"HB2561 public employees; information disclosure"
This is the good, AAUP language bill, for 2001, to support whistle-
New language to be added to the law shown in ALL CAPS
Language to be removed shown by [square brackets]
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¦ REFERENCE TITLE: public employees; information disclosure ¦
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¦ State of Arizona ¦
¦ House of Representatives ¦
¦ Forty-
¦ First Regular Session ¦
¦ 2001 ¦
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¦ HB 2561 ¦
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¦ Introduced by ¦
¦ Representatives Graf, Brimhall, Laughter, Cardamone: Carpenter, Gray, Gullett, Johnson, ¦
¦ Loredo, Marsh, McClure, O'Halleran, Pearce, Poelstra, Robson, Somers ¦
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AN ACT
AMENDING SECTIONS 38-
TITLE 38, CHAPTER 3, ARTICLE 9, ARIZONA REVISED STATUTES, BY ADDING SECTION
38-
Be it enacted by the Legislature of the State of Arizona:
Section 1. Legislative findings and purpose
Consistent with the federal code of ethics for government service and the code of ethics for state service, the
legislature finds and declares that state employees have a duty to lawfully report fraud or other violations of
law, waste, mismanagement, abuse of authority or other violations of the public trust, and the right to act on
that duty without fear of retribution. The legislature further finds and declares that public servants best serve
the public interest when they can be candid and honest without reservation in conducting the public's business.
Sec. 2. Section 38-
38-
In this article, unless the context otherwise requires:
1. "CONTRIBUTING FACTOR" MEANS ANY FACTOR THAT, ALONE OR IN CONNECTION
WITH OTHER FACTORS, TENDS TO AFFECT IN ANY WAY THE OUTCOME.
[1.] 2. "Employee" means AN APPLICANT FOR A POSITION OR an officer or employee of this state or
any of its departments, commissions, agencies or boards. Employee includes employees and officers of
community college districts, school districts and counties of this state but does not include officers or
employees of a municipal corporation established for the purpose of reclamation and distribution of water and
the generation of electricity.
[2.] 3. "Former employee" means an employee who was dismissed OR IS OTHERWISE NO LONGER
SERVING AS AN EMPLOYEE. FORMER EMPLOYEES, INCLUDING VOLUNTARILY RETIRED
ANNUITANTS, ARE COVERED BY THIS ARTICLE.
[3.] 4. "Personnel action" means TO RECOMMEND, TAKE OR FAIL TO TAKE, OR THREATEN TO
TAKE OR FAIL TO TAKE, ANY DISCRIMINATORY ACTION, INCLUDING:
(a) Appointment.
(b) Promotion.
(c) Disciplinary or corrective action.
(d) Detail, transfer or reassignment.
(e) Suspension, demotion or dismissal.
(f) Reinstatement.
(g) Restoration.
(h) Reemployment.
(i) Performance evaluation.
(j) Decision concerning pay, benefits or awards.
(k) Elimination of the employee's position without a reduction in force by reason of lack of monies or work.
(l) Other significant change in duties, or responsibilities OR WORKING CONDITIONS which is inconsistent
with the employee's salary or grade level.
(m) ACCOMMODATION FOR HEALTH OR DISABILITY NEEDS, INCLUDING VOLUNTARY OR
INVOLUNTARY PSYCHIATRIC EXAMINATION OR COUNSELING.
(n) IMPROPER, UNJUSTIFIED, EXCESSIVE OR EXTRAORDINARY INVESTIGATIONS OR
EVALUATIONS.
(o) IMPLEMENTATION OR ENFORCEMENT OF ANY NONDISCLOSURE POLICY, FORM OR
AGREEMENT FOR ANY RESTRICTIONS ON DISCLOSURES THAT ARE INCONSISTENT WITH,
CONFLICT WITH, SUPERSEDE OR ALTER THE DEFINITIONS, REQUIREMENTS, RIGHTS,
OBLIGATIONS, SANCTIONS OR LIABILITIES OF THIS ARTICLE.
