AN
ACT Relating to whistleblowers; amending RCW 42.40.020, 42.40.040, and
43.09.410; and adding new sections to chapter 42.40 RCW.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
42.40.020 and 1995 c 403 s 509 are each amended to read as follows:
As
used in this chapter, the terms defined in this section shall have the meanings
indicated unless the context clearly requires otherwise.
(1)
"Auditor" means the office of the state auditor.
(2)
"Employee" means any individual employed or holding office in any
department or agency of state government.
(3)
"Good faith" means a reasonable basis in fact for the
communication. "Good faith" is lacking when the employee knows or
reasonably ought to know that the report is malicious, false, or frivolous.
(4)
"Gross waste of funds" means to spend or use funds or to allow funds
to be used without valuable result in a manner grossly deviating from the
standard of care or competence that a reasonable person would observe in the
same situation.
(5)(a)
"Improper governmental action" means any action by an employee((:
(i)
Which is)) undertaken in the performance of the employee's
official duties((, whether or not the action is within the scope of the
employee's employment; and)):
(((ii)))
(i) Which is ((in violation of any state law or rule, is an abuse of
authority,)) gross waste of public funds or resources as defined in this
section;
(ii)
Which is in violation of federal or state law or rule, if the violation is not
merely technical or of a minimum nature; or
(iii)
Which is of substantial and specific danger to the public health or
safety((, or is a gross waste of public funds)).
(b)
"Improper governmental action" does not include personnel actions,
for which other remedies exist, including but not limited to employee
grievances, complaints, appointments, promotions, transfers, assignments,
reassignments, reinstatements, restorations, reemployments, performance
evaluations, reductions in pay, dismissals, suspensions, demotions, violations
of the state civil service law, alleged labor agreement violations, reprimands,
claims of discriminatory treatment, or any action which may be taken
under chapter 41.06 RCW, or other disciplinary action except as provided in RCW
42.40.030.
(((4)))
(6) "Substantial and specific danger" means a risk of serious
injury, illness, peril, or loss, to which the exposure of the public is a gross
deviation from the standard of care or competence which a reasonable person
would observe in the same situation.
(7)
"Use of official authority or influence" includes taking, directing
others to take, recommending, processing, or approving any personnel action
such as an appointment, promotion, transfer, assignment, reassignment,
reinstatement, restoration, reemployment, performance evaluation, or any
adverse action under chapter 41.06 RCW, or other disciplinary action.
(((5)))
(8) "Whistleblower" means an employee who in good faith
reports alleged improper governmental action to the auditor, initiating an
investigation under RCW 42.40.040. For purposes of the provisions of this
chapter and chapter 49.60 RCW relating to reprisals and retaliatory action, the
term "whistleblower" also means: (a) An employee who in good faith
provides information to the auditor in connection with an investigation under
RCW 42.40.040 and an employee who is believed to have reported ((alleged))
asserted improper governmental action to the auditor or to have provided
information to the auditor in connection with an investigation under RCW
42.40.040 but who, in fact, has not reported such action or provided such
information; or (b) an employee who in good faith identifies rules warranting
review or provides information to the rules review committee, and an employee
who is believed to have identified rules warranting review or provided
information to the rules review committee but who, in fact, has not done so.
NEW
SECTION. Sec. 2. An
employee must make a reasonable attempt to ascertain the correctness of the
information furnished and may be subject to disciplinary actions, including,
but not limited to, suspension or termination, for knowingly furnishing false
information as determined by the employee's appointing authority.
Sec.
3. RCW
42.40.040 and 1992 c 118 s 2 are each amended to read as follows:
(1)(a)
In order to be investigated, an assertion of improper governmental action must
be provided to the auditor within one year after the occurrence of the asserted
improper governmental action.
(b)
The auditor has the authority to determine whether to investigate any
assertions received. In determining whether to conduct either a preliminary or
further investigation, the auditor shall consider factors including, but not
limited to: The nature and quality of evidence and the existence of relevant
laws and rules; whether the action was isolated or systematic; the history of
previous assertions regarding the same subject or subjects or subject matter;
whether other avenues are available for addressing the matter; whether the
matter has already been investigated or is in litigation; the seriousness or
significance of the asserted improper governmental action; and the cost and
benefit of the investigation. The auditor has the sole discretion to determine
the priority and weight given to these and other relevant factors and to decide
whether a matter is to be investigated. The auditor shall document the factors
considered and the analysis applied.
(c)
The auditor also has the authority to investigate assertions of improper
governmental actions as part of an audit conducted under chapter 43.09 RCW.
The auditor shall document the reasons for handling the matter as part of such
an audit.
