March 12, 2001

 

All three groups -- university employees, community college employees, and public agency employees and their supporters --  need to write short or long e-mails to every member of the House (addresses given below), right now, to promote passage of HB2561 (See the language of HB2561, and what it does, on our webpage <http://aaupaz.org/WBP.htm>) .  Sample letters are also given on our webpage.

 

HB2561 can really prevent waste, fraud of abuse of authority in public agencies by giving real protection to whistle-blowers. HB2561, for the first time, will provide for:

 

1)  objective, independent decision-makers free from conflict of interest, including arbitrators, chosen by the whistle-blower and administration, with mutual agreement (and not just a board chosen by the administration, or the Governor, which is intrinsically biased).

 

2) a standard where reprisals can be reversed if a disclosure (or whistle-blowing) is a contributing factor to an adverse personnel action. Under the current law, the adverse personnel action must be "as a result of" whistle-blowing, and this is an impossible standard to prove. 

 

3) no-loopholes coverage, and includes all types of negative personnel actions, not those limited by the list in current law.

 

4) allows protection for oral disclosure to upper level management, rather only protection if  the cumbersome written report is given to a select group of individuals.

 

These provisions will allow us to protect the public expenditure of monies, and the missions of our agencies, without ourselves getting terminated.  HB2561 was written by the foremost expert on whistle-blower provisions in the United States, attorney Tom Devine.

 

Other protections provided are summarized, on our "Fact sheet on HB2561" on our webpage <http://aaupaz.org/WBP.htm>

 

Please e-mail every member of the House of Representatives, even if you have already e-mailed them before (though it will help to send a different message on subsequent e-mails (see e-mail addresses below)!!  Legislators tend to count "number of messages received" in addition to reading a sample of them.

 

Our bill, HB2561, to protect community college and public agency whistle-blowers (and to  indirectly, but strongly, protect university employees) has now passed its two committees in the House, two of the major barriers to getting it adopted into law!!!

 

Although HB2561 is directed at protecting whistle-blowers among community college and public agency employees, it is also very important to university employees.  Legislators have told members of the Arizona Board of Regents that if they fail to adopt a similar credible internal whistle-blower policy, with real teeth in it, then next year the legislature will pass a bill to control the university policy.   I addressed the Arizona Board of Regents on March 2, listing the important defects in their new policy (See a list of all defects on our webpage <http://aaupaz.org/WBP.htm>) .  The response I got indicated that only if HB2561 was passed into law, only then would the Regents improve their policy.  But if we don't get HB2561 passed, university employees would continue to have no protection!!  (At the bottom of this message, I give the talk I presented at the ABOR meeting, outlining the most important faults of the ABOR policy.)

 

(1) Now the bill goes to the House Rules Committee, as soon as that overloaded committee has a chance to get to it. 

 

(2) After that, HB2561 will go to the Democratic and Republican caucuses for discussion and recommended positive or negative vote.

 

(3)  Then Committee of the Whole (COW) for a voice vote to adopt or fail the bill.

 

(4)  Finally, it will go to "Third Reading" in the House for a recorded vote that will pass it in the House, or let it fail for the year.

 

After that, HB2561 will go to the Senate for the sequence of Committee, caucus, COW, Final Reading and Vote, followed by going to the Governor for signing or veto..

 

Those who lobbied by e-mail, phone calls and faxes deserve a lot of credit for getting the bill to have further progress!!!  Both Representative Carmine Cardamone (who has put large amounts of energy into lobbying his colleagues on the bill) and Representative Randy Graf (the Primary sponsor, who has been doing the crucial negotiations on the bill in the House) told us that they were both receiving a very large number of e-mails supporting HB2561.  Just as we were standing in Rep. Cardamone's office, talking to him and Rep. Graf, 3 e-mails supporting HB2561 came in to Rep. Cardamone's computer.

 

Here is the list of Representatives in the House.

 

