BILL REQ. #:  H-0958.1 

Read first time 02/04/2003.   Referred to Committee on Local Government.

     AN ACT Relating to local government whistleblower protection; amending RCW 42.41.020 and 42.41.030; and adding a new section to chapter 42.41 RCW.

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

Sec. 1   RCW 42.41.020 and 1994 c 210 s 1 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Auditor" means the office of the state auditor.
     (2) "Emergency" means a circumstance that if not immediately changed may cause damage to persons or property.
     (3) "Employee" means any individual employed or holding office in any department or agency of local government.
     (4) "Good faith" means a reasonable basis in fact for the communication. "Good faith" is lacking when the employee knows or reasonably ought to know that the report is malicious, false, or frivolous.
     (5) "Gross waste of public 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 a local government officer or employee:
     (i) That is undertaken in the performance of the officer's or employee's official duties, whether or not the action is within the scope of the employee's employment; and
     (ii) That is in violation of any federal, state, or local 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.
     (b) "Improper governmental action" does not include personnel actions 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 local government collective bargaining and civil service laws, alleged labor agreement violations, reprimands, or any action that may be taken under chapter 41.08, 41.12, 41.14, 41.56, 41.59, or 53.18 RCW or RCW 54.04.170 and 54.04.180.
     (((2))) (7) "Local government" means any governmental entity other than the state, federal agencies, or an operating system established under chapter 43.52 RCW. It includes, but is not limited to cities, counties, school districts, and special purpose districts.
     (((3))) (8) "Retaliatory action" means: (a) Any adverse change in a local government employee's employment status, or the terms and conditions of employment including denial of adequate staff to perform duties, frequent staff changes, frequent and undesirable office changes, refusal to assign meaningful work, unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations, demotion, transfer, reassignment, reduction in pay, denial of promotion, suspension, dismissal, or any other disciplinary action; or (b) hostile actions by another employee towards a local government employee that were encouraged by a supervisor or senior manager or official.
     (((4) "Emergency" means a circumstance that if not immediately changed may cause damage to persons or property.))
     (9) "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.
     (10) "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 other disciplinary action.
     (11) "Whistleblower" means an employee who in good faith reports alleged improper governmental action to the appropriate person or persons listed in the policy adopted pursuant to RCW 42.41.030 or to the county prosecuting attorney and the state auditor if the local government has failed to adopt a policy.

Sec. 2   RCW 42.41.030 and 1995 c 213 s 1 are each amended to read as follows:
     (1) Every local government employee has the right to report to the appropriate person or persons information concerning an alleged improper governmental action.
     (2) The governing body or chief administrative officer of each local government shall adopt a policy on the appropriate procedures to follow for reporting such information and shall provide information to their employees on the policy. Local governments are encouraged to consult with their employees on the policy.
     (3) The policy shall describe the appropriate person or persons within the local government to whom to report information and a list of appropriate person or persons outside the local government to whom to report. The list shall include the county prosecuting attorney and the state auditor.
     (4) Each local government shall permanently post a summary of the procedures for reporting information on an alleged improper governmental action and the procedures for protection against retaliatory actions described in RCW 42.41.040 in a place where all employees will have reasonable access to it. A copy of the summary shall be made available to any employee upon request.
     (5) A local government may require as part of its policy that, except in the case of an emergency, before an employee provides information of an improper governmental action to a person or an entity who is not a public official or a person listed pursuant to subsection (3) of this section, the employee shall submit a written report to the local government. Where a local government has adopted such a policy under this section, an employee who fails to make a good faith attempt to follow the policy shall not receive the protections of this chapter.
     (6) If a local government has failed to adopt a policy as required by subsection (2) of this section, an employee may report alleged improper government action directly to the county prosecuting attorney ((or)), who must investigate the allegation. If the prosecuting attorney or an employee of the prosecuting attorney participated in the alleged improper government action, an employee may report the alleged improper government action to the state auditor, who must investigate the allegation. The cost incurred by the state auditor in such investigations shall be paid by the local government through the municipal revolving account authorized in RCW 43.09.282.
     (7) The employee may request that the state auditor investigate the alleged improper governmental action if, after following the procedures adopted by the local government or reporting the alleged improper governmental action to the county prosecuting attorney, the employee receives no response within sixty days of initiating those procedures or making that report, or believes that the allegation was not investigated with due diligence. The state auditor has discretion to decide whether to investigate the alleged improper governmental action. General dissatisfaction with the outcome or results of the investigation is not sufficient reason for the state auditor to investigate the allegation. If the state auditor does investigate the allegation, he or she may consider the procedures provided in RCW 42.40.040 as a guide. The cost incurred by the state auditor in such investigations shall be paid by the local government through the municipal revolving account authorized in RCW 43.09.282.
     (8) The identity of a reporting employee shall be kept confidential to the extent possible under law, unless the employee authorizes the disclosure of his or her identity in writing.

NEW SECTION.  Sec. 3   A new section is added to chapter 42.41 RCW to read as follows:
     An employee must make a reasonable attempt to ascertain the correctness of the information furnished and may be subject to disciplinary actions, including, but not limited to, suspension or termination, for knowingly furnishing false information as determined by the employee's appointing authority.