Washington State Auditor's Office
State Employee Whistleblower Program
Chapter 42.40 RCW Questions and Answers
Q: What is the state Whistleblower Program?
The State Employee Whistleblower program was created by the 1982 Legislature to encourage state employees to report assertions of improper governmental activity. The law makes retaliation against whistleblowers unlawful and authorizes remedies should it occur. The State Auditor's Office investigates and reports on disclosures of improper governmental activity and the Human Rights Commission has sole responsibility for investigating asserted retaliatory actions. The authorizing legislation for the program was amended in 1999 (Chapters 118 and 361, Laws of 1999).
Q: What are the primary provisions of the 1999 amendments to the law
- A one-year statute of limitations. The asserted action must have occurred
within a year of when it is reported. Timeliness is critical to gathering
evidence, stopping improper governmental action and in holding public employees
and officials accountable.
- The Auditor's Office has the sole discretion to determine how, or if, whistleblower
assertions will be investigated. When making this determination, the following
factors must be considered:
- Correctness of information furnished.
- The nature and quality of evidence and the existence of relevant laws
and rules.
- Whether the action was isolated or systemic.
- The history of previous assertions regarding the same subject or subject
matter.
- Whether other avenues are available for addressing the matter.
- Whether the matter has already been investigated or is in litigation.
- The degree or significance of the asserted improper governmental action.
- The cost and benefit of the investigation.
- Correctness of information furnished.
- Improvements in due process for all parties to the investigation. The measure
requires our Office to communicate with the whistleblower, agency head and
subject of the investigation at various stages of the process. All parties
will be given an opportunity to respond to the draft report.
- Our Office must obtain the consent of an agency prior to referring whistleblower
cases for investigation.
- A panel, including a citizen, will review and recommend whether to proceed with further investigation of anonymous assertions.
Q: What is improper governmental activity?
The law defines improper governmental activity as any action by an employee undertaken in the performance of the employee's official duties which:
- Results in mismanagement or gross waste of public funds or resources.
- Is in violation of a federal or state law or rule, if the violation is not
merely technical or of a minimum nature.
- Is of substantial and specific danger to the public health or safety.
Q: What precludes an employee from making a frivolous or false disclosure of improper governmental activity?
Whistleblowers must file disclosures in good faith. The law defines good faith as a reasonable basis in fact for the communication. Good faith is lacking when the employee knows or reasonably ought to know that the report is malicious, false or frivolous. The law states that the identity of the whistleblower shall be kept confidential unless the auditor determines that the information has been provided other than in good faith.
Q: Who can report improper governmental actions?
Any Washington state employee may report suspected improper governmental actions through the Whistleblower Program. This includes temporary employees, classified and exempt civil service employees, and elected officials in all branches of state government. There is a separate program for local government employees, which is authorized under Chapter 42.41 RCW. The state does not administer that program.
Q: Can employees of contractors with the state file a whistleblower disclosure?
No. Contractors and their employees are not covered by the State Employee Whistleblower Act. However, employees of contractors may report concerns about the handling of public funds to the State Auditor. These concerns can be addressed as part of the Office's audit process.
Q: Can whistleblower disclosures be filed regarding only employees in the whistleblower's own agency?
No. Any state employee may file a whistleblower disclosure relating to any state agency.
Q: How do I file a whistleblower disclosure?
Assertions of improper government activity are filed in writing with the State Auditor's Office. They are generally reported using the Whistleblower Reporting Form attached to this document. They also may be reported in a separate letter. In either case, the report should include the following:
- A detailed description of the improper governmental action(s);
- The name of the employee(s) involved;
- The agency, division and location where the action(s) occurred;
- When the action(s) occurred;
- Any other details that may be important for our investigation such as other witnesses, documents, evidence, etc.;
- The specific state law or regulation that has been violated, if you know it;
- Your name, address and phone number.
Avoid generalizations such as 'Bob is always wasting public resources.' Providing specific details about how and when 'Bob' is wasting public resources will help focus the investigation, e.g., 'Bob used his state computer to keep accounting records for his home business during working hours. This has been going on for a year."
Each assertion should be noted separately and supported with as much specific information as possible. Proving allegations can often be difficult. Supplying detailed information contributes to a thorough and efficient investigation. The Whistleblower Reporting Form is designed to assist you in supplying the needed information. Please use a separate Whistleblower Reporting Form for each assertion of improper governmental activity.
Q: Where should Whistleblower Reporting Forms be submitted?
