BILL REQ. #:  S-0439.1 

Read first time 01/22/09.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to the office of the citizen advocate; amending RCW 42.40.020; adding a new section to chapter 42.56 RCW; adding a new chapter to Title 44 RCW; creating new sections; repealing RCW 51.14.300, 51.14.310, 51.14.320, 51.14.330, 51.14.340, 51.14.350, 51.14.360, 51.14.370, 51.14.380, 51.14.390, 51.14.400, 43.06B.010, 43.06B.020, 43.06B.030, 43.06B.040, 43.06B.050, 43.06A.010, 43.06A.020, 43.06A.030, 43.06A.050, 43.06A.060, 43.06A.070, 43.06A.080, 43.06A.085, 43.06A.090, 43.06A.100, 43.06A.110, and 43.06A.900; and providing effective dates.

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

NEW SECTION.  Sec. 1   INTENT. It is the intent of the legislature to establish, in addition to other remedies or rights of appeal of any person under state law, an independent, impartial state office, readily available to the public and accountable to the legislature. The office shall be empowered to investigate the acts of state administrative agencies and to recommend appropriate changes toward the goals of safeguarding the rights of persons and of achieving higher levels of competency, efficiency, and justice in the administration of state laws.

NEW SECTION.  Sec. 2   SHORT TITLE. This chapter may be known and cited as the Washington citizen advocate act.

NEW SECTION.  Sec. 3   DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Administrative act" means any action, decision, adjudication, failure to act, omission, rule, interpretation, recommendation, policy, practice, or procedure of any agency.
     (2) "Agency" means any department, organization, board, commission, council, bureau, administrative tribunal, facility, public institution of higher education, or other governmental entity of the state government, any person who is providing services to individuals under contract with a state agency, and any official, officer, administrative hearing examiner, or employee of the state, whether elected or appointed, acting or purporting to act by reason of connection with the state, except:
     (a) Any judge and the judge's staff;
     (b) The legislature, its members, its committees and its employees;      (c) The governor and the governor's personal staff;
     (d) Local agencies, locally elected officials and their personal staff including a county, city, school district, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any other political subdivision of the state; and
     (e) Any multistate governmental entity.
     (3) "Person" means any individual, aggregate of individuals, corporation, partnership, or unincorporated association.
     (4) "Record" means all records, documents, books, papers, files, photographs, microfilms, sound recordings, video recordings, magnetic storage media, computer data, and all other materials, regardless of physical form or characteristics, relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by or on behalf of any agency.

NEW SECTION.  Sec. 4   CITIZEN ADVOCATE--OFFICE CREATED. There is hereby created an office within the legislative branch to be known as the citizen advocate.

NEW SECTION.  Sec. 5   NOMINATION--APPOINTMENT. (1) When there is a vacancy in the office of the citizen advocate, or within twelve months before the expiration of the term of office, a citizen advocate selection committee shall be convened. The committee shall consist of nine members to be selected as follows:
     (a) Four members of the house of representatives, two from each major caucus, and four members of the senate, two from each major caucus, to be appointed by the speaker of the house of representatives and the president of the senate, respectively; and
     (b) One member appointed by the governor.
     (2) The appointing officers shall appoint the members of the committee when a vacancy occurs in the office of citizen advocate. The committee shall receive applications and nominate by a majority vote one candidate for citizen advocate according to its adopted procedures.
     (3) The appointment of the citizen advocate from this nomination is made by passage of a bill on a roll call vote of sixty percent vote of the membership of each house of the legislature. Membership on the citizen advocate selection committee expires when the appointment is approved.
     (4) If the bill for appointment fails to receive the required sixty percent vote, the committee shall reconvene with its same membership to nominate another candidate by majority vote. The committee may not renominate the same candidate.
     (5) Meetings of the committee are subject to the open public meetings act, chapter 42.30 RCW, open to the public except for meetings to interview candidates and to make preliminary choices among the candidates. The meeting held to vote for the nominee shall be open to the public.
     (6) The identity of all candidates shall be public.
     (7) Each member of the committee shall be compensated in accordance with RCW 43.03.240. The nonlegislative member shall be reimbursed for travel expenses incurred in carrying out the duties of the committee in accordance with RCW 43.03.050 and 43.03.060. The legislative members shall be reimbursed for travel expenses in accordance with RCW 44.04.120.
     (8) The committee shall receive staff support from the house office of program research and senate committee services.