5. "PROTECTED WHISTLE-
A PROHIBITED PERSONNEL PRACTICE TO DISCRIMINATE OR OTHERWISE RETALIATE
UNDER THIS ARTICLE, INCLUDING ANY COMMUNICATION OF INFORMATION COVERED
BY SECTION 38-
[4.] 6. "Public body" means ANY OF THE FOLLOWING:
(a) The attorney general. [,]
(b) The legislature. [,]
(c) The governor. [,]
(d) A federal, state or local law enforcement agency. [,]
(e) The county attorney. [,]
(f) The governing board of a community college district or school district. [, the]
(g) A COUNTY, ITS MANAGERS OR ITS board of supervisors. [of a county or an agency director.]
(h) A DEAN, PRESIDENT OR CHANCELLOR OF A COMMUNITY COLLEGE OR UNIVERSITY.
(i) A DIRECTOR, DEPUTY DIRECTOR, ASSISTANT DIRECTOR OR SIMILAR UPPER
MANAGEMENT PERSONNEL OF AN EMPLOYING AGENCY OF THIS STATE OR ANY OF ITS
DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS.
7. "REASONABLE BELIEF" MEANS AN OBJECTIVE STANDARD THAT DOES NOT REQUIRE
THE EMPLOYEE TO PROVE THE REPORTED MISCONDUCT ACTUALLY OCCURRED BUT
CONSISTS OF SUFFICIENT INFORMATION UNDER THE CIRCUMSTANCES FOR THE
EMPLOYEE TO CONCLUDE IN GOOD FAITH IT IS MATERIAL, RELEVANT EVIDENCE THAT
THE SPECIFIED MISCONDUCT COULD HAVE OCCURRED. A REASONABLE GOOD FAITH
BELIEF EXISTS PER SE IF THE INFORMATION IS BASED ON THE EMPLOYEE'S EXPERTISE
AND PERSONAL KNOWLEDGE, IS SUPPORTED BY THE VIEWS OF SIMILARLY SITUATED
EMPLOYEES OR OUTSIDE EXPERTS, RESULTS IN GOVERNMENT FACT-
PROCEEDINGS OR IS THE SUBJECT OF INDEPENDENT ANALYSIS CONSISTENT WITH THIS
DEFINITION.
[5.] 8. "Reprisal" means to take a personnel action the result of which is adverse to an employee BECAUSE
OF PROTECTED ACTIVITY UNDER THIS ARTICLE.
Sec. 3. Section 38-
38-
A. It is a prohibited personnel practice for THIS STATE OR ANY OF ITS DEPARTMENTS,
COMMISSIONS, AGENCIES OR BOARDS, COMMUNITY COLLEGE DISTRICTS, SCHOOL
DISTRICTS, COUNTIES OR an employee who has [control over] AUTHORITY TO TAKE, DIRECT
OTHERS TO TAKE, RECOMMEND, APPROVE OR IMPROPERLY INFLUENCE personnel actions to
take reprisal against an employee [for a disclosure of ] BECAUSE THE EMPLOYEE REFUSES TO
COMPLY WITH AN ILLEGAL ORDER OR MAKES ANY DISCLOSURE, IS PERCEIVED TO HAVE
MADE ANY DISCLOSURE OR IS ABOUT TO DISCLOSE OR MAY DISCLOSE ANY information of
a matter of public concern by the employee THAT IS NOT SPECIFICALLY PROHIBITED BY
STATUTE to a public body which the employee reasonably believes evidences:
1. A violation of any law, RULE OR REGULATION.
2. Mismanagement, a gross waste of monies, or an abuse of authority OR A SUBSTANTIAL AND
SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY.
