Department of Administration Hit Piece and Rebuttal
This was the Spring 1999 opposition "hit piece" from Scott Smith of the Department
of Administration, on our previous whistle-
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ARIZONA DEPARTMENT OF ADMINISTRATION POSITION PAPER
Senate Bill 1396 (public employees; whistle-
AGENCY POSITION
** The ADOA has serious concerns with SB 1396.
· The comprehensive changes proposed to the whistle-
have negative
impacts on the ADOA personnel system, its managers and employees, and obstruct
legitimate whistle-
ORAL DISCLOSURES -
· Due to the seriousness of whistleblower matters current law dictates that
disclosures be
made in writing (a protection for complainants and agencies); to people who
have
independent authority to investigate and take action (Attorney General, law
enforcement, agency director); and, include the date, the name of the
employee and the
nature of the allegation.
· SB 1398 expands the definition of whistle-
oral statements
from which the public body can ascertain that the statement is a protected
disclosure.
· There are numerous problems with allowing vague and non-
whistle-
disclosures including that (1) it could easily be misinterpreted as an
employee venting or
office gossip; (2) it does not have to be identified as a whistle-
disclosure; (3) it
provides an employee with a defense to a valid disciplinary action by
enabling the
individual to allege that a.previous verbal complaint was actually a
whistle-
disclosure (4) its recepient may not recognize the communication as a
whistle-
disclosure; and, (5) there is no written record.
REPORTING REQUIREMENTS -
**SB 1396 broadens the definition of public body from an agency director to
a "deputy
director, assistant director or similar upper-
employing
agency."
**The current definition is limited to those people and entities who have
independent
authority to investigate and take actions.
· The term "similar uppermanagement personnel" is ambiguous and not defined.
· SB 1396 will lead to a hearing officer or court making an after the fact
determination
about whether the supervisorial position was sufficiently similar to other
upper
management positions such that a disclosure to that person was appropriate.
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ADOG Position Paper Senate Bill 1396
Page 2
DIRECT FILING TO SUPERIOR COURT -
· SB 1396 allows employees to bypass the administrative process and bring
suit for money damages in superior court.
· SB 1396 increases both the state's and employee's cost of resolving
whistle-
allegations by permitting the circumvention of the administrative hearing
process.
· SB 1396 charges the superior court with the impossible task of
detennining the legitimacy of a whistle-
retaliatory action without the benefit of a written disclosure.
* SB 1396 Is clearly inconsistent with both longstanding court doctrine and
the state's public policy to exhaust administrative remedies before seeking
a judicial solution.
CONTRIBUTING FACTOR -
* SB 1396 requires the state to retain and pay money damages to an employee
if he or she has been the subject to any adverse personnel action, and it
can be demonstrated that the personnel action was in any way influenced by
the protected disclosure.
· This is true regardless of whether the agency has sufficient cause to
take the personnel
action, independent of the whistleblower disclosure.
* Current law reguires the employee to demonstrate that the adverse
personnel action was primarily caused by the protected disclosure.
· SB 1396 means that an employee whose performance is poor, or who has
stolen or
otherwise misused state property, must be retained if the employee can meet
the
minimal proof of cause.
COMPENSATING EMPLOYEES -
* SB 1396 mandates that an agency pay an employee for time reasonably spent
meeting
with their lawyer, and preparing for or attending any administrative ar
court proceeding.
· This provision is inconsistent with current personnel practices since the
statutes do not
require the state to pay an employee for attendance or preparation for any
other
administrative hearing before the Personnel Board.
CONTACT PERSON: SCOTT a. SMITH, LEGISLATIVE LIASON
ARIZONA DEPARTMENT OF ADMINSTRATION
542-
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Dear Bob,
Here was our response to Scott Smith's hit piece.
Carol Bernstein
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RESPONSE to "Briefing Paper" by Department of Administration regarding SB1396
Dear Senator/Representative:
There was a "Briefing Paper" circulated late last week authored by the
Department of
Administration, which we assume is the coordinated voice of the some agency
directors who fear
that additional protection of legitimate whistleblowers might encourage the
reporting of waste, fraud
or abuse within their agencies. In it, the author claims to state the DOA's
"Agency Position."
Please consider the following response to the "concerns" listed in the DOA
paper.
1. Concerns about "Reporting Requirements" that recognize oral
reporting of
wrongdoing should be protected as well as written disclosures, consistent
with whistleblower
protection statutes throughout the nation.
* Employees who orally report waste, fraud or illegal activity were not
protected under
the existing law. Almost every other whistleblower protection statute
throughout the nation provides
for oral disclosure, just as is the case regarding oral disclosure of
discrimination or sexual
harassment under the civil rights laws.
* There is no logical reason not to protect employees who orally report
wrongdoing,
as opposed to sending an e-
encouraged and protected,
whether reported orally or in writing.
* It is expected that by agency training and policy, appropriate
follow-
document an oral complaint and investigate all allegations, written or
oral, just as is the case with
allegations of discrimination or sexual harassment.
* That "management" may not consider an oral allegation of fraud,
waste, abuse or
illegal activity to be a whistleblower complaint is why the law needed
correction. Management
should want to learn of and correct wrongdoing. Management should not be
allowed to retaliate
against an employee who makes allegations of wrongdoing just because the
employee told the
Attorney General or top agency management, instead of sending an e-
* Just as with the discrimination laws, informality is to be encouraged. The
technicalities of the existing law have been used as a way to withhold the
Act's protection for
legitimate whistleblowers who honestly report wrongdoing, but who cannot
afford lawyers to help
them comply with the many legal hoops in the existing law.