Mail your completed Whistleblower Reporting Form to:
State Auditor's Office
Attention: ED
PO Box 40021
Olympia, WA 98504-0021
People wishing to file whistleblower disclosures regarding the State Auditor's Office may do so with the State Attorney General's Office:
Assistant Attorney General Rich Heath
P.O. Box 40100
Olympia, Wash., 98504-0100
(360) 753-2578.
Please mark any whistleblower correspondence "Confidential".
Q: Can a supervisor prohibit an employee from filing a report of improper governmental activity with the State Auditor?
No. RCW Chapter 42.40.030 specifically prohibits direct or indirect interference with the filing of a whistleblower disclosure. It applies to all state employees. This statute also prohibits attempts at interfering with an employee providing information to the auditor during an investigation.
Q: Does a whistleblower have to sign his or her name?
Assertions of improper governmental action may be filed anonymously. Anonymous assertions will be reviewed by a panel to determine whether they will be investigated. The panel includes a state auditor representative knowledgeable of the subject agency operation, a citizen volunteer and a representative of the Attorney General's Office.
Including your name and number enables us to contact you to gather information that may be necessary for a thorough investigation. In many investigations this can be important. Under state law, anyone who conducts a state employee whistleblower investigation must keep the whistleblower's name confidential. In addition, the law provides remedies for individuals subjected to retaliation as a result of their whistleblower disclosure. A whistleblower is defined as anyone who provides information during the course of a whistleblower investigation.
Q: Who has protection under the Whistleblower Program?
Any state employee who provides information during a whistleblower investigation is provided the same protection as the whistleblower filing the disclosure with the State Auditor. The law also protects any employee who others believe filed a whistleblower report or provided information, but actually didn't.
Q: What happens if a whistleblower believes he or she is being subjected to workplace reprisal or retaliation?
The Whistleblower Program provides protections and remedies for retaliation. If you feel you are being retaliated against as a result of filing a disclosure, you may file a claim with the State Human Rights Commission. You also may wish to contact a private attorney for legal advice. A retaliatory action is any adverse change that affects your employment. Retaliation can take many forms, such as frequent job changes, office changes, unwarranted letters of reprimand or unsatisfactory performance evaluations. The Commission will investigate the claim and take appropriate action. It has the following toll-free numbers.
- Olympia 1-800-233-3247
- Eastern Washington 1-800-662-2755
- Seattle 1-800-605-7324
- TTY 1-800-300-7525
Q: What are the provisions of the whistleblower retaliation law passed by the Legislature in 1999?
The 1999 Legislature significantly enhanced protection of whistleblowers under the law against discrimination. Under the new law, any whistleblower subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for remedies administered by the Human Rights Commission. Reprisal or retaliatory action includes any one of 13 situations, including demotion, denial of employment, a coworker behaving in a hostile manner toward the whistleblower or a change in physical location of the whistleblower's workplace. The whistleblower's agency is authorized under the new law to rebut the presumption. The agency must prove with a preponderance of evidence that the action is independent of the employee's status as a whistleblower. The Human Rights Commission has more information on its process, including a one-page summary included with this packet.
Q: What happens if the Human Rights Commission determines that retaliation has occurred?
The Human Rights Commission may impose a civil penalty on the retaliator of up to $3,000 and the retaliator may be suspended from work for up to 30 days without pay. At a minimum, a letter of reprimand is placed in the retaliator's personnel file.
Q: Can the State Auditor investigate assertions involving personnel actions?
The Whistleblower Act specifically excludes personnel actions for which other remedies exist from investigation by this office. These types of actions include, but are not limited to, employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of state civil service laws, labor agreement violations, reprimands or other disciplinary actions. While the Auditor's Office cannot investigate these types of assertions, there are other avenues for addressing them. The Office can, and will, look at systemic personnel issues or those where other remedies do not exist.
Q: Which government agencies or other organizations can assist in addressing personnel issues?
The following government agencies and labor organizations may assist state employees in dealing with personnel issues:
| Agency | Issues |
|
Washington State Personnel Appeals Board |
Disciplinary actions. Layoffs. Violations of merit system rules. Violations of state civil service laws. |
|
Washington State Human Rights Commission |
Discrimination because of race, creed, color, national origin, sex, marital
status, age or disability. |
|
Public Employment Relations Commission |
Unfair labor practices. Interference with rights to form or join employee labor organizations and rights to bargain collectively. |
|
Washington Federation of State Employees |
See grievance procedures in your union bargaining agreement. |
|
Washington Public Employees Association |
See grievance procedures in your union bargaining agreement. |
Q: How does the whistleblower process work?