(2)
Subject to subsection (5)(c) of this section, the identity of a whistleblower
is confidential at all times unless the whistleblower consents to disclosure by
written waiver or by acknowledging his or her identity in a claim against the
state for retaliation.
(3)
Upon receiving specific information that an employee has engaged in improper
governmental action, the auditor shall, within five working days of receipt of
the information, mail written acknowledgement to the whistleblower at the
address provided stating whether a preliminary investigation will be
conducted. For a period not to exceed thirty working days from
receipt of the assertion, the auditor shall conduct such preliminary
investigation of the matter as the auditor deems appropriate. ((In
conducting the investigation, the identity of the whistleblower shall be kept
confidential.
(2))) (4)
In addition to the authority under subsection (((1))) (3) of this
section, the auditor may, on its own initiative, investigate incidents of
improper state governmental action.
(((3)))
(5)(a) If it appears to the auditor, upon completion of the preliminary
investigation, that the matter is so unsubstantiated that no further
investigation, prosecution, or administrative action is warranted, the auditor
shall so notify the whistleblower.
(b)
The written notification shall ((be by memorandum containing)) contain
a summary of the information received((, a summary)) and of the
results of the preliminary investigation with regard to each ((allegation))
assertion of improper governmental action((, and any determination
made by the auditor under (c) of this subsection)).
(c)
In any case to which this section applies, the identity of the whistleblower
shall be kept confidential unless the auditor determines that the information
has been provided other than in good faith.
(d)
((If it appears to the auditor that the matter does not meet the definition
of an "improper governmental action" under RCW 42.40.020(3), or is
other than a gross waste of public funds, the auditor may forward a summary of
the allegations to the appropriate agency for investigation and require a
response by memorandum no later than thirty days after the allegations are
received from the auditor. The response shall contain a summary of the
investigation with regard to each allegation and any determination of
corrective action taken. The auditor will keep the identity of the
whistleblower confidential. Upon receipt of the results of the investigation
from the appropriate agency, the auditor will notify the whistleblower as
prescribed under (a), (b), and (c) of this subsection)) With the
agency's consent, the auditor may forward the assertions to an appropriate
agency to investigate and report back to the auditor no later than sixty
working days after the assertions are received from the auditor. The auditor
is entitled to all investigative records resulting from such a referral. All
procedural and confidentiality provisions of this chapter apply to
investigations conducted under this subsection. The auditor shall document the
reasons the assertions were referred.
(((4)))
(6) During the preliminary investigation, the auditor shall provide written
notification of the nature of the assertions to the subject or subjects of the
investigation and the agency head. The notification shall include the relevant
facts and laws known at the time and the procedure for the subject or subjects
of the investigation and the agency head to respond to the assertions and
information obtained during the investigation. This notification does not
limit the auditor from considering additional facts or laws which become known
during further investigation.
(7)(a)
If it appears to the auditor after completion of the preliminary investigation
that further investigation, prosecution, or administrative action is warranted,
the auditor shall so notify the whistleblower, the subject or subjects of
the investigation, and the agency head and either conduct a further
investigation((s)) or issue a report under subsection (((6))) (10)
of this section.
(b)
If the preliminary investigation resulted from an anonymous assertion, a
decision to conduct further investigation shall be subject to review by a
three-person panel convened as necessary by the auditor prior to the
commencement of any additional investigation. The panel shall include a state
auditor representative knowledgeable of the subject agency operations, a
citizen volunteer, and a representative of the attorney general's office. This
group shall be briefed on the preliminary investigation and shall recommend
whether the auditor should proceed with further investigation.
(c)
If further investigation is to occur, the auditor shall provide written
notification of the nature of the assertions to the subject or subjects of the
investigation and the agency head. The notification shall include the relevant
facts known at the time and the procedure to be used by the subject or subjects
of the investigation and the agency head to respond to the assertions and
information obtained during the investigation.
(8)
Within sixty working days after the ((thirty-day)) preliminary
investigation period in subsection (((1))) (3) of this
section, the auditor shall complete the investigation and report its findings
to the whistleblower unless written justification for the delay is furnished to
the whistleblower, agency head, and subject or subjects of the investigation.
In all such cases, the report of the auditor's investigation and findings shall
be sent to the whistleblower within one year after the information was filed
under subsection (((1))) (3) of this section.
(((5)))
(9)(a) At any stage of an investigation under this section the auditor
may require by subpoena the attendance and testimony of witnesses and the
production of documentary or other evidence relating to the investigation at
any designated place in the state. The auditor may issue subpoenas, administer
oaths, examine witnesses, and receive evidence. In the case of contumacy or
failure to obey a subpoena, the superior court for the county in which the
person to whom the subpoena is addressed resides or is served may issue an order
requiring the person to appear at any designated place to testify or to produce
documentary or other evidence. Any failure to obey the order of the court may
be punished by the court as a contempt thereof.
