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S1301..........................................................by SCHROEDER WHISTLEBLOWER PROTECTION - Amends existing law relating to protection for public employees who report waste or a violation of a law or rule to include volunteers; to create a Whistleblower Review Board; to provide membership, powers and duties of the board; to provide that a court case shall commence after board review; and to provide for judicial notice. 01/18 Senate intro - 1st rdg - to printing 01/21 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008 IN THE SENATE SENATE BILL NO. 1301 BY SCHROEDER 1 AN ACT 2 RELATING TO WHISTLEBLOWER PROTECTION; AMENDING THE HEADING FOR CHAPTER 21, 3 TITLE 6, IDAHO CODE; AMENDING SECTION 6-2101, IDAHO CODE, TO REVISE LEGIS- 4 LATIVE INTENT; AMENDING SECTION 6-2102, IDAHO CODE, TO PROVIDE REFERENCE 5 TO VOLUNTEER; AMENDING SECTION 6-2103, IDAHO CODE, TO REVISE DEFINITIONS; 6 AMENDING SECTION 6-2104, IDAHO CODE, TO PROVIDE ADDITIONAL DUTIES OF AN 7 EMPLOYER REGARDING THE WHISTLEBLOWER REVIEW BOARD; AMENDING CHAPTER 21, 8 TITLE 6, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 6-2104A, IDAHO CODE, 9 TO PROVIDE FOR THE CREATION OF A WHISTLEBLOWER REVIEW BOARD, TO PROVIDE 10 MEMBERSHIP AND TO PROVIDE POWERS AND DUTIES; AMENDING SECTION 6-2105, 11 IDAHO CODE, TO PROVIDE REFERENCE TO VOLUNTEER, TO PROVIDE THAT A COURT 12 CASE SHALL COMMENCE AFTER A REVIEW BY THE WHISTLEBLOWER REVIEW BOARD 13 WITHIN A TIME CERTAIN, TO PROVIDE FOR JUDICIAL NOTICE OF THE ACTIONS OF 14 THE WHISTLEBLOWER REVIEW BOARD AND TO MAKE A TECHNICAL CORRECTION; AND 15 AMENDING SECTIONS 6-2106 AND 6-2107, IDAHO CODE, TO PROVIDE REFERENCE TO 16 VOLUNTEER AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING SECTION 6-2109, 17 IDAHO CODE, TO PROVIDE REFERENCE TO VOLUNTEER. 18 Be It Enacted by the Legislature of the State of Idaho: 19 SECTION 1. That the Heading for Chapter 21, Title 6, Idaho Code, be, and 20 the same is hereby amended to read as follows: 21 CHAPTER 21 22 PROTECTION OF PUBLIC EMPLOYEES AND VOLUNTEERS 23 SECTION 2. That Section 6-2101, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 6-2101. LEGISLATIVE INTENT. The legislature hereby finds, determines and 26 declares that government constitutes a large proportion of the Idaho work 27 force and that it is beneficial to the citizens of this state to protect the 28 integrity of government by providing a legal cause of action for public 29 employees and volunteers who experience adverse action from their employer as 30 a result of reporting waste and violations of a law, rule or regulation. 31 SECTION 3. That Section 6-2102, Idaho Code, be, and the same is hereby 32 amended to read as follows: 33 6-2102. SHORT TITLE. This act is known as the "Idaho Protection of Public 34 Employees and Volunteers Act." 35 SECTION 4. That Section 6-2103, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 6-2103. DEFINITIONS. As used in this chapter: 2 1 (1) "Adverse action" means to discharge, threaten or otherwise discrimi- 2 nate against an employee or volunteer in any manner that affects the 3 employee's employment or volunteer's duties, including compensation, terms, 4 conditions, location, rights, immunities, promotions or privileges. 5 (2) "Communicate" means a verbal or written report. 6 (3) "Employee" means a person who performs a service for wages or other 7 remuneration. 8 (4) (a) "Employer" means the state of Idaho, or any political subdivision 9 or governmental entity eligible to participate in the public employee s10 retirement system, chapter 13, title 59, Idaho Code; 11 (b) "Employer" includes an agent of an employer. 12 (5) "Public body" means any of the following: 13 (a) A state officer, employee, agency, department, division, bureau, 14 board, commission, council, authority, educational institution or any 15 other body in the executive branch of state government; 16 (b) An agency, board, commission, council, institution member or employee 17 of the legislative branch of state government; 18 (c) A county, city, town, regional governing body, council, school dis- 19 trict, special district, municipal corporation, other political subdivi- 20 sion, board, department, commission, council, agency or any member or 21 employee of them; 22 (d) Any other body that is created by state or local authority, or any 23 member or employee of that body; 24 (e) A law enforcement agency or any member or employee of a law enforce- 25 ment agency; and 26 (f) The judiciary and any member or employee of the judiciary. 27 (6) "Volunteer" means a person who performs duties or tasks for an 28 employer without compensation. 29 SECTION 5. That Section 6-2104, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 6-2104. REPORTING OF GOVERNMENTAL WASTE OR VIOLATION OF LAW -- EMPLOYER 32 ACTION. 