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

2-19  officer or employee or local governmental officer or employee in the

2-20  performance of his official duties, whether or not the action is within the

2-21  scope of his employment, which is:

2-22    (a) In violation of any state law or regulation;

2-23    (b) If the officer or employee is a local governmental officer or

2-24  employee, in violation of an ordinance of the local government;

2-25    (c) An abuse of authority;

2-26    [(c)] (d) Of substantial and specific danger to the public health or

2-27  safety; or

2-28    [(d)] (e) A gross waste of public money.

2-29    2.  “Local government” means a county in this state, an incorporated

2-30  city in this state and Carson City.

2-31    3.  “Local governmental employee” means any person who performs

2-32  public duties under the direction and control of a local governmental

2-33  officer for compensation paid by or through a local government.

2-34    4.  “Local governmental officer” means a person elected or appointed

2-35  to a position with a local government that involves the exercise of a local

2-36  governmental power, trust or duty, including:

2-37    (a) Actions taken in an official capacity which involve a substantial

2-38  and material exercise of administrative discretion in the formulation of

2-39  local governmental policy;

2-40    (b) The expenditure of money of a local government; and

2-41    (c) The enforcement of laws and regulations of the state or a local

2-42  government.

2-43    5.  “Reprisal or retaliatory action” includes:

2-44    (a) The denial of adequate personnel to perform duties;

2-45    (b) Frequent replacement of members of the staff;

2-46    (c) Frequent and undesirable changes in the location of an office;

2-47    (d) The refusal to assign meaningful work;

2-48    (e) The issuance of letters of reprimand or evaluations of poor

2-49  performance;

3-1    (f) A demotion;

3-2    (g) A reduction in pay;

3-3    (h) The denial of a promotion;

3-4    (i) A suspension;

3-5    (j) A dismissal;

3-6    (k) A transfer;

3-7    (l) Frequent changes in working hours or workdays; or

3-8    (m) If the employee is licensed or certified by an occupational

3-9  licensing board, the filing with that board, by or on behalf of the

3-10  employer, of a complaint concerning the employee,

3-11  if such action is taken, in whole or in part, because the state officer or

3-12  employee or local governmental officer or employee disclosed

3-13  information concerning improper governmental action.

3-14    6.  “State employee” means any person who performs public duties

3-15  under the direction and control of a state officer for compensation paid by

3-16  or through the state.

3-17    [3.] 7. “State officer” means a person elected or appointed to a

3-18  position with the state which involves the exercise of a state power, trust or

3-19  duty, including:

3-20    (a) Actions taken in an official capacity which involve a substantial and

3-21  material exercise of administrative discretion in the formulation of state

3-22  policy;

3-23    (b) The expenditure of state money; and

3-24    (c) The enforcement of laws and regulations of the state.

3-25    Sec. 5.  NRS 281.621 is hereby amended to read as follows:

3-26    281.621  It is hereby declared to be the public policy of this state that a

3-27  state officer or employee [is] and a local governmental officer or

3-28  employee are encouraged to disclose, to the extent not expressly prohibited

3-29  by law, improper governmental action, and it is the intent of the legislature

3-30  to protect the rights of a state officer or employee and a local

3-31  governmental officer or employee who makes such a disclosure.

3-32    Sec. 6.  NRS 281.631 is hereby amended to read as follows:

3-33    281.631  1.  A state officer or employee and a local governmental

3-34  officer or employee shall not directly or indirectly use or attempt to use his

3-35  official authority or influence to intimidate, threaten, coerce, command,

3-36  influence or attempt to intimidate, threaten, coerce, command or influence

3-37  another state officer or employee or another local governmental officer or

3-38  employee, as applicable, in an effort to interfere with or prevent the

3-39  disclosure of information concerning improper governmental action.

3-40    2.  For the purposes of this section, use of “official authority or

3-41  influence” includes taking, directing others to take, recommending,

3-42  processing or approving any personnel action such as an appointment,

3-43  promotion, transfer, assignment, reassignment, reinstatement, restoration,

3-44  reemployment, evaluation or other disciplinary action.

3-45    Sec. 7.  NRS 281.641 is hereby amended to read as follows:

3-46    281.641  1.  If any reprisal or retaliatory action is taken against a state

3-47  officer or employee who discloses information concerning improper

3-48  governmental action within 2 years after the information is disclosed, the

3-49  state officer or employee may file a written appeal with a hearing officer of

4-1  the department of personnel for a determination of whether the action taken

4-2  was a reprisal or retaliatory action. The written appeal must be

4-3  accompanied by a statement that sets forth with particularity:

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

4-5  governmental action was made; and

4-6    (b) The reprisal or retaliatory action that is alleged to have been taken

4-7  against the state officer or employee.

4-8  The hearing must be conducted in accordance with the procedures set forth

4-9  in NRS 284.390 to 284.405, inclusive, and the procedures adopted by the

4-10  personnel commission pursuant to subsection 4.