(b)
The auditor may order the taking of depositions at any stage of a proceeding or
investigation under this chapter. Depositions shall be taken before an
individual designated by the auditor and having the power to administer oaths.
Testimony shall be reduced to writing by or under the direction of the
individual taking the deposition and shall be subscribed by the deponent.
(((6)))
(c) Agencies shall cooperate fully in the investigation and shall take
appropriate action to preclude the destruction of any evidence during the
course of the investigation.
(d)
During the investigation the auditor shall interview each subject of the
investigation. If it is determined there is reasonable cause to believe
improper governmental action has occurred, the subject or subjects and the
agency head shall be given fifteen working days to respond to the assertions
prior to the issuance of the final report.
(10)(a)
If the auditor determines ((that)) there is reasonable cause to believe
((that)) an employee has engaged in ((any)) improper ((activity))
governmental action, the auditor shall report the nature and details of
the activity to:
(i)
The ((employee)) subject or subjects of the investigation and the
head of the employing agency; and
(ii)
If appropriate, the attorney general or such other authority as the auditor
determines appropriate.
(b)
The auditor has no enforcement power except that in any case in which the
auditor submits ((a)) an investigative report ((of alleged
improper activity)) containing reasonable cause determinations to
the ((head of an)) agency, the ((attorney general, or any other
individual to which a report has been made under this section, the individual
shall report to the auditor with respect to any action taken by the individual
regarding the activity, the first report being transmitted no later than thirty
days after the date of the auditor's report and monthly thereafter until final
action is taken)) agency shall send its plan for resolution to the
auditor within fifteen working days of having received the report. The agency
is encouraged to consult with the subject or subjects of the investigation in
establishing the resolution plan. The auditor may require periodic reports of
agency action until all resolution has occurred. If the auditor determines
that appropriate action ((is)) has not ((being)) been
taken ((within a reasonable time)), the auditor shall report the
determination to the governor and to the legislature and may include this
determination in the agency audit under chapter 43.09 RCW.
(((7)))
(11) Once the auditor concludes that appropriate action has been taken to
resolve the matter, the auditor shall so notify the whistleblower, the agency
head, and the subject or subjects of the investigation. If the resolution
takes more than one year, the auditor shall provide annual notification of its
status to the whistleblower, agency head, and subject or subjects of the
investigation.
(12)
This section does not limit any authority conferred upon the attorney general
or any other agency of government to investigate any matter.
NEW
SECTION. Sec. 4. The
auditor has the authority to contract for any assistance necessary to carry out
the provisions of this chapter.
NEW
SECTION. Sec. 5. The
cost of administering this chapter is funded through the auditing services
revolving account created in RCW 43.09.410.
NEW
SECTION. Sec. 6. A
whistleblower wishing to provide information under this chapter regarding
asserted improper governmental action against the state auditor or an employee
of that office shall provide the information to the attorney general who shall
act in place of the auditor in investigating and reporting the matter.
NEW
SECTION. Sec. 7.
Chapter . . ., Laws of 1999 (this act) does not affect the
jurisdiction of the legislative ethics board, the executive ethics board, or
the commission on judicial conduct, as set forth in chapter 42.52 RCW. The
senate, the house of representatives, and the supreme court shall adopt
policies regarding the applicability of chapter 42.40 RCW to the senate, house
of representatives, and judicial branch.
NEW
SECTION. Sec. 8. The
office of financial management shall contract for a performance audit of the
state employee whistleblower program on a cycle to be determined by the office
of financial management. The audit shall be done in accordance with generally
accepted government auditing standards beginning with the fiscal year ending
June 30, 2001. The audit shall determine at a minimum: Whether the program is
acquiring, protecting, and using its resources such as personnel, property, and
space economically and efficiently; the causes of inefficiencies or
uneconomical practices; and whether the program has complied with laws and
rules on matters of economy and efficiency. The audit shall also at a minimum
determine the extent to which the desired results or benefits established by
the legislature are being achieved, the effectiveness of the program, and
whether the auditor has complied with significant laws and rules applicable to
the program.
The
cost of the audit is a cost of operating the program and shall be funded by the
auditing services revolving account created by RCW 43.09.410.
Sec.
9. RCW
43.09.410 and 1995 c 301 s 25 are each amended to read as follows:
An
auditing services revolving account is hereby created in the state treasury for
the purpose of a centralized funding, accounting, and distribution of the
actual costs of the audits provided to state agencies by the state auditor and
audits of the state employee whistleblower program under section 8 of this act.
NEW SECTION. Sec. 10.
Sections 2 and 4 through 8 of this act are each added to chapter 42.40 RCW.
