H-2228.1 _______________________________________________
SUBSTITUTE HOUSE BILL 2005
_______________________________________________
State of Washington 56th Legislature 1999 Regular Session
By House Committee on State Government (originally sponsored by Representatives Wolfe, D. Sommers, D. Schmidt, Romero, Carlson, Delvin, Santos, O'Brien, Miloscia, Lovick, Dickerson, Kenney, Ogden, Fisher, Cody, Parlette, Campbell, Lambert, Pennington, Dunshee, Koster, Hankins, Clements, Cairnes, Keiser, Conway and Veloria; by request of State Auditor)
Read first time 03/02/1999.
AN ACT Relating to whistleblowers; amending RCW 42.40.020, 42.40.040, 42.40.050, and 43.09.410; adding new sections to chapter 42.40 RCW; and adding a new section to chapter 42.52 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) "Agency" means any state board, commission, bureau, committee, department, institution, division, or tribunal in the legislative, executive, or judicial branch of state government. "Agency" includes all elective offices, the state legislature, those institutions of higher education created and supported by the state government, and those courts that are part of state government.
(2) "Auditor" means the office of the state auditor.
(((2)))
(3) "Employee" means any individual employed or holding office
in any department or agency of state government.
(((3)))
(4) "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.
(5) "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.
(6)(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,)) results in mismanagement or gross waste of public funds or
resources;
(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)))
(7) "Mismanagement" means the exercise of an executive function in
a manner grossly deviating from the standard of care or competence that a
reasonable person would observe in the same situation.
(8) "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.
(9) "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)))
(10) "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 degree 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 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.
Sec. 4. RCW 42.40.050 and 1992 c 118 s 3 are each amended to read as follows:
(1) Any person who is a whistleblower, as defined in RCW 42.40.020, and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action has the remedies provided under chapter 49.60 RCW. For the purpose of this section "reprisal or retaliatory action" means but is not limited to:
(((1)))
(a) Denial of adequate staff to perform duties;
(((2)))
(b) Frequent staff changes;
(((3)))
(c) Frequent and undesirable office changes;
(((4)))
(d) Refusal to assign meaningful work;
(((5)))
(e) Unwarranted and unsubstantiated letters of reprimand or
unsatisfactory performance evaluations;
(((6)))
(f) Demotion;
(((7)))
(g) Reduction in pay;
(((8)))
(h) Denial of promotion;
(((9)))
(i) Suspension;
(((10)))
(j) Dismissal;
(((11)))
(k) Denial of employment; ((and
(12))) (l)
A supervisor or superior encouraging coworkers to behave in a hostile manner
toward the whistleblower; and
(m) Actions which violate RCW 42.40.030.
(2) Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. However, the agency also shall implement any order under chapter 49.60 RCW (other than an order of suspension if the agency has terminated the retaliator).
NEW SECTION. Sec. 5. The auditor has the authority to contract for any assistance necessary to carry out the provisions of this chapter.
NEW SECTION. Sec. 6. The cost of administering this chapter is funded through the auditing services revolving account created in RCW 43.09.410.
NEW SECTION. Sec. 7. 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. 8. The auditor and the ethics boards as defined in RCW 42.52.010 may enter into agreements regarding the referral and investigation of matters subject to the authority of the auditor and the ethics boards.
NEW SECTION. Sec. 9. A new section is added to chapter 42.52 RCW to read as follows:
The auditor and the ethics boards as defined in RCW 42.52.010 may enter into agreements regarding the referral and investigation of matters subject to the authority of the auditor and the ethics boards.
NEW SECTION. Sec. 10. 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. 11. 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 10 of this act.
NEW SECTION. Sec. 12. Sections 2, 5 through 8, and 10 of this act are each added to chapter 42.40 RCW.
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