4-11    2.  If the hearing officer determines that the action taken was a reprisal

4-12  or retaliatory action, he may issue an order directing the proper person to

4-13  desist and refrain from engaging in such action. The hearing officer shall

4-14  file a copy of his decision with the governor or any other elected state

4-15  officer who is responsible for the actions of that person.

4-16    3.  The hearing officer may not rule against the state officer or

4-17  employee based on the person or persons to whom the improper

4-18  governmental action was disclosed.

4-19    4.  The personnel commission may adopt rules of procedure for

4-20  conducting a hearing pursuant to this section that are not inconsistent with

4-21  the procedures set forth in NRS 284.390 to 284.405, inclusive.

4-22    [5.  For the purposes of this section, “reprisal or retaliatory action”

4-23  includes:

4-24    (a) The denial of adequate personnel to perform duties;

4-25    (b) Frequent replacement of members of the staff;

4-26    (c) Frequent and undesirable changes in the location of an office;

4-27    (d) The refusal to assign meaningful work;

4-28    (e) The issuance of letters of reprimand or evaluations of poor

4-29  performance;

4-30    (f) A demotion;

4-31    (g) A reduction in pay;

4-32    (h) The denial of a promotion;

4-33    (i) A suspension;

4-34    (j) A dismissal;

4-35    (k) A transfer;

4-36    (l) Frequent changes in working hours or workdays; or

4-37    (m) If the employee is licensed or certified by an occupational licensing

4-38  board, the filing with that board, by or on behalf of the employer, of a

4-39  complaint concerning the employee,

4-40  if such action is taken, in whole or in part, because the state officer or

4-41  employee disclosed information concerning improper governmental

4-42  action.]

4-43    Sec. 8.  NRS 281.651 is hereby amended to read as follows:

4-44    281.651  1.  [No] A state officer or employee [may] or a local

4-45  governmental officer or employee shall not use the provisions of NRS

4-46  281.611 to 281.671, inclusive, and sections 2 and 3 of this act, to harass

4-47  another state officer or employee[.] or another local governmental officer

4-48  or employee, as applicable.

5-1    2.  The provisions of NRS 281.611 to 281.671, inclusive, and sections

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

5-3  governmental officer or employee from initiating proper disciplinary

5-4  procedures against another state officer or employee or another local

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

5-6  information concerning improper governmental action.

5-7    Sec. 9.  NRS 281.661 is hereby amended to read as follows:

5-8    281.661  Each year, [the]

5-9    1.  The director of the department of personnel shall make available to

5-10  each state officer and employee ; and

5-11    2.  The administrative head of a local government shall make

5-12  available to each local governmental officer or employee,

5-13  a written summary of NRS 281.611 to 281.671, inclusive[.] , and sections

5-14  2 and 3 of this act.

5-15    Sec. 10.  NRS 281.671 is hereby amended to read as follows:

5-16    281.671  NRS 281.611 to 281.661, inclusive, and sections 2 and 3 of

5-17  this act, are intended to be directory and preventive rather than punitive,

5-18  and do not abrogate or decrease the effect of any of the provisions of NRS

5-19  which define crimes or prescribe punishments with respect to the conduct

5-20  of state officers or employees[.] or local governmental officers or

5-21  employees.

5-22    Sec. 11.  NRS 218.5343 is hereby amended to read as follows:

5-23    218.5343  1.  An employee of a state agency who testifies before a

5-24  house or committee of the legislature on his own behalf and not on behalf

5-25  of his employer shall, before commencing his testimony, state that fact

5-26  clearly on the record.

5-27    2.  It is unlawful for a state agency which is the employer of an

5-28  employee who complies with subsection 1 and testifies or seeks to testify

5-29  before a house or committee of the legislature on his own behalf to:

5-30    (a) Deprive the employee of his employment or to take any reprisal or

5-31  retaliatory action against the employee as a consequence of his testimony

5-32  or potential testimony;

5-33    (b) Threaten the employee that his testimony or potential testimony will

5-34  result in the termination of his employment or in any reprisal or retaliatory

5-35  action against him; or

5-36    (c) Directly or indirectly intimidate, threaten, coerce, command or

5-37  influence or attempt to intimidate, threaten, coerce, command or influence

5-38  the employee in an effort to interfere with or prevent the testimony of the

5-39  employee.

5-40    3.  It is unlawful for a state agency to:

5-41    (a) Deprive or threaten to deprive an employee of his employment;

5-42    (b) Take or threaten to take any reprisal or retaliatory action against the

5-43  employee; or

5-44    (c) Directly or indirectly intimidate, threaten, coerce, command or

5-45  influence or attempt to intimidate, threaten, coerce, command or influence

5-46  the employee,

5-47  in an attempt to affect the behavior of another employee who is testifying

5-48  or seeks to testify before a house or committee of the legislature on his own

5-49  behalf.

6-1    4.  The provisions of this section do not apply to an employee in the

6-2  classified service who has not completed his probationary period.

6-3    5.  For the purposes of this section:

6-4    (a) “Reprisal or retaliatory action” has the meaning ascribed to it in

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

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

6-7  department, division, officer, employee or agent or any other unit of the

6-8  executive department of the state government.

 

6-9  H