ORDINANCE NO. 329
AN ORDINANCE OF THE TOWN OF SOUTH PRAIRIE, PIERCE COUNTY, WASHINGTON ADOPTING POLICIES ON THE APPROPRIATE PROCEDURES FOR IMPLEMENTATION OF LOCAL GOVERNMENT WHISTLEBLOWER PROTECTION.
Whereas, Chapter 42.41 RCW, Local Government Whistleblower Protection, provides for a policy that local government employees should be encouraged to disclose, to the extent not expressly prohibited by law, improper governmental actions of local governmental officials and employees and that the purpose of the chapter is to protect local government employees to make good faith reports to the appropriate governmental bodies and to provide remedies for such individuals who are subjected to retaliation for having made such reports, and
Whereas, for the implementation of the act, each local government shall adopt a policy on the appropriate procedures to follow for reporting such information and shall provide such information to their employees on the policy, RCW 42.41.030, and
Whereas, the Town desires to comply with Chapter 42.41 RCW.
Now, therefore, the Town Council of the Town of South Prairie, Pierce County, Washington do ordain as follows:
Section 1: Policies attached hereto and incorporated by reference as Exhibit "1" entitled Town of South Prairie Policies in compliance with Local Government Whistleblower Protection, RCW 42.41, is incorporated by reference as if set out in full.
Section 2: That a copy of Exhibit "1" shall be available to the employees of the Town.
Section 3: If any provision of this ordinance or the attached policies are determined to be invalid or unenforceable for any reason, the remaining provisions of this ordinance and the attached policies shall remain in force and affect.
________________________ Dale P. Stubbs INTRODUCED: 1/7/97 PASSED: 1/7/97 APPROVED: 1/7/97 PUBLISHED: 2/13/97
Dale P. Stubbs
Acting Town Clerk/Treasurer
Michael J. Reynolds City Attorney
Ordinance No.: 329
Draft No.: 1
Draft Date: December 9, 1996 Ordinance Requested by:
42.40.050 Title 42 RCW: Public Officers and Agencies
Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. However, the agency also shall implement any order under chapter 49.60 RCW (other than an order of suspension if the agency has terminated the retaliator). [1992 c 118 § 3; 1989 c 284 § 4; 1982 c 208 § 5.]
42.40.070 Summary of chapter available to employees. A written summary of this chapter and procedures for reporting improper governmental actions established by the auditor's office shall be made available by each department or agency of state government to each employee upon entering public employment. Employees shall be notified by each department or agency of state government each year of the procedures and protections under this chapter. [1989 c 284 § 5; 1982 c 208 § 7.]
42.40.900 Severability—1982 c 208. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1982 c 208 § 14.]
LOCAL GOVERNMENT WHISTLEBLOWER
42.41.030 Right to report improper governmental action—Policies and procedures.
42.41.040 Retaliatory action unlawful—Relief by whistleblower—Penalty.
42.41.045 Prohibition on intimidation of whistleblower—Nondisclosure of protected information.
42.41.060 Local government administrative hearings account.
42.4 Effective dates—1992 c 44.
42.41.902 Severability—1992 c 44.
42.41.010 Policy. It is the policy of the legislature that local government employees should be encouraged to disclose, to the extent not expressly prohibited by law, improper governmental actions of local government officials and employees. The purpose of this chapter is to protect local government employees who make good-faith reports to appropriate governmental bodies and to provide remedies for such individuals who are subjected to retaliation for having made such reports. [1992 c 44 § 1.]
42.41.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1)(a) "Improper governmental action" means any action by a local government officer or employee:
(i) That is undertaken in the performance of the officer's or employee's official duties, whether or not the action is within the scope of the employee's employment; and
(ii) That is in violation of any federal, state, or local law or rule, is an abuse of authority, is of substantial and specific danger to the public health or safety, or is a gross waste of public funds.
(b) "Improper governmental action" does not include personnel actions including but not limited to employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the local government collective bargaining and civil service laws, alleged labor agreement violations, reprimands, or any action that may be taken under chapter 41.08, 41.12, 41.14, 41.56, 41.59, or 53.18 RCW or RCW 54.04.170 and 54.04.180.
(2) "Local government" means any governmental entity other than the state, federal agencies, or an operating system established under chapter 43.52 RCW. It includes, but is not limited to cities, counties, school districts, and special purpose districts.
(3) "Retaliatory action" means: (a) Any adverse change in a local government employee's employment status, or the terms and conditions of employment including denial of adequate staff to perform duties, frequent staff changes, frequent and undesirable office changes, refusal to assign meaningful work, unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations, demotion, transfer, reassignment, reduction in pay, denial of promotion, suspension, dismissal, or any other disciplinary action; or (b) hostile actions by another employee towards a local government employee that were encouraged by a supervisor or senior manager or official.
(4) "Emergency" means a circumstance that if not immediately changed may cause damage to persons or property. [1994 c 210 § 1; 1992 c 44 § 2.]