B. IF DISCLOSURE TO THE PUBLIC IS SPECIFICALLY PROHIBITED BY STATUTE, the disclosure
by an employee to a public body alleging a violation of law, RULE OR REGULATION, mismanagement,
gross waste of monies, or abuse of authority OR A SUBSTANTIAL AND SPECIFIC DANGER TO
PUBLIC HEALTH OR SAFETY shall be in writing [and shall] OR AS AUTHORIZED BY STATUTE. A
DISCLOSURE NOT PROHIBITED BY STATUTE MAY BE IN WRITING OR MAY BE IN ORAL
STATEMENTS MADE DIRECTLY TO AND NOT MERELY IN THE PRESENCE OF A PUBLIC
BODY OR OFFICER ACTING IN THE PUBLIC BODY'S OR OFFICER'S OFFICIAL CAPACITY OR
AT A PUBLIC HEARING OR PROCEEDING. IF THE PUBLIC BODY OR OFFICER TO WHOM
THE ORAL DISCLOSURE IS MADE REQUESTS THE EMPLOYEE TO SUBMIT A WRITTEN
SUMMARY OF THE ORAL DISCLOSURE, THE EMPLOYEE SHALL SUBMIT A WRITTEN
SUMMARY OF THE ORAL DISCLOSURE WITHIN THIRTY DAYS AFTER THE DATE OF THE
ORAL DISCLOSURE. AN ORAL DISCLOSURE THAT IS CONTAINED IN A RECORDED
TRANSCRIPT OF STATEMENTS MADE AT A PUBLIC HEARING OR OPEN MEETING OR
EXECUTIVE SESSION HELD BY A PUBLIC BODY OR OFFICER CONSTITUTES A WRITTEN
DISCLOSURE UNDER THIS SUBSECTION.
C. A DISCLOSURE UNDER THIS SECTION SHOULD contain the following information:
1. The date of the disclosure.
2. The name of the employee making the disclosure.
3. The nature of the alleged violation of law, mismanagement, gross waste of monies or abuse of authority.
4. If possible, the date or range of dates on which the alleged violation of law, mismanagement, gross waste of
monies or abuse of authority occurred.
[C. An employee who knowingly commits a prohibited personnel practice shall be ordered by the state
personnel board, a community college district governing board, a school district governing board or other
appropriate independent personnel board established or authorized pursuant to section
38-
civil penalty of up to five thousand dollars to the state general fund, a county general fund, a community
college district unrestricted general fund or a school district maintenance and operation fund, whichever is
appropriate. The employee who committed the prohibited personnel practice, not the governmental entity,
shall pay the civil penalty. Upon a finding that an employee committed a prohibited personnel practice, the
employer shall take appropriate disciplinary action including dismissal.]
D. FAILURE TO PROVIDE ALL OF THE INFORMATION PRESCRIBED IN SUBSECTION B OR C
OF THIS SECTION DOES NOT DISQUALIFY AN EMPLOYEE OR FORMER EMPLOYEE FROM
THE PROTECTIONS PROVIDED BY THIS ARTICLE IF, ON REQUEST, THE EMPLOYEE OR
FORMER EMPLOYEE PROVIDES SUFFICIENT INFORMATION TO ALLOW A PUBLIC BODY
OR OFFICER TO ASCERTAIN THE INFORMATION PRESCRIBED IN SUBSECTION C OF THIS
SECTION.
E. COMPLIANCE WITH THIS ARTICLE SHALL BE A CRITICAL ELEMENT IN THE
PERFORMANCE STANDARDS FOR ANY OFFICIAL WITH AUTHORITY TO TAKE OR
RECOMMEND A PERSONNEL ACTION. ON A FINDING BY A COURT, THE STATE
PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL
DISTRICT GOVERNING BOARD OR AN APPROPRIATE INDEPENDENT PERSONNEL BOARD
ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
ACTIVITY WAS A CONTRIBUTING FACTOR IN THE PERSONNEL ACTION, THAT BODY
SHALL REFER THE FINDING FOR INVESTIGATION OF APPROPRIATE DISCIPLINARY
ACTION BY THE EMPLOYER.
