public employees;
information disclosure
DPA |
Committee on Retirement and Government Operations |
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DPA |
Caucus and COW |
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X |
Third Read |
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As Passed the House |
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HB 2695 amends the employee information disclosure statute and makes clarifying and conforming changes.
HB 2695 was amended in the Retirement and Government Operations Committee to expand the definition of protected activity to include all of the violations an employee may disclose. The Retirement and Government Operations Committee amendment was adopted in the Committee of the Whole. HB 2695 was further amended in the Committee of the Whole to make technical and clarifying changes as to the intent of the bill.
Current statute stipulates that it is a prohibited personnel practice for employees who have control over personnel actions to take reprisal against an employee for a disclosure of information to a public body that is a matter of public concern and is reasonably believed to be a violation of any law, mismanagement, a gross waste of monies or an abuse of authority. The disclosure by an employee to a public body alleging a violation shall be in writing and contain the date of the disclosure, the name of the employee making the disclosure and the nature of the alleged violation of law, mismanagement, gross waste of monies or abuse of authority.
Statute also requires the employee that has committed a prohibited personnel practice 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, which ever is appropriate. The employee or former employee against whom the prohibited personnel practice was committed against may recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal resulting from a prohibited personnel practice as determined by the court.
· Defines contributing factor, protected activity, and expands the definition of personnel action.
· States that former employees also includes employees who are no longer serving as an employee.
· Expands who is a public body.
· Expands what an employee may believe to be evidence for a disclosure of information to include a rule or regulation and something that is a substantial and specific danger to public health or safety.
· Prohibits someone who is in a position of authority to take, direct others to take, recommend, approve or improperly influence personnel actions to take reprisal against an employee because the employee refuses to violate any rule or regulation or makes any disclosure, is perceived to have made any disclosure or is about to make any disclosure that is not specifically prohibited by statute to a public body.
· Clarifies that if a disclosure by an employee is prohibited in statute, the disclosure shall be in writing or as authorized by statute.
· Specifies that a disclosure not prohibited by statute may be in writing or may be in oral statements made directly to the public body or officer acting in an official capacity or at a public hearing or proceeding.
· Specifies that if the public body or officer to whom the oral disclosure is made requests the employee to submit a written summary of the oral disclosure, the employee shall submit it within 10 working days after the date of the oral disclosure.
· States that 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 or officer constitutes a written disclosure.
· Repeals the civil penalty of up to five thousand dollars for any employee who knowingly commits a prohibited personnel practice and the stipulation that upon finding an employee committed a prohibited personnel practice the employer must take appropriate disciplinary action, including dismissal.
· Specifies that failure to produce all of the information required for a disclosure of information does not disqualify public employees from being protected if, on request, the employee or former employee provides sufficient information to allow a public body or officer to ascertain the information.
· Requires each public body to post and keep posted in a conspicuous place on the public body’s premises a notice advising public employees of the existence of this article. The following must be included on the notice:
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 the procedures for making 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.
· States that the notice constitutes sufficient notice to public employees of the existence of the disclosure process and the right to disclose information without fear of retribution.
· Specifies that if a court, the state personnel board, community college district governing board, school district governing board, an arbitrator or an appropriate independent personnel board (forum) does find a violation of this article, it shall be documented in the performance appraisal of any relevant official.
· States that the 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 that is chosen and voluntarily applied for by the employee who has prevailed.
· Adds whether the protected activity was a contributing factor in the decision resulting in a prohibited personnel practice against an employee as a determinant in a complaint.
· Adds that a public body does not take reprisal against another employee if based on a finding by clear and convincing evidence, the personnel action was because of legitimate, nondiscriminatory reasons that are not related to the disclosure.
· Requires an employee or former to file a complaint within 10 working days of the effective date of the alleged personnel action taken against the employee or the former employee, rather than 10 days.
· Clarifies that the employee or former employee against whom a prohibited personnel practice has been alleged may choose to make their complaint to only one forum and may appeal the decision to the Superior Court.
· Includes an arbitrator as a forum for filing a complaint.
· Clarifies that the provisions in A.R.S. § 38-352 are in addition to and not limited by any other law that protects employees who disclose information.
· Removes the civil penalty and automatic dismissal of an employee who knowingly makes a false accusation. Additionally, this bill clarifies that false accusations must be determined on a finding by a forum and allows the employer to take appropriate personnel action.
· Makes numerous technical and conforming changes.
HB 2695 was amended in the Retirement and Government Operations Committee as follows:
· Expands the definition of protected activity to include all of the violations an employee may disclose.
HB 2695 was amended in the Committee of the Whole as follows:
· Limited the definition of personnel action to the list defined under personnel action.
· Clarifies that the public body for a county, is also a county manager or county administrator.
· Strikes references to a public body’s officer, because it’s not defined.
· Reinserts the ability of an employer to take appropriate disciplinary action against an employee who committed a prohibited personnel practice.
· Clarifies that the ability for an employee to be granted a transfer depends on whether or not they have the essential job skills necessary.
· Makes technical and clarifying changes.
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45th Legislature
Second Regular Session 3 April
1, 2002
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