HB 322: "An Act establishing the office of the public whistleblower advocate; relating to whistleblower protections; establishing the public whistleblower award fund; and relating to the jurisdiction of the superior court over whistleblower actions."
00 HOUSE BILL NO. 322 01 "An Act establishing the office of the public whistleblower advocate; relating to 02 whistleblower protections; establishing the public whistleblower award fund; and 03 relating to the jurisdiction of the superior court over whistleblower actions." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 09.58.070(a) is amended to read: 06 (a) An employee of a medical assistance provider who is discharged, demoted, 07 suspended, threatened, harassed, or discriminated against in the terms and conditions 08 of employment by the employee's employer because of lawful acts done by the 09 employee on behalf of the employee or others in furtherance of an action under this 10 chapter, including investigation for, initiation of, testimony for or assistance in an 11 action filed or to be filed under this chapter, is entitled to the same relief authorized 12 under AS 39.90.100 - 39.90.199 (Alaska Public Employee Whistleblower 13 Protection and Enforcement Act) [AS 39.90.120]. 14 * Sec. 2. AS 09.58.070(b) is amended to read:
01 (b) Notwithstanding (a) of this section, a state employee who is discharged, 02 demoted, suspended, threatened, harassed, or discriminated against in the terms and 03 conditions of employment because of lawful acts done by the employee on behalf of 04 the employee or in furtherance of an action under this chapter, including investigation, 05 initiation of, testimony for, or assistance in an action filed or to be filed under this 06 chapter, is entitled to relief under AS 39.90.100 - 39.90.199 [AS 39.90.100 - 07 39.90.150] (Alaska Public Employee Whistleblower Protection and Enforcement 08 Act). 09 * Sec. 3. AS 09.58.070 is amended by adding a new subsection to read: 10 (d) The filing of a complaint with the public whistleblower advocate under (a) 11 of this section or alleging a violation of AS 39.90.100 suspends the running of the 12 three-year period specified in (c) of this section. The three-year period specified in (c) 13 of this section continues to run again from the date the public whistleblower advocate 14 notifies the complainant that the public whistleblower advocate will not investigate the 15 complaint as provided under AS 39.90.180(b) or that the complainant has exhausted 16 all applicable administrative remedies under AS 39.90.185. 17 * Sec. 4. AS 22.10.020 is amended by adding a new subsection to read: 18 (j) The superior court is the court of original jurisdiction over all causes of 19 action arising under the provisions of AS 39.90.100. A person who is injured or 20 aggrieved by an act, practice, or policy that is prohibited under AS 39.90.100 may 21 apply to the superior court for relief. In an action brought under this subsection, the 22 court may grant relief as to any act, practice, or policy of the defendant that is 23 prohibited by AS 39.90.100. The court may enjoin any act, practice, or policy that is 24 illegal under AS 39.90.100 and may order any other relief, including the payment of 25 money, that is appropriate. 26 * Sec. 5. AS 39.25.110 is amended by adding a new paragraph to read: 27 (46) the public whistleblower advocate appointed under AS 39.90.160. 28 * Sec. 6. AS 39.25.120(c) is amended by adding a new paragraph to read: 29 (22) staff to the public whistleblower advocate under AS 39.90.170. 30 * Sec. 7. AS 39.50.200(a)(9) is amended to read: 31 (9) "public official" means
01 (A) a judicial officer; 02 (B) the governor or the lieutenant governor; 03 (C) a person hired or appointed in a department in the 04 executive branch as 05 (i) the head or deputy head of the department; 06 (ii) the director or deputy director of a division; 07 (iii) a special assistant to the head of the department; 08 (iv) a person serving as the legislative liaison for the 09 department; 10 (D) an assistant to the governor or the lieutenant governor; 11 (E) the chair or a member of a state commission or board; 12 (F) state investment officers and the state comptroller in the 13 Department of Revenue; 14 (G) the chief procurement officer appointed under 15 AS 36.30.010; 16 (H) the executive director of the Alaska Workforce Investment 17 Board; 18 (I) each appointed or elected municipal officer; [AND] 19 (J) the members of the board of trustees, the executive director, 20 and the investment officers of the Alaska Permanent Fund Corporation; and 21 (K) the public whistleblower advocate appointed under 22 AS 39.90.160; 23 * Sec. 8. AS 39.90.100(a) is amended to read: 24 (a) A public employer may not take or threaten retaliatory action 25 [DISCHARGE, THREATEN, OR OTHERWISE DISCRIMINATE] against an 26 employee [REGARDING THE EMPLOYEE'S COMPENSATION, TERMS, 27 CONDITIONS, LOCATION, OR PRIVILEGES OF EMPLOYMENT] because 28 (1) the employee, or a person acting on behalf of the employee, reports 29 to a public body or is about to report to a public body a matter of public concern; or 30 (2) the employee participates in a court action, an investigation, a 31 hearing, or an inquiry held by a public body on a matter of public concern.
