BILL REQ. #:  H-0369.1 

Read first time 01/16/09.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to whistleblower protection; amending RCW 42.40.010, 42.40.020, 42.40.030, and 42.40.050; amending 2008 c 266 s 1 (uncodified); and adding a new section to chapter 42.40 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 42.40.010 and 1995 c 403 s 508 are each amended to read as follows:
     It is the policy of the legislature that employees should be encouraged to disclose, to the extent not expressly prohibited by law, improper governmental actions, and to fulfill legal and/or professional obligations to report and disclose information arising from or as part of job responsibilities. It is the intent of the legislature to protect the rights of state employees making these disclosures. It is also the policy of the legislature that employees should be encouraged to identify rules warranting review or provide information to the rules review committee, and it is the intent of the legislature to protect the rights of these employees.

Sec. 2   RCW 42.40.020 and 2008 c 266 s 2 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) "Abuse of authority" means an arbitrary or capricious exercise
of, or willful failure to exercise, power that adversely affects the
rights of any person or that results in personal gain or advantage to
himself, herself, or other persons.
     (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 the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information that is provided with reckless disregard for the truth, or who knowingly omits relevant information is not acting in good faith.
     (((4))) (5) "Gross mismanagement" means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation.
     (((5))) (6) "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))) (7)(a) "Improper governmental action" means any action by an employee undertaken in the performance of the employee's official duties:
     (i) Which is a 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;
     (iii) Which is of substantial and specific danger to the public health or safety;
     (iv) Which is gross mismanagement; ((or))
     (v) Which is an abuse of authority; or
     (vi) Which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure. This provision is not meant to preclude the discretion of agency management to adopt a particular scientific opinion or technical finding from among differing opinions or technical findings to the exclusion of other scientific opinions or technical findings. Nothing in this subsection prevents or impairs a state agency's or public official's ability to manage its public resources or its employees in the performance of their official job duties. This subsection does not apply to de minimis, technical disagreements that are not relevant for otherwise improper governmental activity. Nothing in this provision requires the auditor to contract or consult with external experts regarding the scientific validity, invalidity, or justification of a finding or opinion.
     (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.
     (((7))) (8) "Matters of public concern" means matters of interest to the community as a whole, whether for social, political, or other reasons, and must include discussions that disclose any (a) evidence of corruption, impropriety, or other malfeasance on the part of government officials; (b) violations of law; or (c) incidence of
fraud, abuse, or gross mismanagement.
     (9) "Public official" means the attorney general's designee or designees; the director, or equivalent thereof in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of each agency; or the executive ethics board.
     (((8))) (10) "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))) (11) "Use of official authority or influence" includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including but not limited to duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training or benefits, tolerance of a hostile work environment, or any adverse action under chapter 41.06 RCW, or other disciplinary action.
     (((10))) (12)(a) "Whistleblower" means:
     (i) An employee who in good faith reports alleged improper governmental action to the auditor or other public official, as defined in subsection (((7))) (9) of this section, initiating an investigation by the auditor under RCW 42.40.040; or
     (ii) An employee who is perceived by the employer as reporting, whether they did or not, alleged improper governmental action to the auditor or other public official, as defined in subsection (((7))) (9) of this section, initiating an investigation by the auditor under RCW 42.40.040.
     (b) For purposes of the provisions of this chapter and chapter 49.60 RCW relating to reprisals and retaliatory action, the term "whistleblower" also means:
     (i) An employee who in good faith provides information to the auditor or other public official, as defined in subsection (((7))) (9) of this section, in connection with an investigation under RCW 42.40.040 and an employee who is believed to have reported asserted improper governmental action to the auditor or other public official, as defined in subsection (((7))) (9) of this section, or to have provided information to the auditor or other public official, as defined in subsection (((7))) (9) of this section, in connection with an investigation under RCW 42.40.040 but who, in fact, has not reported such action or provided such information; or
     (ii) 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.

Sec. 3   2008 c 266 s 1 (uncodified) is amended to read as follows:
     The legislature finds and declares that government exists to conduct the people's business, and the people remaining informed about the actions of government contributes to the oversight of how the people's business is conducted. The legislature further finds that many public servants who expose actions of their government that are contrary to the law or public interest face the potential loss of their careers and livelihoods.
     ((It is the policy of the legislature that employees should be encouraged to disclose, to the extent not expressly prohibited by law, improper governmental actions, and it is the intent of the legislature to protect the rights of state employees making these disclosures. It is also the policy of the legislature that employees should be encouraged to identify rules warranting review or provide information to the rules review committee, and it is the intent of the legislature to protect the rights of these employees.
     This act shall be broadly construed in order to effectuate the purpose of this act.))

Sec. 4   RCW 42.40.030 and 2008 c 266 s 3 are each amended to read as follows:
     (1) An employee shall not directly or indirectly use or attempt to use the employee's official authority or influence for the purpose of intimidating, threatening, coercing, commanding, influencing, or attempting to intimidate, threaten, coerce, command, or influence any individual for the purpose of interfering with the right of the individual to: (a) Disclose to the auditor (or representative thereof) or other public official, as defined in RCW 42.40.020, information concerning improper governmental action; or (b) identify rules warranting review or provide information to the rules review committee.
     (2) A public employee must not be prohibited or otherwise restricted in providing information or expressing opinions to state or local elected officials, or to courts or law enforcement, on matters of
public concern, nor be subject to acts of retaliation because the employee has expressed such opinions.
     (3) Nothing in this section authorizes an individual to disclose information otherwise prohibited by law, except to the extent that information is necessary to substantiate the whistleblower complaint, in which case information may be disclosed to the auditor or public official, as defined in RCW 42.40.020, by the whistleblower for the limited purpose of providing information related to the complaint. Any information provided to the auditor or public official under the authority of this subsection may not be further disclosed.

Sec. 5   RCW 42.40.050 and 2008 c 266 s 6 are each amended to read as follows:
     (1)(a) Any person who is a whistleblower, as defined in RCW 42.40.020, and who has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under chapter 49.60 RCW.
     (b) For the purpose of this section, "reprisal or retaliatory action" means, but is not limited to, any of the following:
     (i) Denial of adequate staff to perform duties;
     (ii) Frequent staff changes;
     (iii) Frequent and undesirable office changes;
     (iv) Refusal to assign meaningful work;
     (v) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;
     (vi) Demotion;
     (vii) Reduction in pay;
     (viii) Denial of promotion;
     (ix) Suspension;
     (x) Dismissal;
     (xi) Denial of employment;
     (xii) A supervisor or superior behaving in or encouraging coworkers to behave in a hostile manner toward the whistleblower;
     (xiii) A change in the physical location of the employee's workplace or a change in the basic nature of the employee's job, if either are in opposition to the employee's expressed wish;
     (xiv) Issuance of or attempt to enforce any nondisclosure policy or agreement in a manner inconsistent with prior practice; or
     (xv) Any other action that is inconsistent compared to actions taken before the employee engaged in conduct protected by this chapter, or compared to other employees who have not engaged in conduct protected by this chapter.
     (2) The agency presumed to have taken retaliatory action under subsection (1) of this section may rebut that presumption by proving by a preponderance of the evidence that there have been a series of documented personnel problems or a single((,)) egregious event((, or that)) justifying the agency action or actions ((were justified)) by reasons unrelated to the employee's status as a whistleblower and by showing that improper motive was not a ((substantial)) material factor.
     (3) 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. 6   Section 3 of this act is added to chapter 42.40 RCW.

NEW SECTION.  Sec. 7   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.