FROM http://www.abor.asu.edu/1_the_regents/policymanual/chap6/6-
6-
A. Purpose
To prohibit supervisory personnel from taking adverse personnel action against an employee, or failing to take an otherwise appropriate action, as a result of the employee’s good faith disclosure of alleged wrongful conduct to a public body or to a designated University officer on a matter of public concern. An employee who discloses and subsequently suffers an adverse personnel action as a result is subject to the protection of this policy.
B. Source
Arizona Revised Statutes §38-
C. Applicability
All employees and supervisors of employees of the Arizona Board of Regents or a state university under the Board’s jurisdiction who disclose alleged wrongful conduct, as defined in this policy, and, who, as a result of the disclosure, are subject to an adverse personnel action.
D. Policy
No adverse personnel action may be taken against a university employee in knowing retaliation for any lawful disclosure of information on a matter of public concern to a public body, including a designated university officer, which information the employee in good faith believes evidences: (1) a violation of any law, (2) mismanagement, (3) gross waste or misappropriation of public funds, (4) a substantial and specific danger to public health and safety; or (5) an abuse of authority, collectively referred to herein as "alleged wrongful conduct."
No supervisor, director, chair, dean, department head, or any other employee with authority to make or materially influence significant personnel decisions shall take or recommend an adverse personnel action against an employee in knowing retaliation for disclosing alleged wrongful conduct to a public Body. Any employee found to have so violated this policy shall be disciplined, up to and including termination, in accordance with existing university rules, policies, and procedures.
E. Definitions
1. Abuse of Authority: action or decision which is outside the scope of the alleged violator’s position, scope of duties, or level of authority as authorized by the university president or designee. however, even actions or failure to take actions which are within the alleged violator’s authority may constitute abuse of authority if the violator’s motive or purpose is to harass, intimidate, or treat the employee unreasonably or capriciously under the applicable facts and circumstances.
2. Adverse Personnel Action: an employment-
a. Termination of employment, including denial of tenure, denial of continuing status,
non-
b. Demotion
c. Suspension
d. Written reprimand
e. Retaliatory investigation
f. Decision not to promote
g. Receipt of an unwarranted performance rating
h. Withholding of appropriate salary adjustments
i. Imposition of involuntary transfer or reassignment
j. Elimination of the employee’s position, absent a reduction in force, reorganization, or a decrease in or lack of sufficient funding, monies, or work load
k. Denial of awards, grants, leaves, or benefits, or training for which the employee would normally be eligible;
l. Other significant change in job responsibilities or working conditions which are inconsistent with the employee’s position, salary or grade.
3. Alleged Wrongful Conduct: violation of law, mismanagement, gross waste of monies, substantial and specific anger to public health and safety or abuse of authority.
4. Conflict of interest: when an employee is in a position to influence a university activity or decision in ways that could lead to any matter or from of personal gain to the employee or for his/her family member, or when the employee has a personal vested interest in the activity or decision.
5. Day: calendar day. In cases of faculty, academic professionals, and other employees
appointed on an academic year (nine month) basis, day does not include summer, mid-
6. Discloser: an employee who reports alleged wrongful conduct to a public body, as defined herein.
7. Disclosure: oral or written report by an employee to a public body of alleged wrongful conduct on a matter of public concern.
8. Disclosure Investigation: review and determination made by the appropriate university officer and/or designees of a disclosure.
9. Filing: receipt by the office where filing is required.
10. Gross Waste or misappropriation of Public Funds: action or decision which is outside the scope of the alleged violator’s spending or budgetary authority, or even when the action or decision is within budgetary authority, the action would be considered by a reasonable person to be grossly excessive, wasteful or an improper use of public funds.
11. Knowing Retaliation: an adverse personnel action taken by a supervisor or other authority against an employee because of a prior disclosure of alleged wrongful conduct.
12. Mismanagement: Action or decision which exceeds the scope of the alleged violator’s responsibilities, or even if the action is within responsibilities, the action would be considered by a reasonable person to be grossly excessive or unfair.
13. Personnel Action: an employment-
14. Public Body: The Arizona Attorney General; the Arizona Legislature; the Governor
of Arizona; a federal, state, or local regulatory or law enforcement agency; the
local County Attorney; a member of the Arizona Board of Regents, a university president,
provost, vice president, vice provost, college dean or non-
15. Service Provider: Independent entity which has contracted with the university to provide hearing officer services. The hearing officer will be selected by the service provider through a process which includes consultation with the parties.
16. Supervisory Employee: Any supervisor, director, chair, dean, department head, or other employee who has authority to make or materially influence significant personnel decisions.
17. University Officer: president, provost, vice-
18. Violation of Law: A violation of local, state, or federal law or regulation that is applicable to the university or its employees.