01 * Sec. 9. AS 39.90.100(c) is amended to read: 02 (c) The provisions of AS 39.90.100 - 39.90.199 [AS 39.90.100 - 39.90.150] 03 do not 04 (1) require an employer to compensate an employee for participation in 05 a court action or in an investigation, hearing, or inquiry by a public body; 06 (2) prohibit an employer from compensating an employee for 07 participation in a court action or in an investigation, hearing, or inquiry by a public 08 body; 09 (3) authorize the disclosure of information that is legally required to be 10 kept confidential; or 11 (4) diminish or impair the rights of an employee under a collective 12 bargaining agreement. 13 * Sec. 10. AS 39.90.100(d) is amended to read: 14 (d) An employer shall post notices and use other appropriate means to inform 15 an employee [EMPLOYEES] of the employee's [THEIR] protections and obligations 16 under AS 39.90.100 - 39.90.199, including the employee's right to file a complaint 17 with the public whistleblower advocate for a violation of this section 18 [AS 39.90.100 - 39.90.150]. 19 * Sec. 11. AS 39.90.100 is amended by adding a new subsection to read: 20 (e) In this section, "retaliatory action" means the discharge, demotion, 21 disciplining, denial of promotion, or reassignment of an employee; a discriminatory 22 action taken against an employee regarding compensation, location, or other terms and 23 conditions of employment; or action or inaction by an employer that creates or permits 24 a hostile or intolerable work environment. 25 * Sec. 12. AS 39.90.110(a) is amended to read: 26 (a) A person is not entitled to the protections under AS 39.90.100 - 39.90.199 27 [AS 39.90.100 - 39.90.150] unless the person 28 (1) reasonably believes that the information reported is or is about to 29 become a matter of public concern; and 30 (2) reports the information in good faith. 31 * Sec. 13. AS 39.90.110(b) is amended to read:
01 (b) A person is entitled to the protections under AS 39.90.100 - 39.90.199 02 [AS 39.90.100 - 39.90.150] only if the matter of public concern 03 (1) is not the result of conduct by the person seeking protection; or 04 (2) is the result of conduct by the person that was required by the 05 person's employer. 06 * Sec. 14. AS 39.90.120(a) is amended to read: 07 (a) A person who alleges a violation of AS 39.90.100 may bring a civil action 08 under AS 22.10.020(j) and the court may grant appropriate relief, including punitive 09 damages. A person who brings a civil action under this subsection is not 10 precluded from filing a complaint with the public whistleblower advocate in 11 accordance with AS 39.90.160. A person may file a complaint with the public 12 whistleblower advocate before, concurrent with, or after bringing a civil action 13 under AS 22.10.020(j). 14 * Sec. 15. AS 39.90.120(b) is amended to read: 15 (b) A person who violates or attempts to violate AS 39.90.100 is also liable 16 for a civil fine of not more than $10,000. The public whistleblower advocate or the 17 attorney general may enforce this subsection. 18 * Sec. 16. AS 39.90.120 is amended by adding new subsections to read: 19 (d) Upon a finding that an employer has violated or attempted to violate 20 AS 39.90.100, the public whistleblower advocate may award relief or impose a civil 21 fine as provided in (b) and (c) of this section and may order, as appropriate, 22 (1) reinstatement of a discharged employee to the employee's former 23 position or a position that is comparable; 24 (2) back pay, including benefit payments and interest; 25 (3) compensatory damages; 26 (4) attorney fees and costs; and 27 (5) the employer to engage in training and other corrective actions 28 intended to prevent future violations. 29 (e) When an action is brought under AS 22.10.020(j), the plaintiff shall serve a 30 copy of the complaint on the public whistleblower advocate. Upon timely application, 31 the public whistleblower advocate may intervene as a party to the action as a matter of