[D.] F. An employee or former employee against whom a prohibited personnel practice is committed may
recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal
OR ANY RELIEF NECESSARY, INCLUDING INTERIM RELIEF PENDING ANY APPEAL, TO
ALLEVIATE ANY CONSEQUENCES resulting from the prohibited personnel practice as determined by
the court OR OTHER FORUM SPECIFIED IN SUBSECTION J OF THIS SECTION. RELIEF
ORDERED BY THE COURT OR OTHER FORUM MAY INCLUDE PREFERENCE FOR TRANSFER
TO AN AVAILABLE OR THE NEXT AVAILABLE AGENCY POSITION OF THE SAME STATUS
AND TENURE CHOSEN AND VOLUNTARILY APPLIED FOR BY THE EMPLOYEE WHO HAS
PREVAILED.
[E.] G. An employee, [does] THIS STATE OR ANY OF ITS DEPARTMENTS, COMMISSIONS,
AGENCIES OR BOARDS, COMMUNITY COLLEGE DISTRICTS, SCHOOL DISTRICTS OR
COUNTIES DO not commit a prohibited personnel practice if [he takes] THE EMPLOYEE, THIS STATE
OR ANY OF ITS DEPARTMENTS, COMMISSIONS, AGENCIES OR BOARDS, COMMUNITY
COLLEGE DISTRICTS, SCHOOL DISTRICTS OR COUNTIES TAKE reprisal against [an] ANOTHER
employee [if that] FOR ANY OF THE FOLLOWING REASONS:
1. THE employee discloses information in a manner prohibited by [law] STATUTE. [or]
2. The [materials] DISCLOSED MATERIAL or information [are] IS prescribed as confidential by law
STATUTE UNLESS DISCLOSED AS PROVIDED IN SUBSECTION B OF THIS SECTION.
3. BASED ON A FINDING BY CLEAR AND CONVINCING EVIDENCE THAT THE PERSONNEL
ACTION WAS TAKEN BECAUSE OF LEGITIMATE NONDISCRIMINATORY REASONS THAT
ARE NOT RELATED TO THE DISCLOSURE.
[F.] H. This section may not be used as a defense in a disciplinary action where the employee is being
disciplined for cause pursuant to section 41-
section by an employee or former employee who believes [he] THE EMPLOYEE OR FORMER
EMPLOYEE has been the subject of a prohibited personnel practice as prescribed in this section as the result
of a disclosure of information AS PROVIDED IN THIS ARTICLE.
[G.] I. On request or at any time an employee alleges reprisal, an employer shall provide an employee who is
subject to disciplinary or corrective action, suspension, demotion or dismissal with a copy of this section. AN
EMPLOYER SHALL COMPENSATE THE EMPLOYEE AS REGULAR WORK TIME FOR TIME
REASONABLY SPENT REPORTING, RESPONDING TO ANY INVESTIGATION OR INQUIRY OR
PREPARING FOR AND ATTENDING ANY PROCEEDING PURSUANT TO THIS ARTICLE. A
FORMER EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR TIME SPENT AFTER
TERMINATION OF EMPLOYMENT IN RESPONDING TO ANY INVESTIGATION OR INQUIRY
OR PREPARING FOR OR ATTENDING ANY PROCEEDING PURSUANT TO THIS ARTICLE
UNLESS THERE IS A DETERMINATION THAT THE FORMER EMPLOYEE WAS SUBJECT TO
PROHIBITED RETALIATION.
[H.] J. If an employee or former employee believes that a personnel action taken against [him] THE
EMPLOYEE OR FORMER EMPLOYEE is the result of his THE EMPLOYEE'S OR FORMER
EMPLOYEE'S disclosure of information under this section, [he] THE EMPLOYEE OR FORMER
EMPLOYEE may make a complaint, AS APPLICABLE, to ONE OF THE FOLLOWING:
1. THE STATE PERSONNEL BOARD.
2. An appropriate independent personnel board, if one is established or authorized
pursuant to section 38-
or to a community college district governing board or A school district governing board. If an independent
personnel board has not been established or authorized, or if a school district governing board or a community
college district governing board does not hear and decide personnel matters brought pursuant to this section,
the employee or former employee may make a complaint to the state personnel board.
