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OLR Research Report


March 5, 2009

 

2009-R-0145

WHISTLEBLOWER LAWS

By: Sandra Norman-Eady, Chief Attorney

Kristin Sullivan, Associate Analyst

You asked for a summary of (1) Connecticut's whistleblower law, including the complaint process and the agencies involved; (2) complaint processes in other states; and (3) the complaint process under the federal whistleblower law.

SUMMARY

Connecticut's whistleblower law, like other state laws and the federal law, provides a process for public employees to disclose information about a statutory or code violation, mismanagement, abuse of authority, or waste of public funds, among other things. The law protects these whistleblowers by making it illegal for other employees, officers, or appointing authorities to take any personnel action against them in retaliation for their disclosure of improper activities.

This report summarizes general whistleblower laws on the federal level and in 13 states, including Connecticut. The other 12 states are California, Colorado, Florida, Hawaii, Maine, Maryland, Minnesota, Nebraska, New Jersey, Rhode Island, Washington, and Wisconsin. Under federal law and some state laws, there are whistleblower procedures and protections specific to particular areas. For example,

numerous federal laws, including the Occupational Safety and Health Act, Clean Air Act, Corporate and Criminal Fraud Accountability Act, and Safe Drinking Water Act provide a process for filing whistleblower complaints and protect whistleblowers from retaliation. States, for example, may have different procedures and protections for reporting welfare fraud and labor law violations. We have not summarized these specific whistleblower laws.

In Connecticut, whistleblower complaints are filed with the Auditors of Public Accounts. The auditors review the complaints and refer their findings and recommendations to the attorney general for investigation. The attorney general reports findings of wrongdoing to the governor for appropriate action. If an employee believes he or she has been retaliated against for a disclosure, he or she may (1) notify the attorney general, who investigates the matter, and (2) file a complaint with the chief human rights referee for a hearing. A human rights referee holds the hearing and orders corrective actions if allegations of retaliation are substantiated.

Complaint processes are not uniform; they vary by state. Most of the states included in this report provide for different agencies to receive whistleblower and retaliatory complaints. The only exception is Nebraska, which requires the Office of Public Counsel to receive both. The agencies receiving whistleblower complaints generally have no enforcement powers; they report findings of violations to other officials. About half of the states we reviewed require their human rights agency to receive allegations of retaliation. Recipients in the remaining states range from the State Personnel Board to the Secretary of Budget and Management. In four states, Hawaii, Minnesota, New Jersey, and Rhode Island whistleblowers alleging retaliation do not file complaints with a public agency; instead they may bring a civil court action.

On the federal level, whistleblower complaints and allegations of retaliation are filed with different units in the Office of Special Counsel (OSC). The units do not have investigatory authority; they refer the cases out upon finding a substantial likelihood of wrongdoing. The OSC does not enforce whistleblower actions but does enforce retaliatory actions.

CONNECTICUT'S WHISTLEBLOWING LAW

Under Connecticut's whistleblower law (CGS 4-61dd) anyone who knows of corruption, unethical practices, state law or regulation violations, mismanagement, gross waste of funds, abuse of authority, or danger to public safety occurring in any state department or agency, quasi-public agency, or large state contract may send information regarding it to the state auditors.  A large state contract is one between a private entity and a state or quasi-public agency and with a value of at least $5 million.

The auditors must review the matter and report their findings and recommendations to the attorney general, who must conduct any investigation he deems proper.  The auditors must assist with the investigation.  After the investigation, the attorney general must, when necessary, report his findings to the governor.  If the matter involves a crime, he must report it to the chief state's attorney.  Neither the auditors nor the attorney general may reveal the informant's name without consent, except when disclosure is unavoidable during the course of the investigation.

Officers, employees, and appointing authorities are prohibited from taking or threatening to take any personnel action against an employee in their agencies or employment in retaliation for the employee's whistleblower complaint.  There is a one-year rebuttal presumption that an actual or threatened personnel action against a whistleblower is retaliatory.

An employee who believes he or she has been retaliated against may notify the attorney general, who must investigate the matter. Within 30 days after the actual or threatened retaliatory action, the affected employee or his or her attorney may also file a complaint with the chief human rights referee. The chief referee must assign the complaint to a human rights referee who must conduct a hearing and determine whether the personnel action or threatened action was in retaliation for whistleblowing. The attorney general represents the state agency in these retaliatory actions.

If the referee finds that the action or threatened action was retaliatory, he or she may order that the aggrieved employee (1) be reinstated to the former position, (2) receive back pay, (3) have his or her benefits reestablished to the level for which he or she would have been eligible but for the violation, and (4) receive reasonable attorney fees and any other damages. Any party may appeal the referee's decision to Superior Court.