33 (1) (a) An employer may not take adverse action against an employee or 34 volunteer because the employee or volunteer, or a person authorized to act 35 on behalf of the employee or volunteer, communicates in good faith the 36 existence of any waste of public funds, property or manpower, or a viola- 37 tion or suspected violation of a law, rule or regulation adopted under the 38 law of this state, a political subdivision of this state or the United 39 States. Such communication shall be made at a time and in a manner which 40 gives the employer reasonable opportunity to correct the waste or viola- 41 tion. 42 (b) For purposes of subsection (1)(a) of this section, an employee or 43 volunteer communicates in good faith if there is a reasonable basis in 44 fact for the communication. Good faith is lacking where the employee or 45 volunteer knew or reasonably ought to have known that the report is mali- 46 cious, false or frivolous. 47 (2) An employer may not take adverse action against an employee or volun- 48 teer because an employee or volunteer participates or gives information in an 49 investigation, hearing, court proceeding, legislative or other inquiry, or 50 other form of administrative review. 51 (3) An employer may not take adverse action against an employee or volun- 52 teer because the employee or volunteer has objected to or refused to carry out 53 a directive that the employee or volunteer reasonably believes violates a law 3 1 or a rule or regulation adopted under the authority of the laws of this state, 2 political subdivision of this state or the United States. 3 (4) An employer may not implement rules or policies that unreasonably 4 restrict an employee's or volunteer's ability to document the existence of any 5 waste of public funds, property or manpower, or a violation, or suspected 6 violation of any laws, rules or regulations. 7 (5) An employer shall provide notice to all employees and volunteers 8 periodically of the existence of the whistleblower review board under section 9 6-2104A, Idaho Code, and the rights of the employees and volunteers to file 10 grievances or appear before that board. 11 SECTION 6. That Chapter 21, Title 6, Idaho Code, be, and the same is 12 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 13 ignated as Section 6-2104A, Idaho Code, and to read as follows: 14 6-2104A. ORGANIZATION OF WHISTLEBLOWER REVIEW BOARD. (1) The Idaho 15 whistleblower review board is hereby created in the office of the governor and 16 shall consist of five (5) members, not more than three (3) of whom at any time 17 may belong to the same political party. The members of the commission shall be 18 appointed by the governor on the basis of experience in personnel management, 19 business or governmental management and their known sympathy with principles 20 of efficient government management. 21 (2) Members of the board shall be appointed for overlapping terms of six 22 (6) years, except that in the first instance one (1) member shall be appointed 23 for two (2) years, two (2) members for four (4) years and two (2) members for 24 six (6) years. Initial members shall be appointed to take office within thirty 25 (30) days after the effective date of this section. Their successors shall be 26 appointed for terms of six (6) years. If, for any reason, a member leaves the 27 commission before his term expires, the governor shall appoint another member 28 to fill out the unexpired term. 29 (3) No member of the board shall hold political office or be an officer 30 of a political organization during his term, nor shall any member have held 31 political office or have been an officer of a political organization during 32 the twelve (12) months preceding his appointment. The chairman shall be 33 appointed by the governor prior to the first meeting of each calendar year. 34 (4) Any person aggrieved by any action or inaction of an employer after 35 the person has reported, or is going to report, the existence of any waste of 36 public funds, property or manpower, or a violation or suspected violation of 37 a law, rule or regulation adopted under the law of this state, a political 38 subdivision of this state or the United States by an employer shall be 39 afforded an opportunity for a hearing before the board upon request therefor 40 in writing. Minutes or summary of the proceedings of all hearings shall be 41 made and filed with the board, together with findings of fact and conclusions 42 of law made by the board. 43 (5) The governor may remove a board member for inefficiency, neglect of 44 duty or misconduct in office after first giving him a copy of charges against 45 him and an opportunity to be heard publicly before the governor. A copy of the 46 charges and a transcript of the record of the hearing shall be filed with the 47 secretary of state. 48 (6) The board shall meet at regularly scheduled intervals or on call of 49 the chairman. Three (3) members shall constitute a quorum for the transaction 50 of business. Members shall each be compensated as provided by section 51 59-509(n), Idaho Code. 52 (7) An employee or volunteer shall establish before the board, by a pre- 53 ponderance of the evidence, that the employee or volunteer has suffered an 4 1 adverse action because the employee or volunteer, or a person acting on his 2 behalf engaged or intended to engage in an activity protected under section 3 6-2104, Idaho Code, and that the employee or volunteer has suffered deleteri- 4 ous consequences by the employer for reporting the violation. The board shall 5 review the whistleblower policies of the employer and may order sanctions 6 against an employer or any person who caused or covered up the existence of 7 any waste of public funds, property or manpower, or a violation or suspected 8 violation of a law, rule or regulation adopted under the law of this state, a 9 political subdivision of this state or the United States. 