3. A COURT PURSUANT TO SUBSECTION E OR N OF THIS SECTION.
4. AN ARBITRATOR SELECTED BY MUTUAL CONSENT.
K. A complaint made pursuant to this subsection J OF THIS SECTION shall be made within [ten days] ONE
YEAR of the effective date of the PERSONNEL action taken against [him] THE EMPLOYEE OR FORMER
EMPLOYEE. EXCEPT FOR AN ACTION FOR INJUNCTIVE RELIEF PURSUANT TO
SUBSECTION N OF THIS SECTION THAT MAY BE FILED AT ANY TIME, AN ACTION FILED
WITH THE COURT PURSUANT TO THIS SECTION SHALL COMPLY WITH SECTION 12-
THE COURT, PURSUANT TO ITS RULES, OR the state personnel board, a school district governing
board, a community college governing board or [other] AN appropriate independent personnel board
ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
governing appeals under section 41-
1. The validity of the complaint.
2. Whether a prohibited personnel practice was committed against the employee or former employee as a
result of disclosure of information by the employee or former employee OR WHETHER THE
DISCLOSURE WAS A CONTRIBUTING FACTOR IN THE DECISION TO TAKE A PROHIBITED
PERSONNEL ACTION AGAINST THE EMPLOYEE OR FORMER EMPLOYEE.
[I.] L. If the state personnel board, a community college district governing board, a school district governing
board or [other] AN appropriate independent personnel board established or authorized pursuant to section
38-
by the employee or former employee OR THE DISCLOSURE WAS A CONTRIBUTING FACTOR IN
THE DECISION TO TAKE A PROHIBITED PERSONNEL ACTION AGAINST THE EMPLOYEE OR
FORMER EMPLOYEE, it shall rescind the personnel action and order that all lost pay and benefits be
returned to the employee or former employee AND COSTS AND ATTORNEY FEES AND ANY OTHER
RELIEF PROVIDED BY SUBSECTION F OF THIS SECTION. The employee[,] OR former employee,
[employee alleged to have committed a prohibited personnel practice pursuant to subsection A of this
section] AGAINST WHOM A PROHIBITED PERSONNEL ACTION IS ALLEGED TO HAVE BEEN
TAKEN or THE employer may appeal the decision of the state personnel board, a community college district
governing board, a school district governing board or [other] AN appropriate independent personnel board
established or authorized pursuant to section 38-
title 12, chapter 7, article 6. Notwithstanding section 12-
subsection shall be tried de novo.
[J.] M. For purposes of a hearing by the state personnel board, a school district governing board, a community
college district governing board or [other] AN appropriate independent personnel board ESTABLISHED OR
AUTHORIZED PURSUANT TO SECTION 38-
employee, employee alleged to have committed the prohibited personnel practice pursuant to subsection A of
this section and employer may be represented by counsel. [In addition, representation by counsel in such
hearings shall meet any other requirements stipulated by the state personnel board, a school district
governing board, a community college district governing board or other appropriate independent personnel
board or as required by law.] NO LATER THAN MARCH 1, 2001, THE STATE PERSONNEL BOARD,
EACH COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, EACH SCHOOL DISTRICT
GOVERNING BOARD AND EACH APPROPRIATE INDEPENDENT PERSONNEL BOARD
ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
GOVERNING PROCEDURES PURSUANT TO THIS ARTICLE. THE RULES SHALL NOT
DIMINISH ANY RIGHTS ESTABLISHED BY TITLE 41, CHAPTER 6, ARTICLE 6 AND SHALL
INCLUDE THE FOLLOWING:
1. THE RIGHT TO PREHEARING DISCOVERY.
2. THE RIGHT TO AMEND A COMPLAINT.
3. THE RIGHT TO JOIN SUBSEQUENT ALLEGATIONS OF REPRISAL.
4. A PROVISION THAT REQUIRES, IF AN EMPLOYEE OR FORMER EMPLOYEE REQUESTS,
THAT ANY HEARING OF A PERSONNEL ACTION THAT IS SUBJECT TO APPEAL OR REVIEW
SEPARATE FROM A COMPLAINT PURSUANT TO SUBSECTION J OF THIS SECTION SHALL BE
COMBINED OR JOINED WITH THE HEARING CONDUCTED PURSUANT TO THIS ARTICLE.
