Testimony by the Government Accountability Project (GAP)
on HB 2561 -
Thank you for considering testimony by the Government Accountability
Project (GAP) on HB 2561, legislation to strengthen employment rights for
government workers who exercise free speech rights to challenge betrayals of
the public trust. It deserves to be called the Taxpayer Protection Act,
because whistleblower laws are unsurpassed in their potential for
accountability to the taxpayers. 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. There are
no experiments here. All provisions are drawn from existing laws that have
been modified based on lessons learned, with proven track records of a
workable balance. There should not be any question that your initiative
uniquely sets the pace, however. No other state statute systematically
combines the most effective provisions that have stood the test of time as
this legislation.
My name is Tom Devine, and I serve as legal director of GAP, a non-
nonpartisan public interest law firm that specializes in responsible
protection for genuine whistleblowers. We have led the public campaigns for
passage of the Whistleblower Protection Act of 1989 ("WPA")(federal
employees); Military Whistleblower Protection Act (armed services members);
numerous related statutes for private industry sectors from nuclear to
airlines; numerous state whistleblower laws, and most recently a model law
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 Trojan Horse whistleblower laws has meant the
near-
leaving reprisal victims far worse off than if no protection had been in
place. Review of track records over 23 years reveals numerous lessons
learned, and corresponding solutions that have corrected mistakes and closed
loopholes.
GAP labels token laws as "cardboard shields," because anyone relying on them
is sure to die professionally. We view genuine whistleblower laws as "metal
shields," behind which an employee's career has a fighting chance to survive.
The reasons your bill is a metal shield are summarized below.
* "No loopholes" coverage. It 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 -
employees "about to" disclose misconduct, and mistaken perceptions that
employees have blown the whistle.
* Right not to violate the law. The bill protects those who walk 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 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 in every major good government statute over the last
decade. Even the World Bank has adopted this standard to protect disclosures
challenging fraud in its investments. This means workers establish a prima
facie case by demonstrating that protected activity is a contributing 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.
* Realistic statute of limitations. No whistleblower law can be effective if
employees are not aware of their rights until after the time passes to act.
This has been the Achilles heel for many state statutes. The bill sets a 90
statute of limitations, the minimum necessary for reprisal victims to have a
fair chance of acting on their rights.
* 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.
Of course, almost any proposal can be improved. The law could help to
make more of a difference in correcting institutional abuses of power -
point of whistleblowing -
action of alleged misconduct disclosed by the employee.
Perhaps most significant, there is one amendment that would effectively
maintain the goal of preventing chaos and the necessity of reinventing the
linguistic wheel, without tying the bill to federal law:
"To promote clarity and prevent uncertainty about the rights and
responsibilities of all parties, where possible the terms in this Article
shall have a consistent meaning with those having established definitions in
analogous whistleblower statutes, including any already applicable to Arizona
citizens."
The Arizona language already has been adopted, and in some cases translated
through decades of case law, in ranging from municipal to international.
This suggested language also would prevent the worst scenario, when employers
are liable for the same type of personnel disputes under different laws with
different meanings for the same language. That could be the case for numerous
federal statutes that already cover Arizona corporate, as well as state and
municipal public employees for narrowly limited scenarios (i.e., compliance
with pollution and airline safety laws.) It could deter contradictory
interpretations of identical language and prevent a lot of unnecessary future
confusion, and cases, if we make a limited investment now to lock in
certainty for employers to know what is expected of them, and for
whistleblowers what these rights mean.
While not a panacea, this legislation represents the current state of the
art for whistleblower protection. It creates the freedom for government
employees to be public servants instead of bureaucrats. For that reason, you
have a standing invitation for GAP to work with your staff on any
contribution your office finds helpful. The taxpayers of Arizona owe
Representatives Graf, Brimhall and Cardomine a debt of gratitude for their
good government leadership on this issue.