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1995 SESSION

LD8365728
SENATE BILL NO. 411
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on General Laws
on February 28, 1994)
(Patron Prior to Substitute--Senator Robb)
A BILL to amend the Code of Virginia by adding in Title 2.1 a chapter numbered 10.01, consisting of sections numbered 2.1-116.01 through 2.1-116.10, relating to the Virginia Whistle Blower Protection Act.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Title 2.1 a chapter numbered 10.01, consisting of sections numbered 2.1-116.01 through 2.1-116.10, as follows:

CHAPTER 10.01.
THE VIRGINIA WHISTLE BLOWER PROTECTION ACT.

§ 2.1-116.01. Legislative intent.

It shall be the policy of the Commonwealth that employees of public bodies be freely able to report instances of wrongdoing and waste committed by these bodies, their employees or independent contractors of such bodies.

§ 2.1-116.02. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Appropriate authority" means a federal, state, county or municipal government body, agency or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste; or a member, officer, agent, representative or supervisory employee of the body, agency, or organization. The term includes, but is not limited to, the Office of the Attorney General, the Office of the State Internal Auditor, and the General Assembly and its committees having the power and duty to investigate criminal law enforcement, regulatory violations, professional conduct or ethics, or waste.

"Employee" means a person who performs a full- or part-time service for wages, salary, or other remuneration under a written contract for hire for a public body.

"Employer" means a person supervising one or more employees, including the employee in question, a superior of that supervisor, or an agent of a public body.

"Good faith report" means a written, electronic or oral report, provided such oral report is promptly reduced to writing, of wrongdoing or waste which is made without malice or consideration of personal benefit, which otherwise complies with the good faith requirements of § 2.1-116.04, and which the person making the report has reasonable cause to believe is true. The report shall specify the factual basis for the allegation of wrongdoing or waste.

"Public body" means any of the following:

1. A department, division, officer, agency, bureau, board, commission, court in its nonjudicial functions only, council, institution, spending unit, authority or other instrumentality of the Commonwealth;

2. A commission, council, department, agency, board, court in its nonjudicial functions only, official, special district, corporation or other instrumentality of a county or a municipality; or

3. Any other body which is created by state or political subdivision authority or which is funded by thirty-five percent or more by or through state or political subdivision authority, or a member or employee of that body.

"Waste" means an employer's or employee's conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from federal, state, or political subdivision sources.

"Whistle blower" means an employee who witnesses or has evidence of wrongdoing or waste and who makes or demonstrates by clear and convincing evidence that he is about to make a good faith report of, or testifies or is about to testify to, the wrongdoing or waste to one of the employee's superiors, an agent of the employer or an appropriate authority.

"Wrongdoing" means a violation, which is not of a merely technical or minimal nature, of a federal or state statute or regulation, of an ordinance or regulation formally adopted by a political subdivision, or of a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or the employee.

§ 2.1-116.03. Applicability; discriminatory and retaliatory actions against whistle blowers prohibited.

A. No employer may discharge, threaten or otherwise discriminate or retaliate against a whistle blower whether acting on his own, or through a person acting on his behalf or under his direction, by changing his compensation, terms, conditions, location or privileges of employment.

B. No employer may discharge, threaten or otherwise discriminate or retaliate against a whistle blower by changing his compensation, terms, conditions, location or privileges of employment because the whistle blower is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action.

§ 2.1-116.04. Good faith requirement.

A. To be protected by this chapter, employees who disclose information about suspected wrongdoing shall do so in good faith and upon a reasonable belief that their allegations are accurate.

B. Disclosures which are false or reckless, confidential by law, or malicious shall not be deemed good faith reports and shall not be protected by this chapter.

§ 2.1-116.05. Notification requirements.

In order to receive the protection of this chapter, an employee shall give a good faith report of the suspected wrongdoing to his agency head before disclosing the alleged wrongdoing to parties outside of his agency, except in situations where the agency head is the subject of the complaint. Where the agency head is the subject of the complaint the employee shall give such report to the agency head's appointing authority.

§ 2.1-116.06. Violation; election of grievance procedure.

A. Subject to the provisions of subsection A of § 2.1-116.07, any employee, covered by a grievance procedure pursuant to §§ 2.1-114.5:1, 15.1-7.1 or § 15.1-7.2, may initiate a grievance alleging a violation of this chapter.

B. Whenever it is determined that an appointing authority or supervisor has violated this chapter an entry shall be made in the appointing authority or supervisor's personnel record to that effect.

C. Whenever the Department of Employee Relations Counselors learns that a grievance has been initiated under this chapter which involves information concerning waste of public funds or mismanagement of a state agency, it shall transmit a copy of the grievance to the state auditor for an investigation.

D. If an employee elects to pursue a grievance, the decision of the panel shall be the exclusive remedy. Initiation of a grievance shall preclude initiation of a civil action.

E. A grievance panel in rendering a decision for the employee in a grievance brought under this chapter, may order reinstatement, back pay, full reinstatement of fringe benefits and seniority rights, any other combination of these remedies, or any other relief available under the grievance procedure statutes.

§ 2.1-116.07. Violation; election of civil action; limitation on actions; burden or proof, defense.

A. Subject to the provisions of subsection D of § 2.1-116.06, an employee who alleges a violation of this chapter may bring a civil action in the circuit court of the locality where the employee is employed for relief pursuant to § 2.1-116.08, which action shall be brought within 180 days after the occurrence of the alleged violation. Initiation of litigation shall preclude the filing of a grievance.

B. An employee alleging a violation of this chapter shall prove by a preponderance of the evidence that (i) the employee made or caused to be made a good faith report to the employer or appropriate authority concerning an instance or wrongdoing or waste, (ii) the employer was aware that the employee made or caused to be made such report, (iii) the employee suffered an adverse employment action, and (iv) the report was closely followed by the adverse employment action. The employer may introduce evidence of a separate, legitimate reason for the adverse employment action. The employee may rebut the evidence offered by the employer by showing that the reason stated by the employer is a pretext and that, but for the employee having made, or caused to be made, the good faith report, the employee would not have suffered the adverse employment action.

§ 2.1-116.08. Redress for the whistle blower.

The court, in rendering a judgment for the employee in an action brought pursuant to this chapter, may order injunctive relief, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, or any combination of these remedies. The court may also award the employee all or a portion of the costs of litigation, including reasonable attorneys fees, if the court determines that such award is appropriate.

§ 2.1-116.09. Limitations on scope of construction.

The provisions of this chapter shall not be construed to require an employer to compensate an employee for participation in an investigation, hearing or inquiry held by an appropriate authority.

§ 2.1-116.10. Notice to employees of protection of whistle blowers.

Employers shall prominently post notices and use other appropriate means to notify employees and keep them informed of the protections and obligations set forth in this chapter.