HB1418: establishing a procedure for state employees to report suspected improper governmental activity.

HB 1418-FN - AS INTRODUCED

2003 SESSION

03-2326

06/10

HOUSE BILL 1418-FN

AN ACT establishing a procedure for state employees to report suspected improper governmental activity.

SPONSORS: Rep. Gilman, Graf 9; Rep. Gibson, Hills 58; Rep. Weyler, Rock 79; Rep. Morris, Rock 84; Sen. Kenney, Dist 3; Sen. Gallus, Dist 1; Sen. Martel, Dist 18

COMMITTEE: Executive Departments and Administration

ANALYSIS

This bill establishes a procedure for state employees to report suspected improper governmental activity.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2326

06/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT establishing a procedure for state employees to report suspected improper governmental activity.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; State Employee Whistleblower Protection. Amend RSA by inserting after chapter 275-E the following new chapter:

CHAPTER 275-F

STATE EMPLOYEE WHISTLEBLOWER PROTECTION

275-F:1 Declaration of Policy. It is the policy of the legislature that employees should be encouraged to disclose, to the extent not expressly prohibited by law, improper governmental actions, and it is the intent of the legislature to protect the rights of state employees making these disclosures. It is also the policy of the legislature that employees should be encouraged to identify rules warranting review or provide information to the rules review committee, and it is the intent of the legislature to protect the rights of these employees.

275-F:2 Definitions. In this chapter:

I. "Employee" means any individual employed or holding office in any department or agency of state government.

II. "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.

III. "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.

IV.(a) "Improper governmental action" means any action by an employee undertaken in the performance of the employee's official duties:

(1) Which is a gross waste of public funds or resources;

(2) Which is in violation of federal or state law or rule, if the violation is not merely technical or of a minimal nature; or

(3) Which is of substantial and specific danger to the public health or safety.

(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, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or other disciplinary action.

V. "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.

VI. "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.

VII. "Whistleblower" means an employee who in good faith reports alleged improper governmental action to the attorney general which initiates an investigation. The term "whistleblower" also means:

(a) An employee who in good faith provides information to the attorney general in connection with an investigation and an employee who is believed to have reported asserted improper governmental action to the attorney general or to have provided information to the attorney general in connection with such investigation but who, in fact, has not reported the action or provided the information; or

(b) An employee who in good faith identifies rules warranting review or provides information to the joint legislative committee on administrative rules, and an employee who is believed to have identified rules warranting review or provided information to the joint legislative committee on administrative rules, but who, in fact, has not done so.

275-F:3 Interference With Right to Disclose Improper Government Actions Prohibited.

I. An employee shall not directly or indirectly use, or attempt to use, the employee's official authority or influence for the purpose of intimidating, threatening, coercing, commanding, influencing, or attempting to intimidate, threaten, coerce, command, or influence any individual for the purpose of interfering with the right of the individual to disclose to the attorney general or representative thereof information concerning improper governmental action; or to identify rules warranting review or provide information to the joint legislative committee or administrative rules.

II. Nothing in this section authorizes an individual to disclose information otherwise prohibited by law.

275-F:4 Penalties for False Information. An employee shall make a reasonable attempt to ascertain the correctness of the information he or she furnishes 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

275-F:5 Report of Improper Government Action; Investigations and Reports by Attorney General and Agency.

I.(a) An employee shall make an assertion of improper governmental action to the attorney general within one year after the occurrence of the asserted improper governmental action.

(b) The attorney general shall determine whether to investigate any assertions received. In determining whether to conduct either a preliminary or further investigation, the attorney general 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 regarding the same subject or subjects or subject matter; whether other avenues are available for addressing the matter; whether the matter has already been investigated or is in litigation; the seriousness or significance of the asserted improper governmental action; and the cost and benefit of the investigation. The attorney general 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 attorney general shall document the factors considered and the analysis applied.

(c) The attorney general may also investigate assertions of improper governmental actions which are made as part of another investigation. The attorney general shall document the reasons for handling the matter as part of such an investigation.

