|BILL AS INTRODUCED||2007-2008|
Introduced by Senator Giard of Addison District
Subject: Executive branch; state employees; whistleblower protection
Statement of purpose: This bill proposes to ensure that Vermont state employees shall be protected when presenting information that reveals violations of law, or constitutes waste, fraud, abuse of authority, or threats to the health of employees, the public, or persons under the care of the state.
AN ACT RELATING TO STATE EMPLOYEE WHISTLEBLOWER PROTECTION
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 3 V.S.A. chapter 27, subchapter 4A is added to read:
Subchapter 4A. Whistleblower Protection
§ 971. INTENT OF SUBCHAPTER
A state employee, as a trustee and servant of the people, shall be free to report, in good faith and with candor, waste, fraud, abuse of authority, violations of law, or a threat to the health of employees, the public or persons under the care of the state without fear of reprisal, intimidation, or retaliation.
§ 972. DEFINITIONS
As used in this chapter:
(1) “Illegal order” means a directive to violate, or to assist in violating, a federal, state or local law.
(2) “Public body” means:
(A) a state agency, department, commission, board, or appointing authority;
(B) the Vermont state auditor;
(C) the federal government;
(D) a local law enforcement agency or prosecutorial office;
(E) a federal or state court, grand jury or petit jury, law enforcement agency, or prosecutorial office;
(F) a legislative body; or
(G) an officer, employee, department, agency, or other division of an entity listed in this subdivision (2).
(3) “Retaliatory action” includes any adverse performance or disciplinary action, including reprimand, discharge, suspension, demotion, denial of promotion, involuntary transfer, reassignment, loss of other work benefit or referral to counseling that is given in retaliation for the state employee’s involvement in a protected activity, as set forth in section 973 of this title.
(4) “Supervisor” means an officer or a state employee who has the authority to direct and control the work performance of a state employee and who has the authority to take corrective action or discipline regarding a violation of law of which the state employee complains.
§ 973. PROTECTED ACTIVITY
(a) A state agency, department, appointing authority, or employee shall not take any retaliatory action against a state employee because the state employee refuses to comply with an illegal order or engages in any of the following:
(1) Providing or disclosing information or testifying to a supervisor, law enforcement official, legislator, legislative committee, state auditor, or public body conducting an investigation, hearing or inquiry, an activity, policy or practice by a state official, agency, or department, or another employee, department, appointing authority, private contractor, other employee or person, that or who the state employee reasonably believes is willfully engaging in a violation of law or constitutes waste, fraud, abuse of authority, or a threat to the health of employees, the public or persons under the care of the state.
(2) Assisting or participating in a proceeding to enforce the provisions of this subchapter.
(3) Providing information to a Vermont legislator or testifying before a legislative committee regarding any matter.
(b) No state agency, department, appointing authority, supervisor, or employee shall attempt to restrict or interfere with, in any manner, a state employee’s ability to engage in any of the protected activity described in subsection (a) of this section.
(c) No state agency, department, appointing authority, or manager shall require any state employee to discuss or disclose his or her testimony, or intended testimony, prior to testifying before the general assembly.
§ 974. BURDEN OF PROOF
(a) A violation of this subchapter may be established upon a finding by a preponderance of the evidence that the:
(1) state employee engaged in a protected activity under this subchapter;
(2) protected activity was a contributing factor in the retaliatory action alleged by the state employee.
(b) It shall not be a violation of this subchapter if it is demonstrated by clear and convincing evidence that the agency, department, appointing authority, supervisor, or other employee would have taken the same action against the employee in the absence of the protected activity.
§ 975. ENFORCEMENT
(a) A state employee aggrieved by a violation of this subchapter may do either or both of the following:
(1) Utilize any available internal process, grievance procedure, or similar process available to the employee to maintain or restore loss of employment rights with the employee;
(2) Bring an action in superior court of the county in which the violation is alleged to have occurred.
(b) The initiation or completion of an internal process, grievance procedure, or similar process under subdivision (a)(1) of this section shall not be a condition precedent to bringing an action in superior court under subdivision (a)(2) of this section.
§ 976. REMEDIES
A state employee may be awarded all remedies necessary to make the state employee whole for any violation of this subchapter or to prevent violations of this subchapter. Remedies imposed by the court may include all of the following:
(1) reinstatement of the employee to the same position and work location held before the retaliatory action;
(2) back pay, lost wages, benefits, and other remuneration;
(3) interest on back pay and benefits;
(4) punitive damages;
(5) appropriate injunctive relief; and
(6) payment of reasonable costs and attorney’s fees.
§ 977. DISCIPLINARY ACTIONS; FINE
(a) As part of the relief ordered as an administrative, arbitration, or judicial proceeding, a supervisor, including a manager, department director, or appointing authority, who is found to have violated this subchapter may be subject to appropriate disciplinary action, up to and including dismissal.
(b) As part of the relief ordered in a judicial proceeding, a supervisor, manager, or appointing authority who is found to have violated this subchapter may be subject to a fine not to exceed $1,000.00.
§ 978. PREEMPTION
Nothing in this subchapter shall be deemed to diminish the rights, privileges, or remedies of a state employee under other federal or state law, or under any collective bargaining agreement or employment contract.
§ 979. POSTING
Every state agency and department shall distribute a copy of this law by August 1, 2007, and shall post and display notices of state employee protection under this subchapter in a prominent and accessible location in the workplace.
§ 980. LIMITATIONS OF ACTIONS
An action alleging a violation of this subchapter shall be brought within three years of the date of the retaliatory action.
The Vermont General Assembly
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