42.41.030 Right to report improper governmental action—Policies and procedures. (1) Every local government employee has the right to report to the appropriate person or persons information concerning an alleged improper governmental action.
(2) The governing body or chief administrative officer of each local government shall adopt a policy on the appropriate procedures to follow for reporting such information and shall provide information to their employees on the policy. Local governments are encouraged to consult with their employees on the policy.
(3) The policy shall describe the appropriate person or persons within the local government to whom to report information and a list of appropriate person or persons out-side the local government to whom to report. The list shall include the county prosecuting attorney.
(4) Each local government shall permanently post a summary of the procedures for reporting information on an alleged improper governmental action and the procedures for protection against retaliatory actions described in RCW 42.41.040 in a place where all employees will have-reasonable access to it. A copy of the summary shall be made available to any employee upon request.
(5) A local government may require as part of its policy that, except in the case of an emergency, before an employee provides information of an improper governmental action to
(6) listed pursuant to subsection (3) of this section, the employee
shall submit a written report to the local government. Where a local government has adopted such a policy under this section, an employee who fails to make a good faith attempt to follow the policy shall not receive the protections of this chapter.
(6) If a local government has failed to adopt a policy as required by subsection (2) of this section, an employee may report alleged improper government action directly to the county prosecuting attorney or, if the prosecuting attorney or an employee of the prosecuting attorney participated in the alleged improper government action, to the state auditor. The cost incurred by the state auditor in such investigations shall be paid by the local government through the municipal revolving account authorized in RCW 43.09.282.
(7) The identity of a reporting employee shall be kept confidential to the extent possible under law, unless the employee authorizes the disclosure of his or her identity in writing. [1995 c 213 § 1; 1992 c 44 § 3.1
42.41.040 Retaliatory action unlawful—Relief by whistleblower—Penalty. (1) It is unlawful for any local government official or employee to take retaliatory action against a local government employee because the employee provided information in good faith in accordance with the provisions of this chapter that an improper governmental action occurred.
(2) In order to seek relief under this chapter, a local government employee shall provide a written notice of the charge of retaliatory action to the governing body of the local government that:
(a) Specifies the alleged retaliatory action; and
(b) Specifies the relief requested.
(3) The charge shall be delivered to the local government no later than thirty days after the occurrence of the alleged retaliatory action. The local government has thirty days to respond to the charge of retaliatory action and request for relief.
(4) Upon receipt of either the response of the local government or after the last day upon which the local government could respond, the local government employee may request a hearing to establish that a retaliatory action occurred and to obtain appropriate relief as defined in this section. The request for a hearing shall be delivered to the local government within fifteen days of delivery of the response from the local government, or within fifteen days of the last day on which the local government could respond.
(5) Within five working days of receipt of the request for hearing, the local government shall apply to the state office of administrative hearings for an adjudicative proceeding before an administrative law judge. Except as otherwise provided in this section, the proceedings shall comply with RCW 34.05.410 through 34.05.598.
(6) The employee, as the initiating party, must prove his or her claim by a preponderance of the evidence. The administrative law judge shall issue a final decision consisting of findings of fact, conclusions of law, and judgment no later than forty-five days after the date the request for hearing was delivered to the local government. The administrative law judge may grant specific extensions of time
request of either party upon a showing of good cause
upon his or her own motion.
(7) Relief that may be granted by the administrative law judge consists of reinstatement, with or without back pay, and such injunctive relief as may be found to be necessary in order to return the employee to the position he or she held before the retaliatory action and to prevent any recurrence of retaliatory action. The administrative law judge may award costs and reasonable attorneys' fees to the prevailing party.
(8) If a determination is made that retaliatory action has been taken against the employee, the administrative law judge may, in addition to any other remedy, impose a civil penalty personally upon the retaliator of up to three thousand dollars payable by each person found to have retaliated against the employee and recommend to the local government that any person found to have retaliated against the employee be suspended with or without pay or dismissed. All penalties recovered shall be paid to the local government administrative hearings account created in RCW 42.41.060.
(9) The final decision of the administrative law judge is subject to judicial review under the arbitrary and capricious standard. Relief ordered by the administrative law judge may be enforced by petition to superior court. [1992 c 44 § 4.]
42.41.045 Prohibition on intimidation of whistleblower—Nondisclosure of protected information. (1) A local government official or employee may not use his or her official authority or influence, directly or indirectly, to threaten, intimidate, or coerce an employee for the purpose of interfering with that employee's right to disclose information concerning an improper governmental action in accordance with the provisions of this chapter.
(2) Nothing in this section authorizes an individual to disclose information prohibited by law. [1994 c 210 § 2.]
42.41.050 Exemptions. Any local government that has adopted or adopts a program for reporting alleged improper governmental actions and adjudicating retaliation resulting from such reporting shall be exempt from this chapter if the program meets the intent of this chapter. [1992 c 44 § 6.]