NEW SECTION.  Sec. 6   QUALIFICATIONS. (1) The citizen advocate shall be a person of recognized judgment, objectivity, and integrity who is well-equipped to analyze problems of law, administration, and public policy.
     (2) No person while serving as citizen advocate may:
     (a) Be actively involved in political party activities or publicly endorse, solicit funds for, or make contributions to political parties or candidates for elective office;
     (b) Be a candidate for or hold any other elective or appointive public office; or
     (c) Engage in any other occupation, business, or profession likely to detract from the full-time performance of his or her duties as citizen advocate or to result in a conflict of interest or an appearance of impropriety or partiality.
     (3) A person may not submit an application for citizen advocate while serving as a member of the Washington legislature.

NEW SECTION.  Sec. 7   TERM OF OFFICE. The citizen advocate shall serve for a term of six years and until his or her successor is appointed and qualified. He or she may be reappointed for additional terms.

NEW SECTION.  Sec. 8   REMOVAL--VACANCY. (1) The removal of the citizen advocate is made by passage of a bill on a roll call vote of two-thirds vote of the membership of each house of the legislature. The legislature may remove the citizen advocate from office only for mental or physical incapacity to perform the duties of the office, neglect of duty, or upon conviction of willful misconduct or malfeasance in office. The reasons for removal, if requested, shall be provided in writing to the citizen advocate at least one week before passage of the bill in either house of the legislature.
     (2) If the position of citizen advocate becomes vacant for any reason, the chief deputy citizen advocate shall serve as acting citizen advocate until a citizen advocate has been appointed for a full term.

NEW SECTION.  Sec. 9   COMPENSATION. The citizen advocate shall receive a salary and benefits that are equivalent to that received by a superior court judge. The salary of the citizen advocate shall not be diminished during the citizen advocate's term of office, unless by general law applying to all salaried officers of the state.

NEW SECTION.  Sec. 10   ORGANIZATION OF OFFICE. (1) The citizen advocate shall:
     (a) Select, employ, and fix the salary of the chief deputy citizen advocate;
     (b) Select, employ, and fix the salary of an issue-specific deputy citizen advocate who shall be fully dedicated to children's and family issues and who shall be responsible for coordinating the transition from the existing family and children's ombudsman office to the new office of the citizen advocate;
     (c) For at least the first three years of operation, select, employ, and fix the salary of an issue-specific deputy citizen advocate who shall be at least half-time dedicated to education issues and who shall be responsible for coordinating the transition from the existing education ombudsmen office to the new office of the citizen advocate; and
     (d) Have the authority to select, employ, and fix the salaries of such other officers and employees as the citizen advocate may deem necessary to discharge the office of the citizen advocate's responsibilities under this chapter. Salaries shall be approved by the legislature and fixed within the amount available by appropriation. All officers and employees shall serve at the citizen advocate's pleasure and are exempt from the provisions of the state civil service law, chapter 41.06 RCW.
     (2) The citizen advocate may delegate to staff members any authority, power, or duty except the power of delegation and the citizen advocate's duty to make any report under this chapter. However, the citizen advocate may authorize the chief deputy citizen advocate to act in the citizen advocate's stead in the event of illness, absence, leave, or disability, or when, in the citizen advocate's sole discretion, an appearance of impropriety or partiality or a conflict of interest prevents the citizen advocate from discharging his or her duty in a particular matter.
     (3) The citizen advocate and his or her staff are entitled to participate in any employee benefit or retirement plan available to state employees.