[K.] N. An employee or former employee may also seek injunctive relief as is otherwise available in civil
actions. AN EMPLOYEE OR FORMER EMPLOYEE WHO FIRST MAKES A COMPLAINT TO THE
STATE PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A
SCHOOL DISTRICT GOVERNING BOARD OR AN APPROPRIATE INDEPENDENT PERSONNEL
BOARD ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
ACTION WITH THE SUPERIOR COURT TO ENFORCE REMEDIES PRESCRIBED PURSUANT TO
SUBSECTION F OF THIS SECTION WITHIN ONE YEAR AFTER THE FINAL DECISION OF THE
STATE PERSONNEL BOARD, THE COMMUNITY COLLEGE DISTRICT GOVERNING BOARD,
THE SCHOOL DISTRICT GOVERNING BOARD OR THE APPROPRIATE INDEPENDENT
PERSONNEL BOARD ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
[L.] O. This section shall not be construed to limit or extend the civil or criminal liability of an employee or
former employee for any disclosure of information or to limit an employee's right to a separate pretermination
hearing with the employee's employer, as provided by law.
[M.] P. [An employee who knowingly makes] ON A FINDING BY THE COURT OR THE STATE
PERSONNEL BOARD, A COMMUNITY COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL
DISTRICT GOVERNING BOARD OR AN APPROPRIATE INDEPENDENT PERSONNEL BOARD
ESTABLISHED OR AUTHORIZED PURSUANT TO SECTION 38-
FORMER EMPLOYEE KNOWINGLY MADE a false accusation that a public officer or employee who
has control over personnel actions has engaged in a violation of any law, mismanagement, a gross waste of
monies or an abuse of authority. [is personally subject to a civil penalty of up
to twenty-
and dismissal from employment by the employer.] THE EMPLOYER MAY TAKE APPROPRIATE
PERSONNEL ACTION.
Q. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO, AND ARE NOT LIMITED BY,
ANY OTHER LAW THAT PROTECT EMPLOYEES WHO DISCLOSE INFORMATION. NOTHING
IN SECTION 23-
THIS ARTICLE BEFORE A COURT OR THE STATE PERSONNEL BOARD, A COMMUNITY
COLLEGE DISTRICT GOVERNING BOARD, A SCHOOL DISTRICT GOVERNING BOARD OR AN
APPROPRIATE INDEPENDENT PERSONNEL BOARD ESTABLISHED OR AUTHORIZED
PURSUANT TO SECTION 38-
OTHER LAW THAT PROTECTS EMPLOYEES WHO DISCLOSE INFORMATION.
Sec. 4. Title 38, chapter 3, article 9, Arizona Revised Statutes, is amended by adding
section 38-
38-
THIS ARTICLE SHALL BE INTERPRETED WHEREVER POSSIBLE TO BE CONSISTENT WITH
INTERPRETATION OF ARIZONA STATUTES AND PRECEDENTS GOVERNING EMPLOYEES,
INCLUDING THE PROHIBITION ON INSUBORDINATE CONDUCT, THE FEDERAL CIVIL
SERVICE REFORM ACT (PUBLIC LAW 95-
SECTIONS OF 5 UNITED STATES CODE)), THE FEDERAL MERIT SYSTEM PRINCIPLES (5
UNITED STATES CODE SECTION 2301) AND THE FEDERAL WHISTLEBLOWER PROTECTION
ACT (5 UNITED STATES CODE SECTIONS 1201 ET SEQ., 1221(e)(1) AND 2302(b)(8)) AND SHALL
BE LIBERALLY CONSTRUED TO ACCOMPLISH ITS PURPOSE AND TO PROMOTE JUSTICE.
ANY NONDISCLOSURE POLICY, FORM OR AGREEMENT IS VOID TO THE EXTENT THAT IT
IS INCONSISTENT WITH, SUPERSEDES, CONFLICTS WITH OR OTHERWISE ALTERS THE
DEFINITIONS, REQUIREMENTS, OBLIGATIONS, RIGHTS, SANCTIONS AND LIABILITIES IN
THIS ARTICLE, WHICH ARE CONTROLLING.
