ARIZONA STATE HOUSE OF Representatives

Phoenix, Arizona

 

FACT SHEET FOR H.B. 2561

 

public employees; information disclosure

 

 

Purpose

 

 The bill makes technical changes to the existing state whistleblower protection act, A.R.S. ' 38-531 et seq., to clarify definitions and procedures, to eliminate procedural duplications and to protect employer agencies from abusive conduct by whistleblowers.  The bill extends protection from retaliation for disclosures of wronging whether oral or written and from preemptive retaliation.

 

Specifically, the bill:

 

(1) provides “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;

 

(2) provides a right not to violate the law;

 

(3)  provides for oral or written reporting of waste fraud or abuse to upper management, not just the agency director, and for protection when reporting in the context of official proceedings or investigations; 

 

(4) has an 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;

 

(5) allows for 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 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 an arbitrator selected through a "strike" process of mutual consent.

 

(6) has 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.

 

(7) has realistic statute of limitations. No whistleblower law can be effective if employees are not aware of their rights until after the time passes to act. This has been the Achilles heel for many state statutes. The bill wisely sets a one year statute of limitations.

 

(8) gives 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.

 

(9) removes monetary fines as a penalty and clarifies that disciplinary action against one who participated in retaliation is not mandatory, but returns discretion to individual agencies as to appropriate disciplinary action  and directs that agencies make compliance with the goals of the Whistleblower Act  part of agency supervisors’ and managers’ performance evaluations;

 

(10) provides additive, not substitutive protection. The bill does not cancel preexisting

constitutional or common law rights;

 

(11) clarifies procedures before the state personnel board or an independent hearing to make them more uniform and to eliminate duplication of hearings and the resulting costs and fees to the employee, the agency and the hearing board; and

 

(12)  recognizes that reasonable time spent in connection with legitimate whistleblower activities is compensable as regular work time.

 

 

Background

 

None of the provisions are "new." They all are drawn from 28 different federal employee protection laws on the books. Many clauses, such as modern legal burdens of proof to prevail, also have become the prevailing trend in state laws.

 

 While whistleblower protection laws are increasingly popular, in many cases the rights have been largely symbolic and therefore counterproductive.  Employees risking retaliation thought they had genuine protection, when in reality there was no realistic chance to defend themselves. Acting on "rights" contained in whistleblower laws has meant the near-certainty that a legal forum would formally endorse the retaliation, leaving reprisal victims far worse off than if no protection had been in place.

 

This bill takes advantage of 24 years of experience at the federal level, using languge that has been found to close loopholes in previous whistleblower protection laws.