19. Whistleblower Complainant: ("Complainant"): A current or former employee who disclosed alleged wrongful conduct to a public body and who subsequently is subject to an adverse personnel action as a result of making the prior disclosure.
20. Whistleblower complaint: A complaint filed by a complainant with a university officer alleging that an adverse personnel action was taken in retaliation for a prior disclosure of alleged wrongful conduct to a public body.
21. Whistleblower complaint review: A review by a university officer or committee
of a whistle-
22. Whistleblower external hearing: A hearing conducted by an external hearing officer
selected by the complainant and university to conduct a hearing if the complainant
is dissatisfied with the decision of the university officer following a whistle-
F. Making a Disclosure
An employee who becomes aware of alleged wrongful conduct is encouraged to make a disclosure to any public body as soon as possible, but in any case must make the disclosure no later than 365 days after becoming aware of the conduct.
In order to allow the university an opportunity to review alleged wrongful conduct
and to take necessary internal corrective action, employees are encouraged to report
in writing a disclosure of alleged wrongful conduct to a university president, provost,
vice president, vice provost dean, or non-
If the employee is unwilling or unable to put an oral disclosure in writing, the university officer who investigates the disclosure will prepare a written summary of the employee’s disclosure and provide a copy to the employee. No later than 10 days after receipt of the summary, the employee may submit a written supplement to the university officer who prepared the summary. Failure to submit a supplement within 10 days will constitute acceptance of the summary as an accurate statement of the disclosure made by the employee. The university officer and/or designees will conduct an investigation into the allegations of the disclosure and will take necessary corrective action, as warranted. Throughout this process, the confidentiality of the discloser will be maintained to the greatest extent possible. At the conclusion of the investigation, the university officer will notify the discloser and other affected employees in writing of the determination. A copy of the determination shall be retained by the provost, the discloser, and the alleged violator. The investigation shall be conducted by a university officer who does not have a conflict of interest in the matter being investigated. A discloser must suffer adverse personnel action as a result
of making a disclosure to file a whistle-
Where the university officer determines the employee’s allegations do not meet the
definition of disclosure under this policy, the university officer shall refer the
employee to other available university grievance or appeal processes to address the
employee’s concerns. Furthermore, where the employee’s allegations constitute a complaint
of discrimination on a basis covered by the university’s non-
G. False Allegations of Wrongful Conduct
An employee who knowingly makes false allegations of alleged wrongful conduct to a public Body shall be subject to discipline, up to and including termination of employment, in accordance with university rules, policies, and procedures.
H. Legitimate Employment Action
This policy may not be used as a defense by an employee against whom an adverse personnel action has been taken for legitimate reasons or cause under university rules and policies. It shall not be a violation of this policy to take adverse personnel action against an employee whose conduct or performance warrants that action separate and apart from that employee making a disclosure.
I. Whistle-
No later than 30 days after a current or former employee is notified or becomes aware
of an adverse personnel action, he or she may protest the action by filing a written
whistle-
imposed; (2) whether the complainant suffered an adverse personnel action after reporting alleged wrongful conduct to a public body; (3) whether the complainant alleged that the adverse action resulted from the prior disclosure; and (4) whether the complainant alleged adverse action was the result of *knowing retaliation* for the employee’s disclosure. The review shall be conducted by a university officer or committee whose members do not have a conflict of interest in the matter being reviewed.
No later than 45 days after receipt of the complaint, the university officer shall notify the complainant in writing of the results of the review and whether the adverse personnel action is affirmed, reversed, or modified, and provide a copy of the decision to the employee’s supervisor. The supervisor will implement the decision and will verify implementation in writing to the university officer no later than10 days after receipt of the university officer’s decision.
Where the designated university officer or committee finds the employee did not make a disclosure pursuant to this policy, the employee shall be referred to other available university grievance or appeal processes to pursue their complaint. Furthermore, because there are other university policies and statutes that provide remedies for claims of retaliation following the filing of an unlawful discrimination complaint, such retaliation claims will be referred to the university office charged with investigating allegations of discrimination rather than being reviewed as whistleblower complaints.
A complainant who is dissatisfied with the decision of the university officer on
the whistle-
J. Procedures
1. Request for Hearing
The Board, through its universities, has contracted with qualified service providers to provide qualified external hearing officers and a hearing process for a complainant who is dissatisfied with the university officer’s decision. The purpose of the hearing is to determine whether an adverse personnel action resulted from the complainant’s prior disclosure of alleged wrongful conduct. No other issues or determinations are authorized. The hearing officer
will be selected by the service provider in consultation with the parties. The hearing officer cannot be a university employee and, except for the contractual arrangement to provide hearing officer’s services, cannot have substantial interest in the university.
a. Request for Hearing
Within 15 days after receipt of the university officer’s decision, a complainant who is dissatisfied and desires an external hearing must file a written request for hearing with the university representative or office designated to review these requests.
