Bill Text: AZ HB2628 | 2011 | Fiftieth Legislature 1st Regular | Introduced
Bill Title: Public employees; disclosure protection
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-02-09 - Referred to House ERA Committee [HB2628 Detail]
Download: Arizona-2011-HB2628-Introduced.html
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REFERENCE TITLE: public employees; disclosure protection |
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State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011
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HB 2628 |
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Introduced by Representative Patterson
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AN ACT
amending section 38‑532, Arizona Revised Statutes; relating to disclosure of information by public employees.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 38-532, Arizona Revised Statutes, is amended to read:
38-532. Prohibited personnel practice; violation; reinstatement; exceptions; civil penalty
A. It is a prohibited personnel practice for an employee who has control over personnel actions to take reprisal against an employee for a disclosure of because the employee:
1. Discloses or intends to disclose information of a matter of public concern by the employee to a public body which that the employee reasonably believes evidences:
1. (a) A violation of any law or rule.
(b) A violation of a professional ethical rule.
2. (c) Mismanagement, a gross waste of monies or an abuse of authority.
2. Participates in a court action, an investigation, a hearing or an inquiry that is held by a public body on a matter of public concern.
3. Communicates the findings of a scientific or technical study or report that the employee reasonable believes to be truthful and accurate, including reports to a governmental body or law enforcement official.
B. The disclosure by an employee to a public body alleging a violation of law or rule, a violation of a professional ethical rule, mismanagement, gross waste of monies or abuse of authority shall be in writing and shall contain the following information:
1. The date of the disclosure.
2. The name of the employee making the disclosure.
3. The nature of the alleged violation of law or rule, violation of a professional ethical rule, mismanagement, gross waste of monies or abuse of authority.
4. If possible, the date or range of dates on which the alleged violation of law or rule, violation of professional ethical rule, mismanagement, gross waste of monies or abuse of authority occurred.
C. It is a prohibited practice for an employee to, directly or indirectly, use or attempt to use the official authority or influence of the employee to threaten, intimidate, coerce, command, direct, influence or attempt to threaten, intimidate, coerce, command, direct or influence another employee in an effort to interfere with or prevent the disclosure of information concerning improper government action. For the purposes of this subsection, use of official authority or influence includes taking, directing others to take, recommending, processing or approving any personnel action, such as an appointment, promotion, demotion, transfer, assignment, reassignment, reinstatement, restoration or reemployment evaluation or any other disciplinary action.
C. d. An employee who knowingly commits a prohibited personnel practice shall be ordered by the state personnel board, a community college district governing board, a school district governing board or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 to pay a civil penalty of up to five thousand dollars to the state general fund, a county general fund, a community college district unrestricted general fund or a school district maintenance and operation fund, whichever is appropriate. The employee who committed the prohibited personnel practice, not the governmental entity, shall pay the civil penalty. Upon On a finding that an employee committed a prohibited personnel practice, the employer shall take appropriate disciplinary action including dismissal.
D. e. An employee or former employee against whom a prohibited personnel practice is committed may recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal resulting from the prohibited personnel practice as determined by the court.
E. f. An employee does not commit a prohibited personnel practice if he the employee takes reprisal against an employee if that employee discloses information in a manner prohibited by law or the materials or information are prescribed as confidential by law.
F. g. This section may not be used as a defense in a disciplinary action where the employee is being disciplined for cause pursuant to section 41‑770, except in a hearing on a complaint brought pursuant to this section by an employee or former employee who believes he the employee or former employee has been the subject of a prohibited personnel practice as prescribed in this section as the result of a disclosure of information.
G. h. On request or at any time an employee alleges reprisal, an employer shall provide an employee who is subject to disciplinary or corrective action, suspension, demotion or dismissal with a copy of this section.
H. i. If an employee or former employee believes that a personnel action taken against him the employee or former employee is the result of his the employee's or former employee's disclosure of information, participation in a public proceeding or communication of a scientific or technical finding under this section, he the employee or former employee may make a complaint to an appropriate independent personnel board, if one is established or authorized pursuant to section 38‑534, or to a community college district governing board or school district governing board. If an independent personnel board has not been established or authorized, or if a school district governing board or a community college district governing board does not hear and decide personnel matters brought pursuant to this section, the employee or former employee may make a complaint to the state personnel board. A complaint made pursuant to this subsection shall be made within ten days one year of the effective date of the action taken against him the employee or former employee. on receipt of the complaint, the state personnel board, a school district governing board, a community college district governing board or any other appropriate independent personnel board, shall, cause the investigation to be made as deemed appropriate by the state personnel board, school district government board, community college district governing board or other appropriate independent personnel board and, pursuant to the rules governing appeals under section 41‑785, make a determination concerning:
1. The validity of the complaint.
2. Whether a prohibited personnel practice was committed against the employee or former employee as a result of disclosure of information, participation in a public proceeding or communication of a scientific or technical finding by the employee or former employee.
I. j. If the state personnel board, a community college district governing board, a school district governing board or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 determines that a prohibited personnel practice was committed as a result of disclosure of information, participation in a public proceeding or communication of a scientific or technical finding by the employee or former employee, it shall rescind the personnel action and order that all lost pay and benefits be returned to the employee or former employee. The employee, former employee, employee alleged to have committed a prohibited personnel practice pursuant to subsection A of this section or employer may appeal the decision of the state personnel board, a community college district governing board, a school district governing board or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 to the superior court as provided in title 12, chapter 7, article 6. Notwithstanding section 12‑910, an appeal to the superior court under this subsection shall be tried de novo before a jury.
J. k. For purposes of a hearing by the state personnel board, a school district governing board, a community college district governing board or any other appropriate independent personnel board conducted under this section, the employee, former employee, employee alleged to have committed the prohibited personnel practice pursuant to subsection A of this section and employer may be represented by counsel. In addition, representation by counsel in such hearings shall meet any other requirements stipulated by the state personnel board, a school district governing board, a community college district governing board or any other appropriate independent personnel board or as required by law.
K. l. An employee or former employee may also seek injunctive relief as is otherwise available in civil actions.
L. m. This section shall not be construed to limit or extend the civil or criminal liability of an employee or former employee for any disclosure of information or to limit an employee's right to a separate pretermination hearing with the employee's employer, as provided by law.
M. n. An employee who knowingly makes a false accusation that a public officer or employee who has control over personnel actions has engaged in a violation of any law or rule, a violation of a professional ethical rule, mismanagement, a gross waste of monies or an abuse of authority is personally subject to a civil penalty of up to twenty‑five thousand dollars and dismissal from employment by the employer.
O. An employee who files a claim under this section has the burden of proof, except that if the prohibited personnel action against the employee occurs within ninety days after the date of the employee's disclosure of information, participation in a public proceeding or communication of a scientific or technical finding, the prohibited personnel action is presumed, subject to rebuttal, to be because of the employee's disclosure of information, participation in a public proceeding or communication of a scientific or technical finding.
P. A public employer shall keep posted in a conspicuous place on the public employer's premises notices that are prepared by the employer and that prescribe the provisions of this section.
