Dear Legislator

Please vote for H.B. 2695 public employees; information disclosure

 

I am [name] and am a member of [group].  I am well [some very positive comment about yourself, or a few sentences, showing good status in society].

 

 HB 2695 should be supported because [give reasons]

 

Sincerely,

[name, address and phone]  [if from outside of Arizona, just give name]

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Possible reasons to use parts of, quote from, or adapt:

 

Text # 1

 

In all states, there is a strong pattern of reprisals against whistle-blowers within state public agencies, because all laws giving state level protection for whistle-blowers are weak.  Whistle-blower protection has greatly improved, however, at the Federal level, with new federal statutes passed in 1994.  These new federal provisions improved the 1978-1994 record of 4 wins for federal whistle-blowers out of about 10,000 cases presented, to the post-1994 record of 25% to 33% of whistle-blowers prevailing (and achieving reversal of reprisals).  Current Arizona law has a poor record of protecting whistle-blowers, similar to the pre-1994 federal statutes.  In the 8 years from 1991 to 1998 in Arizona, only 2 out of 57 whistle-blowers who received reprisals and then appealed to the State Personnel Board received a positive ruling, and reversal of their reprisals.  H.B. 2695 public employees; information disclosure, however, is patterned after federal law.

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Text # 2

 

A particular situation for K-12 teachers points out why H.B. 2695 is needed.  In the Scottsdale School District, which has an independent hearing board for personnel cases, a whistle-blower received an improper reprisal, and was fired.  Appealing under the state whistle-blower protection act, the whistle-blower was rehired -- after a hearing which cost the school district $30,000 in legal fees, etc. 

 

But the school district, trying to follow the current statute (ARS 38-532) found that they would have to fine the retaliating supervisor $5,000 and possibly terminate him (a punishment they thought was excessive).  Punishing the retaliator would require a new $30,000 hearing, because the retaliating supervisor did not have a lawyer represent him in the previous hearing (where he was just a witness), and you cannot punish someone who was not represented by an attorney.  In addition, the school district would have to make a major effort to bring together a new hearing board, because a hearing could not take place for the retaliating supervisor before the now-tainted previous hearing board. 

 

The school district indicated to their lawyer that they would be inclined to just fire any new whistle-blowers, unless the law got changed, because they could not afford $60,000 for two hearings, plus constituting two hearing boards, whenever there was a whistle-blower retaliation case.  This problem is fixed in H.B. 2695, and the school district lawyer is pleased with the new wording we propose, which would apply to all school districts.

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Text # 3

 

Whistle-blowing is First Amendment freedom of speech, but it needs some extra  protection.  This is because, first, it has the greatest "good government" impact.  Second, because those who engage in whistle-blowing suffer the most frequent and severe reprisals for their altruistic speech.  No single measure can do more to stop fraud, waste and abuse than whistle-blower protection.

 

This year's whistle-blower bill, H.B. 2695, has received expert input from the non-profit, non-partisan national organization that supports whistle-blowers, the Government Accountability Project.  All features of HB2695 are the well tested provisions of the improved 1994 federal whistle-blower protection laws.  The federal provisions improved the 1978-1994 record (of 4 wins for federal whistle-blowers out of about 10,000 cases presented) to the post-1994 record of 25% to 33% of whistle-blowers prevailing (and achieving reversal of reprisals) at the federal level.

 

Current Arizona law has a poor record of protecting whistle-blowers, similar to the pre-1994 federal statutes.  In the previous 8 years in Arizona, only 2 out of 57 whistle-blowers who received reprisals and then appealed to the State Personnel Board received a positive ruling, and reversal of their reprisals.

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Text # 4

 

Here are some important facts on H.B. 2695 public employees; whistle-blowers

 

Oral disclosures of waste, fraud or abuse to public officials will be protected.

Oral disclosures are the major route that whistle-blowers almost always take in initial reporting This is a major path to good government and needs to be protected It allows some anonymity of the whistle-blower, to protect them from reprisals for blowing the whistle, while a public official looks into the matter. If all reports are forced to be in writing there are two major negative consequences: it will (1) maximize government effort, turning every examination of a reported problem into a large written project (counter-productive in terms of use of resources); (2) change reports from problems to be looked into and nipped in the bud" into formalized conflicts and disputes to be fought over. Further, it is clear that whistle-blowers should have the right to protected oral disclosures that are difficult to prove rather than be at the mercy of anyone who has the legal right to retaliate for an oral disclosure. This should not be an issue if administrators simply do not retaliate against a whistle-blower for reporting wrongdoing.

 

Allows protection of whistle-blowers if their disclosure of waste, fraud or abuse was a CONTRIBUTING FACTOR to receipt of a reprisal.

Currently, the negative personnel action must be the RESULT of their whistle-blowing, for a whistle-blower to receive protection, and the term “result" has never been defined. The “contributing factor" standard is in federal law.

 

New protection against reprisals that were not previously recognized as negative personnel actions.

The bill now includes as prohibited reprisal all unjustified negitive personnel actions.

 

Removal of burdensome requirement for fine of $5,000 and disciplinary action including dismissal for a supervisor who had retaliated against a whistleblower.

