or regulation, waste, mismanagement, abuse of authority, substantial and specific dangers to public health or safety or other violations of the public trust, and the right to act on that duty without fear of retribution. The legislature further finds and declares that public servants best serve the public interest when they can be candid and honest without reservation in conducting the public's business.