01 right. If the public whistleblower advocate certifies in writing to the court that the 02 public whistleblower advocate is presently investigating or actively dealing with the 03 act, practice, or policy of the defendant giving rise to the cause of action, the court 04 shall, at the request of the public whistleblower advocate, defer proceedings for a 05 period of not more than 45 days or another extended period as the court may allow, 06 except that the court may enter an order or injunction if necessary to prevent 07 irreparable injury to the plaintiff. 08 (f) If, within the period allowed, a hearing is conducted and a decision is 09 reached under this section and AS 39.90.185, the decision of the public whistleblower 10 advocate is binding on the parties to the court action as to all issues resolved in the 11 hearing but not as to any issues not resolved in the hearing. 12 (g) When proceedings in the superior court are deferred for a hearing and 13 decision under this section, the plaintiff may proceed, after the decision of the public 14 whistleblower advocate, as an aggrieved party for the purpose of an appeal to the 15 superior court under AS 39.90.185, whether or not the person was a party to, or 16 complainant in, the administrative proceedings. 17 (h) If the public whistleblower advocate does not intervene or file a certificate 18 and conduct a hearing as provided in this section, the court has complete jurisdiction 19 of the case. 20 * Sec. 17. AS 39.90.130 is amended to read: 21 Sec. 39.90.130. Exemption for municipalities. A municipality is not required 22 to comply with the provisions of AS 39.90.100 - 39.90.199 [AS 39.90.100 - 23 39.90.150] if the municipality has adopted an ordinance that provides protections for 24 its employees and other persons that are substantially similar to the protections under 25 AS 39.90.100 - 39.90.150. Notwithstanding AS 29.25.070, the ordinance may provide 26 for a civil penalty for violation of the ordinance not to exceed $10,000. 27 * Sec. 18. AS 39.90.150 is amended to read: 28 Sec. 39.90.150. Short title. AS 39.90.100 - 39.90.199 [AS 39.90.100 - 29 39.90.150] may be cited as the Alaska Public Employee Whistleblower Protection 30 and Enforcement Act. 31 * Sec. 19. AS 39.90 is amended by adding new sections to read:
01 Article 2A. Office of the Public Whistleblower Advocate. 02 Sec. 39.90.160. Office of the public whistleblower advocate; appointment; 03 compensation. (a) An independent office of the public whistleblower advocate is 04 created in the Department of Law. 05 (b) The public whistleblower advocate shall be appointed by the governor and 06 confirmed by the legislature in joint session. 07 (c) The term of office of the public whistleblower advocate is five years. A 08 public whistleblower advocate may be reappointed but may not serve for more than 09 three terms. 10 (d) If the term of the public whistleblower advocate expires without the 11 appointment of a successor under AS 39.90.160 - 39.90.199, the incumbent public 12 whistleblower advocate may continue in office until a successor is appointed. If the 13 public whistleblower advocate dies, resigns, becomes ineligible to serve, or is 14 removed or suspended from office, the person appointed as acting public 15 whistleblower advocate under AS 39.90.170 serves until a new public whistleblower 16 advocate is appointed for a full term. 17 (e) The public whistleblower advocate is entitled to receive an annual salary 18 equal to a step in Range 26 on the salary schedule set out in AS 39.27.011(a). 19 Sec. 39.90.165. Qualifications. To serve as the public whistleblower advocate, 20 a person must be at least 21 years of age and a qualified voter who has been a resident 21 of the state for at least three years. A person may not serve as the public whistleblower 22 advocate 23 (1) within one year after the last day on which the person served as a 24 member of the legislature; 25 (2) while the person is a candidate for or holds any other national, 26 state, or municipal office; nor may the public whistleblower advocate become a 27 candidate for national, state, or municipal office until one year has elapsed from the 28 date the public whistleblower advocate vacates the office of the public whistleblower 29 advocate; 30 (3) while the person is engaged in any other occupation for which the 31 person receives compensation.
