School Boards "Hit Piece" and Rebuttal -
Here is the Arizona School Boards Association attack letter, and the rebuttal written by Tom Devine (with GAP).
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The Arizona School Boards Association has major concerns about the broad implications of SB1512 (WHISTLEBLOWER). As the bill stands, ASBA is opposed to it and encourages you to vote NO on it on Third Reading.
Specific concerns are:
1. The broad and vague definition of "reasonable belief". How can an objective standard be set 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?
2. The expansion of a prohibited personnel practice to include reprisal against an employee who may disclose any information of a matter of public concern. This would seem to imply that an employee could say that he or she was thinking about disclosing something prior to being disciplined and then use that assertion as a whistleblower defense.
3. Expansion of the definition of former employee to include voluntarily retired annuitants.
4. The addition of excessive or extraordinary evaluations to the list of "personnel action” may, in fact, inhibit effective evaluation of classroom teachers to determine adequacy or inadequacy of classroom performance.
Specifically to point #2. Quite often, we in the educational establishment are told
that one of the biggest problems in education is not that the teachers aren't good
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This bill really needs to be pared down. Perhaps that can be accomplished in Conference Committee and perhaps not. As it stands, it is unacceptable to school district governing boards. Thank you for your consideration of these concerns.
Respectfully,
Christopher P. Thomas
Government Relations Analyst
Arizona School Boards Association
2100 North Central Avenue
Phoenix, AZ 85004
Phone: (602) 254-
Fax: (602)254-
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Here is Tom devine's rebuttal letter from year 2000:
March 24, 2000
Memorandum
>From Tom Devine, GAP Legal Director
Re Fact sheet on concerns raised yesterday about SB 1512 -
Last evening I received yesterday's memorandum of concerns from
Christopher Thomas of the School Boards Association about SB 1512, the
pending whistleblower bill before the House. It is unfortunate that Mr.
Thomas did not do research homework on these particular points before raising
them. They have flunked the tests of time and experience
This memorandum is to assure legislators that their 27-
Whole vote in support of SB 1512 was not based on any mistaken assumptions.
SB 1512 merely modernizes Arizona law to apply lessons learned at the federal
level. There has been up to 22 years experience with identical provisions in
28 federal laws. These include the Civil Service Reform Act of 1978, the
twice-
1994 amendments strengthening the Act. Since 1998, state and local
jurisdictions ranging from California to the District of Columbia also have
adopted these same provisions.
These laws have been a laboratory to test Mr. Thomas' understandable
concerns. Based on the track record of these laws, there simply is no basis
in fact for his fears. They are red herrings. To illustrate, neither the
administration, federal manager associations nor the federal Office of
Personnel Management has proposed repeal of any of these provisions after
experiencing them in practice. The next page contains the facts about his
theories, with relevant references to federal law. Unlike these 11th hour
criticisms, the provisions in SB 1512 have passed the test of time.
1. "Reasonable belief" -
they are right to be eligible for protection. This would be unprecedented in
the history of free speech, allowing any whistleblower to be fired without
recourse until possibly years later when trials were over on misconduct they
raised. It would allow short-
enforcement proceedings, court or before the legislature.
The "reasonable belief" standard has been applied for 22 years in 5 USC
2302(b)(8), and has never required "proof" that the whistleblower was
"right." The idea is to protect the flow of evidence necessary to properly
resolve genuine disputes about betrayals of public trust. It is based on the
theory that if evidence is worthy to be admitted in court, a witness should
not be fired for providing the testimony. Through 22 years of Merit Systems
Protection Board case law, this objective standard has been met through such
criteria as professional consensus, personal qualifications and eyewitness
experience. It is the same standard relied on by school districts to be safe
from liability in damage suits against employees, a shield SB 1512 does not
disturb.
An acceptable alternative to "reasonable belief" would merely require
protected whistleblowing disclosures to "evidence" misconduct; i.e., be
admissible in court as credible, relevant and material. Similarly, the
standard for Arizona state, municipal and corporate employees already in
numerous federal laws such as nuclear safety (i.e., 42 USC 5851) is that the
disclosure "assists" in a law enforcement proceeding. Most managers, however,
prefer "reasonable belief" for its symbolic message of caution.
2. "About to" -
"may" blow the whistle. In fact, the standard is identical to the statutory
language and/or case law in all 28 federal statutes the law covers those who
are "about to" make a disclosure. (See, e.g., 24 USC 9610, 33 USC 1367, 42
USC 5851, and 42 USC 7622) This requires employees to prove prior notice of
an imminent protected disclosure. It is a tough prerequisite to establish,
but the chance is indispensable to guard against preemptive strikes if
employees persist in seeking answers for the hard questions that would expose
misconduct. It also protects employees who reveal their refusal to be
silenced by prior restraint through gag orders that may forbid their
legislative, court or other testimony.
3. "Retired annuitants" -
Whistleblower Protection Act of 1989. See 5 USC 1221(j) and 135 Cong. Rec.
5035 (1989). The point is that if employees allege they were harassed into
retiring they do not lose their day in court. As a practical matter, it has
been completely noncontroversial in practice.
4. "Performance evaluations" -
it mildly. Protection against retaliatory performance appraisals has been a
legal foundation of merit system law since the Civil Service Reform Act of
1978 (5 USC 2302(a)(2)) and is covered by all 28 federal whistleblower or
employment discrimination laws. Firing whistleblowers as incompetent is one
of the oldest retaliation tactics in the books. Protection against
retaliatory performance appraisals has proven no threat against objective
evaluations, and the merit system has no place for subjective attacks in a
report card on performance.