Senate Bill No. 556–Committee on Government Affairs

 

(On Behalf of Air Quality Programs
in Clark County (SB 432))

 

March 26, 2001

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Prohibits reprisal or retaliatory action against officer or employee of local government who discloses improper governmental action. (BDR 23‑793)

 

FISCAL NOTE:    Effect on Local Government: Yes.

                                 Effect on the State: No.

 

CONTAINS UNFUNDED MANDATE (§§ 3-11)

(Not Requested by Affected Local Government)

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to local government; prohibiting reprisal or retaliatory action against an officer or employee of a local government who discloses improper governmental action; requiring a local government to establish procedures for hearing appeals relating to a reprisal or retaliatory action; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 281 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 and 3 of this act.

1-3    Sec. 2.  A local government may enact by ordinance procedures that

1-4  provide greater protection to local governmental officers and employees

1-5  against reprisal and retaliation for the disclosure of improper

1-6  governmental action than the protection provided in NRS 281.611 to

1-7  281.671, inclusive.

1-8    Sec. 3.  1.  A local government shall, by ordinance, establish

1-9  procedures for hearing an appeal from a local governmental officer or

1-10  employee who:

1-11    (a) Disclosed information concerning improper governmental action;

1-12  and

1-13    (b) Believes that as a result of that disclosure, a reprisal or retaliatory

1-14  action has been taken against him,

2-1  to determine whether a reprisal or retaliatory action has been taken

2-2  against the local governmental officer or employee. The procedures must

2-3  allow the local governmental officer or employee to file an appeal within

2-4  2 years after the information is disclosed.

2-5    2.  An ordinance adopted pursuant to subsection 1 must:

2-6    (a) Prescribe the required contents of an appeal;

2-7    (b) Provide for the designation or appointment of hearing officers to

2-8  hear such appeals; and

2-9    (c) Provide that if a hearing officer determines that the action taken

2-10  was a reprisal or retaliatory action, he may issue an order directing the

2-11  proper person to desist and refrain from engaging in such action.

2-12    Sec. 4.  NRS 281.611 is hereby amended to read as follows:

2-13    281.611  As used in NRS 281.611 to 281.671, inclusive, and sections 2

2-14  and 3 of this act, unless the context otherwise requires:

2-15    1.  “Improper governmental action” means any action taken by a state

2-16  officer or employee or local governmental officer or employee in the

2-17  performance of his official duties, whether or not the action is within the

2-18  scope of his employment, which is:

2-19    (a) In violation of any state law or regulation;

2-20    (b) If the officer or employee is a local governmental officer or

2-21  employee, in violation of an ordinance of the local government;

2-22    (c) An abuse of authority;

2-23    [(c)] (d) Of substantial and specific danger to the public health or

2-24  safety; or

2-25    [(d)] (e) A gross waste of public money.

2-26    2.  “Local government” means a county in this state, an incorporated

2-27  city in this state and Carson City.

2-28    3.  “Local governmental employee” means any person who performs

2-29  public duties under the direction and control of a local governmental

2-30  officer for compensation paid by or through a local government.

2-31    4.  “Local governmental officer” means a person elected or appointed

2-32  to a position with a local government that involves the exercise of a local

2-33  governmental power, trust or duty, including:

2-34    (a) Actions taken in an official capacity which involve a substantial

2-35  and material exercise of administrative discretion in the formulation of

2-36  local governmental policy;

2-37    (b) The expenditure of money of a local government; and

2-38    (c) The enforcement of laws and regulations of the state or a local

2-39  government.

2-40    5.  “Reprisal or retaliatory action” includes:

2-41    (a) The denial of adequate personnel to perform duties;

2-42    (b) Frequent replacement of members of the staff;

2-43    (c) Frequent and undesirable changes in the location of an office;

2-44    (d) The refusal to assign meaningful work;

2-45    (e) The issuance of letters of reprimand or evaluations of poor

2-46  performance;

2-47    (f) A demotion;

2-48    (g) A reduction in pay;

2-49    (h) The denial of a promotion;

3-1    (i) A suspension;

3-2    (j) A dismissal;

3-3    (k) A transfer;

3-4    (l) Frequent changes in working hours or workdays; or

3-5    (m) If the employee is licensed or certified by an occupational

3-6  licensing board, the filing with that board, by or on behalf of the

3-7  employer, of a complaint concerning the employee,

3-8  if such action is taken, in whole or in part, because the state officer or

3-9  employee or local governmental officer or employee disclosed

3-10  information concerning improper governmental action.