01 Sec. 39.90.170. Staff and delegation. The public whistleblower advocate shall 02 appoint a person to serve as acting public whistleblower advocate in the absence of the 03 public whistleblower advocate. The public whistleblower advocate shall also appoint 04 assistants and clerical personnel necessary to carry out the provisions of AS 39.90.160 05 - 39.90.199. 06 Sec. 39.90.175. Legal counsel. The attorney general is legal counsel for the 07 public whistleblower advocate. The attorney general shall advise the public 08 whistleblower advocate in legal matters arising in the discharge of the duties of the 09 public whistleblower advocate and represent the public whistleblower advocate in 10 actions to which the public whistleblower advocate is a party. 11 Sec. 39.90.180. Procedures; notice. (a) The public whistleblower advocate 12 shall, by regulations adopted under AS 44.62 (Administrative Procedure Act), 13 establish procedures for receiving and processing complaints, conducting 14 investigations, reporting findings, preserving records, ensuring that confidential 15 information obtained by the public whistleblower advocate in the course of an 16 investigation will not be improperly disclosed, and awarding payments from recovered 17 funds under AS 39.90.190. 18 (b) If the public whistleblower advocate decides not to investigate a 19 complaint, the public whistleblower advocate shall inform the complainant of that 20 decision and shall state the reasons. 21 (c) If the public whistleblower advocate decides to investigate a complaint, the 22 public whistleblower advocate shall provide notification of the decision to 23 (1) the complainant; and 24 (2) the public employer, unless the public whistleblower advocate 25 believes that advance notice will unduly hinder the investigation or make the 26 investigation ineffectual. 27 (d) The public whistleblower advocate may not charge fees for the submission 28 or investigation of complaints. 29 Sec. 39.90.185. Powers and duties; appeals. (a) The public whistleblower 30 advocate may 31 (1) receive and investigate complaints from a person alleging a
01 violation of AS 39.90.100; 02 (2) seek interim relief from the court in accordance with (c) of this 03 section for conduct alleged to be in violation of AS 39.90.100, including 04 (A) reinstatement of a discharged employee; and 05 (B) an order to cease and desist unlawful conduct; 06 (3) subject to the privileges that witnesses have in the courts of this 07 state, administer oaths or affirmations and compel by subpoena, at a specified time and 08 place, the 09 (A) appearance and sworn testimony of a person who the 10 public whistleblower advocate reasonably believes may be able to give 11 information relating to a matter under investigation; and 12 (B) production by a person of a record or object that the public 13 whistleblower advocate reasonably believes may relate to the matter under 14 investigation; 15 (4) issue findings of fact and conclusions of law at the conclusion of an 16 investigation; 17 (5) order relief as provided under AS 39.90.120; 18 (6) obtain a court order for the enforcement of any orders issued by the 19 public whistleblower advocate by filing a complaint with the superior court in the 20 judicial district in which the violation is alleged to have occurred. 21 (b) If a person refuses to comply with a subpoena issued under (a) of this 22 section, the superior court may, upon application of the public whistleblower 23 advocate, compel obedience by proceedings for contempt in the same manner as in the 24 case of disobedience to the requirements of a subpoena issued by the court or refusal 25 to testify in the court. 26 (c) At any time after a complaint is filed with the public whistleblower 27 advocate alleging a violation of AS 39.90.100, the public whistleblower advocate may 28 file a petition in the superior court in the judicial district in which the subject of the 29 complaint occurs, or in the judicial district in which a respondent resides or transacts 30 business, seeking appropriate temporary relief against the respondent, pending final 31 determination of proceedings under AS 39.90.160 - 39.90.199. The court has the