Whistleblower investigations are conducted independently, objectively and thoroughly. It is the goal of the State Auditor's Office to treat all parties to the investigation - the state agency, the whistleblower and the subject fairly and with respect. Further, it is the goal of the State Auditor's Office to conduct all whistleblower investigations as timely as possible. On average we try to have whistleblower reports issued to the public within 90 days and must have them completed within one year of receipt of the assertion or assertions.
A whistleblower investigation involves a five-step process. The identity of the whistleblower is confidential throughout the investigative process whether State Auditor's Office investigators or others perform the investigation. Further, confidentiality is maintained even after the final report is issued. All working papers and final reports are redacted in responding to all public record requests to maintain that confidentiality.
The State Auditor is authorized to determine whether to investigate any assertions received.
- Intake (5 Working Days)
- Analyze the assertion
- Determine whether the assertion appears to meet the definition of being an improper governmental action
- Evaluate the assertion taking into account the following factors:
- Correctness of information furnished
- Nature and quality of evidence
- Existence of relevant laws and rules
- Whether the action appears to be isolated or systemic
- History of previous assertions regarding the same subject or subject matter
- Whether other avenues are available for addressing the matter
- Whether the matter has already been investigated or is in litigation
- Seriousness or significance of the asserted improper governmental action
- Cost and benefit of potential investigation
- Document intake analysis and establish planned course of action
- Acknowledge in writing to whistleblower receipt of the disclosure, the results of our intake analysis and any planned course of action, including whether a preliminary investigation will be conducted.
- Preliminary Investigation (30 Working Days From Receipt of Assertion or
Assertions)
- Establish and document preliminary investigation strategy and plan
- Provide written notification as soon as practicable, but within 30
days, of the nature of the assertions to the agency head and subject,
including:
- The relevant facts and laws known at the time
- Procedure for the subject and agency head to respond to the assertions and information obtained during the investigation
- Interview agency head or designee, whistleblower and subject
- Determine what other evidence needs to be gathered and how it needs to be obtained
- Determine who will conduct the preliminary investigation, which can
include any one or more of the following:
- State Auditor's Office investigators
- State agency investigators (whistleblower agency, regulatory agencies, enforcement agencies, etc.)
- Washington State Patrol
- Contracted resources
- Information technology specialists
*Note: Agencies must give consent to a referral, and agree to abide by all aspects of the Whistleblower Act, including confidentiality, timing and timeliness of the investigation and working paper standards.
- Document reasons for making any referrals
- Complete preliminary investigation field work
- Document preliminary investigation of each assertion, including:
- Each assertion statement
- Relevant laws or rules
- Analysis of results of preliminary investigation
- Planned course of action, including no further investigation or that a full investigation will be conducted
- Have three-person panel screen preliminary investigation of anonymous assertions if a decision is reached that a full investigation should be pursued
- Exit with agency director, subject and whistleblower, providing an opportunity for review and input to the scope, methodology and conclusions
- If further investigation is to occur, provide written notification
to the whistleblower, subject and agency head on or before 30 days from
receipt of the assertion or assertions, including:
- Relevant facts known at the time
- Procedure to respond to the assertions and information obtained during the preliminary investigation
- Schedule full investigation and/or pursue other planned courses of action
- Full Investigation (60 Days from Receipt of Assertion or Assertions)
- Establish and document full investigation strategy and plan
- Establish deadlines, working to complete investigation within 60 days from receipt of assertion or assertions
- Provide written justification to the whistleblower, agency head and subject for any investigation that needs to extend beyond 60 days
- Determine what evidence needs to be gathered and how it needs to be gathered
- Determine who will conduct the investigation, which can include any
one or more of the following:
- State Auditor's Office investigators
- State agency investigators (whistleblower agency, regulatory agencies, enforcement agencies, etc.)
- Washington State Patrol
- Contracted resources
- Information technology specialists
*Note: Agencies must give consent to a referral, and agree to abide by all aspects of the Whistleblower Act, including confidentiality, timing and timeliness of the investigation and working paper standards.
- Secure and analyze evidence, including interviews of subject, whistleblower and agency director or designee
- Evaluate whether sufficient evidence supports reasonable cause that improper governmental action has occurred or not
- Complete investigation documentation
- Draft report and request for corrective action, if needed
- Draft Report and Corrective Action Plan (If Needed)
- Have legal counsel review all assertions where a reasonable cause determination has been made
- Exit with agency director, subject and whistleblower, providing an opportunity for review and input to the scope, methodology and conclusions
- Provide the subject and agency head 15 working days to respond to the assertions prior to the issuance of the final report
- If needed, solicit corrective action plan from agency director
- Final Report
- Issue final whistleblower report, incorporating responses and corrective action plan, if needed, from the agency director and subject
- Post whistleblower report on State Auditor's Office home page
- Make investigative working papers and whistleblower report available for public records requests as needed
- Make enforcement referrals as needed
Q: What do I do after filing a whistleblower disclosure?