10 (8) For the purpose of resolving any case within the jurisdiction of the 11 board, by resolution adopted by the affirmative vote of two-thirds (2/3) of 12 the entire membership of the board, the chairman of the board may subpoena 13 witnesses, compel their attendance, take evidence and require the production 14 of any books, papers, correspondence or other documents or records which the 15 council deems relevant or material to any matter on which the board is delib- 16 erating regarding an employer's alleged violation of this chapter. 17 (9) On all cases brought before it, the board shall issue a decision to 18 the respective parties and to the governor, the attorney general, the prose- 19 cuting attorney of the county where the alleged violation of this chapter 20 occurred and the governing body, if any, of an employer. An employee, volun- 21 teer or employer may appeal the final decision of the board to the district 22 court of the county where the alleged violation occurred, the county where the 23 complainant resides or the county where the person against whom the complain- 24 ant has filed the complaint resides or has his principal place of business. 25 SECTION 7. That Section 6-2105, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 6-2105. REMEDIES FOR EMPLOYEE OR VOLUNTEER BRINGING ACTION -- PROOF 28 REQUIRED. (1) As used in this section, "damages" means damages for injury or 29 loss caused by each violation of this chapter, and includes court costs and 30 reasonable attorney's 'fees. 31 (2) An employee or volunteer who alleges a violation of this chapter may 32 bring a civil action for appropriate injunctive relief or actual damages, or 33 both, within one hundred eighty (180) days following a decision by the 34 whistleblower review board, after the occurrence of the alleged violation of 35 this chapter. The court shall take judicial notice of all actions of the 36 whistleblower review board. 37 (3) An action begun under this section may be brought in the district 38 court for the county where the alleged violation occurred, the county where 39 the complainant resides, or the county where the person against whom the civil 40 complaint is filed resides or has his principal place of business. 41 (4) To prevail in an action brought under the authority of this section, 42 the employee or volunteer shall establish, by a preponderance of the evidence, 43 that the employee or volunteer has suffered an adverse action because the 44 employee or volunteer, or a person acting on his behalf engaged or intended to 45 engage in an activity protected under section 6-2104, Idaho Code. 46 SECTION 8. That Section 6-2106, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 6-2106. COURT ORDERS FOR VIOLATION OF CHAPTER. A court, in rendering a 49 judgment brought under this chapter, may order any or all of the following: 50 (1) An injunction to restrain continued violation of the provisions of 51 this actchapter; 5 1 (2) The reinstatement of the employee or volunteer to the same position 2 held before the adverse action, or to an equivalent position; 3 (3) The reinstatement of full fringe benefits and seniority rights; 4 (4) The compensation for lost wages, benefits and other remuneration; 5 (5) The payment by the employer of reasonable costs and attorney's 'fees; 6 (6) An assessment of a civil fine of not more than five hundred dollars 7 ($500), which shall be submitted to the state treasurer for deposit in the 8 general fund. 9 SECTION 9. That Section 6-2107, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 6-2107. AWARD OF ATTORNEY'S 'FEES AND COSTS TO EMPLOYER -- ACTION WITHOUT 12 BASIS IN LAW OR FACT. A court may also order that reasonable attorney's 'fees 13 and court costs be awarded to an employer if the court determines that an 14 action brought by an employee or volunteer under this chapter is without basis 15 in law or in fact. However, an employee or volunteer shall not be assessed 16 attorney's 'fees under this section if, after exercising reasonable and dili- 17 gent efforts after filing a suit, the employee or volunteer files a voluntary 18 dismissal concerning the employer, within a reasonable time after determining 19 that the employer would not be liable for damages. 20 SECTION 10. That Section 6-2109, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 6-2109. NOTICE OF EMPLOYEE AND VOLUNTEER PROTECTION. An employer shall 23 use appropriate means to notify its employees and volunteers of their protec- 24 tion and obligation under this chapter.
STATEMENT OF PURPOSE RS 17537 Amends Chapter 21, Idaho Code to include volunteers in the Idaho Protection of Public Employees Act and provides for a new section 6-2104A, Idaho Code, to provide for the creation of a Whistle blower Review Board and to provide membership and duties to the board. FISCAL NOTE It is estimated that meetings of the Review Board would probably cost $15,000 to $20,000/year, depending upon the number of meetings they have. Contact Name: Roger Falen Phone: 208-285-1116 516 N. Laurel Genesee, Idaho 83832 STATEMENT OF PURPOSE/FISCAL NOTE S 1301