SENATE BILL REPORT

SB 5173

BYSenators McCaslin, Thorsness, DeJarnatt, Hayner and Vognild; by request of State Auditor

Relating to disclosure of improper governmental action.

Senate Committee on Governmental Operations

Senate Hearing Date(s):January 31, 1989; February 9, 1989

Majority Report:  That Substitute Senate Bill No. 5173 be substituted therefor, and the substitute bill do pass.

      Signed by Senators McCaslin, Chairman; Thorsness, Vice Chairman; DeJarnatt, Sutherland.

Senate Staff:Barbara Howard (786-7410); Sam Thompson (786-7754)

                  February 15, 1989

AS REPORTED BY COMMITTEE ON GOVERNMENTAL OPERATIONS, FEBRUARY 9, 1989

BACKGROUND:

The state's "whistleblower" law, which was enacted in 1982:

-- Encourages all state employees to report "improper governmental action" by other state employees (including any act performed on duty which violates state law or rule, constitutes an abuse of authority, presents a significant danger to public health or safety or amounts to a gross waste of public funds).

-- Provides protection from retaliatory action against the reporting state employee (such as frequent staff changes, refusal to assign meaningful work, unwarranted letters of reprimand or unsatisfactory performance evaluations and disciplinary actions such as demotion, reduction in pay or dismissal).

-- Assigns the management of the program to the State Auditor, who must promptly investigate the report of improper governmental action and determine whether the infraction is significant enough to warrant prosecution or appropriate administrative action.  If such a determination is made, the State Auditor reports the nature and details of the activity to the employee and the head of the employing agency, and, if appropriate, to the Attorney General or other authority.

Protection of reporting employees from retaliatory action includes requiring the State Auditor to communicate with the reporting employee on a quarterly basis during the two-year period after the report.  If it is determined that retaliation has occurred, the Auditor must investigate further.

A written summary of the whistleblower law must be furnished to each new employee upon entering state service, and annually thereafter.

During the last year, the State Auditor undertook a study of the effectiveness of the program.  Several recommendations for change were included in the conclusions of the report.

SUMMARY:

Several types of personnel action which are normally within the jurisdiction of the state personnel boards are excluded from the definition of "improper governmental action."

If the State Auditor determines that a complaint does not constitute a gross waste of public funds or does not fall within the definition of "improper governmental action," the Auditor may refer the matter to the affected state agency for appropriate action.  The agency is required to conduct the investigation and must respond to the State Auditor in writing with a summary of the investigation of each allegation and any corrective action taken.  The State Auditor then notifies the reporting employee of the results, but keeps the identity of that employee confidential.

The two-year limit is removed on providing protection for the reporting employee, but the employee is made responsible for notifying the State Auditor in writing of any changes in the employee's work situation which are related to having provided the information.

The respective employing agencies, rather than the State Auditor, are required to inform new employees of the whistleblower program.  The requirement that an employee make a good faith effort to notify the agency head before disclosing information on improper governmental actions is repealed.

EFFECT OF PROPOSED SUBSTITUTE:

Two technical amendments add appropriate references to the Revised Code.

A feasibility study of the issue of providing protection for local government employees who report improper governmental actions is to be conducted by the State Auditor.  The study is to be done in consultation with local government associations and representation from local employees.  A report and legislative recommendations are due no later than December 1, 1989.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Jack Heinricher, Assistant State Auditor (pro)