01 power to grant the temporary relief or restraining order the court considers just and 02 proper. However, no relief or order extending beyond 10 days may be granted except 03 by consent of the respondent or after hearing upon notice to the respondent and a 04 finding by the court that there is reasonable cause to believe that the respondent has 05 engaged in unlawful practices. 06 (d) The public whistleblower advocate may refer criminal actions to the 07 appropriate authorities. 08 (e) A person is entitled to a hearing conducted by the office of administrative 09 hearings (AS 44.64.010) to appeal an order of the public whistleblower advocate. A 10 person may appeal an adverse decision of the office of administrative hearings to the 11 superior court. 12 Sec. 39.90.190. Public whistleblower award fund; payment of award from 13 recovered funds. (a) The public whistleblower award fund is established as a separate 14 account in the general fund. 15 (b) The legislature may appropriate money to the public whistleblower award 16 fund to carry out the purposes of this section. 17 (c) The public whistleblower advocate may use money in the public 18 whistleblower award fund to award a person who files a report under AS 39.90.100 - 19 39.90.120 that results in a recovery or savings of public funds an amount that is not 20 less than 10 percent and not more than 30 percent of the amount that was recovered or 21 saved. 22 (d) The public whistleblower advocate shall consider the significance of the 23 disclosure and the value of the cooperation by the person who filed the report when 24 considering whether to issue an award and in what amount. 25 (e) Nothing in this section creates a dedicated fund. 26 Sec. 39.90.195. Annual report. The public whistleblower advocate shall 27 submit to the senate secretary and the chief clerk of the house of representatives an 28 annual report of the public whistleblower advocate's activities under AS 39.90.160 - 29 39.90.199 and notify the legislature that the report is available. The report must 30 include the number of complaints received by the public whistleblower advocate, the 31 types of disclosures made to the public whistleblower advocate, the outcomes of
01 investigations and remedies ordered by the public whistleblower advocate, the 02 amounts of any recovered public funds or savings described under AS 39.90.190, and 03 any awards granted under AS 39.90.190. The report must also include any systemic 04 issues that the public whistleblower advocate recommends be addressed through a 05 change in law or policy. 06 Sec. 39.90.199. Definitions. In AS 39.90.160 - 39.90.199, 07 (1) "employee" has the meaning given in AS 39.90.140; 08 (2) "public employer" has the meaning given in AS 39.90.140; 09 (3) "record" means a document, paper, memorandum, book, letter, file, 10 drawing, map, plat, photo, photographic file, motion picture, film, microfilm, 11 microphotograph, exhibit, magnetic or paper tape, punched card, or other item 12 developed or received under law or in connection with the transaction of official 13 business, but does not include an attorney's work product, material that is confidential 14 as a privileged communication between an attorney and client under rules adopted by 15 the supreme court, or confidential oil and gas geological and geophysical data. 16 * Sec. 20. AS 44.62.040(c) is amended to read: 17 (c) Before submitting the regulations and orders of repeal to the lieutenant 18 governor under (a) of this section, every state agency that by statute possesses 19 regulation making authority, except the Regulatory Commission of Alaska, the Board 20 of Fisheries, the Board of Game, the Alaska Oil and Gas Conservation Commission, 21 the office of victims' rights, [AND] the office of the ombudsman, and the office of 22 the public whistleblower advocate, shall submit to the governor for review a copy of 23 every regulation or order of repeal adopted by the agency, except regulations and 24 orders of repeal identified in (a)(1) and (2) of this section. The governor may review 25 the regulations and orders of repeal received under this subsection. The governor may 26 return the regulations and orders of repeal to the adopting agency before they are 27 submitted to the lieutenant governor for filing under (a) of this section within 30 days 28 if they are inconsistent with the faithful execution of the laws. The governor may not 29 delegate the governor's review authority under this subsection to a person other than 30 the lieutenant governor. 31 * Sec. 21. AS 44.62.190(d) is amended to read:
