Section- by-section analysis of HB2695
This legislation modernizes Arizona’s whistleblower protection law for taxpayer supported
jobs, to eliminate confusion and achieve consistency with federal statutes already
affecting Arizona employees, as well as with consistent provisions in state laws
adopted since 1989. In response to an erosion of coverage under current administrative
decisions, it also closes loopholes in coverage so that the law can meet the legislative
intent of Arizona’s existing whistleblower law for state employees. The section by
section analysis follows.
Subsection 38-531 1 defines "contributing factor" as one in which protected activity
has a material impact on alleged harassment. It means that illegal retaliation cannot
be part of the equation for a lawful personnel action. It is identical with the term’s
meaning in the law for federal government employees since 1989, laws adopted since
then covering Arizona employees in the nuclear and airlines industries, and analogous
state/local statutes ranging from California to the District of Columbia.
Subsection 38-531 provides jurisdiction for former employees. This technical amendment
is necessary so that they can assert actions within the ten day statute of limitations
after losing their employment, and adopts the standard right in personnel laws to
challenge constructive discharge, or to seek benefits, challenge appraisals or other
discrimination that cause them indefinite, ongoing prejudice.
Subsection 38-531.4 outlaws discrimination, consistently with the scope of anti-discrimination
laws already independently applicable to all Arizona public and private employees.
It also prohibits common passive, as well as active reprisals, such as the failure
to appoint or promote which covers the most frequent blacklisting scenarios.
Subsection 38-531.5 defines protected activity as disclosures of misconduct specified
by nearly all whistleblower laws adopted since 1989, which also include refusal to
violate the law. Engaging in criminal or civil illegality may not be a prerequisite
for taxpayer-funded employment in Arizona. An employee who relies on the refusal
to violate the law provision proceeds at his or her own risk if wrong about perceived
illegality.
Subsection 38-351.6 adds county managers and supervisors, community college leadership
and state agency leadership to the list of public officials to whom a whistleblower
may make a protected disclosure. This is to facilitate the primary initial goal of
whistleblower laws -- protecting a leader’s right to know of problems and take advantage
of whistleblowers’ warnings to minimize adverse impacts before institutional management
is blamed for more serious consequences.
Section 38-532.A establishes that it is a prohibited personnel practice to take,
order or recommend a personnel action because the employee engaged in legally-protected
activity. Consistent with modern personnel statutes adopted since 1982, it prohibits
reprisal because employees are "about to" make disclosures. This is necessary to
ban the enforceability of gag orders that otherwise would shut off the flow of legally
protected activity. Jurisdictions also have consistently adopted this provision to
block reprisals through preemptive strikes that cancel the employee’s rights. That
type of discrimination can have the most severe chilling effect. An employee relying
on this provision has the heavy burden to prove the employer had actual or constructive
knowledge of an imminent, protected disclosure.
Section 38-532.A further establishes conformity with modern personnel law by protecting
whistleblowers who challenge agency violations of the institution’s own rules and
regulations, as well as substantial and specific danger to public health and safety.
Consistent with other laws, this means tangible defects or specifically-identified
flaws that could endanger the public, not abstract or hypothetical safety concerns.
An employee cannot make a protected disclosure of information whose release the legislature
has specifically barred through statute, but agencies may not cancel this statute
through adopting contradictory administrative bars.
Section 38.532.B provides that an employee can make protected disclosures whose public
release is banned by statute, through written statements or oral presentations directly
to relevant public officials. Again, it is consistent with the norm in whistleblower
laws that restrictions on public release should not obstruct law enforcement officers’
and government or legislative leaders’ right, and necessity, to know evidence of
crimes or other information threatening the taxpayers.
Sections 38.532.C and D requires oral disclosures to contain the necessary information
for public officials to act on misconduct directly or to follow through on valuable
preliminary information, if the employee wants to obtain whistleblower protection
for the oral briefing.
Section 38.532.E requires posting so employees will be aware of their rights and
responsibilities under this statute. The provision again is consistent with modern
personnel law, and with anti-discrimination laws already covering all Arizona employees.
Section 38-532.F triggers merit system accountability through establishing that adjudicated
violations of this law constitute failure of a critical element in performance appraisals
and associated disciplinary liability for those responsible for the illegality. It
replaces the current provision for financial penalties without any ongoing merit
system consequences for the wrongdoer.
Section 38-532.G provides for consistent remedies between all available forums for
whistleblowers who prevail under this statute. Relief may include a transfer preference
to prevent repetitive prohibited personnel practices, a frequent scenario for employees
who return to work for supervisors whom they just defeated in litigation.
Section 38-532.H also reflects the legal burdens of proof in all whistleblower statutes
since 1989. It clarifies that an employee may not prevail under this law if the employer
demonstrates that the employee did not comply with the legal requirements for protected
activity, or that the employer would have taken the same action for independent,
legitimate reasons in the absence of protected activity.
Section 38-532.K bans duplicative actions, requiring the employee to choose between
a personnel board, arbitrator or Superior Court to adjudicate rights provided by
this statute.
Section 38-532.L requires the allegedly aggrieved employee to act within ten working
days of the effective date for a challenged personnel action, or lose access to the
statute. This provision is significantly more expedited than under analogous laws
in other jurisdictions, where the statute of limitations commonly range from 30 days
to two years.
Section 38-532.M applies the standard burdens of proof defined in Section 38-531
to govern actions taken under the statute. It should be read in conjunction with
the employer’s defenses under Section 38-532.H.
Section 38-532.Q establishes full liability under the law against those who attempt
to exploit this statute by asserting their rights through knowingly false statements.
Section 38-532.R is a technical provision clarifying that rights, remedies and responsibilities
of this legislation are additive to, not substitutive for other non-conflicting provisions
in Arizona law.
Section 41-785 conforms this statute to existing rules of the personnel board, establishing
that violation of this law is an affirmative defense in employee appeals, that affected
Superior Court decisions are still eligible for appellate review, and that aggrieved
employees may hire counsel or represent themselves.