Sec. 5. Section 41-
41-
A. Any employee who has completed the employee's original probationary period of service as provided by
the personnel rules may appeal to the personnel board seeking relief from dismissal from state service,
suspension for more than forty working hours or demotion resulting from disciplinary action. The appeal shall
be filed not later than [ten working] THIRTY days after the effective date of such action. The employee shall
be furnished with specified charges in writing when the action is taken. Such appeal shall be in writing and
must state specific facts relating directly to the charges on which the appeal is based and shall be heard by the
personnel board within thirty days after its receipt. The personnel board shall provide the employing agency
with a copy of the appeal not less than twenty days in advance of the hearing.
B. Hearings on such appeals shall be open to the public, except in cases where the employee requests a
confidential hearing, and shall be informal with technical rules of evidence not applying to the proceedings
except the rule of privilege recognized by law. Both the employee and the employing agency shall be notified
of any hearing or meeting date not less than twenty days in advance of the hearing or not less than ten days in
advance of a meeting and may select representatives of their choosing, present and
cross-
and give evidence before the personnel board. The personnel board may appoint a hearing officer to conduct
the hearing and take evidence on behalf of the board and exercise the rights prescribed
by section 12-
The personnel board shall prepare an official record of the hearing, including all testimony recorded manually
or by mechanical device, and exhibits. Either party may request that the record be transcribed. If a party
requests that the record be transcribed, an entity, other than the personnel board, selected by the requesting
party shall transcribe the record at the cost of the requesting party. If the disciplinary hearing would involve
evidence the state is prevented by law from disclosing, then a confidential hearing upon the state's request
shall be granted.
C. The board may reverse an agency's action on appeal only if the board finds the action to be arbitrary,
capricious or otherwise contrary to law.
D. The board may reduce the disciplinary penalty chosen by an agency only if the board finds the penalty to
be excessive or made for reasons that are arbitrary, capricious or otherwise contrary to law.
E. Within forty-
same time send a copy of the decision by certified mail to the employing agency and to the employee at the
employee's address as given at the hearing or to a representative designated by the employee to receive a
copy of the decision.
F. Any party may appeal the decision of the board pursuant to title 12, chapter 7, article 6 to the superior court
in the employee's county of residence on one or more of the following grounds, that the order was:
1. Founded on or contained error of law which shall specifically include error of construction or application of
any pertinent rules.
2. Unsupported by any evidence as disclosed by the entire record.
3. Materially affected by unlawful procedure.
4. Based on violation of any constitutional provision.
5. Arbitrary or capricious.
6. THE RESULT OF A PROHIBITED PERSONNEL PRACTICE.
G. AN appeal shall be available to the court of appeals from the order of the superior court pursuant to title
12, chapter 7, article 6 as in other civil cases.
H. An employee may represent himself or designate a representative, not necessarily an attorney, before any
board hearing or any quasi-
for any services rendered in connection with such hearing by any such designated representative who is not
an attorney admitted to practice.
I. THIS ARTICLE SHALL BE INTERPRETED WHEREVER POSSIBLE TO BE CONSISTENT WITH
INTERPRETATION OF THE FEDERAL CIVIL SERVICE REFORM ACT (PUBLIC LAW 95-
STAT. 1111 (1978) (CODIFIED IN VARIOUS SECTIONS OF 5 UNITED STATES CODE)), THE
FEDERAL MERIT SYSTEM PRINCIPLES (5 UNITED STATES CODE SECTION 2301) AND THE
FEDERAL WHISTLEBLOWER PROTECTION ACT (5 UNITED STATES CODE SECTIONS 1201 ET
SEQ., 1221(e)(1) AND 2302(b)(8)) AND SHALL BE LIBERALLY CONSTRUED TO ACCOMPLISH
ITS PURPOSE AND TO PROMOTE JUSTICE.