3-11    6.  “State employee” means any person who performs public duties

3-12  under the direction and control of a state officer for compensation paid by

3-13  or through the state.

3-14    [3.] 7. “State officer” means a person elected or appointed to a

3-15  position with the state which involves the exercise of a state power, trust or

3-16  duty, including:

3-17    (a) Actions taken in an official capacity which involve a substantial and

3-18  material exercise of administrative discretion in the formulation of state

3-19  policy;

3-20    (b) The expenditure of state money; and

3-21    (c) The enforcement of laws and regulations of the state.

3-22    Sec. 5.  NRS 281.621 is hereby amended to read as follows:

3-23    281.621  It is hereby declared to be the public policy of this state that a

3-24  state officer or employee [is] and a local governmental officer or

3-25  employee are encouraged to disclose, to the extent not expressly prohibited

3-26  by law, improper governmental action, and it is the intent of the legislature

3-27  to protect the rights of a state officer or employee and a local

3-28  governmental officer or employee who makes such a disclosure.

3-29    Sec. 6.  NRS 281.631 is hereby amended to read as follows:

3-30    281.631  1.  A state officer or employee and a local governmental

3-31  officer or employee shall not directly or indirectly use or attempt to use his

3-32  official authority or influence to intimidate, threaten, coerce, command,

3-33  influence or attempt to intimidate, threaten, coerce, command or influence

3-34  another state officer or employee or another local governmental officer or

3-35  employee, as applicable, in an effort to interfere with or prevent the

3-36  disclosure of information concerning improper governmental action.

3-37    2.  For the purposes of this section, use of “official authority or

3-38  influence” includes taking, directing others to take, recommending,

3-39  processing or approving any personnel action such as an appointment,

3-40  promotion, transfer, assignment, reassignment, reinstatement, restoration,

3-41  reemployment, evaluation or other disciplinary action.

3-42    Sec. 7.  NRS 281.641 is hereby amended to read as follows:

3-43    281.641  1.  If any reprisal or retaliatory action is taken against a state

3-44  officer or employee who discloses information concerning improper

3-45  governmental action within 2 years after the information is disclosed, the

3-46  state officer or employee may file a written appeal with a hearing officer of

3-47  the department of personnel for a determination of whether the action taken

3-48  was a reprisal or retaliatory action. The written appeal must be

3-49  accompanied by a statement that sets forth with particularity:

4-1    (a) The facts and circumstances under which the disclosure of improper

4-2  governmental action was made; and

4-3    (b) The reprisal or retaliatory action that is alleged to have been taken

4-4  against the state officer or employee.

4-5  The hearing must be conducted in accordance with the procedures set forth

4-6  in NRS 284.390 to 284.405, inclusive, and the procedures adopted by the

4-7  personnel commission pursuant to subsection 4.

4-8    2.  If the hearing officer determines that the action taken was a reprisal

4-9  or retaliatory action, he may issue an order directing the proper person to

4-10  desist and refrain from engaging in such action. The hearing officer shall

4-11  file a copy of his decision with the governor or any other elected state

4-12  officer who is responsible for the actions of that person.

4-13    3.  The hearing officer may not rule against the state officer or

4-14  employee based on the person or persons to whom the improper

4-15  governmental action was disclosed.

4-16    4.  The personnel commission may adopt rules of procedure for

4-17  conducting a hearing pursuant to this section that are not inconsistent with

4-18  the procedures set forth in NRS 284.390 to 284.405, inclusive.

4-19    [5.  For the purposes of this section, “reprisal or retaliatory action”

4-20  includes:

4-21    (a) The denial of adequate personnel to perform duties;

4-22    (b) Frequent replacement of members of the staff;

4-23    (c) Frequent and undesirable changes in the location of an office;

4-24    (d) The refusal to assign meaningful work;

4-25    (e) The issuance of letters of reprimand or evaluations of poor

4-26  performance;

4-27    (f) A demotion;

4-28    (g) A reduction in pay;

4-29    (h) The denial of a promotion;

4-30    (i) A suspension;

4-31    (j) A dismissal;

4-32    (k) A transfer;

4-33    (l) Frequent changes in working hours or workdays; or

4-34    (m) If the employee is licensed or certified by an occupational licensing

4-35  board, the filing with that board, by or on behalf of the employer, of a

4-36  complaint concerning the employee,

4-37  if such action is taken, in whole or in part, because the state officer or

4-38  employee disclosed information concerning improper governmental

4-39  action.]