As an alternative to notifying the attorney general and filing a complaint with the chief human rights referee, a state or quasi-public agency employee may file an appeal to the Employees' Review Board within 30 days or, if he or she is covered by a collective bargaining agreement, may appeal in accordance with that agreement.  An employee of a large state contractor may, after exhausting all available administrative remedies, file a civil cause of action in Superior Court. If an appointing authority or an officer or employee of a state agency, quasi-public agency, or large state contractor takes or threatens to take action impeding, canceling, or failing to renew a contract between a state agency and a large state contractor, or a large state contractor and its subcontractor, in violation of the whistleblower statutes, the affected agency, contractor, or subcontractor may bring a civil action to recover damages, attorney's fees, and costs. The agency, contractor, or subcontractor must bring the action in Hartford Superior Court within 90 days of learning of the action, threat, or failure to renew.

Any employee who knowingly or maliciously makes false charges can be disciplined or discharged; however, no one is liable for civil damages as a result of his or her good faith disclosure of information to the auditors or the attorney general.

FEDERAL AND SELECTED STATE WHISTLEBLOWING LAWS

Table 1 shows whistleblower laws on the federal level and in 13 states, including Connecticut. For each entry we include the relevant statutory citations, the authority authorized to receive whistleblower and retaliation complaints, and their investigative authority.

Table 1: Whistleblower Laws

Jurisdiction

Who receives the whistleblower complaint?

Does recipient have investigative authority?

What actions can they take at the investigation's conclusion?

Who receives the complaint alleging retaliation?

Does recipient have investigative authority?

What actions can they take at the investigation's conclusion?

FEDERAL

Federal

5 USC 1213 et seq.

The Disclosure Unit (DU) of the Office of Special Counsel (OSC).

No. DU attorneys evaluate each complaint to determine whether there is a substantial likelihood of wrongdoing based on the evidence submitted, including whether there is reliable, first-hand information. The DU does not have authority to investigate. If substantial likelihood of wrongdoing is found, the special counsel refers the case to the appropriate agency head, which must conduct an investigation. Agency heads frequently ask their Office of Inspector General to investigate.

At the end of the investigation, the agency sends a report to OSC, which reviews it for reasonableness. If wrongdoing exists, the special counsel sends the report with comments and recommendations to the president and the congressional committees with oversight responsibility. If the wrongdoing is of a criminal nature, the agency sends the report to the attorney general and notifies the offices of Personnel Management and Management and Budget.

The OSC's Complaints Examining Unit (CEU).

No. The CEU reviews the complaint to determine whether further investigation is required. After its review, CEU offers mediation as an alternative to investigation. If one party objects to mediation, CEU sends matters indicating a potentially valid claim to the Investigation and Prosecution Division, which conducts an investigation.

If there is sufficient evidence to prove retaliation, the OSC can seek corrective action, disciplinary action, or both.

CONNECTICUT

Connecticut

CGS 4-61dd

Auditors of Public Accounts

No. The auditors review the complaints and report their findings and recommendations to the attorney general, who must conduct an investigation. The attorney general's investigation is untaken with the concurrence and assistance of the auditors.

The attorney general reports his findings substantiating the complaints to the governor or, if criminal conduct uncovered, to the chief state's attorney.

Employees may notify the attorney general, who must investigate the matter, or file a complaint with the chief human rights referee.

The attorney general investigates the allegations and the chief human rights referee refers the matter to a human rights referee for a hearing.

The human rights referee may order that the aggrieved employee (1) be reinstated to the former position, (2) receive back pay, (3) have his or her benefits reestablished to the level for which he or she would have been eligible but for the violation, and (4) receive reasonable attorney fees and any other damages.

OTHER STATES

California

Cal. Gov't. Code 8547 et seq. and 19683

Office of the State Auditor

Yes, upon receiving specific information that any employee or state agency has engaged in an improper governmental activity, the Office of the State Auditor may conduct an investigative audit. If the auditor makes a probable cause determination, he or she must report the nature and details of the activity to the head of the employing agency, or the appropriate appointing authority. If appropriate, the auditor must report the information to the attorney general, the legislative committees with jurisdiction over the subject involved, and to any other appropriate authority.

After receiving the report from the auditor, the agency head must either take corrective action or specify in writing the reasons for not doing so.

Employees against whom corrective action is taken may appeal to the State Personnel Board.

State Personnel Board

Yes, the board must assign each complaint to an executive officer who must conduct an investigation.

A supervisor, manager, employee, or appointing authority who an executive officer finds retaliated against a whistleblower may request a hearing before the State Personnel Board regarding the findings.

If after a hearing the State Personnel Board determines that that a violation occurred, or if the executive officer's findings stand, the board may order any appropriate relief, including reinstatement, back pay, restoration of lost service credit, compensatory damages, and the expungement of any adverse personnel records.

Colorado

Colo. Rev. Stat. 24-50.5-101 et seq.

