(REPRINTED WITH ADOPTED AMENDMENTS)

 

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; defining the term “disclose” for the purposes of that prohibition; 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 a local governmental officer or employee to file an appeal not later

2-4  than 2 years after the information is disclosed and require the local

2-5  government officer or employee who desires to file an appeal to file the

2-6  appeal within 60 days after the alleged reprisal or retaliatory action was

2-7  taken against him.

2-8    2.  An ordinance adopted pursuant to subsection 1 must:

2-9    (a) Prescribe the required contents of an appeal;

2-10    (b) Provide for the designation or appointment of hearing officers to

2-11  hear such appeals; and

2-12    (c) Provide that if a hearing officer determines that the action taken

2-13  was a reprisal or retaliatory action, he may issue an order directing the

2-14  proper person to desist and refrain from engaging in such action.

2-15    Sec. 4.  NRS 281.611 is hereby amended to read as follows:

2-16    281.611  As used in NRS 281.611 to 281.671, inclusive, and sections 2

2-17  and 3 of this act, unless the context otherwise requires:

2-18  1.  “Disclose” or “disclosure” means the reporting, either verbally or

2-19  in writing, by a state or local governmental officer or employee of

2-20  governmental action that the officer or employee reasonably believes, in

2-21  good faith, to be improper governmental action. The term includes all

2-22  such reporting that is not expressly prohibited by law, regardless of the

2-23  identity of the person or entity to whom the information is reported.

2-24  2.  “Improper governmental action” means any action taken by a state

2-25  officer or employee or local governmental officer or employee in the

2-26  performance of his official duties, whether or not the action is within the

2-27  scope of his employment, which is:

2-28    (a) In violation of any state law or regulation;

2-29    (b) If the officer or employee is a local governmental officer or

2-30  employee, in violation of an ordinance of the local government;

2-31    (c) An abuse of authority;

2-32    [(c)] (d) Of substantial and specific danger to the public health or

2-33  safety; or

2-34    [(d)] (e) A gross waste of public money.

2-35    [2.] 3.  “Local government” means a county in this state, an

2-36  incorporated city in this state and Carson City.

2-37    4.  “Local governmental employee” means any person who performs

2-38  public duties under the direction and control of a local governmental

2-39  officer for compensation paid by or through a local government.

2-40    5.  “Local governmental officer” means a person elected or appointed

2-41  to a position with a local government that involves the exercise of a local

2-42  governmental power, trust or duty, including:

2-43    (a) Actions taken in an official capacity which involve a substantial

2-44  and material exercise of administrative discretion in the formulation of

2-45  local governmental policy;

2-46    (b) The expenditure of money of a local government; and

2-47    (c) The enforcement of laws and regulations of the state or a local

2-48  government.

2-49    6.  “Reprisal or retaliatory action” includes:

3-1    (a) The denial of adequate personnel to perform duties;

3-2    (b) Frequent replacement of members of the staff;

3-3    (c) Frequent and undesirable changes in the location of an office;

3-4    (d) The refusal to assign meaningful work;

3-5    (e) The issuance of letters of reprimand or evaluations of poor

3-6  performance;

3-7    (f) A demotion;

3-8    (g) A reduction in pay;

3-9    (h) The denial of a promotion;

3-10    (i) A suspension;

3-11    (j) A dismissal;

3-12    (k) A transfer;

3-13    (l) Frequent changes in working hours or workdays; or

3-14    (m) If the employee is licensed or certified by an occupational

3-15  licensing board, the filing with that board, by or on behalf of the

3-16  employer, of a complaint concerning the employee,

3-17  if such action is taken, in whole or in part, because the state officer or

3-18  employee or local governmental officer or employee disclosed

3-19  information concerning improper governmental action.

3-20    7.  “State employee” means any person who performs public duties

3-21  under the direction and control of a state officer for compensation paid by

3-22  or through the state.

