Z-0294.3 _______________________________________________
SENATE BILL 5645
_______________________________________________
State of Washington 56th Legislature 1999 Regular Session
By Senators Patterson, McCaslin, Winsley, Haugen, Jacobsen, Goings, Fraser, Spanel, Kline, Long, Prentice, T. Sheldon, Rasmussen, Honeyford, Swecker, Rossi, Franklin, Stevens, Costa, Oke, Eide and McAuliffe; by request of State Auditor
Read first time 02/01/1999. Referred to Committee on State & Local Government.
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; providing an effective date; 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 in carrying out official duties.
(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 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))
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.
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 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 of the same nature; whether other avenues are available for addressing the matter; whether the matter has already been investigated or is in litigation; 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) 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)) fifteen
working days of receipt of the information, mail written acknowledgement to the
whistleblower at the address provided stating whether the assertion will be
investigated. For a period not to exceed ((thirty)) sixty
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,)) (c) The auditor may forward a
summary of the ((allegations)) assertions 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)) and resolution at any time during the process. If
requested by the auditor, the agency shall complete an investigation and report
back to the auditor no later than sixty days after the assertions are received
from the auditor. The auditor is entitled to all investigative records. 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 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)
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 of the
investigation, and the agency head and either conduct a further
investigation((s)) or issue a report under subsection (((6))) (9)
of this section. Within sixty days after the ((thirty-day)) sixty-day
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.
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. 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 for the subject of the investigation and the
agency head to respond to the assertions and information obtained during the
investigation.
(((5)))
(8)(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)))
(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. The subject and the agency head shall be given a minimum of fifteen days to respond to the assertions prior to the issuance of the final report.
(9)(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 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) If the assertions fall within the authority of the office of financial management as set forth in chapter 43.88 RCW, it is the duty of the director of financial management to cause resolution to occur within six months, such an action to include, as appropriate, the withholding of funds as provided in RCW 43.88.110. The director of financial management shall annually report by December 31st of each year the status of whistleblower resolutions to the appropriate committees of the legislature, the state auditor, and the attorney general.
(c)
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 days of having received the report. The agency is
encouraged to consult with the subject or subjects in establishing the
resolution plan. The auditor may require periodic reports of agency action
until all resolution has occurred. The agency shall resolve the matter within
six months after the date of the auditor's report. If the auditor
determines that appropriate action ((is)) has not ((being))
been taken within ((a reasonable time)) the time limits under
this subsection (9)(c), 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)))
(10) 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:
(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).
(3) Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline any employee for reasons unrelated to the employee's status as a whistleblower.
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 auditing services revolving account created in RCW 43.09.410.
NEW SECTION. Sec. 6. 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. 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 July 1, 1999.
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