HF 1165

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to state government; preserving access to
certain data for terminated state employees; creating
a position for an ombudsman for state employee
whistle-blower investigations; prohibiting public
employers from retaliating against employees who
report waste or mismanagement; providing access to a
contested case hearing for employees who claim
whistle-blower status; amending Minnesota Statutes
2004, sections 43A.33, subdivision 1; 181.932, by
adding a subdivision; proposing coding for new law in
Minnesota Statutes, chapters 15; 16B.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [15.175] CERTAIN EMPLOYEE RECORDS.
new text end

new text begin (a) Data, records, files, and all written or electronic
materials of, or relating to, a state employee who is
involuntarily terminated from employment with a state agency
must be preserved for a period of at least three years after the
employee's termination from employment, or a longer period as
required under section 138.17. A state employee who has been
terminated may request the opportunity to review all data
covered by this section. An agency responding to a request made
under this section must provide a response within ten days after
receiving a written request.
new text end

new text begin (b) A state agency that destroys, shreds, or alters data,
records, files, or materials in violation of this requirement is
liable to the employee for damages resulting from that
violation, plus costs and reasonable attorney fees incurred by
the employee in enforcing the employee's rights under this
section. In addition, the employee is also entitled to
reinstatement to the position from which the employee was
terminated, plus reimbursement for lost wages and health and
retirement benefits.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective retroactively
from January 1, 2002.
new text end

Sec. 2.

new text begin [16B.395] OMBUDSMAN FOR STATE EMPLOYEE
WHISTLE-BLOWER INVESTIGATIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Appointment. new text end

new text begin The commissioner shall
appoint an ombudsman in the classified service for state
employee whistle-blower investigations. The ombudsman may
perform other duties for the Department of Administration
besides those included in this section.
new text end

new text begin Subd. 2. new text end

new text begin Duties; agency notification. new text end

new text begin The ombudsman
shall provide direct oversight of all employee investigations
and separations from employment that involve allegations of
retaliatory discharge under section 181.932. If an agency
investigating an employee determines that it appears reasonably
likely that substantial discipline for the employee will result
from the investigation, such as demotion or termination, then
the agency must immediately notify the ombudsman,
notwithstanding any restrictions in chapter 13. In addition,
any agency terminating an employee must provide the employee
with information about the services provided by the ombudsman
and with the ombudsman's toll-free telephone number. The
ombudsman's duties include, but are not limited to:
new text end

new text begin (1) conducting independent evaluations of all aspects of
each investigation;
new text end

new text begin (2) monitoring, reviewing, and providing comments and
recommendations to agencies and employees involved in each
investigation;
new text end

new text begin (3) providing reports to the legislature and the public
about the conduct of employee investigations and procedures used
to discharge employees;
new text end

new text begin (4) providing information concerning the process for
investigations and contested case hearings to individuals
involved in those proceedings;
new text end

new text begin (5) operating a toll-free telephone line to provide free,
confidential help with individual problems and grievances
related to employee investigations and separations from
employment involving allegations relevant to section 181.932;
and
new text end

new text begin (6) performing the ombudsman's duties in cooperation and
coordination with governmental entities and private
organizations as appropriate so as to eliminate overlap and
duplication to the extent practicable.
new text end

new text begin Subd. 3. new text end

new text begin Independence of action. new text end

new text begin In carrying out the
duties imposed by this section, the ombudsman may act
independently of the commissioner in providing testimony to the
legislature, and contacting and making periodic reports to state
employees affected by this section.
new text end

new text begin Subd. 4. new text end

new text begin Confidentiality. new text end

new text begin All personal information
received by the ombudsman received in the course of performing
duties under this section must be kept confidential within the
Office of the Ombudsman and may not be released without the
written consent of the affected individual.
new text end

new text begin Subd. 5. new text end

new text begin Qualifications. new text end

new text begin The ombudsman must be
knowledgeable about employment law and internal investigations
used for allegations of employee misconduct. The ombudsman must
be experienced in dealing with state agencies and employees,
interpretation of laws and regulations, investigation, record
keeping, report writing, public speaking, and management.
new text end

new text begin Subd. 6. new text end

new text begin Office support. new text end

new text begin The commissioner shall provide
the ombudsman with the necessary office space, supplies,
equipment, and clerical support to effectively perform the
duties imposed by this section.
new text end

Sec. 3.

Minnesota Statutes 2004, section 43A.33,
subdivision 1, is amended to read:

Subdivision 1.

Discharge, suspension, demotion for cause,
salary decrease.

Managers and employees shall attempt to
resolve disputes through informal means prior to the initiation
of disciplinary action. No permanent employee in the classified
service shall be reprimanded, discharged, suspended without pay,
or demoted, except for just cause. new text begin The discharge of an employee
from unclassified service who is on leave from the classified
service does not affect or rescind the application of the
procedures under this section to the discharge, if any, of the
employee from the classified service.
new text end

Sec. 4.

Minnesota Statutes 2004, section 181.932, is
amended by adding a subdivision to read:

new text begin Subd. 1a. new text end

new text begin Public employers. new text end

new text begin (a) The state, including a
state postsecondary educational institution or a political
subdivision of the state as defined in section 6.56, subdivision
1, may not discharge, discipline, threaten, penalize, or
otherwise discriminate against an employee regarding the
employee's compensation, terms, conditions, location, or
privileges of employment because the employee, in good faith,
reports or is in the process of preparing a report regarding
serious waste, inefficiency, or mismanagement in the employee's
place of employment that diminishes the value the public
receives from the employer, even though the waste, inefficiency,
or mismanagement reported does not in itself violate any federal
or state law or rule.
new text end

new text begin (b) An employer covered by this subdivision shall establish
policies and procedures designed to ensure that reports
submitted by its employees under this subdivision or subdivision
1 are promptly and impartially investigated and that reporting
employees are afforded the protections set out in this section
and section 181.933.
new text end

new text begin (c) A state employee who is involuntarily discharged from
the unclassified service and who claims the discharge violated
this subdivision or subdivision 1 may seek review of the
discharge under the contested case procedures in sections 14.48
to 14.69. The jurisdiction of the Office of Administrative
Hearings is limited to a determination whether the discharge was
in violation of this subdivision or subdivision 1 and the
provision of any appropriate remedies. The parties to the
contested case proceeding must be allowed access to relevant
documents and witnesses for a reasonable period of time before
the hearing on a proceeding under this paragraph. The
administrative law judge must consider the quality and integrity
of the investigative process, if any, used by the agency when
reviewing evidence submitted by the agency.
new text end