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006.24.1-185.0.0. “WHISTLE- BLOWER” ACT PROTECTION (Act 1523 of 1999)

AR ADC 006.24.1-185.0.0Arkansas Administrative Code

West's Arkansas Administrative Code
Title 006. Department of Finance and Administration
Division 24. Office of Personnel Management
Rule 1. Arkansas Human Resources Management System (Ahrms) Policy Manual (Refs & Annos)
Ark. Admin. Code 006.24.1-185.0.0
006.24.1-185.0.0. “WHISTLE- BLOWER” ACT PROTECTION (Act 1523 of 1999)
Currentness
Section 185.1.0
As used in this section, unless the context otherwise requires:
A. “Adverse action” means to discharge, threaten, or otherwise discriminate or retaliate against a state employee in any manner that affects the employee's employment, including compensation, job location, rights, immunities, promotions, or privileges.
B. “Appropriate authority” means a state agency or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste; or a member, officer, agent, investigator, auditor, representative or supervisory employee of the body, agency or organization. The term includes, but is not limited to, the office of the Attorney General, the office of the Auditor of state, the Arkansas Ethics Commission, the Legislative Joint Audit Committee and the Division of Legislative Audit, and the offices of the various prosecuting attorneys having the power and duty to investigate criminal law enforcement, regulatory violations, professional conduct or ethics, or waste.
C. “Communicate” means a verbal or written report to an appropriate authority.
D. “State employee” means a person who performs a full or part-time service for wages, salary, or other remuneration for a state agency or institution of higher education.
E. “State employer” means any of the following:
1. An agency, department, board, commission, division, office, bureau, council, authority or other instrumentality of the State of Arkansas, including the offices of the various Arkansas elected constitutional officers and the Arkansas General Assembly and its agencies, bureaus, and divisions;
2. A state-supported college, university, technical college, community college or other institution of higher education, or department, division, or agency of a state institution of higher education;
3. The Arkansas Supreme Court, Court of Appeals, The Administrative Office of the Courts, the circuit and chancery courts, and prosecuting attorneys' offices;
F. “Violation” means an infraction or a breach, which is not of a merely technical or minimal nature, of a state statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or code of ethics designed to protect the interest of the public or a public employer.
G. “Waste” means a state agency's or institution of higher education's conduct or omissions which result in substantial abuse, misuse, destruction or loss of public funds, property, or manpower belonging to or derived from state or local political subdivision's resources.
H. “Whistle-blower” means a person who witnesses or has evidence of a waste or violation while employed with a state agency or institution of higher education and who communicates, in good faith, or testifies to, the waste or violation, verbally or in writing, to one of the employee's superiors, to an agent of the public employer or to an appropriate authority, provided that the communication is made prior to any adverse action by the employer.
Section 185.1.1
A state agency or institution of higher education shall not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of waste of public funds, property, or manpower, excluding federal funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation adopted under the law of this State or a political subdivision of the state to an appropriate authority. The communication shall be made at a time and in a manner which gives the public employer reasonable notice of need to correct the waste or violation.
Section 185.1.2
For purposes of subsection 1.1 a state employee communicates in good faith if there is a reasonable basis in fact for the communication of the existence of waste or of a violation. Good faith is lacking when the state employee does not have personal knowledge of a factual basis for the communication or where the state employee knew or reasonably should have known that the communication of the waste or of the violation is malicious, false or frivolous.
Section 185.1.3
A state agency or institution of higher education shall not take an adverse action against a state employee because the employee participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review.
Section 185.1.4
A state agency or institution of higher education shall not take an adverse action against a state employee because an employee has objected to or refused to carry out a directive that the employee reasonably believes violates a law or a rule or regulation adopted under the authority of laws of the state.
Section 185.1.5
A state employee who alleges a violation of “Whistle-Blower” protections may bring a civil action for appropriate injunctive relief or actual damages, or both, within one hundred eighty (180) calendar days after the occurrence of the alleged violation.
Section 185.1.6
An action commenced under section 1.5 may be brought in the chancery court for the county where the alleged violation occurred or for the county where the complainant resides, or in the chancery court of Pulaski County.
Section 185.1.7
To prevail in an action brought under the authority of section 1.5, the state employee shall establish, by a preponderance of the evidence, that the employee has suffered an adverse action because the employee, or a person acting on his behalf, engaged or intended to engage in a protected activity.
Section 185.1.8
As used in this section, “damages” means damages for a job-related injury or loss caused by each violation of the “Whistle-Blower” act, including, but not limited to, fringe benefits, retirement service credit, compensation for lost wages, benefits, and any other remuneration, and reasonable court costs and attorneys' fees.
Section 185.1.9
A state agency or institution of higher education shall have an affirmative defense to a civil action brought by a state employee if the adverse action taken against the state employee was due to employee misconduct, poor job performance or a reduction in workforce unrelated to a communication made pursuant to the “Whistle-Blower” protections. The state agency or institution of higher education must prove the existence of the state employee's misconduct, poor job performance or a reduction in workforce is unrelated to the communication by a preponderance of the evidence.
Section 185.2.0
In the event the Office of Personnel Management of the Department of Finance and Administration implements an employee grievance mediation program, a state employee or state agency or institution of higher education may voluntarily participate in mediation under Office of Personnel Management's mediation program if they wish to resolve a dispute between them that involves an adverse action taken against the state employee. Voluntary mediation shall occur before a civil action has been initiated in court in which the state employee and state agency or institution of higher education are parties.
Section 185.2.1
A court in rendering judgment under this act may order any or all of the following remedies:
A. An injunction to restrain continued violation of the provisions of the “Whistle-Blower” act;
B. The reinstatement of the public employee to the same position held before the adverse action or to an equivalent position;
C. The reinstatement of full fringe benefits and retirement service credit;
D. The compensation for lost wages, benefits, and any other remuneration;
E. The payment by the state employer of reasonable court costs and attorney's fees.
Section 185.2.2
A court may also order that reasonable attorney's fees and court costs be awarded to the employer if the court determines that an action brought by a state employee under this act is without basis in law or fact Provided, a state employee shall not be assessed attorney's fees under this section if, after exercising reasonable and diligent efforts after filing the suit, the state employee files a voluntary nonsuit concerning the employer within sixty (60) calendar days after determining the employer would not be liable for damages.
Section 185.2.3
The “Whistle-Blower” Act shall not be construed to permit a disclosure which would diminish or impair the rights of any person or any public official to the continued protection of confidentiality of records or working papers where a statute or the common law provides for protection.
Section 185.2.4
State agencies and institutions of higher education shall use appropriate means to notify their employees of their protection and obligations under the act.
Current with amendments received through February 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 006.24.1-185.0.0, AR ADC 006.24.1-185.0.0
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