4-40    Sec. 8.  NRS 281.651 is hereby amended to read as follows:

4-41    281.651  1.  [No] A state officer or employee [may] or a local

4-42  governmental officer or employee shall not use the provisions of NRS

4-43  281.611 to 281.671, inclusive, and sections 2 and 3 of this act, to harass

4-44  another state officer or employee[.] or another local governmental officer

4-45  or employee, as applicable.

4-46    2.  The provisions of NRS 281.611 to 281.671, inclusive, and sections

4-47  2 and 3 of this act, do not prohibit a state officer or employee or a local

4-48  governmental officer or employee from initiating proper disciplinary

4-49  procedures against another state officer or employee or another local

5-1  governmental officer or employee, as applicable, who discloses untruthful

5-2  information concerning improper governmental action.

5-3    Sec. 9.  NRS 281.661 is hereby amended to read as follows:

5-4    281.661  Each year, [the]

5-5    1.  The director of the department of personnel shall make available to

5-6  each state officer and employee ; and

5-7    2.  The administrative head of a local government shall make

5-8  available to each local governmental officer or employee,

5-9  a written summary of NRS 281.611 to 281.671, inclusive[.] , and sections

5-10  2 and 3 of this act.

5-11    Sec. 10.  NRS 281.671 is hereby amended to read as follows:

5-12    281.671  NRS 281.611 to 281.661, inclusive, and sections 2 and 3 of

5-13  this act, are intended to be directory and preventive rather than punitive,

5-14  and do not abrogate or decrease the effect of any of the provisions of NRS

5-15  which define crimes or prescribe punishments with respect to the conduct

5-16  of state officers or employees[.] or local governmental officers or

5-17  employees.

5-18    Sec. 11.  NRS 218.5343 is hereby amended to read as follows:

5-19    218.5343  1.  An employee of a state agency who testifies before a

5-20  house or committee of the legislature on his own behalf and not on behalf

5-21  of his employer shall, before commencing his testimony, state that fact

5-22  clearly on the record.

5-23    2.  It is unlawful for a state agency which is the employer of an

5-24  employee who complies with subsection 1 and testifies or seeks to testify

5-25  before a house or committee of the legislature on his own behalf to:

5-26    (a) Deprive the employee of his employment or to take any reprisal or

5-27  retaliatory action against the employee as a consequence of his testimony

5-28  or potential testimony;

5-29    (b) Threaten the employee that his testimony or potential testimony will

5-30  result in the termination of his employment or in any reprisal or retaliatory

5-31  action against him; or

5-32    (c) Directly or indirectly intimidate, threaten, coerce, command or

5-33  influence or attempt to intimidate, threaten, coerce, command or influence

5-34  the employee in an effort to interfere with or prevent the testimony of the

5-35  employee.

5-36    3.  It is unlawful for a state agency to:

5-37    (a) Deprive or threaten to deprive an employee of his employment;

5-38    (b) Take or threaten to take any reprisal or retaliatory action against the

5-39  employee; or

5-40    (c) Directly or indirectly intimidate, threaten, coerce, command or

5-41  influence or attempt to intimidate, threaten, coerce, command or influence

5-42  the employee,

5-43  in an attempt to affect the behavior of another employee who is testifying

5-44  or seeks to testify before a house or committee of the legislature on his own

5-45  behalf.

5-46    4.  The provisions of this section do not apply to an employee in the

5-47  classified service who has not completed his probationary period.

5-48    5.  For the purposes of this section:

6-1    (a) “Reprisal or retaliatory action” has the meaning ascribed to it in

6-2  [subsection 5 of NRS 281.641.] NRS 281.611.

6-3    (b) “State agency” means an agency, bureau, board, commission,

6-4  department, division, officer, employee or agent or any other unit of the

6-5  executive department of the state government.

 

6-6  H