3-23    [3.] 8. “State officer” means a person elected or appointed to a

3-24  position with the state which involves the exercise of a state power, trust or

3-25  duty, including:

3-26    (a) Actions taken in an official capacity which involve a substantial and

3-27  material exercise of administrative discretion in the formulation of state

3-28  policy;

3-29    (b) The expenditure of state money; and

3-30    (c) The enforcement of laws and regulations of the state.

3-31    Sec. 5.  NRS 281.621 is hereby amended to read as follows:

3-32    281.621  It is hereby declared to be the public policy of this state that a

3-33  state officer or employee [is] and a local governmental officer or

3-34  employee are encouraged to disclose, to the extent not expressly prohibited

3-35  by law, improper governmental action, and it is the intent of the legislature

3-36  to protect the rights of a state officer or employee and a local

3-37  governmental officer or employee who makes such a disclosure.

3-38    Sec. 6.  NRS 281.631 is hereby amended to read as follows:

3-39    281.631  1.  A state officer or employee and a local governmental

3-40  officer or employee shall not directly or indirectly use or attempt to use his

3-41  official authority or influence to intimidate, threaten, coerce, command,

3-42  influence or attempt to intimidate, threaten, coerce, command or influence

3-43  another state officer or employee or another local governmental officer or

3-44  employee, as applicable, in an effort to interfere with or prevent the

3-45  disclosure of information concerning improper governmental action.

3-46    2.  For the purposes of this section, use of “official authority or

3-47  influence” includes taking, directing others to take, recommending,

3-48  processing or approving any personnel action such as an appointment,

4-1  promotion, transfer, assignment, reassignment, reinstatement, restoration,

4-2  reemployment, evaluation or other disciplinary action.

4-3    Sec. 7.  NRS 281.641 is hereby amended to read as follows:

4-4    281.641  1.  If any reprisal or retaliatory action is taken against a state

4-5  officer or employee who discloses information concerning improper

4-6  governmental action within 2 years after the information is disclosed, the

4-7  state officer or employee may file a written appeal with a hearing officer of

4-8  the department of personnel for a determination of whether the action taken

4-9  was a reprisal or retaliatory action. The written appeal must be

4-10  accompanied by a statement that sets forth with particularity:

4-11    (a) The facts and circumstances under which the disclosure of improper

4-12  governmental action was made; and

4-13    (b) The reprisal or retaliatory action that is alleged to have been taken

4-14  against the state officer or employee.

4-15  The hearing must be conducted in accordance with the procedures set forth

4-16  in NRS 284.390 to 284.405, inclusive, and the procedures adopted by the

4-17  personnel commission pursuant to subsection 4.

4-18    2.  If the hearing officer determines that the action taken was a reprisal

4-19  or retaliatory action, he may issue an order directing the proper person to

4-20  desist and refrain from engaging in such action. The hearing officer shall

4-21  file a copy of his decision with the governor or any other elected state

4-22  officer who is responsible for the actions of that person.

4-23    3.  The hearing officer may not rule against the state officer or

4-24  employee based on the person or persons to whom the improper

4-25  governmental action was disclosed.

4-26    4.  The personnel commission may adopt rules of procedure for

4-27  conducting a hearing pursuant to this section that are not inconsistent with

4-28  the procedures set forth in NRS 284.390 to 284.405, inclusive.

4-29    [5.  For the purposes of this section, “reprisal or retaliatory action”

4-30  includes:

4-31    (a) The denial of adequate personnel to perform duties;

4-32    (b) Frequent replacement of members of the staff;

4-33    (c) Frequent and undesirable changes in the location of an office;

4-34    (d) The refusal to assign meaningful work;

4-35    (e) The issuance of letters of reprimand or evaluations of poor

4-36  performance;

4-37    (f) A demotion;

4-38    (g) A reduction in pay;

4-39    (h) The denial of a promotion;

4-40    (i) A suspension;

4-41    (j) A dismissal;

4-42    (k) A transfer;

4-43    (l) Frequent changes in working hours or workdays; or

4-44    (m) If the employee is licensed or certified by an occupational licensing

4-45  board, the filing with that board, by or on behalf of the employer, of a

4-46  complaint concerning the employee,

4-47  if such action is taken, in whole or in part, because the state officer or

4-48  employee disclosed information concerning improper governmental

4-49  action.]