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Response to "Briefing Paper" by Department of Administration regarding SB1396
Page 2
* False claims of reporting are unlikely. An employee has the burden of
proving he or
she made a whistleblower disclosure and that it was in retaliation for the
disclosure that the
subsequent retaliatory action was taken. If an employee is unable to
establish a disclosure was made,
they will lose their claim.
* DOA does not address those cases where employees orally reported
wrongdoing, to
the Attorney General's office or top management, etc., who confirmed the
reporting, and the agency
still argued there should be no protection because the disclosure of
wrongdoing was not in writing.
2. Concerns about "Combined Hearings," meaning consolidation of
proceedings to
minimize time and costs of matters arising out of the same conduct.
* The current law does not address consolidation of hearings. In the courts,
consolidation of matters is encouraged to promote judicial economy and to
lessen the time spent and
costs to litigants.
* On its own, the personnel board began to separate hearings related to
disciplinary
appeals and whistleblower allegations. This often results in two hearings,
with the same witnesses
and documents, held before two different hearing officers. This doubles the
costs for transcripts of
testimony, the time spent by witnesses and attorneys in hearing, and the
cost to the personnel board
for two, instead of one hearing officer.
* Refusal to allow consolidation only increases costs and time spent. To
lower the
costs to the parties and the personnel board, consolidation of the hearings
makes sense.
That there may be two different laws that must be interpreted is something
courts and
private industry arbitrators regularly handle all the time, and the hearing
officers of the personnel
board, who now handle both whistleblower complaints and disciplinary
appeals anyway, would be
equally qualified to deal with two issues in the same proceeding.
3. Concerns about allowing state employees to go directly to court in
situations where
other causes of action require filing in court.
* The ability of employees to go directly to court in some instances
likewise lessens
costs and time spent in duplicate proceedings. Protection of federally
protected rights, including
whistleblower protection pursuant to the First Amendment and 42 U.S.C. #
1983, can only be
brought in court. If an employee is fired for protected speech that also
qualifies for protection under
the state Whistleblower Protection Act, the option of going straight to
court lessens costs to the
agencies, the employee, and saves the personnel board from incurring any
costs.
* The ability to go to a board or to court is consistent with the
concurrent authority of
boards and courts in similar siruations such as the nght of agricultural
workers or growers regarding
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Response to "Briefing Paper" by Department of Administration regarding SB1396
Page 3
unfair labor practices or employees pursuant to the Arizona Wage Act to
seek unpaid salary and
commissions.
* There is nothing in the current statute requiring that the employee
first go through the
hearing procedure before either the personnel or other hearing board before
filing in the superior
court, including requesting the court to grant injunctive action. Current
A.R.S. # 38-
the employee "may" make a complaint to an appropriate independent personnel
board or the
personnel board, not that the employee must.
4. Concerns about clarifying that reimbursement for reasonable time
spent in attendance
at whistleblower hearings is handled in the same manner for whistleblower
employees as for
agency representatives, agency witnesses, and their attorneys.
* State employees who are agency representatives or who appear as
witnesses and state
who appear before the personnel board in disciplinary hearings are
considered to be
engaged in official duties and are paid their normal salary or wage in
connection with these
activities, just as with jury duty. In the past whistleblower employees
were treated the same.
Recently, some agencies have refused to treat whistleblower employees in
the same
manner and have forced employees to take unpaid leave in order prepare for
or appear before the
personnel board.
* Providing that reasonable time spent by an employee whistleblower is
reimbursable
as regular work time corrects this inequity, while not encouraging
employees to abuse this right. The
time spent must be reasonable and the hearing officer can easily review
such efforts and make such
determinations if the agency questions the time being spent.
* Some agencies have expressed concern that some hearings last for several
days and
have requested that reimbursement be limited for time spent by the
whistleblower employee to a
maximum number of days. However, there is no suggestion that time spent by
agency
representatives or their attorneys not be reimbursed if the hearing lasts
beyond a certain period.
Therefore, by stating that reasonable time spent be reimbursed should
fairly treat both parties in the
process.
5. "Other Concern" that protection for the retaliator cannot be handled
properly by the
normal disciplinary process.
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Response to "Briefing Paper" by Department of Administration regarding SB1396
Page 4
* The bill eliminates the personal payment of fines by the retaliator who
commits the
prohibited personnel action because that person who retaliates may be a
high ranking official who
can get the agency to appeal and utilize the resources of the state to
avoid payment of a fine by
seeking to grind down the whistleblower who has been successful at the
administrative level.
* Instead of a fine, the retaliator is now to be subjected to appropriate
disciplinary
action as determined by the agency.
* Due process concerns are the same for this as for any other disciplinary
action and
all protections for due process are present, including appeal to the
personnel board or internal agency
grievance procedures.
6. "Other Concern" that employees who conspire to bring about the
retaliation should be
held accountable consistent with whistleblower protection statutes
throughout the country.
* When an agency retaliates, but the official who actually orders the
adverse action does
so on the basis of false information and recommendation given him by the
true retaliator, the
whistleblower employee must be protected, but the true retaliator should
not escape scrutiny.
Those who conspire in or who wrongfully take steps to bring about the
retaliation,
such as those who poison the well (lie to the individual who actually, and
even innocently,
terminates the whistleblower employee in reliance on the false information)
may now face
disciplinary action.
7. "Other Concern" that a "valid dismissal" may be overturned.
* While seeking to better protect legitimate whistleblowers, the bill
makes clear that
state agencies may properly discipline state employees "for legitimate
nondiscriminatory reasons
unrelated to the [whistleblower's] disclosure or because the manner of the
employees' or former
employee's disclosure is unreasonable or abusive."