NEW SECTION.  Sec. 11   POWERS. The office of the citizen advocate's powers and duties include but are not limited to the following:
     (1) To investigate, on complaint or on the citizen advocate's own initiative, any administrative act of an agency, without regard to the finality of the administrative act, however this authority to investigate does not apply to those complaints that fall under the jurisdiction of chapter 42.40 RCW and must be reported to the state auditor;
     (2) To undertake, participate in, or cooperate with persons and agencies in conferences, inquiries, meetings, or studies that might improve the functioning of agencies or lessen the risks that objectionable administrative acts will occur;
     (3) To make such inquiries and obtain such assistance and information from any agency or person as the citizen advocate requires for the discharge of the citizen advocate's duties. Agencies shall not restrict the citizen advocate's access to agency personnel;
     (4) Notwithstanding any other provision of state law, to have access to and to examine and copy, without payment of a fee, any agency records, including records that are confidential under state law. Confidential documents provided to the office of the citizen advocate by other agencies shall continue to maintain their confidential status. The citizen advocate shall not disclose confidential records and is subject to the same penalties as the legal custodian of the records for any unlawful or unauthorized disclosure. This right to access and examine records does not apply to the following:
     (a) Those records in which the custodian can demonstrate that the examination of the record would violate federal law or result in the denial of federal funds to the agency;
     (b) Sealed court records without a subpoena;
     (c) Active criminal investigation records without a subpoena, except that the names of officers involved in the investigation and the cause of the investigation shall be released unless it is information in records subject to (d) of this subsection;
     (d) Those records that could lead to the identity of a confidential police informant; and
     (e) Attorney work product and communications that are protected under attorney-client privilege without a subpoena;
     (5) To enter and inspect without prior notice the premises of any agency;
     (6) To subpoena any person to appear, to give sworn testimony, or to produce documentary or other evidence that is reasonably relevant to the matters under investigation;
     (7) To maintain confidential any matter related to complaints and investigations, including the identities of the complainants and witnesses, except as the citizen advocate deems necessary to discharge the citizen advocate's duties and except as required by RCW 42.40.040;
     (8) To bring suit in the appropriate state court to enforce this chapter;
     (9) To adopt, amend, and rescind rules required for the discharge of the citizen advocate's duties, including procedures for receiving and processing complaints, conducting investigations, and reporting findings, conclusions, and recommendations; and
     (10) To prepare and administer a budget for the office of the citizen advocate.

NEW SECTION.  Sec. 12   COMPLAINTS--INVESTIGATION. (1) The citizen advocate shall conduct a suitable investigation of a complaint that is an appropriate subject for investigation, except as provided by subsection (2) of this section. An appropriate subject for investigation by the citizen advocate includes any administrative act that the citizen advocate believes might be:
     (a) Contrary to law or rule;
     (b) Based on mistaken facts or irrelevant considerations;
     (c) Unsupported by an adequate statement of reasons;
     (d) Performed in an inefficient manner;
     (e) Unreasonable, unfair, or otherwise objectionable, even though in accordance with law; or
     (f) Otherwise erroneous.
     (2) The citizen advocate in the citizen advocate's discretion may decide not to investigate because:
     (a) The complainant could reasonably be expected to use another remedy or channel;
     (b) The complaint is trivial, frivolous, vexatious, or not made in good faith;
     (c) The complaint has been delayed too long to justify present examination;
     (d) The complainant is not personally aggrieved by the subject matter of the complaint;
     (e) Resources are insufficient for adequate investigation; or
     (f) Other complaints are more worthy of attention.
     (3) The citizen advocate's declining to investigate a complaint does not bar the citizen advocate from proceeding on his or her own initiative to investigate an administrative act whether or not included in the complaint.
     (4) An individual need not exhaust other administrative remedies before filing a complaint with the citizen advocate.
     (5) The citizen advocate may not levy any fees for the submission or investigation of complaints.

NEW SECTION.  Sec. 13   COMPLAINANT'S RIGHTS. (1) After the citizen advocate has decided whether or not to investigate a complaint, the citizen advocate shall inform the complainant in writing of the decision.
     (2) The citizen advocate shall, if requested in writing by the complainant, report the status of his or her investigation to the complainant in writing.
     (3) After investigation of a complaint, the citizen advocate shall inform the complainant of his or her conclusion or recommendation in writing and, if appropriate, any action taken or to be taken by the agency involved.
     (4) A letter to the citizen advocate from a person held in custody, including by detention, incarceration, or hospitalization by an agency, shall be forwarded immediately, unopened, to the citizen advocate. A letter from the citizen advocate to such person shall be immediately delivered, unopened, to the person. Telephone and personal contacts between the citizen advocate and a person in custody shall not be prohibited or monitored.