Appears that complaints may be filed with an appropriate public body.

Unclear

Unclear

State Personnel Board

Yes. The board sends a copy of the complaint to the targeted agency and notice to the employee who makes the allegation. The agency must respond to the allegations and the board must hold a hearing after receiving the response.

If the board finds a violation, it may order reinstatement, back pay, lost service credits restored, records expunged, and any other appropriate relief. The board must also send a copy of its investigation to the state auditors. The auditors investigate whether a fiscal or management audit or management study is necessary.

Florida

FSA 112.3187 and

112.3187-7

Yes. Complaints may be filed with any agency authorized to investigate them or the Office of the Chief Inspector General. The complaints are forwarded to the inspector general for the appropriate agency.

The inspector general investigates the complaints.

He or she makes recommendations to the appropriate agency head if complaints substantiated.

Florida Commission on Human Relations (CHR)

Yes. CHR arranges for meditation with an impartial person. If mediation is unsuccessful, CHR begins an investigation.

If CHR finds retaliation, it petitions for a stay and takes any other actions necessary to protect the employee.

Hawaii

HRS 378-61 et seq.

No formal procedure codified, but the law protects whistleblowers who disclose wrongdoing to public bodies (e.g., state agencies, officers, and employees; municipal boards, commissions, and employees; and law enforcement agencies and employees).

No formal procedure codified

No formal procedure codified

The law does not specify an agency with which whistleblowers may file complaints alleging retaliation. Instead, it authorizes whistleblowers to bring a civil action in circuit court for appropriate injunctive relief, actual damages, or both.

Not applicable

The court may order reinstatement, payment of back wages, reinstatement of fringe benefits and seniority rights, actual damages, or any combination of remedies.

The court may also award all or a portion of the costs of litigation, including reasonable attorney's fees and witness fees.

Maine

Me. Rev. Stat. 26 833 et seq. and 5 4612

Complaints may be filed with the state auditor or any other public body. Public bodies receiving complaints refer them to the state auditors.

Yes. Complaints may be investigated if probable cause is found after reviewing the evidence.

The auditors submit a report of their findings to the governor. If evidence of criminal conduct is unveiled, they refer the matter to the attorney general or the appropriate local district attorney.

Maine Human Rights Commission

Yes. The commission provides an opportunity for resolution by settlement agreement before investigating to determine if reasonable grounds exist to believe unlawful discrimination occurred.

The commission tries to eliminate discrimination through informal means, such as conferencing, conciliation, and persuasion. If the commission finds discrimination and believes the employee will suffer irreparable injury or great inconvenience, it may file an action seeking relief in Superior Court.

Maryland

Md. State Personnel and Pensions Code Ann. 5-301 et seq.

Attorney General

Yes. By law, the attorney general must:

n designate assistant attorney generals to receive whistleblower complaints and

n investigate each allegation.

The attorney general must take appropriate legal action and upon concluding the investigation, submit a report to the governor.

Secretary of the Department of Budget and Management

Yes, the secretary or his or her designee investigates, except if the Department of Budget and Management is charged, in which case the governor's designee investigates.

Upon determining that a violation occurred, the secretary or his or her designee, or the governor's designee must take appropriate remedial action, which may include ordering the removal of related detrimental information from the complainant's state personnel records. An order may also require the head of the principal unit to:

n hire, promote, or reinstate the complainant;

n award back pay; grant leave or seniority; or

n take appropriate disciplinary action against the individual who caused the violation.

A complainant may appeal a decision to the Office of Administrative Hearings. After a hearing, the office may award any appropriate relief, including any remedy described above and the costs of litigation and reasonable attorney's fees.

A complainant or appointing authority may appeal to circuit court.

Minnesota

Minn. Stat. 181.931 et seq.

No formal procedure codified, but the law protects whistleblowers who disclose wrongdoing to employers, governmental bodies, and law enforcement officials by prohibiting retaliatory actions.

No formal procedure codified

No formal procedure codified

The law does not specify an agency with which whistleblowers may file complaints alleging retaliation. Instead, it authorizes whistleblowers to bring a civil action in district court to recover damages, costs, disbursements, including reasonable attorney's fees, and injunctive and other equitable relief as the court determines.

Not applicable

The court may award appropriate relief, including reinstatement, back pay, restoration of lost service credit, compensatory damages, and the expungement of any adverse records concerning alleged acts of misconduct.

Nebraska

Neb. Rev. Stat. 81-2704 et seq.

Complaints are filed with the Office of Public Council.

Yes. Public council decides whether to conduct a preliminary investigation based on (1) whether the employee has other available remedies; (2) whether other, more worthy complaints, are pending; or (3) available resources.

If counsel conducts a preliminary investigation and concludes that reasonable grounds exists to support wrongdoing allegations, he or she may conduct a formal investigation.

