APS 47.1 – Summary of the State Employee Whistleblower Act

(Approved by the President by authority of the Board of Regents, Standing Orders, Chapter 1) 

1.  Overview

State employees may report improper governmental actions to the Washington State Auditor’s Office or other public officials (see Section 2.F). To encourage the reporting of improper governmental actions, employees are protected from reprisal or retaliatory action by the provisions of state law (Chapter 42.40 RCW).

2.  Definitions

A.   Employee

An employee is any individual employed or holding office in any department or agency of state government.

B.   Good Faith

Good faith means the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information with reckless disregard for the truth, or an individual who knowingly omits relevant information, is not acting in good faith.

C.   Gross Mismanagement

Gross mismanagement means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation.

D.   Gross Waste of Funds

A gross waste of funds means to spend or use funds or to allow funds to be used without valuable result in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation.

E.   Improper Governmental Action

An improper governmental action means any action undertaken by an employee in the performance of the employee’s official duties which:

• Is a gross waste of public funds or resources;
  
• Is in violation of federal or state law or rule, if the violation is not merely technical or of a minimal nature;
  
• Is of substantial and specific danger to public health or safety;
  
• Is a gross mismanagement of funds; or
  
• Prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure.

Improper governmental action does not include personnel actions for which other remedies exist, including, but not limited to, employee grievances, complaints, transfers, reassignments, demotions, alleged labor agreement violations, claims of discrimination, and related complaints.

F.   Public Official

Public official means the director, or equivalent thereof, in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of the agency; the Attorney General’s designee or designees; or the Executive Ethics Board.

The following University officials are designated to receive whistleblower reports:

• President
• Provost and Executive Vice President
• Executive Vice President for Finance & Administration
• Chancellor, University of Washington, Bothell
• Chancellor, University of Washington, Tacoma
• Vice President for Human Resources
• Chief Compliance Officer, UW Medicine/Associate Vice President for Medical Affairs
• Executive Director, Internal Audit

G.   Reprisal or Retaliatory Action

Reprisal or retaliatory action means, but is not limited to, any of the following:

• Denial of adequate staff to perform duties;
  
• Frequent staff changes;
  
• Frequent and undesirable office changes;
  
• Refusal to assign meaningful work;
  
• Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;
  
• Demotion;
  
• Reduction in pay;
  
• Denial of promotion;
  
• Suspension;
  
• Dismissal;
  
• Denial of employment;
  
• A supervisor or superior behaving in and/or encouraging coworkers to behave in a hostile manner toward the whistleblower;
  
• A change in the physical location of the employee’s workplace or a change in the basic nature of the employee’s job, if either is in opposition to the employee’s expressed wish;
  
• Issuance of or attempt to enforce any nondisclosure policy or agreement in a manner inconsistent with prior practice; or
  
• Any other action that is inconsistent compared to actions taken before the employee engaged in conduct protected by the state whistleblower law, or compared to other employees who have not engaged in conduct protected by Chapter 42.40 RCW.

H.   Substantial and Specific Danger

A substantial and specific danger means a risk of serious injury, illness, peril, or loss to which the exposure of the public is a gross deviation from the standard of care or competence that a reasonable person would observe in the same situation.

I.   Use of Official Authority or Influence

This includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including, but not limited to, duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training and benefits, tolerance of a hostile work environment, or any adverse or disciplinary action.

J.   Whistleblower

A “whistleblower” is an employee who:

• In good faith reports alleged improper governmental action to the State Auditor or other public official, initiating an investigation by the State Auditor;
  
• Is perceived by the employer as reporting, whether they reported or not, alleged improper governmental action to the State Auditor or other public official, initiating an investigation by the State Auditor;
  
• In good faith provides information to the State Auditor or other public official in connection with an investigation;
  
• Is believed to have reported asserted improper governmental action to the State Auditor or other public official or to have provided information to the State Auditor or public official in connection with an investigation, but who, in fact, has not reported such action or provided such information;
  
• In good faith identifies rules warranting review or provides information to the state Joint Administrative Rules Review Committee (JARRC); or
  
• Is believed to have identified rules warranting review or provided information to the JARRC, but who, in fact, has not done so.

3.  Notifying the State Auditor or Designated Public Officials

Employees shall not directly or indirectly use or attempt to use their official authority or influence to interfere with the right of an individual to report a suspected improper governmental action to the State Auditor or designated public officials.