NEW SECTION.  Sec. 14   AGENCY RIGHTS. Before formally issuing a conclusion or recommendation that is significantly critical or adverse to an agency, the citizen advocate shall have consulted with that agency and permitted the agency reasonable opportunity to reply. If the citizen advocate makes a conclusion or recommendation available to the agency in order to facilitate a reply, the conclusion or recommendation is confidential and is not subject to public disclosure under chapter 42.56 RCW. The conclusion or recommendation may not be disclosed to the public by the agency unless the citizen advocate releases it.

NEW SECTION.  Sec. 15   PROCEDURE AFTER INVESTIGATION. (1) After investigation, the citizen advocate shall state any conclusions, recommendations, and reasons therefor to the agency if the citizen advocate is of the opinion that an agency should consider the matter further; modify or cancel an act; alter a rule, practice, or ruling; explain more fully the act in question; rectify an omission; or take any other action. If the citizen advocate so requests, the agency shall, within the time specified, inform the citizen advocate about the action taken on recommendations or the reasons for not complying with them.
     (2) After a reasonable period of time has elapsed, the citizen advocate may issue his or her conclusions or recommendations to the legislature, the governor, a grand jury, the public, or any other appropriate authority. The citizen advocate shall include any brief statement the agency may provide if an opportunity to reply is required by this chapter.
     (3) If the citizen advocate believes that an action has been dictated by laws whose results are unfair or otherwise objectionable and could be revised by legislative action, the citizen advocate shall notify the legislature and the agency of the desirable statutory change.
     (4) If the citizen advocate believes that any agency official or employee has acted in a manner warranting criminal or disciplinary proceedings, the citizen advocate shall refer the matter to the appropriate authorities without notice to that person.

NEW SECTION.  Sec. 16   REPORTS. (1) The citizen advocate may issue special or general interim reports at his or her discretion to the governor, the legislature, the public, or agencies.
     (2) The citizen advocate shall annually report on his or her activities to the governor, the legislature, the public, and, in the citizen advocate's discretion, agencies. The annual report shall include at a minimum:
     (a) The number of complaints received;
     (b) The number of complaints investigated;
     (c) The number of complaints that have been resolved;
     (d) The number of complaints that still involve ongoing investigations; and
     (e) The number of complaints dismissed.
     (3) The information in subsection (2) of this section shall be reported both as statewide numbers as well as broken down by agency. Additional details for complaints that are dismissed shall be provided in the report, such as the type of complaint and the reason the complaint was dismissed.

NEW SECTION.  Sec. 17   CITIZEN ADVOCATE--IMMUNITIES. (1) The substantive content of any finding, conclusion, recommendation, or report of the citizen advocate or member of the citizen advocate's staff shall not be reviewable in any court.
     (2) The citizen advocate and the citizen advocate's staff have the same immunities from civil and criminal liabilities as a judge of this state.
     (3) The citizen advocate and the citizen advocate's staff shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties except as may be necessary to enforce this chapter.
     (4) Records and files maintained by the office of the citizen advocate that are related to complaints taken by the office of the citizen advocate or related to investigations conducted by the office of the citizen advocate are not subject to public disclosure under chapter 42.56 RCW, except that any currently serving member of the legislature may require disclosure of any matter and shall have complete access to the records and files of the citizen advocate upon written request to view such records or files. The request must include the reason for the request and must be signed by the legislator making the request. The legislator must agree in the request to keep the information viewed confidential except to the extent the information is part of the reason to remove the citizen advocate under the provisions of section 8 of this act.

NEW SECTION.  Sec. 18   WITNESSES' PRIVILEGES. Any person who provides information under this chapter may be accompanied and advised by counsel of his or her choice and shall be paid the same fees and travel allowances and accorded the same privileges and immunities as witnesses whose attendance has been required in superior court. However, a representative of an agency providing information under this chapter during business hours is not entitled to receive such fees and allowances.

NEW SECTION.  Sec. 19   OBSTRUCTION. Any person who willfully obstructs or hinders the proper and lawful actions of the citizen advocate or the citizen advocate's staff, or willfully misleads or attempts to mislead the citizen advocate or his or her staff in the citizen advocate's inquiries, is guilty of official misconduct under RCW 9A.80.010.