01 (d) Along with a notice furnished under (a)(2), (4)(A), or (6) of this section, 02 the state agency, except the Regulatory Commission of Alaska, the Board of Fisheries, 03 the Board of Game, [AND] the Alaska Oil and Gas Conservation Commission, and 04 the office of the public whistleblower advocate, shall include 05 (1) the reason for the proposed action, including, if applicable, an 06 identification of the law, order, decision, or other action of the federal government or a 07 federal or state court that is the basis for the proposed action; in this paragraph, 08 "federal government" means a department, agency, corporation, or instrumentality of 09 the United States government; 10 (2) the initial cost to the state agency of implementation; 11 (3) the estimated annual costs, based on a good faith effort to estimate 12 the costs in the aggregate for each of the following categories using the information 13 available to the state agency, to 14 (A) private persons to comply with the proposed action; 15 (B) the state agency for implementation and to other state 16 agencies to comply with the proposed action; and 17 (C) municipalities to comply with the proposed action; 18 (4) the name of the contact person for the state agency; and 19 (5) the origin of the proposed action. 20 * Sec. 22. AS 44.62.190(g) is amended to read: 21 (g) Along with a notice furnished under (a)(2), (4)(A), or (6) of this section, 22 the Regulatory Commission of Alaska, the Board of Fisheries, the Board of Game, 23 [AND] the Alaska Oil and Gas Conservation Commission, and the office of the 24 public whistleblower advocate shall include the reason for the proposed action, the 25 initial cost of implementation to the state agency, the estimated annual costs of 26 implementation to the state agency, the name of a contact person, and the origin of the 27 proposed action. 28 * Sec. 23. AS 44.62.200(c) is amended to read: 29 (c) An agency that issues a notice under this section shall ensure that the 30 notice is prepared in a form adequate for posting on the Alaska Online Public Notice 31 System. Unless the adoption, amendment, or repeal of a regulation is proposed by the
01 Regulatory Commission of Alaska, the Board of Fisheries, the Board of Game, [OR] 02 the Alaska Oil and Gas Conservation Commission, or the office of the public 03 whistleblower advocate, a complete copy of each proposed adoption, amendment, or 04 repeal of a regulation and, if feasible and not prohibited by copyright, any document 05 or other material incorporated by reference, including any document or other material 06 incorporated by reference under this section, in the proposed adoption or amendment 07 shall be made available on the Alaska Online Public Notice System by providing an 08 electronic attachment or link to the complete text. 09 * Sec. 24. AS 44.62.213(c) is amended to read: 10 (c) In this section, "agency" does not include the Regulatory Commission of 11 Alaska, the Board of Fisheries, the Board of Game, [OR] the Alaska Oil and Gas 12 Conservation Commission, or the office of the public whistleblower advocate. 13 * Sec. 25. AS 44.62.215 is amended to read: 14 Sec. 44.62.215. Record of public comment. In the drafting, review, or other 15 preparation of a proposed regulation, amendment, or order of repeal, an agency, other 16 than the Regulatory Commission of Alaska, the Board of Fisheries, the Board of 17 Game, the Alaska Oil and Gas Conservation Commission, the office of victims' rights, 18 [AND] the office of the ombudsman, and the office of the public whistleblower 19 advocate shall keep a record of its use or rejection of factual or other substantive 20 information that is received in writing or orally as public comment and that is relevant 21 to the accuracy, coverage, or other aspect of the proposed regulatory action. 22 * Sec. 26. AS 44.62.330(a) is amended by adding a new paragraph to read: 23 (47) the office of the public whistleblower advocate.