In order to be investigated, an assertion of improper governmental action must be provided to the State Auditor or designated public officials within one year after the occurrence of the asserted improper governmental action. Public officials receiving an assertion of improper governmental action must report the assertion to the State Auditor within 15 calendar days of receipt of the assertion. The State Auditor retains sole authority to investigate an assertion including those made to designated public officials.

Assertions of improper governmental action may be filed anonymously. However, by providing a name and phone number, the whistleblower enables the State Auditor to gather additional information necessary for a thorough investigation.

The identity or identifying characteristics of the whistleblower is kept confidential at all times, unless:

• The whistleblower consents to disclosure by written waiver or by acknowledging his or her identity in a claim against the state for retaliation; or
  
• The State Auditor determines that the information has been provided other than in good faith.

Assertions of improper governmental action must be filed in writing with the State Auditor or designated University officials. Assertions can be reported using the Whistleblower Reporting Form or provided in a separate letter. In either case, the report should include:

• A detailed description of the improper governmental action(s);
  
• The name of the employee(s) involved;
  
• The agency, division, and location where the action(s) occurred;
  
• When the action(s) occurred;
  
• Any other details that may be important for the investigation such as other witnesses, documents, evidence, etc.;
  
• The specific state law or regulation that has been violated, if known; and
  
• The whistleblower’s name, home address, and phone number (optional).

Each assertion should be noted separately and supported with as much specific information as possible. The Whistleblower Reporting Form is designed to assist in supplying the needed information (see Section 7.)

4.  Investigation

A.   Intake

The State Auditor has the authority to determine whether to investigate any assertions received. In determining whether to conduct an investigation, the State Auditor shall consider factors including, but not limited to:

• The nature and quality of evidence;
  
• Existence of relevant laws and rules;
  
• Whether the action was isolated or systemic;
  
• The history of previous assertions regarding the same subject(s) or subject matter;
  
• Whether other avenues are available for addressing the matter;
  
• Whether the matter has already been investigated or is in litigation;
  
• The seriousness or significance of the asserted improper governmental action; and
  
• The cost and benefit of an investigation.

The State Auditor shall, within 15 working days of receipt of the information, mail written acknowledgment to the whistleblower at the address provided stating whether a preliminary investigation will be conducted.

B.   Preliminary Investigation

For a period not to exceed 60 days, the State Auditor will conduct a preliminary investigation. With the University’s consent, the State Auditor may forward the assertions to an appropriate agency to investigate and report back to the State Auditor no later than 60 working days after the assertions are received from the State Auditor.

If the State Auditor determines that the assertions are unsubstantiated, the State Auditor shall provide to the whistleblower written notification containing a summary of the information received and the results of the preliminary investigation for each assertion of improper governmental action. The notification will also summarize where the allegations are deficient, and provide a reasonable opportunity to reply.

If the State Auditor determines that further investigation is warranted, the State Auditor shall notify the whistleblower, the subject(s) of the investigation, and the agency head.

During the preliminary investigation period and after the State Auditor determines that further investigation is to occur, the State Auditor shall provide a written notification of the nature of the assertions to the subject(s) of the investigation and to the agency head. The notification shall include the relevant facts and laws known at the time, information obtained during the investigation, and the procedure to be followed by the subject(s) and the agency head to respond to the assertions.

If the preliminary investigation resulted from an anonymous assertion, a decision to conduct further investigation shall be subject to a review by a three-person panel convened as necessary by the State Auditor prior to the commencement of any additional investigation. The panel shall include a State Auditor representative who is knowledgeable of the subject agency operations, a citizen volunteer, and a representative of the Attorney General’s Office. The panel shall make a recommendation to the State Auditor regarding the need for further investigation of the assertion.

C.   Full Investigation

Within 60 days after the 60-day preliminary investigation period, the State Auditor is required to complete the investigation and report the findings to the whistleblower unless written justification for the delay is furnished to the whistleblower, agency head, and subject(s) of the investigation. In all such cases, the report of the State Auditor’s investigation and findings must be provided to the whistleblower within one year after the report was filed by the whistleblower.

If the State Auditor determines there is a reasonable cause to believe an employee has engaged in improper governmental action, the State Auditor shall report, to the extent allowable by public disclosure laws, the nature and details of the activity to:

• The subject(s) of the investigation;
  
• The head of the employing agency;
  
• The Attorney General or other such authority, if appropriate;
  
• The Governor, Secretary of State, and Chief Clerk of the House of Representatives (in electronic format); and
  
• The public through the public file of whistleblower reports maintained by the State Auditor (except for information where release is specifically prohibited by statute or executive order).

