State Auditor's Office
Summary of Provisions and Protections
Chapter 42.40 RCW
The State Employee Whistleblower Act
The Whistleblower Act, enacted by the Washington State Legislature in 1982 and significantly amended by Chapter 361 Laws of 1999, provides an avenue for state employees to report suspected improper governmental activity. The Act does not authorize the State Auditor's Office to investigate personnel actions for which other remedies exist, such as employee grievances.
Any Washington state employee may report a suspected improper governmental action through the Whistleblower Program. This includes temporary employees, classified and exempt civil service employees and elected officials. The Act does not cover employees of state contractors.
Under the 1999 legislation, the asserted improper activity(ies) must have occurred within one year of the filing of the assertion(s).
How to File a Report of Improper Governmental Activity
Improper governmental activity is defined 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 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.
Assertions of improper governmental activity must be filed in writing with the State Auditor_s Office.
They can be reported using the Whistleblower Reporting Form, attached to this summary, or in a separate letter. In either case, the report should include:
- 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 -- other witnesses, documents, evidence, etc.
- If you know it, the specific law or regulation that has been violated.
- Your name, address and phone number.
Each assertions(s) should be noted separately and supported with as much specific information as possible. Supplying detailed information contributes to a thorough and efficient investigation. The Whistleblower Reporting Form is designed to help you supply the needed information.
Assertions of improper governmental activity may be filed anonymously. However, including your name and number enables us to contact you to gather information that may be necessary for a thorough investigation.
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 activities and penalties for those who retaliate.
Send your Whistleblower Reporting Form or letter to:
State Auditor's Office
Attention: ED
PO Box 40021
Olympia, WA 98504-0021
If you wish to file assertions regarding the State Auditor's Office, please contact:
Rich Heath
Assistant Attorney General
State Attorney General's Office
PO Box 40100
Olympia, WA 98504-0100
(360) 753-2578
The Investigative Process
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 - with respect and fairly. 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.
Chapter 361, Laws of 1999, significantly enhanced the due process afforded to all parties to a whistleblower investigation. The following outline describes a new five-step process used by the State Auditor's Office in investigating reports of asserted improper governmental activity under the amended Whistleblower Act.
- 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
Rights and Obligations
Under the Act, the whistleblower, the subject of the assertion, the agency head and the State Auditor's Office have rights and obligations. They are:
State Auditor's Office: The Office analyzes and investigates assertions independently, objectively and thoroughly through interviews and by reviewing relevant documents. We maintain the confidentiality of the whistleblower and of witnesses who provide information during the course of the investigation. The Office dedicates adequate resources to investigate assertion(s) within the time frames spelled out in the law. Also within those time frames, the Office communicates the nature of the assertions and how they are being investigated with the subject of the assertion(s), the whistleblower and the agency head or designee. The Office documents each stage of the investigation, and conclusions, in working papers. The Office bases its reports on those working papers, and reports the results of investigations in a clear and understandable fashion. The Office does referrals to the appropriate ethics boards when we find reasonable cause to believe state ethics code has been violated. The Office follows up on corrective action until appropriate action has been taken to resolve the matter.
Whistleblower: The whistleblower must file the assertions in good faith. Good faith is defined as a reasonable basis in fact for the assertion. Good faith is lacking when the employee knows or reasonably ought to know that the assertion is malicious, false or frivolous. Therefore, whistleblowers must make a reasonable attempt to determine the correctness of the information they furnish our Office. The whistleblower (if named) will be notified that we have received the assertion(s) and will be updated on the status of the case during the 30-day preliminary investigation and during the 60-day full investigation, if one is conducted. The whistleblower has a right to confidentiality and protection from retaliation. The whistleblower; agency head and the subject or subjects notified at least annually of the status of corrective action until the State Auditor concludes that appropriate action has been taken.
Subject of assertion(s): Within the 30-day preliminary investigation, the subject has the right to be notified of the nature of each assertion, relevant facts known at the time and our intended course of action. The subject has the right to provide information relevant to the investigation. The same rights apply during the 60-day full investigation, if one is done. If we find reasonable cause to believe there has been improper governmental action, the subject will be given 15 working days to respond to the draft report. The subject's response, or portions of it, will be included with the final report.
Agency director (or designee): Within the 30-day preliminary investigation, the agency director or designee has the right to be notified of the nature of each assertion, relevant facts known at the time and our intended course of action. The agency director or designee must cooperate with the investigator and must preserve evidence in the case. The director or designee has the right to provide information relevant to the investigation. The same rights apply during the 60-day full investigation, if one is done. If we find reasonable cause to believe there has been improper governmental action, the agency director or designee will be given 15 working days to respond to the draft report. The response, or portions of it, will be included with the final report. The agency director or designee is responsible for taking corrective action when we find reasonable cause to believe improper governmental activity has occurred.
Protection from Retaliation
The law requires that whistleblowers' identities be kept confidential. It makes retaliation unlawful and provides remedies for retaliation. Reports of asserted retaliation are filed with the Washington State Human Rights Commission. The commission will investigate the claim and take appropriate action. Civil penalties for retaliation may include a fine of up to $3,000 and suspension for 30 days without pay.
We have enclosed information on retaliation issues in this packet of information.
For more information on the state Whistleblower Program, please call Mindy Chambers, Whistleblower Program Manager, at (360) 902-0091. Information about the Whistleblower Program is also available on the State Auditor's Office home page at: http://www.sao.wa.gov
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