Counsel prepares a report of his or her findings at the investigation's conclusion and sends it to the director or chief operations officer (COO) of the appropriate agency. If the COO is the subject of the complaint, the report goes to the governor or to any oversight board or commission.

Public Counsel also receives complaints of retaliation.

Yes, counsel investigates these complaints.

If counsel finds, by a preponderance of the evidence, that a violation occurred, he or she submits the findings to the employee, governor, and if the agency is subject to the state personnel system, to the State Personnel Board. If the agency is not subject to the system, the report goes to the Personnel Appeals Board.

New Jersey

NJ Rev. Stat. 34:19-1 et seq.

Employees must give notice of wrongdoing to their supervisor and allow time for corrections. If the matter is not resolved, a complaint may be filed with any public body (e.g., elected official; member of the Judiciary; or regulatory, law enforcement, or executive branch agency).

Unclear

Unclear

Employees must give notice of retaliatory action to their supervisor and allow an opportunity to correct it, except in emergency situations where the employee reasonably fears physical harm or when an employee is fairly certain the supervisor already knows of the action.

If the situation is not corrected, the employee may institute a civil action.

Employees are entitled to a civil jury trial.

The court must order an injunction and order the employer to reinstate the employee, pay lost wages, reasonable costs, and attorneys' fees.

Rhode Island

RI Gen. Laws 28-50-2 et seq.

Complaints may be filed with any public body (i.e., a legislative or executive branch agency, a local entity, law enforcement, or member of the judiciary).

Yes, the entity receiving the complaint may conduct an investigation.

Unclear

The law does not specify an agency with which whistleblowers may file complaints alleging retaliation. Instead, it authorizes whistleblowers to bring a civil action in Superior Court for injunctive relief, damages, or both.

Not Applicable

The court may order the relief requested.

Washington

Wa. Rev. Code 42.40.020 and 49.60.210 et seq.

Complaints may be filed the state auditors or any state government public official (i.e., an agency director, designated receivers of whistleblower complaints, the attorney general, or the executive ethics board). Public officials must submit complaints to the auditors.

Yes. Auditors determine whether to investigate after considering several factors, including the nature and quality of the evidence and whether the incident is isolated or systemic. The auditors determine the priority and weight of the evidence.

Auditors report improper government to the subject of the investigation, the appropriate agency head, attorney general, governor, Senate secretary, and House chief clerk. The auditors have no enforcement power.

Washington Human Rights Commission

Yes. There is a rebuttable presumption that negative personnel action is retaliatory. The commission may investigate, but the investigation is limited to the facts alleged in the complaint.

If reasonable cause is found to believe an employee was retaliated against, the commission endeavors to eliminate the unfair practice by conference, conciliation, and persuasion. If there is no resolution, an administrative law judge is appointed to hear the matter. The judge must order the employee restored if retaliation is found.

Wisconsin

Wis. Stat. 230.80 et seq.

A whistleblower may disclose information in writing to (1) his or her supervisor or (2) a governmental unit that the Division of Equal Rights in the Department of Workforce Development deems appropriate.

Yes, a governmental unit to which an employee discloses information, must determine if the whistleblower complaint merits further investigation or refer the information to a governmental unit better able to make that determination. If the unit determines the disclosure merits further investigation it must either begin a full investigation or refer the information to a governmental unit better able to conduct an investigation. That unit must investigate. A governmental unit may disclose or refer information to an appropriate law enforcement agency or district or federal attorney as part of an investigation or in lieu of referral to another governmental unit, if the law enforcement agency or district or federal attorney is best able to conduct the investigation. Full investigations must be completed within a reasonable time.

After a full investigation, if a governmental unit finds the disclosed information to be true, it must inform the employee and his or her appointing authority in writing.

Division of Equal Rights

Yes, the division must investigate. If the division finds probable cause to believe that a retaliatory action has occurred or was threatened, it may try to remedy the problem through conference, conciliation, or persuasion. If unsuccessful, the division must issue and serve a written notice of hearing, requiring the respondent to answer the complaint at a hearing.

If Division of Equal Rights finds that the respondent engaged in or threatened a retaliatory action, it must order the appointing authority for the whistleblower and respondent to insert a copy of the findings and orders into his or her personnel file. In addition, the division may take any other appropriate action, including:

n reinstatement or restoration to previous position with or without back pay;

n transfer to another position within the same governmental unit;

n expungement of adverse material relating to the retaliatory action or threat from the personnel file; or

n payment of reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent if that governmental unit received notice and an opportunity to participate in proceedings before the Division of Equal Rights.

In addition, the division may recommend to a respondent's appointing authority that disciplinary or other action be taken, including:

n describing the violation in the respondent's personnel file,

n reprimand,

n suspension, or

n termination.

The Division of Equal Rights' findings and orders may be appealed in court.

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