5-1    Sec. 8.  NRS 281.651 is hereby amended to read as follows:

5-2    281.651  1.  [No] A state officer or employee [may] or a local

5-3  governmental officer or employee shall not use the provisions of NRS

5-4  281.611 to 281.671, inclusive, and sections 2 and 3 of this act, to harass

5-5  another state officer or employee[.] or another local governmental officer

5-6  or employee, as applicable.

5-7    2.  The provisions of NRS 281.611 to 281.671, inclusive, and sections

5-8  2 and 3 of this act, do not prohibit a state officer or employee or a local

5-9  governmental officer or employee from initiating proper disciplinary

5-10  procedures against another state officer or employee or another local

5-11  governmental officer or employee, as applicable, who discloses untruthful

5-12  information concerning improper governmental action.

5-13    Sec. 9.  NRS 281.661 is hereby amended to read as follows:

5-14    281.661  Each year, [the]

5-15    1.  The director of the department of personnel shall make available to

5-16  each state officer and employee ; and

5-17    2.  The administrative head of a local government shall make

5-18  available to each local governmental officer or employee,

5-19  a written summary of NRS 281.611 to 281.671, inclusive[.] , and sections

5-20  2 and 3 of this act.

5-21    Sec. 10.  NRS 281.671 is hereby amended to read as follows:

5-22    281.671  NRS 281.611 to 281.661, inclusive, and sections 2 and 3 of

5-23  this act, are intended to be directory and preventive rather than punitive,

5-24  and do not abrogate or decrease the effect of any of the provisions of NRS

5-25  which define crimes or prescribe punishments with respect to the conduct

5-26  of state officers or employees[.] or local governmental officers or

5-27  employees.

5-28    Sec. 11.  NRS 218.5343 is hereby amended to read as follows:

5-29    218.5343  1.  An employee of a state agency who testifies before a

5-30  house or committee of the legislature on his own behalf and not on behalf

5-31  of his employer shall, before commencing his testimony, state that fact

5-32  clearly on the record.

5-33    2.  It is unlawful for a state agency which is the employer of an

5-34  employee who complies with subsection 1 and testifies or seeks to testify

5-35  before a house or committee of the legislature on his own behalf to:

5-36    (a) Deprive the employee of his employment or to take any reprisal or

5-37  retaliatory action against the employee as a consequence of his testimony

5-38  or potential testimony;

5-39    (b) Threaten the employee that his testimony or potential testimony will

5-40  result in the termination of his employment or in any reprisal or retaliatory

5-41  action against him; or

5-42    (c) Directly or indirectly intimidate, threaten, coerce, command or

5-43  influence or attempt to intimidate, threaten, coerce, command or influence

5-44  the employee in an effort to interfere with or prevent the testimony of the

5-45  employee.

5-46    3.  It is unlawful for a state agency to:

5-47    (a) Deprive or threaten to deprive an employee of his employment;

5-48    (b) Take or threaten to take any reprisal or retaliatory action against the

5-49  employee; or

6-1    (c) Directly or indirectly intimidate, threaten, coerce, command or

6-2  influence or attempt to intimidate, threaten, coerce, command or influence

6-3  the employee,

6-4  in an attempt to affect the behavior of another employee who is testifying

6-5  or seeks to testify before a house or committee of the legislature on his own

6-6  behalf.

6-7    4.  The provisions of this section do not apply to an employee in the

6-8  classified service who has not completed his probationary period.

6-9    5.  For the purposes of this section:

6-10    (a) “Reprisal or retaliatory action” has the meaning ascribed to it in

6-11  [subsection 5 of NRS 281.641.] NRS 281.611.

6-12    (b) “State agency” means an agency, bureau, board, commission,

6-13  department, division, officer, employee or agent or any other unit of the

6-14  executive department of the state government.

 

6-15  H