b. Contents of Request for Hearing
A request for hearing must contain the following:
(1). A specific statement that it is a request for a whistle-
(2). The name, work address, work telephone number and position of the complainant;
(3). The name, work address, work telephone number and position of the university
officer who issued a decision on the complainant’s whistle-
(4). A statement of the reasons for requesting a hearing including the objectionable portion of the university officer’s decision;
(5). A statement of the specific relief or remedy requested; and
(6). Copies of (a) the employee’s prior disclosure or the written summary prepared
by a university officer; and (b) the university officer’s decision on the whistle-
2. Appointment of Hearing Officer
No later than 20 days after receipt of a request for hearing, the designated university office or committee who receives the complaint will determine whether the complainant qualifies for an external hearing based on the following:
a. The complainant identified an adverse personnel action imposed on him or her and the date of notice of the action;
b. The complainant made a prior disclosure of alleged wrongful conduct to a public body on a matter of public concern prior to the adverse personnel action;
c. The complainant alleges the adverse personnel action resulted from the prior disclosure;
d. The complainant attached the disclosure and the decision on the whistleblower complaint review to the request for hearing.
The request will be reviewed by a university officer or committee whose members do not have a conflict of interest with respect to that matter.
If the request qualifies for an external hearing, the designated university office
or committee will forward the request to the service provider to begin the process
of selecting an external hearing officer and conducting a whistle-
If the request does not qualify for a whistle-
3. Submission of the Record
No later than 20 days after receipt of the request for hearing, the service provider shall notify the complainant and the identified
university officer that the request for hearing is accepted and assist the parties
with the mutual selection of the hearing officer, the procedures for a pre-
The hearing will be conducted no later than 90 days after the request is received by the service provider, unless the hearing officer extends the time for good cause.
4. Conduct of Hearing
Hearings shall be conducted in accordance with the requirements of A.R.S. #41-
The hearing officer has subpoena power. The hearing shall be either recorded or transcribed, as determined by and at the university’s expense, so as to provide an accurate, written rendition of the hearing.
5. Attorneys or advisers
Complainant, at his or her own expense, may be represented by an attorney at any stage of the hearing process, including but not limited to presentation of the case during the hearing. If the complainant is represented at the hearing by an attorney, then the university representative may also be represented at the hearing by an attorney.
6. Resolution by Agreement
At any time, the parties may agree upon a resolution of the matter. In such event, the written agreement shall be presented to the designated university officer who shall close the case and notify the service provider and the parties in writing that the matter is "resolved by agreement."
7. Hearing Officer’s Decision
No later than 30 days after the close of the hearing, the hearing officer or service provider shall provide the hearing officer’s written report to the parties and to the university president. The report will contain findings of fact and the evidence relied upon to sustain those facts, conclusions including reference to applicable law, rules or policies and a decision by the hearing officer that the adverse personnel action was or was not based on a prior disclosure, and whether the adverse action is affirmed, reversed, or modified.
The university will implement the decision of the hearing officer no later than 10 days after receipt, except that the hearing officer may not direct that the university grant renewal, tenure, continuing status or promotion to a faculty member or academic professional.
If the hearing officer finds that an adverse personnel decision related to renewal, tenure, continuing status or promotion of a faculty member or academic professional was the direct result of the disclosure of alleged wrongful conduct, the hearing officer shall remand the complaint to the university for further proceedings consistent with its internal procedures.
K. Dismissal of Tenured Faculty or Continuing Academic Professionals:
Board of Regents policy 6-
process, he or she may request a whistle-
L. Request for Review or Rehearing
1. In compliance with Arizona Revised Statutes §41-
a. Irregularities in the proceedings, including but not limited to any abuse of discretion or misconduct by the hearing officer or hearing panel, which has deprived the complainant/grievant of a fair and impartial hearing.
b. Newly discovered material evidence which with reasonable diligence could not have
been presented during the fact-
c. Excessive severity of the sanction; or
d. The decision is not justified by the evidence or is contrary to the law.
2. Following receipt of the request for review, the hearing officer shall make whatever review is deemed necessary to resolve the issues that have been raised.
3. The service provider will provide the hearing officer’s written decision on review to the parties and university president no later than 20 days after receipt of the request from the complainant.
4. When the complainant does not request rehearing or review, the hearing officer’s decision following the hearing becomes the final agency decision 15 days after the complainant’s receipt of that decision. When the complainant requests review, the hearing officer’s decision following review is the final agency decision.
5. The hearing officer’s decision is subject to judicial review only under A.R.S.
Section 12-
M. Dissemination
Each university shall develop appropriate mechanisms to advise all employees of the existence of this policy, including but not limited to making the policy available on the university's web site, including a reference to the policy in employee handbooks, and posting copies of the policy where appropriate.
(ABOR 4/90, 3/01)