This subchapter shall be known and may be cited as the “Arkansas Whistle-Blower Act”.
History.Acts 1999, No. 1523, § 1.
As used in this subchapter:
(1)“Adverse action” means to discharge, threaten, or otherwise discriminate or retaliate against a public employee in any manner that affects the employee's employment, including compensation, job location, rights, immunities, promotions, or privileges;
(2)(A)“Appropriate authority” means:
(i)A state, county, or municipal government department, agency, or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste; or
(ii)A member, officer, agent, investigator, auditor, representative or supervisory employee of the body, agency, or organization.
(B)“Appropriate authority” 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 Auditing 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;
(3)“Communicate” means to give a verbal or written report to an appropriate authority;
(4)“Public employee” means a person who performs a full or part-time service for wages, salary, or other remuneration for a public employer;
(5)“Public employer” means any of the following:
(A)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 General Assembly and its agencies, bureaus, and divisions;
(B)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;
(C)The Supreme Court, the Court of Appeals, the Administrative Office of the Courts, the circuit courts, and prosecuting attorneys' offices;
(D)An office, department, commission, council, agency, board, bureau, committee, corporation, or other instrumentality of a county government or a municipality or a district court, a county subordinate service district, a municipally owned utility, or a regional or joint governing body of one (1) or more counties or municipalities; or
(E)A public school district, school, or an office or department of a public school district in Arkansas;
(6)“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;
(7)“Waste” means a public employer'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; and
(8)“Whistle-blower” means a person who witnesses or has evidence of a waste or violation while employed with a public employer 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.
History.Acts 1999, No. 1523, § 2; 2005, No. 2190, § 21.
21-1-603. Public employer conduct prohibited — Good faith communication.
(a)(1)A public employer shall not take adverse action against a public employee because the public employee or a person authorized to act on behalf of the public employee communicates in good faith to an appropriate authority:
(A)The existence of waste of public funds, property, or manpower, including federal funds, property, or manpower administered or controlled by a public employer; or
(B)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.
(2)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.
(b)(1)For purposes of subsection (a) of this section, a public 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.
(2)Good faith is lacking when the public employee does not have personal knowledge of a factual basis for the communication or when the public employee knew or reasonably should have known that the communication of the waste or of the violation was malicious, false, or frivolous.
(c)A public employer shall not take an adverse action against a public 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.
(d)A public employer shall not take an adverse action against a public 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 or a political subdivision of the state.
History.Acts 1999, No. 1523, § 3; 2003, No. 601, § 1.
21-1-604. Civil liability.
(a)A public employee who alleges a violation of this subchapter 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 of this subchapter.
(b)An action commenced under this section may be brought in the circuit court for the county where the alleged violation occurred, for the county where the complainant resides, or in the Pulaski County Circuit Court if the complaint is filed against an agency, department, or institution of state government.
(c)To prevail in an action brought under the authority of this section, the public 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 or her behalf engaged or intended to engage in an activity protected under this subchapter.
(d)As used in this section, “damages” means damages for a job-related injury or loss caused by each violation of this subchapter, 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.
(e)(1)A public employer shall have an affirmative defense to a civil action brought by a public employee under this subchapter if the adverse action taken against a public employee was due to employee misconduct, poor job performance, or a reduction in workforce unrelated to a communication made pursuant to § 21-1-603.
(2)The public employer must prove the existence of the public employee's misconduct unrelated to the communication by a preponderance of the evidence.
(f)(1)In the event the Office of Personnel Management of the Division of Management Services of the Department of Finance and Administration implements an employee grievance mediation program, a public employee or public employer may voluntarily participate in mediation under the office's mediation program if either one wishes to resolve a dispute between them that involves an adverse action taken against the public employee.
(2)Voluntary mediation shall occur before a civil action in which the public employee and public employer are parties has been initiated in a court.
(3)The Director of the Department of Finance and Administration shall adopt voluntary mediation application and request forms.
History.Acts 1999, No. 1523, § 4.
A court in rendering judgment under this subchapter may order any or all of the following remedies:
(1)An injunction to restrain continued violation of the provisions of this subchapter;
(2)The reinstatement of the public employee to the same position held before the adverse action or to an equivalent position;
(3)The reinstatement of full fringe benefits and retirement service credit;
(4)The compensation for lost wages, benefits, and any other remuneration;
(5)The payment by the public employer of reasonable court costs and attorney's fees.
History.Acts 1999, No. 1523, § 5.
21-1-606. Attorney's fees.
(a)A court may order that reasonable attorney's fees and court costs be awarded to an employer if the court determines that an action brought by a public employee under this subchapter is without basis in law or fact.
(b)A public employee shall not be assessed attorney's fees under this section if, after exercising reasonable and diligent efforts after filing the suit, the public employee files a voluntary nonsuit concerning the employer within sixty (60) calendar days after determining that the employer would not be liable for damages.
History.Acts 1999, No. 1523, § 6.
21-1-607. Protection of confidentiality.
This subchapter 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.
History.Acts 1999, No. 1523, § 7.
21-1-608. Notification of rights.
A public employer shall use appropriate means to notify its public employees of their protection and obligations under this subchapter.
History.Acts 1999, No. 1523, § 8.
21-1-609. Severability of subchapter.
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