D.   Obligation to Respond

The subject(s) of the investigation and the agency head are given 15 working days to respond to the assertions prior to the issuance of the final report. The agency is required to send its corrective action plan to the State Auditor and is encouraged to consult with the subject(s) of the investigation in establishing the plan.

The State Auditor may require periodic reports of agency action until all resolution has occurred. If the State Auditor determines that appropriate action has not been taken, the State Auditor shall report the determination to the Governor and to the legislature, and may include this determination in the agency audit.

Once the State Auditor concludes that appropriate action has been taken, the State Auditor shall provide notification to the whistleblower, the agency head, and the subject(s) of the investigation.

E.   Investigative Powers

At any stage of the investigation, the State Auditor may require by subpoena the attendance and testimony of witnesses and the production of documentary or other evidence relating to the investigation at any designated place in the state. The State Auditor may issue subpoenas, administer oaths, examine witnesses, and receive evidence. The State Auditor may order the taking of depositions at any stage of a proceeding or investigation.

Failure to cooperate with the audit or investigation, or retaliation against anyone who assists the auditor by engaging in activity protected by law, shall be reported as a separate finding with recommendations for corrective action in the associated report whenever it occurs.

5.  Whistleblower Protection

Whistleblowers are entitled to protection from reprisal or retaliatory action. Any whistleblower subjected to workplace reprisal or retaliation action is presumed to have established a cause of action for remedies administered by the state Human Rights Commission. The whistleblower’s employing agency that is presumed to have taken retaliatory action may rebut the presumption by proving by a preponderance of evidence that there has been a series of documented personnel problems or a single, egregious event, or that the agency action or actions were justified by reasons unrelated to the employee’s status as a whistleblower and that improper motive was not a substantial factor.

A complaint alleging whistleblower retaliation must be filed within two years.  If a whistleblower believes he or she has been the subject of such reprisal or retaliatory action, the whistleblower may file a claim with the Washington Human Rights Commission.

6.  Assertion Against the State Auditor

Assertions of improper governmental action against the State Auditor or an employee of that office can be reported to the Attorney General, who shall act in place of the State Auditor in investigating and reporting the matter.

7.  Methods of Transmitting a Whistleblower Assertion

1. Directly to the State Auditor’s Office
   
   Complete and submit the web version of the Whistleblower Reporting Form through the State Auditor’s website, or send the printable form or letter to the State Auditor by one of the following means:
   • Mail:
     Washington State Auditor’s Office
     Attn: State Employee Whistleblower Program
     PO Box 40031
     Olympia WA 98504-0031
   • Email: whistleblower@sao.wa.gov
2. To Designated University Officials
   
   Email the printable Whistleblower Reporting Form to Internal Audit at iaudit@uw.edu.
   
   Or mail the Whistleblower Reporting Form to one of the following designated University officials:
   • President
     University of Washington
     301 Gerberding Hall
     Box 351230
     Seattle, WA 98195
     RE: Whistleblower Complaint
   • Provost and Executive Vice President
     University of Washington
     301 Gerberding Hall
     Box 351237
     Seattle, WA 98195
     RE: Whistleblower Complaint
   • Executive Vice President for Finance & Administration
     University of Washington
     280 Gerberding Hall
     Box 351248
     Seattle, WA 98195
     RE: Whistleblower Complaint
   • Chancellor
     University of Washington, Bothell
     Box 358520
     18115 Campus Way NE
     Bothell, WA 98011-8246
     RE: Whistleblower Complaint
   • Chancellor
     University of Washington, Tacoma
     Box 358430
     1900 Commerce Street
     Tacoma, WA 98402
     RE: Whistleblower Complaint
   • Vice President for Human Resources
     University of Washington
     Box 354554
     1100 NE Campus Parkway
     Seattle, WA 98105
     RE: Whistleblower Complaint
   • Chief Compliance Officer, UW Medicine/Associate Vice President for Medical Affairs
     University of Washington
     Box 356340
     1959 NE Pacific Street
     Seattle, WA 98195
     RE: Whistleblower Complaint
   • Executive Director, Internal Audit
     University of Washington
     Box 354984
     4311-11th Ave NE, Suite 330
     Seattle, WA 98105
     RE: Whistleblower Complaint

8.  Additional Information

Additional information pertaining to the Whistleblower Program may be obtained by contacting the Washington State Auditor’s Office at
360-902-0377 or by accessing the Washington State Auditor’s Office website.

May 1, 2002; August 19, 2008; July 10, 2012; June 22, 2017.