42.41.060 Local government administrative hearings account. The local government administrative hearings account is created in the custody of the state treasurer. All receipts from penalties in RCW 42.41.040 and the surcharges under RCW 43.09.2801 shall be deposited into the account. Expenditures from the account may be used only for administrative hearings under this chapter. Only the chief administrative law judge or his or her designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures. [1992 c 44 § 7.]
42.41.900 Construction. This chapter shall not be
construed to permit disclosures that would diminish the rights of any person to the continued protection of
confidentiality of communications
where statute or common law provides such
protection. [1992 c 44 § 5.]
42.41.901 Title 42 RCW: Public Officers and Agencies
42.41.901 Effective dates—1992 c 44. Sections 1
through 10 of this act shall take effect January 1,
Section 11 of this act shall take effect July 1, 1992.
c 44 § 13.]
42.41.902 Severability—1992 c 44. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1992 c 44 § 14.]
42.44.020 Qualifications—Application—Bond. 42.44.030 Appointment denied certain persons. 42.44.040 Certificate of appointment. 42.44.050 Seal or stamp.
42.44.070 Reappointment without endorsements.
42.44.080 Standards for notarial acts.
42.44.090 Form of certificate—General—Seal or stamp as exclusive property.
42.44.100 Short forms of certificate.
42.44.110 Illegible writing.
42 4-4.120 Fees.
42.44.130 Notarial acts by officials of other jurisdictions.
42.44.140 Notarial acts by federal authorities.
42.44.150 Notarial acts by foreign authorities. 42.44.160 Official misconduct—Penalty.
42.44.170 Revocation of appointment—Resignation.
42.44.180 Evidence of authenticity of notarial seal and signature.
42.44.200 Transfer of records.
Savings—1985 c 156.
42.44.902 Severability—1985 c 156. 42.44.903 Effective date—1985 c 156.
42.44.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) "Director" means the director of licensing of the state of Washington or the director's designee.
(2) "Notarial act" and "notarization" mean: (a) Taking an acknowledgment; (b) administering an oath or affirmation; (c) taking a verification upon oath or affirmation; (d) witnessing or attesting a signature; (e) certifying or attesting a copy; (f) receiving a protest of a negotiable instrument; (g) certifying that an event has occurred or an act has been per-formed; and (h) any other act that a notary public of this state is authorized to perform.
(3) "Notary public" and "notary" mean any person appointed to perform notarial acts in this state.
(4) "Acknowledgment" means a statement by a person that the person has executed an instrument as the person's free and voluntary act for the uses and purposes stated :herein and, if the instrument is executed in a representative capacity, a statement that the person signed the document with proper authority and executed it as the act of the person or entity represented and identified therein.
(5) -"Verification upon oath or affirmation" means a statement by a person who asserts it to be true and makes
the assertion upon oath or affirmation administered in accordance with chapter 5.28 RCW.
(6) "In a representative capacity" means:
(a) For and on behalf of a corporation, partnership, trust, or other entity, as an authorized officer, agent, partner, trustee, or other representative;
(b) As a public officer, personal representative, guardian, or other representative, in the capacity recited in the instrument;
(c) As an attorney in fact for a principal; or
(d) In any other capacity as an authorized representative of another.
(7) "Serious crime" means any felony or any lesser crime, a necessary element of which, as determined by the statutory or common law definition of such crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, the unauthorized practice of law, deceit, bribery, extortion, misappropriation, theft, or an attempt, a conspiracy, or the solicitation of another to commit a serious crime. [1985 c 156 § 1.]
42.44.020 Qualifications—Application—Bond. (1) The director may, upon application, appoint to be a notary public in this state, any person who:
(a) Is at least eighteen years of age;
(b) Resides in Washington state, or resides in an adjoining state and is regularly employed in Washington state or carries on business in Washington state; and
(c) Can read and write English.
(2) Each application shall be accompanied by endorsements by at least three residents of this state of the age of eighteen or more, who are not relatives of the applicant, in the following form:
I,___ (name of endorser)_____ ,
being a person eligible to
vote in the state of Washington, believe the applicant for a
notary public appointment,___ (applicant's name)____ ,
not related to me, to be a person of integrity and good moral character and capable of performing notarial acts.
(Endorser's signature and address, with date of signing)
(3) Every application for appointment as a notary public shall be accompanied by a fee established by the director by rule.
(4) Every applicant for appointment as a notary public shall submit an application in a form prescribed by the director, and shall sign the following declaration in the presence of a notary public of this state:
Declaration of Applicant
I,___ (name of applicant)_____ ,
solemnly swear or affirm
under penalty of perjury that the personal information I have provided in this application is true, complete, and correct; that I carefully have read the materials provided with the application describing the duties of a notary public in and for the state of Washington; and, that I will perform, to the best
of my ability, all notarial acts in accordance with the law. ...........
(Signature of applicant)
State of Washington County of