II. 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 or the attorney general determines that the information has been provided other than in good faith.

III. Upon receiving specific information that an employee has engaged in improper governmental action, the attorney general shall, within 5 working days of receipt of the information, mail written acknowledgement to the whistleblower at the address provided stating whether a preliminary investigation will be conducted. For a period not to exceed 30 working days from receipt of the assertion, the attorney general shall conduct such preliminary investigation of the matter as he or she deems appropriate.

IV. In addition to the authority under paragraph III, the attorney general may, on his or her own initiative, investigate incidents of improper state governmental action.

V. If it appears to the attorney general, upon completion of the preliminary investigation, that the matter is so unsubstantiated that no further investigation, prosecution, or administrative action is warranted, the attorney general shall so notify the whistleblower. The written notification shall contain a summary of the information received and of the results of the preliminary investigation with regard to each assertion of improper governmental action.

(b) The attorney general may forward the assertions to an appropriate agency to investigate and report back to him or her no later than 60 working days after the assertions are received by the agency. The attorney general is entitled to all investigative records resulting from such a referral. All procedural and confidentiality provisions of this chapter apply to investigations conducted under this paragraph. The attorney general shall document the reasons the assertions were referred.

VI. During the preliminary investigation, the attorney general 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 or subjects of the investigation and the agency head to respond to the assertions and information obtained during the investigation. This notification does not limit the attorney general from considering additional facts or laws which become known during further investigation.

VII.(a) If it appears to the attorney general after completion of the preliminary investigation that further investigation, prosecution, or administrative action is warranted, the attorney general shall so notify the whistleblower, the subject or subjects of the investigation, and the agency head and either conduct a further investigation or issue a report under paragraph X of this section.

(b) If the preliminary investigation resulted from an anonymous assertion, a decision to conduct further investigation shall be subject to review by a 3-person panel convened as necessary by the attorney general prior to the commencement of any additional investigation. The panel shall include a legislative budget assistant representative knowledgeable of the subject agency operations, a citizen volunteer, and a representative of the attorney general's office. This group shall be briefed on the preliminary investigation and shall make a recommendation about continuing with a further investigation.

(c) If further investigation is to occur, the attorney general 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 to be used by the subject or subjects of the investigation and the agency head to respond to the assertions and information obtained during the investigation.

VIII. Within 60 working days after the preliminary investigation period in paragraph III of this section, the attorney general shall complete the investigation and report his or her findings to the whistleblower unless written justification for a delay is furnished to the whistleblower, agency head, and subject or subjects of the investigation. In all such cases, the report of the attorney general's investigation and findings shall be sent to the whistleblower within one year after the information was filed under paragraph III of this section.

IX.(a) At any stage of an investigation under this section the attorney general 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 attorney general may issue subpoenas, administer oaths, examine witnesses, and receive evidence. In the case of refusal 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 attorney general 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 attorney general 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.

(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 attorney general shall interview each subject of the investigation. If he or she determines there is reasonable cause to believe improper governmental action has occurred, the subject or subjects and the agency head shall be given 15 working days to respond to the assertions prior to the issuance of the final report.

X.(a) If the attorney general determines there is reasonable cause to believe an employee has engaged in improper governmental action, the attorney general shall report the nature and details of the activity to the subject or subjects of the investigation and the head of the employing agency and to such other authority as the attorney general determines appropriate.

(b) In any case in which the attorney general submits an investigative report containing reasonable cause determinations to the agency, the agency shall send its plan for resolution to the attorney general within 15 working days of having received the report. The agency is encouraged to consult with the subject or subjects of the investigation in establishing the resolution plan. The attorney general may require periodic reports of agency action until all resolution has occurred. If the attorney general determines that appropriate action has not been taken, the attorney general shall report the determination to the governor and to the legislature.

