HOUSE OF REPRESENTATIVES
Olympia, Washington
Bill Analysis Bill No. HB 2005
Managing the state employee whistleblower program.
Brief Title Hearing Date: 2/24/99
Reps. Wolfe, Sommers, D. and Schmidt, D. Staff: Steve Lundin
Sponsor(s) State Government Committee
Phone: 786-7127
BACKGROUND:
Legislation was enacted in 1982 establishing a whistleblower protection program for state employees to encourage state employees to report improper governmental actions and to protect the rights of state employees who make such disclosures.
Improper governmental action is defined as any action by an employee undertaken in the performance of the employee=s official duties which violates state law or rule, is an abuse of authority, is of substantial and specific danger to the public health or safety, or is a gross waste of public funds. A number of personnel actions are specifically excluded from the definition of improper governmental action.
1. Investigation of a complaint.
The state auditor is given the responsibility to investigate complaints of improper governmental action that are made under this program. The laws do not give the auditor discretion to determine whether the allegations have sufficient merit to conduct an investigation, or to determine whether the matter has already been sufficiently investigated by another authority or should be investigated as part of an audit.
The auditor must acknowledge a report of improper governmental action within five-working days of receipt of the complaint. The auditor must conduct a preliminary investigation for a period not to exceed 30 days. A further investigation period of 60 days is provided, that may be extended. The report of the auditor=s investigation and findings must be sent to the whistleblower within one year after the allegations were made. There is no requirement for the auditor to notify the subjects of the investigation if further investigation is going to occur beyond this one-year time period. The statutes do not expressly state that the whistleblower=s confidentiality must be maintained if the matter is referred to another authority following the auditor=s investigation.
If it appears that the allegations do not constitute improper governmental action, the auditor may forward a summary of the allegations to the appropriate agency for investigation. The auditor must keep the whistleblower=s identity confidential. The agency must respond within 30 days after receipt of the allegations from the auditor. It is not clear that the procedural and confidentiality provisions apply when the information is sent to another entity.
When the auditor submits a report of alleged improper governmental action to an agency, the agency must report to the auditor within 30 days, any action taken in response to the report, and must make monthly reports to the auditor until final action is taken. The auditor must report to the Governor and the Legislature if the auditor determines that corrective action is not being taken within a reasonable amount of time, but there is no specific time limit in statute for when final corrective action must be taken.
2. Employee protections from retaliatory actions.
Employees who provide information about improper governmental action in good faith are protected from retaliatory action and have remedies available under the Human Rights Commission laws, which include cease and desist orders, civil penalties being imposed of up to $3000, and an order to suspend the person who retaliates for up to 30 days without pay. Damages for humiliation and mental suffering shall not exceed $10,000. In addition, a retaliating employee may be otherwise disciplined, terminated, or suspended.
3. Administration of program.
The auditor is given the authority to administer the provisions of the state whistleblower law, but is not specifically authorized to contract out for any assistance that may be necessary. In addition, the law is silent on how the costs of administering the chapter should be funded.
SUMMARY:
The state whistleblower law is rewritten.
1. Which state agencies are subject to the law.
The act applies to all state agencies, including the legislative and judicial branches of state government. Complaints about the state auditor, or an employee of that office, may be filed with the attorney general who acts in the place of the state auditor in such instances.
2. Improper conduct.
The definition of improper governmental action is altered to include actions taken by an employee as part of the employee=s official duties that:
oResult in mismanagement or gross waste of public funds;
oViolate federal or state laws, other than mere technical violations or violations of minimum nature; or
oIs of substantial and specific danger to the public health or safety.
Mismanagement is defined as exercising an executive function in a manner that is grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. Substantial and specific danger is defined as 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.
3. Whistleblower.
It is clarified that the identity of a whistleblower is kept confidential except when the state auditor determines that the assertion was made in other than good faith.
An employee who makes a whistleblower complaint must make a reasonable attempt to ascertain whether the information that is furnished is correct and may be subject to disciplinary actions, including suspension, or termination, for knowingly supplying false information, as determined by the appointing authority.
The definition of retaliatory action is expanded to include actions violating the whistleblower law.
4. Timeliness.
A whistleblower complaint must be made within one year after the occurrence of the asserted improper conduct.
5. Investigation of a complaint.
The following changes are made to investigations of complaints:
a. Determination whether to investigate.
The state auditor may determine whether to investigate any assertions. A variety of factors are listed for the state auditor to consider in making this determination, including, whether the action was isolated or systematic, the history of previous assertions regarding the same subject or subject matter, the degree or significance of the asserted improper governmental action, and the costs and benefits of the investigation.
b. Preliminary investigation.
The preliminary investigation by the state auditor is expanded from a maximum of 30 days to 30 working days after the receipt of the assertion. However, with an agency's consent, the state auditor may forward the assertion to the appropriate agency to investigate over a period of no more than 60 days after the receipt of the assertion.
During the preliminary investigation, the state auditor provides written notice of the nature of the assertions to both the subject of the investigation and his or her agency head.
If the preliminary investigation resulted from an anonymous assertion, a four-person review panel must be convened to make recommendations on proceeding to the state auditor. The panel must include a representative from: (1) one of the three ethics boards; (2) the state auditor=s office with knowledge of the subject agency operations; (3) the whistleblower program administrator team; and (4) the attorney general=s office.
c. Further investigation.
Written notice must be provided to the subject of the assertions and his or her agency head if further investigations are to occur. The time by which a further investigation must be completed is expanded from 60 days to 60 working days after the 30-day preliminary investigation period, unless written justification is furnished to the whistleblower, subject of the investigation, and agency head.
Agencies are required to cooperate fully with the investigation and take appropriate actions to preclude destruction of any evidence during the course of the investigation.
The subject of the investigation must be interviewed during the further investigation. If it is determined that a reasonable cause exists to believe that improper governmental action has occurred, the subject and agency head are given 15 working days to respond to the assertions prior to issuance of the final report.
d. Determination of reasonable cause.
If the report contains reasonable cause determinations, the agency must send its plan to resolve the situation to the auditor within 15 working days of having received the report. The state auditor may require periodic reports of agency action taken until all resolution has occurred.
The determination in the report is sent to the Governor and the determination may be included in the state auditor=s audit of the agency.
Once the state auditor determines that appropriate action has been taken, the whistleblower, agency head, and subject of the investigation must be notified.
It is clarified that an agency may make a decision to terminate, suspend, or discipline an employee for reasons unrelated to the employee=s status as a whistleblower.
6. Administrative matters.
The state auditor is given specific authority to contract for assistance in carrying out the Whistleblower Act and may enter into agreements with the three state ethics boards to investigate matters within the authority of the auditor or the ethics board.
The costs of administrating the whistleblower program is funded through the auditing services revolving account.
The Office of Financial Management is required to contract for a performance audit of the state employee whistleblower program.
FISCAL NOTE: Not requested.
EFFECTIVE DATE: Ninety days after adjournment of session in which bill is passed.