NEW SECTION.  Sec. 20   REPRISALS PROHIBITED. (1) No person who files a complaint or participates in any investigation or proceeding under this chapter may be subject to any penalties, sanctions, or restrictions in connection with his or her employment or be denied any right, privilege, or benefit because of such action.
     (2) A person who alleges a violation of this section may bring a civil action for appropriate injunctive relief, actual damages, and punitive damages. Punitive damages may not exceed ten thousand dollars.

NEW SECTION.  Sec. 21   CONSTRUCTION. The provisions of this chapter are in addition to and do not in any manner limit or affect any other provisions of law under which any remedy or right of appeal is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter. The powers conferred on the citizen advocate may be exercised notwithstanding any provision of law to the effect that any administrative action shall be final or unappealable.

NEW SECTION.  Sec. 22   CITIZEN ADVOCATE ADMINISTRATIVE ACCOUNT. (1) The citizen advocate administrative account is created in the state treasury. The account is to be used solely for the payment of the operating costs of the office of the citizen advocate. Moneys in the account may be spent only after appropriation.
     (2) Expenditures from the account shall not exceed one-third of the operating costs of the office in any fiscal biennium. The account shall be financed through annual premiums assessed to state agencies under the jurisdiction of the office.
     (a) For the 2009-2011 fiscal biennium, the annual premium assessed to each state agency shall be based solely on the appropriation from the account, prorated on the basis of the number of full-time equivalent employees of each agency, as determined by the office of financial management.
     (b) For the 2011-2013 fiscal biennium, the annual premium of each agency under the jurisdiction of the office shall be based on the prorated share of the workload of the office related to each agency, as determined by the citizen advocate. To avoid significant fluctuations in the agency premiums, the workload data used to prorate the annual premiums shall be based on a three-year rolling average, to the extent that such data are available, and no agency premium may be increased by more than twenty percent in any fiscal year.

NEW SECTION.  Sec. 23   (1) No later than January 1, 2011, the office of the citizen advocate shall review the powers and duties of the mental health ombudsman created by RCW 71.24.350 and based on that review make recommendations to the legislature regarding the continued existence of the mental health ombudsman office including whether the statute should be repealed and the duties assumed by the citizen advocate. The citizen advocate shall consider both governmental efficiency as well as adequacy of service to citizens in developing its recommendations.
     (2) No later than January 1, 2011, the office of the citizen advocate shall review the powers and duties of the office of family and children's ombudsman as authorized by chapter 43.06A RCW and based on that review:
     (a) Make finding as to whether any of the powers and duties listed in RCW 43.06A.030 are not powers and duties that the office of the citizen advocate is authorized to engage in; and
     (b) For each power or duty the citizen advocate does not have authority to engage in, make a recommendation to the legislature as to whether the citizen advocate should have that authority.
     (3) No later than January 1, 2012, the office of the citizen advocate shall review the powers and duties of the long-term care ombudsman created by chapter 43.190 RCW and based on that review make recommendations to the legislature regarding the continued existence of the long-term care ombudsman office as a separate office or whether the office should be incorporated into the citizen advocate. The citizen advocate shall consider both governmental efficiency as well as adequacy of service to citizens in developing its recommendations and shall consider any relevant federal requirements or implications related to incorporating the long-term care ombudsman into the office of the citizen advocate.

NEW SECTION.  Sec. 24   A new section is added to chapter 42.56 RCW to read as follows:
     (1) Records and files maintained by the office of the citizen advocate that are related to complaints taken by the office of the citizen advocate or related to investigations conducted by the office of the citizen advocate are exempt from disclosure under this chapter.
     (2) Conclusions or recommendations made available to an agency under section 14 of this act are exempt from disclosure under this chapter.

