Bill to Protect Whistle-blowers Against Retaliation

Whistle-blower protection legislation narrowly failed to pass in the year 2000 Legislative session. Senate Bill SB1512 was prepared by Sen. David Petersen (see photo) to strengthen employment rights for workers at the universities, community colleges and other public agencies who challenge betrayals of the public trust. The proposed legislation, the year 2000 Senate bill SB1512, can be seen at http://aaup-az.org or http://www.azleg.state.az.us/. The Attorney General’s Office has announced that it will work with Sen.Petersen to bring the proposed legislation into a form which they can support. Such support would probably insure passage of the legislation in the next session in year 2001.

Much of the language of the bill was provided by knowledgeable Phoenix employment attorney Tom Rogers (see photo), a former Chief Counsel for 8 years in the Attorney General’s Office. The language now closely follows Federal Whistle-blower Protection Act language, which has worked well at the Federal level. Washington D.C. attorney Tom Devine, who provided much of the wording for the Federal Whistle-blower Protection Act of 1989, worked with us to provide wording that closely follows the federal legislation. John McDonald, President of the AAUP at ASU (see photo) participated in supporting the bill in pre-legislative committee meetings, during which specific language was discussed.

The proposed legislation, as it stands now, closes many of the gaping loopholes in current state law protecting whistle-blowers. As can be seen from the boxed table on page 1, only 3.5% of whistle-blowers currently prevail when making formal complaints against reprisals during hearings in Arizona, due to these loopholes. These weak provisions are currently operative at the community colleges. Still weaker provisions, with more restrictive descriptions of what may be considered reprisals, a narrower list of what may be reported as wrongdoing, and very weak provision for appeal to any outside body characterize the almost totally ineffective provisions of the university whistle-blower protection policies (UA: <http://w3.arizona.edu/ policy/whistle.shtml>, ASU: <http://www.asu.edu/aad/manuals/acd/acd204-07.html>, NAU: <http://www2.nau.edu/provost/reference/facbook.html#_Toc459781316>). The proposed legislation still has an exemption for the universities, in order to accommodate policies on tenure and other special university needs, but in general requires that the universities meet the same better standards applied to all other public employees, including community college employees.

Whistleblower protection laws are unsurpassed in their potential for protecting the interests of taxpayers. That is because it is long recognized that lack of accountability and secrecy breeds abuses of power and corruption, while sunlight is the best disinfectant for those threats to the health of public institutions.

Some reasons the proposed legislation is an excellent shield for university and community college whistle-blowers are summarized below.

* University employees, for the first time, would have the right to have an arbitrator chosen by mutual consent, with power to make binding reversals of retaliation. In addition, they would have the right to be awarded legal fees and awards for pain and suffering, if retaliated against. University employees, also for the first time, would have the right to go to court for a trial on the facts of the case, not just a trial on whether procedures were violated during their internal hearing (their current "protection").

* "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.

* Coverage for confidential disclosures. By protecting oral disclosures, the bill encourages those who would otherwise remain silent. Currently, a community college employee or university employee, notifying a Dean or institution President of specific acts of gross mismanagement or gross waste of monies by verbal disclosure of the wrongdoing, can, under the current law, be terminated, subjected to suspension, re-assigned to disagreeable duties or other reprisal if the administrator finds the oral disclosure to be annoying or wishes to suppress the disclosure (the AAUP has received numerous reports of this happening at the community colleges and the universities).

* 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 is currently true at the Arizona community colleges and universities). 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 a much less expensive arbitrator selected through a 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.

* Realistic statute of limitations. No whistleblower law can be effective if employees are not aware of their rights until after the time to act has passed. This has been the Achilles heel for many state statutes. The bill wisely sets a one year statute of limitations (current Arizona law specifies 10 days).

* 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 or through arbitration.

* 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.