Z-0685.1  _______________________________________________

                         SENATE BILL 5790

          _______________________________________________

State of Washington      55th Legislature     1997 Regular Session

By Senators McCaslin, Fraser, Haugen, Patterson, Stevens, Horn, Oke and Wojahn; by request of State Auditor

Read first time 02/12/97.  Referred to Committee on Government Operations.

Modifying the state employee whistleblower protection act.

    AN ACT Relating to whistleblowers; amending RCW 42.40.020, 42.40.040, and 42.40.050; adding new sections to chapter 42.40 RCW; and declaring an emergency.

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) "Abuse" means acting in an arbitrary and capricious manner that adversely affects the accomplishment of an agency function.

(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)(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) Which ((is in violation of any state law or rule, is an abuse of authority,)) results in substantial abuse, misuse, destruction, waste, or loss of public funds or public resources;

(iii) Which is in violation of any federal or state law or rule; or

(iv) 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))) (5) "Misuse" means an unauthorized use.

(6) "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))) (7) "Waste" means an unnecessary or unreasonable expenditure or use.

(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 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.

    Sec. 2.  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 allegation of improper governmental action must be provided to the auditor within one year after the occurrence of that alleged improper governmental action.

(b) The auditor has the discretion to review allegations received from whistleblowers to determine whether they contain sufficient merit and specificity to warrant investigation or whether the matter already has been sufficiently investigated by another authority.  In addition, the auditor may determine whether the matter should be investigated as part of an audit under chapter 43.09 RCW.

(2) Upon receiving specific information that an employee has engaged in improper governmental action, the auditor shall, within ((five)) fifteen working days of receipt of the information, mail written acknowledgement to the whistleblower at the address provided.  For a period not to exceed ((thirty)) sixty days, 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))) (3) In addition to the authority under subsection (((1))) (2) of this section, the auditor may, on its own initiative, investigate incidents of improper state governmental action.

    (((3))) (4)(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 notification shall be by memorandum containing a summary of the information received, a summary of the results of the preliminary investigation with regard to each allegation 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)) an 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)).  The agency shall complete an investigation and report back to the auditor no later than sixty days after the allegations are received from the auditor.  All procedural and confidentiality provisions of this chapter apply to investigations conducted under this subsection.

    (((4))) (5) 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 and either conduct further investigations or issue a report under subsection (((6))) (7) of this section.  Within sixty days after the ((thirty-day)) sixty-day period in subsection (((1))) (2) 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.  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))) (2) of this section.  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.

    (((5))) (6)(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 and serve 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))) (7)(a) If the auditor determines that there is reasonable cause to believe that an employee has engaged in any improper activity, the auditor shall report the nature and details of the activity to:

    (i) The employee and the head of the employing agency; and

    (ii) If appropriate, the attorney general or such other authority as the auditor determines appropriate.

    (b) If, at the completion of the auditor's investigation, the matter is referred to another authority, the receiving authority must maintain the whistleblowers' confidentiality.

(c) The auditor has no enforcement power except that in any case in which the auditor submits a report of alleged improper governmental activity 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 corrective action to the auditor within thirty days of having received the report.  The auditor may require periodic reports of corrective action until all such action has been completed.  The agency shall complete all corrective action within six months after the date of the auditor's report.  In taking corrective action, the agency shall consider the recovery of the costs of investigating the improper governmental action. If the auditor determines that appropriate action ((is)) has not ((being)) been taken within ((a reasonable time)) the time limits under this subsection (7)(c), the auditor shall report the determination to the governor and to the legislature.

    (((7))) (8) This section does not limit any authority conferred upon the attorney general or any other agency of government to investigate any matter.

    Sec. 3.  RCW 42.40.050 and 1992 c 118 s 3 are each amended to read as follows:

    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) Denial of adequate staff to perform duties;

    (2) Frequent staff changes;

    (3) Frequent and undesirable office changes;

    (4) Refusal to assign meaningful work;

    (5) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;

    (6) Demotion;

    (7) Reduction in pay;

    (8) Denial of promotion;

    (9) Suspension;

    (10) Dismissal;

    (11) Denial of employment; ((and))

    (12) A supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistleblower; and

(13) Actions which violate RCW 42.40.030.

    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. 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 audit services revolving fund created in RCW 43.09.410.

NEW SECTION. Sec. 6.  A whistleblower wishing to provide information under this chapter regarding alleged 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.  Sections 4 through 6 of this act are each added to chapter 42.40 RCW.

NEW SECTION. Sec. 8.  This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

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