NEW SECTION.  Sec. 25   (1) The office of the ombudsman for workers of industrial insurance self-insured employers, as established in chapter 51.14 RCW, is hereby abolished.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the office of the ombudsman for workers of industrial insurance self-insured employers shall be delivered to the custody of the office of the citizen advocate. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the office of the ombudsman for workers of industrial insurance self-insured employers shall be made available to the office of the citizen advocate. All funds, credits, or other assets held by the office of the ombudsman for workers of industrial insurance self-insured employers shall be assigned to the office of the citizen advocate.
     (b) Any appropriations made to the office of the ombudsman for workers of industrial insurance self-insured employers shall, on the effective date of this section, be transferred and credited to the office of the citizen advocate.
     (c) If any question arises as to the transfer of any funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All rules and all pending business before the office of the ombudsman for workers of industrial insurance self-insured employers shall be continued and acted upon by the office of the citizen advocate in the discretion of and to the extent it is within the authority of the citizen advocate. All existing contracts and obligations shall remain in full force and shall be performed by the office of the citizen advocate.
     (4) The abolition of the office of the ombudsman for workers of industrial insurance self-insured employers shall not affect the validity of any act performed before the effective date of this section.
     (5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (6) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the public employment relations commission as provided by law.

NEW SECTION.  Sec. 26   (1) Effective July 10, 2010, the office of the education ombudsman, as established in chapter 43.06B RCW, is hereby abolished.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the office of the education ombudsman shall be delivered to the custody of the office of the citizen advocate. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the office of the education ombudsman shall be made available to the office of the citizen advocate. All funds, credits, or other assets held by the office of the education ombudsman shall be assigned to the office of the citizen advocate.
     (b) Any appropriations made to the office of the education ombudsman shall, on the effective date of this section, be transferred and credited to the office of the citizen advocate.
     (c) If any question arises as to the transfer of any funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All rules and all pending business before the office of the education ombudsman shall be continued and acted upon by the office of the citizen advocate in the discretion of and to the extent it is within the authority of the citizen advocate. All existing contracts and obligations shall remain in full force and shall be performed by the office of the citizen advocate.
     (4) The abolition of the office of the education ombudsman shall not affect the validity of any act performed before the effective date of this section.
     (5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (6) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the public employment relations commission as provided by law.

NEW SECTION.  Sec. 27   (1) Effective July 10, 2010, the special education ombudsman program located within the office of the superintendent of public instruction is hereby abolished.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the special education ombudsman program shall be delivered to the custody of the office of the citizen advocate. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the special education ombudsman program shall be made available to the office of the citizen advocate. All funds, credits, or other assets dedicated to the special education ombudsman program shall be assigned to the office of the citizen advocate.
     (b) Any appropriations made to the special education ombudsman program shall, on the effective date of this section, be transferred and credited to the office of the citizen advocate.
     (c) If any question arises as to the transfer of any funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All rules and all pending business before the special education ombudsman program shall be continued and acted upon by the office of the citizen advocate in the discretion of and to the extent it is within the authority of the citizen advocate. All existing contracts and obligations shall remain in full force and shall be performed by the office of the citizen advocate.
     (4) The elimination of the special education ombudsman program shall not affect the validity of any act performed before the effective date of this section.
     (5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (6) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the public employment relations commission as provided by law.

NEW SECTION.  Sec. 28   (1) Effective July 10, 2011, the office of the family and children's ombudsman, as established in chapter 43.06A RCW is hereby abolished. All references to the ombudsman or the office of the family and children's ombudsman in the Revised Code of Washington shall be construed to mean the citizen advocate or the office of the citizen advocate.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the office of the family and children's ombudsman shall be delivered to the custody of the office of the citizen advocate. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the office of the family and children's ombudsman shall be made available to the office of the citizen advocate. All funds, credits, or other assets held by the office of the family and children's ombudsman shall be assigned to the office of the citizen advocate.
     (b) Any appropriations made to the office of the family and children's ombudsman shall, on the effective date of this section, be transferred and credited to the office of the citizen advocate.
     (c) If any question arises as to the transfer of any funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All rules and all pending business before the office of the family and children's ombudsman shall be continued and acted upon by the office of the citizen advocate to the extent it is within the authority of the citizen advocate. All existing contracts and obligations shall remain in full force and shall be performed by the office of the citizen advocate.
     (4) The abolition of the office of the family and children's ombudsman shall not affect the validity of any act performed before the effective date of this section.
     (5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (6) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the public employment relations commission as provided by law.