XI. Once the attorney general concludes that appropriate action has been taken to resolve the matter, the attorney general shall notify the whistleblower, the agency head, and the subject or subjects of the investigation. If the resolution takes more than 6 months, the attorney general shall consider what further action may be necessary to conclude the matter.

XII. This section shall not limit any authority conferred upon any other agency of government to investigate any matter.

275-F:6 Retaliatory Action Against Whistleblower; Remedies.

I. Any person who is a whistleblower and who has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under this chapter. For the purpose of this section "reprisal or retaliatory action" means but is not limited to any of the following:

(a) Denial of adequate staff to perform duties;

(b) Frequent staff changes;

(c) Frequent and undesirable office changes;

(d) Refusal to assign meaningful work;

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

(f) Demotion;

(g) Reduction in pay;

(h) Denial of promotion;

(i) Suspension;

(j) Dismissal;

(k) Denial of employment;

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

(m) A change in the physical location of the employee's workplace or a change in the basic nature of the employee's job, if either are in opposition to the employee's expressed wish.

II. The agency presumed to have taken retaliatory action under paragraph I may rebut that presumption by proving by a preponderance of the evidence that the agency action or actions were justified by reasons unrelated to the employee's status as a whistleblower.

III. 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.

275-F:7 Remedies. Each violation of this chapter is a civil violation for which the court may impose any of the following:

I. A civil penalty of not more than $3,000 for each reprisal or retaliatory action.

II. Such appropriate injunctive relief as the court may deem necessary to prevent continued violation of this chapter or to protect lawful exercise of the rights secured by this chapter.

III. Other equitable relief, including affirmative action which may include hiring, reinstatement, or upgrading of employees, with or without back pay or such other action as will effectuate the purposes of this chapter.

IV. Damages for humiliation and mental suffering shall not exceed $10,000.

V. Nothing in this section shall limit the right of the person damaged by the violation to pursue any other appropriate cause of action.

275-F:8 Employee Notification of Whistleblower Reporting Procedures. A written summary of this chapter and procedures for reporting improper governmental actions established by the attorney general's office shall be made available by each department or agency of state government to each employee upon entering public employment. Employees shall be notified by each department or agency of state government each year of the procedures and protections under this chapter.

275-F:9 Investigative Assistance. The attorney general may contract for any assistance necessary to carry out the provisions of this chapter.

275-F:10 Assertions Against Attorney General. A whistleblower wishing to provide information under this chapter regarding asserted improper governmental action against the attorney general or an employee of that office shall provide the information to the joint fiscal committee of the general court which shall act in place of the attorney general in investigating and reporting the matter.

275-F:11 Severability. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

2 Effective Date. This act shall take effect January 1, 2005.

LBAO

03-2326

Revised 2/10/04

HB 1418 FISCAL NOTE

AN ACT establishing a procedure for state employees to report suspected improper governmental activity.

FISCAL IMPACT:

The Judicial Branch and Departments of Justice and Administrative Services state this bill will increase state expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.

METHODOLOGY:

The Judicial Branch states this bill will establish State employee whistleblower protection under RSA 275-F. The Branch has no information on which to estimate how many new cases will be brought under the proposed statute. This bill will provide for civil remedies in court, and trials could occur in either the district court (if the employee was not seeking an injunction or other equitable relief) or the superior court. The cost of a full day's hearing in the district court is $551.93, assuming the costs of a Judge and Court Security Officer. The cost of a full day's hearing in the superior court, without considering the cost of the jury, is $950.48, assuming the costs of a Judge, Court Monitor, Deputy Clerk, and Bailiff. In addition, there will be costs for staff time to write a decision and clerical processing. The Branch is unable to determine the exact fiscal impact of this bill at this time.

The Department of Justice states they cannot project the number of instances in which a State employee would make a complaint concerning improper governmental action, and as a result, cannot estimate the exact fiscal impact at this time. The Department states it is likely they would need the time and expertise of both an additional Assistant Attorney General and an Investigator, and estimate these costs in excess of $150,000.

The Department of Administrative Services states they are unable to determine the fiscal impact of this bill.