Senate Bill No. 556–Committee on Government Affairs

 

CHAPTER..........

 

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:

 

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

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

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

 provide greater protection to local governmental officers and employees

 against reprisal and retaliation for the disclosure of improper

 governmental action than the protection provided in NRS 281.611 to

 281.671, inclusive.

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

 procedures for hearing an appeal from a local governmental officer or

 employee who:

   (a) Disclosed information concerning improper governmental action;

 and

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

 action has been taken against him,

to determine whether a reprisal or retaliatory action has been taken

 against the local governmental officer or employee. The procedures

 must allow a local governmental officer or employee to file an appeal

 not later than 2 years after the information is disclosed and require the

 local government officer or employee who desires to file an appeal to file

 the appeal within 60 days after the alleged reprisal or retaliatory action

 was taken against him.

   2.  An ordinance adopted pursuant to subsection 1 must:

   (a) Prescribe the required contents of an appeal;

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

 hear such appeals; and

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

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

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

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

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

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

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

 officer or employee or local governmental officer or employee in the

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

 scope of his employment, which is:

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

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

 employee, in violation of an ordinance of the local government;

   (c) An abuse of authority;

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

safety; or

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

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

 city in this state and Carson City.

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

 public duties under the direction and control of a local governmental

 officer for compensation paid by or through a local government.

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

 to a position with a local government that involves the exercise of a local

 governmental power, trust or duty, including:

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

 and material exercise of administrative discretion in the formulation of

 local governmental policy;

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

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

 government.

   5.  “Reprisal or retaliatory action” includes:

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

   (b) Frequent replacement of members of the staff;

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

   (d) The refusal to assign meaningful work;

   (e) The issuance of letters of reprimand or evaluations of poor

 performance;

   (f) A demotion;

   (g) A reduction in pay;

   (h) The denial of a promotion;

   (i) A suspension;

   (j) A dismissal;

   (k) A transfer;

   (l) Frequent changes in working hours or workdays; or

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

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

 employer, of a complaint concerning the employee,

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

 employee or local governmental officer or employee disclosed

 information concerning improper governmental action.

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

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

 or through the state.

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

 position with the state which involves the exercise of a state power, trust

 or duty, including:

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

 material exercise of administrative discretion in the formulation of state

 policy;

   (b) The expenditure of state money; and

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

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

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

 state officer or employee [is] and a local governmental officer or

 employee are encouraged to disclose, to the extent not expressly

 prohibited by law, improper governmental action, and it is the intent of the

 legislature to protect the rights of a state officer or employee and a local

 governmental officer or employee who makes such a disclosure.

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

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

 officer or employee shall not directly or indirectly use or attempt to use his

 official authority or influence to intimidate, threaten, coerce, command,

 influence or attempt to intimidate, threaten, coerce, command or influence

 another state officer or employee or another local governmental officer

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

 disclosure of information concerning improper governmental action.

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

 influence” includes taking, directing others to take, recommending,

 processing or approving any personnel action such as an appointment,

 promotion, transfer, assignment, reassignment, reinstatement, restoration,

 reemployment, evaluation or other disciplinary action.

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

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

 officer or employee who discloses information concerning improper

 governmental action within 2 years after the information is disclosed, the

 state officer or employee may file a written appeal with a hearing officer

 of the department of personnel for a determination of whether the action

 taken was a reprisal or retaliatory action. The written appeal must be

 accompanied by a statement that sets forth with particularity:

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

 governmental action was made; and

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

 against the state officer or employee.

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

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

 personnel commission pursuant to subsection 4.

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

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

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

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

 officer who is responsible for the actions of that person.

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

 employee based on the person or persons to whom the improper

 governmental action was disclosed.

   4.  The personnel commission may adopt rules of procedure for

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

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

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

 includes:

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

   (b) Frequent replacement of members of the staff;

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

   (d) The refusal to assign meaningful work;

   (e) The issuance of letters of reprimand or evaluations of poor

 performance;

   (f) A demotion;

   (g) A reduction in pay;

   (h) The denial of a promotion;

   (i) A suspension;

   (j) A dismissal;

   (k) A transfer;

   (l) Frequent changes in working hours or workdays; or

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

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

 complaint concerning the employee,

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

 employee disclosed information concerning improper governmental

 action.]

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

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

 governmental officer or employee shall not use the provisions of NRS

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

 another state officer or employee[.] or another local governmental

 officer or employee, as applicable.

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

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

 governmental officer or employee from initiating proper disciplinary

 procedures against another state officer or employee or another local

 governmental officer or employee, as applicable, who discloses

 untruthful information concerning improper governmental action.

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

   281.661  Each year, [the]

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

 each state officer and employee ; and

   2.  The administrative head of a local government shall make

 available to each local governmental officer or employee,

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

 2 and 3 of this act.

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

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

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

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

 which define crimes or prescribe punishments with respect to the conduct

 of state officers or employees[.] or local governmental officers or

 employees.

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

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

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

 of his employer shall, before commencing his testimony, state that fact

 clearly on the record.

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

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

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

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

 retaliatory action against the employee as a consequence of his testimony

 or potential testimony;

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

 result in the termination of his employment or in any reprisal or retaliatory

 action against him; or

   (c) Directly or indirectly intimidate, threaten, coerce, command or

 influence or attempt to intimidate, threaten, coerce, command or influence

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

 employee.

   3.  It is unlawful for a state agency to:

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

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

 employee; or

   (c) Directly or indirectly intimidate, threaten, coerce, command or

 influence or attempt to intimidate, threaten, coerce, command or influence

 the employee,

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

 or seeks to testify before a house or committee of the legislature on his

 own behalf.

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

 classified service who has not completed his probationary period.

   5.  For the purposes of this section:

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

 [subsection 5 of NRS 281.641.] NRS 281.611.

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

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

 executive department of the state government.

 

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