Rep. Carolyn Allen <callen@azleg.state.az.us>

Rep. Mark Anderson <manderso@azleg.state.az.us>

Rep. Carlos Avelar <cavelar@azleg.state.az.us>

Rep. Linda Binder <lbinder@azleg.state.az.us>

Rep. Robert Blendu <rblendu@azleg.state.az.us>

Rep. Debra Brimhall <dbrimhal@azleg.state.az.us>

Rep. Bill Brotherton <bbrother@azleg.state.az.us>

Rep. Meg Burton Cahill <mbcahill@azleg.state.az.us>

Rep. Henry Camarot <hcamarot@azleg.state.az.us>

Rep.Robert Cannell <rcannell@azleg.state.az.us>

Rep. Carmine Cardamone <ccardamo@azleg.state.az.us>

Rep. Ted Carpenter <tcarpent@azleg.state.az.us>

Rep. Jim Carruthers <jcarruth@azleg.state.az.us>

Rep. Cheryl Chase <cchase@azleg.state.az.us>

Rep. Ken Cheuvront <kcheuvro@azleg.state.az.us>

Rep. Mark Clark <mclark@azleg.state.az.us>

Rep. Dean Cooley <dcooley@azleg.state.az.us>

Rep. Eddie Farnsworth <efarnswo@azleg.state.az.us>

Rep. Jake Flake <jflake@azleg.state.az.us>

Rep. Kathi Foster <kfoster@azleg.state.az.us>

Rep. Gabrielle Giffords <ggifford@azleg.state.az.us>

Rep. Lowell "Mike" Gleason <lgleason@azleg.state.az.us>

Rep. Randy Graf  <rgraf@azleg.state.az.us>

Rep. Linda Gray <lgray@azleg.state.az.us>

Rep. Deb Gullett <dgullett@azleg.state.az.us>          

Rep. Phil Hanson <phanson@azleg.state.az.us>

Rep. Jeff Hatch-Miller <jhatch@azleg.state.az.us>

Rep. Pete Hershberger <phershbe@azleg.state.az.us>

Rep. Steve Huffman <shuffman@azleg.state.az.us >

Rep. John Huppenthal <jhuppent@azleg.state.az.us>

Rep. Marilyn Jarrett <mjarrett@azleg.state.az.us>

Rep. Karen Johnson <kjohnson@azleg.state.az.us>

Rep. Laura Knaperek <knaperek@azleg.state.az.us>

Rep. James Kraft <jkraft@azleg.state.az.us>

Rep. Leah Landrum <llandrum@azleg.state.az.us>

Rep. Sylvia Laughter <laughter@azleg.state.az.us>

Rep. Barbara Leff <bleff@azleg.state.az.us>

Rep. Linda Lopez <llopez@azleg.state.az.us>

Rep. John Loredo <jloredo@azleg.state.az.us>

Rep. Bobby Lugo <blugo@azleg.state.az.us>

Rep. Mark Maiorana <mmaioran@azleg.state.az.us>

Rep. Wes Marsh <wmarsh@azleg.state.az.us>

Rep. Steve May <smay@azleg.state.az.us>

Rep. Marian McClure <mmcclure@azleg.state.az.us>

Rep. Richard Miranda <rmiranda@azleg.state.az.us>

Rep. John Nelson <jnelson@azleg.state.az.us>

Rep. Debora Norris <dnorris@azleg.state.az.us>

Rep. Tom O'Halleran <tohaller@azleg.state.az.us>

Rep. Russell Pearce <rpearce@azleg.state.az.us>

Rep. Marion Pickens <mpickens@azleg.state.az.us>

Rep. Edward Poelstra <epoelstr@azleg.state.az.us>

Rep. Robert Robson <rrobson@azleg.state.az.us>

Rep. James "Jim" Sedillo <jsedillo@azleg.state.az.us>

Rep. Victor Soltero <vsoltero@azleg.state.az.us>

Rep. Carol Somers <csomers@azleg.state.az.us>

Rep. Albert Tom <atom@azleg.state.az.us>

Rep. Steve Tully <stully@azleg.state.az.us>

Rep. Roberta Voss <rvoss@azleg.state.az.us>

Rep. Christine Weason <cweason@azleg.state.az.us>

Rep. Jim Weiers <jweiers@azleg.state.az.us>

 

Here is the short talk I gave to the Arizona Board of Regents

 

 

Arizona Board of Regents  Call to the Audience Friday, March 2, 2001

 

 

I am Carol Bernstein, PhD, President of AAUP AZ Conf. 

 

I ask you to delay the proposed ABOR Whistle-blower Protection Policy, so that you can add necessary elements to it.

 

Your new whistle-blower policy can do one of two things.  (1) It can help expose waste, fraud and abuse of authority, and thereby promote the mission of the universities.  (2) It can make it easy for the lawyers of the universities to carry out one of their major functions, protecting administrators. Your policy favors (2), not (1).

 

The 5 most important of the 19 elements (which I’ve included in my handout) needing correction in the ABOR whistle-blower policy are:

 

1)  The ABOR policy does not provide for objective, independent decision-makers free from conflict of interest.  While the ABOR policy does provide for arbitrators, the only arbitrators allowed are those paid by the administration side.  Arbitrators paid by one side are intrinsically biased. 

 

2)  The administration alone decides if an employee claiming whistle blower reprisal deserves to be able to go to an arbitrator. A university employee should be able to go to an independent arbitrator, chosen by mutual consent of the two parties, and the decision to go to arbitration should be entirely up to the employee.  The cost of an arbitrator will prevent frivolous use of such a policy.

 

3) The ABOR policy does not guarantee due process for a fair hearing.  Section 6-914.J.4 cancels the rules of evidence and procedure that govern credible proceedings. 

 

4) Under the ABOR policy, the hearing officer must decide whether the adverse personnel action was or was not based on a prior disclosure.  This standard, in practice, is unprovable.  In fact, this standard was abused  in the NAU case of Dr. Amy Brown, where the Department Chair admitted that his termination of Dr. Brown was because of her whistle-blowing on his misuse of the $1.6 million Cowden fund, but he also said that he was prejudiced against women faculty members.  Since there were two reasons for the termination of Dr. brown, the NAU President ruled that the termination of Dr. Brown was not a reprisal for whistle-blowing.  The proper level of proof is whether a disclosure (or whistle-blowing) is a contributing factor to an adverse personnel action. 

 

 5) The ABOR policy lacks a provision allowing compensation for all costs of an employee who has proven improper reprisals after making a disclosure.  State employees, by contrast, can recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal and thus can be “made whole,” rather than face bankruptcy from legal fees, when they prevail in a hearing.

 

Please delay your endorsement of the whistle-blower policy until you can add essential protections to it.

 

Thanks,

Carol Bernstein, PhD

President, AAUP AZ Conference

1-800-204-3695