We recommend that whistleblowers not discuss disclosures with others, including family, friends and co-workers. Discussion of your whistleblower disclosure may jeopardize your confidentiality and could hamper the investigation.
Q: Why is such a program important?
Because this office is dedicated to ensuring accountability for public funds, we see the whistleblower program as one more method of achieving this goal. Public employees have an obligation to ensure that government in general, and their departments in particular, prevent improper governmental activity. The Whistleblower Program holds state employees accountable for their actions.
Q: What are some examples of whistleblower disclosures where there has been reasonable cause to believe that improper governmental activity has occurred?
- A state employee spent 338 hours using her state computer and other state equipment to engage in Internet chat room activities during work time at a cost to taxpayers of about $8,850.
- A counselor physically and mentally abused children and staff at a state mental institution.
- An employee was drinking while using explosives and while operating a state vehicle.
- Workers at a state-operated group home were not properly controlling drugs. In one instance, a patient was given medication intended for another patient.
- A nonprofit contractor triple billed the state for services rendered and also billed the state for unallowable costs. This case caused the Legislature to authorize the Task Force on Agency Vendor Contracting.
Q: What are the statistics for the Whistleblower Program?
|
FY |
Assertions Investigated |
Reasonable Cause Determinations |
Reasonable Cause Determination Rate |
Enforcement Referrals |
|
1998 |
268 |
91 |
34% |
64 |
|
1999 |
205 |
62 |
30% |
41 |
During fiscal year 1999 the State Auditor's Office received 205 assertions of improper governmental action. Of the total, we found reasonable cause to believe that improper governmental activity had occurred in 62 assertions, or 30 percent. Forty-one cases were referred to other agencies, such as the Executive Ethics Board, for follow-up action.
The downward trend in assertions has been evident over the past several years. We hope that trend continues and commend state agencies for taking actions that preclude improper governmental activity from occurring.
Q: Who receives the results of a whistleblower report? Are they made available to the public?
Unless the assertions were filed anonymously, the whistleblower receives a copy of the final report. People named in the assertions and agency officials also receive copies. The final report is a public record and is available to anyone who requests it. When appropriate, we distribute reports to agencies charged with enforcement. These agencies include county prosecutors, the state Attorney General's Office, the state Executive Ethics Board, the state Legislative Ethics Board, the state Office of Financial Management and others. The final reports also are available on our home page www.sao.wa.gov
Q: What about suggestions on how agencies could be saving money? Should they be filed under the Whistleblower Program?
No. Cost saving ideas should be submitted to the Brainstorm Suggestion Program, which is administered by the Productivity Board within the Secretary of State's Office, (360) 753-3174. Cost saving ideas can result in monetary awards.
Q: Can local government employees file whistleblower disclosures with the State Auditor's Office?
Under certain circumstances a whistleblower can report assertions involving local government to the State Auditor's Office. The Local Government Whistleblower Act, Chapter 42.41 RCW, requires each local government to have a policy in place that establishes an appropriate person to receive and investigate reports of improper governmental action. If the local government has failed to follow state law by not establishing a whistleblower policy, the whistleblower can submit a report to the county prosecutor's office. If the local government hasn't established a policy, and if an employee of the county prosecutor's office is named as the subject of the assertions of improper governmental action, then the whistleblower may file a report with the State Auditor's Office.
Q: Do any other agencies participate in the investigations?
If the assertions are criminal in nature, we may ask the Washington State Patrol to conduct the investigation. Other agencies may be asked for assistance depending on the assertion. For example, we request assistance from the State Archivist in cases involving public records. Any agency taking part in a whistleblower investigation is required to abide by confidentiality and documentation requirements.
Q: If I have a question about the Whistleblower Program or a particular situation, how can I get technical assistance?
Between 8:00 a.m. and 5:00 p.m. Monday through Friday you can call the State Auditor's Office and receive technical assistance.
- Mindy Chambers (360) 902-0091
- Dell Cowart (360) 902-0369
- Martha Payne (360) 902-0363
- Linda Long (360) 902-0367
Information about the Whistleblower Program is on the State Auditor's Office home page at: http://www.sao.wa.gov