Sec. 29   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) "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 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) "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) "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 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 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) "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; the office of the citizen advocate; or the executive ethics board.
     (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 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)(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) 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) 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) 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) of this section, or to have provided information to the auditor or other public official, as defined in subsection (7) 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.

NEW SECTION.  Sec. 30   The following acts or parts of acts are each repealed:
     (1) RCW 51.14.300 (Ombudsman office created -- Appointment -- Open and competitive contracting) and 2007 c 281 s 1;
     (2) RCW 51.14.310 (Ombudsman -- Term of office -- Removal -- Vacancies) and 2007 c 281 s 2;
     (3) RCW 51.14.320 (Ombudsman -- Training or experience qualifications) and 2007 c 281 s 3;
     (4) RCW 51.14.330 (Ombudsman office -- Staffing level) and 2007 c 281 s 4;
     (5) RCW 51.14.340 (Ombudsman office -- Powers and duties) and 2007 c 281 s 5;
     (6) RCW 51.14.350 (Ombudsman office -- Referral procedures--Department response to referred complaints) and 2007 c 281 s 6;
     (7) RCW 51.14.360 (Ombudsman liability -- Discriminatory, disciplinary, or retaliatory actions -- Communications privileged and confidential -- Testimony) and 2007 c 281 s 7;
     (8) RCW 51.14.370 (Confidentiality of ombudsman records and files--Disclosure prohibited -- Exception) and 2007 c 281 s 8;
     (9) RCW 51.14.380 (Explaining ombudsman program -- Posters and brochures) and 2007 c 281 s 9;
     (10) RCW 51.14.390 (Ombudsman office -- Funding) and 2007 c 281 s 10; and
     (11) RCW 51.14.400 (Ombudsman -- Annual report to governor) and 2007 c 281 s 12.

NEW SECTION.  Sec. 31   The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective July 1, 2010:
     (1) RCW 43.06B.010 (Office created -- Purposes -- Appointment -- Regional education ombudsmen) and 2006 c 116 s 3;
     (2) RCW 43.06B.020 (Powers and duties) and 2008 c 165 s 2 & 2006 c 116 s 4;
     (3) RCW 43.06B.030 (Liability for good faith performance--Privileged communications) and 2006 c 116 s 5;
     (4) RCW 43.06B.040 (Confidentiality) and 2006 c 116 s 6; and
     (5) RCW 43.06B.050 (Annual reports) and 2006 c 116 s 7.

NEW SECTION.  Sec. 32   The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective July 1, 2011:
     (1) RCW 43.06A.010 (Office created -- Purpose) and 1996 c 131 s 2;
     (2) RCW 43.06A.020 (Ombudsman -- Appointment, term of office) and 1998 c 288 s 7 & 1996 c 131 s 3;
     (3) RCW 43.06A.030 (Duties) and 1996 c 131 s 4;
     (4) RCW 43.06A.050 (Confidentiality) and 2005 c 274 s 294 & 1996 c 131 s 6;
     (5) RCW 43.06A.060 (Admissibility of evidence -- Testimony regarding official duties) and 1998 c 288 s 1;
     (6) RCW 43.06A.070 (Release of identifying information) and 1998 c 288 s 2;
     (7) RCW 43.06A.080 (Inapplicability of privilege in RCW 43.06A.060) and 1998 c 288 s 3;
     (8) RCW 43.06A.085 (Liability for good faith performance--Privileged communications) and 1999 c 390 s 7;
     (9) RCW 43.06A.090 (Report of conduct warranting criminal or disciplinary proceedings) and 1998 c 288 s 4;
     (10) RCW 43.06A.100 (Communication with children in custody of department of social and health services -- Access to information in possession or control of department or state institutions) and 2008 c 211 s 3 & 1999 c 390 s 5;
     (11) RCW 43.06A.110 (Child fatality review recommendations -- Annual report) and 2008 c 211 s 2; and
     (12) RCW 43.06A.900 (Construction) and 1998 c 288 s 5.

NEW SECTION.  Sec. 33   Captions used in this chapter are not any part of the law.

NEW SECTION.  Sec. 34   Sections 1 through 23, 28, and 33 of this act constitute a new chapter in Title 44 RCW.