Replaced by discipline in the form of having compliance with the whistle-blower protection statute being an element in performance review of any supervisor. It eliminates drastic punishment of a supervisor, who, during a whistle-blower hearing, did not have available a lawyer to protect his interests.

 

Allows recovery of attorney fees at the intermediate State Personnel Board or other hearing board level, rather than only at State Court level.

This allows attorneys to take cases on a contingency fee level, providing a more economical means of having a first hearing for a clearly wronged whistle-blower.

 

Text # 5

 

It is clear from the statistics that there is something seriously wrong with the Arizona protections for whistle-blowers.  Here are statistics from Judy Henkel, Director of the State Personnel Board, for 8 years.   I give them to you below, with the other types of hearings given for comparison.  The first number is the number of state employees who prevailed, the second is the total cases for that year.

 

--------Whistleblower----Dismissal----Demotion----Suspension

90-91------0/7--------------3/30------------0/3-----------2/7----

91-92------0/4--------------1/27------------1/5-----------1/6----

92-93------1/6--------------0/35------------0/1.5---------1/6----

93-94------0/3-------------14/41----------1.5/4.5-------3.5/9.5--

94-95------0/5--------------6/47------------2/9-----------1/5----

95-96------0/8--------------9/50----------2.5/12----------3/7----

96-97------1/11-------------6/35-----------0/2------------0/5----

97-98------0/13-------------9/43-----------2/7------------0/9----

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Totals------2/57-----------48/308---------9/44----------11.5/54----

Percents----3.5%---------15.6%--------20.5%--------21.3%---

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Text # 6

 

HB2695 is excellent legislation prepared by Rep. Randy Graf

to strengthen employment rights for government workers who

challenge betrayals of the public trust. Whistleblower protection laws are

unsurpassed in their potential for accountability to the taxpayers. That is

because it is long recognized that secrecy breeds abuses of power and

corruption, while sunlight is the best disinfectant for those threats to the

health of public institutions.

 

If approved, this bill will be a good government breakthrough by Arizona,

creating a composite state of the art for whistleblower protection. None of

the provisions are "new." They all are drawn from 28 different federal

employee protection laws on the books. Many clauses, such as modern legal

burdens of proof to prevail, also have become the prevailing trend in state

laws. There should not be any question that HB2695 uniquely sets the

pace, however. No other state statute systematically combines the best of

federal whistleblower law as this legislation.

 

    While whistleblower protection laws are increasingly popular, in many

cases the rights have been largely symbolic and therefore counterproductive.

Employees risking retaliation thought they had genuine protection, when in

reality there was no realistic chance to defend themselves. Acting on

"rights" contained in whistleblower laws has meant the near-certainty that a

legal forum would formally endorse the retaliation, leaving reprisal victims

far worse off than if no protection had been in place. Review of track

records for 23 years reveals numerous lessons learned, which have been

steadily solved on the federal level through amendments to correct mistakes

and close loopholes.

 

The reasons H.B. 2695 is an excellent shield for whistle-blowers are summarized below.

 

* "No loopholes" coverage. The bill provides comprehensive protection, for

"any" disclosure of significant misconduct, without exception for form,

content or audience, except where information's release is specifically

barred by statute. It provides protection against the full scope of

harassment, in all settings that could spark retaliation - including

preemptive strikes against employees "about to" disclose misconduct, and

mistaken perceptions that employees have blown the whistle.

 

* Right not to violate the law. The bill protects those whose walk matches

their talk by refusing to violate the law themselves. This can prevent the

need for disclosures.

 

* Coverage for confidential disclosures. By protecting oral disclosures, the

bill maximizes the flow of information by those who would remain silent

without the right to proceed anonymously.

 

* Anti-gag order provision. The bill preempts prior restraint through agency

gag orders that could cancel free speech protections before a disclosure is

even made.

 

* Forums free from conflict of interest. Many laws lock in conflict of

interest by restricting employees to hearings by boards within the same

administrative bureaucracy that a whistleblower challenges. This bill breaks

the conflict of interest by giving employees a day in court before a jury

trial of the citizens whom they risk retaliation to defend, or by an

arbitrator selected through a "strike" process of mutual consent.

 

* Modern, realistic burdens of proof. The bill gives whistleblowers a

fighting chance to win when they have their day in court, by adopting the

modern burdens of proof for federal workers in the Whistleblower Protection

Act of 1989. This means workers establish a prima facie case by demonstrating

that protected activity is a significant factor in causing a challenged

personnel action. Then the burden of proof switches to the employer to

demonstrate by clear and convincing evidence that the same action would have

occurred for legitimate, independent reasons in the absence of dissent.

 

* Relief for the full scope of consequences. The bill compensates for the

full scope of direct, indirect and future consequences of reprisal, including

attorney fees, interim relief during appeals, and a transfer preference to

facilitate a fresh start instead of having to go to work for management whom

the employee has just defeated in a lawsuit.

 

* Personal accountability for wrongdoers. The bill deters reprisal by giving

those who retaliate something to lose, through performance standards

requiring compliance with the law, and disciplinary investigations of those

found guilty of violations.

 

* Additive, not substitutive protection. The bill does not cancel preexisting

constitutional or common law rights.

 

    While not a panacea, H.B. 2695 represents the current state of the

art for whistleblower protection. It creates the freedom for government

employees to be public servants instead of bureaucrats.