MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary

By: Senator(s) Ross, Burton, Hawks, Kirby, Smith, Gordon, Johnson (19th), Canon, Farris, Rayborn, Moffatt, Furniss, Simmons, Hamilton, Thames, Hewes, Hall, Horhn, Walls, Carter, Frazier, Posey, Bryan, Tollison, Johnson (38th), Browning, White (29th), Dickerson, Harvey, Robertson, Stogner, Little, Minor, Mettetal, Jordan (18th), White (5th), Bean, Lee

AN ACT TO AMEND SECTION 25-9-171, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS OF CERTAIN TERMS AS THEY RELATE TO THE PUBLIC EMPLOYEE WHISTLEBLOWER LAW; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 25-9-172, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT UPON RECEIPT OF A SIGNED WRITTEN COMPLAINT OF ALLEGED IMPROPER GOVERNMENTAL ACTION, A STATE INVESTIGATIVE BODY SHALL KEEP A RECORD OF THE COMPLAINT AND SHALL HAVE THE AUTHORITY TO INVESTIGATE THE COMPLAINT IN ACCORDANCE WITH ITS POWERS AND DUTIES PROVIDED BY THE LAWS OF THE STATE OF MISSISSIPPI; TO AMEND SECTION 25-9-173, MISSISSIPPI CODE OF 1972, TO PROHIBIT WORKPLACE REPRISAL OR RETALIATORY ACTION AGAINST A PUBLIC EMPLOYEE WHISTLEBLOWER; TO AMEND SECTION 25-9-175, MISSISSIPPI CODE OF 1972, TO REVISE THE RIGHTS OF ACTION OF A PUBLIC EMPLOYEE WHO IS SUBJECTED TO REPRISAL OR RETALIATORY ACTION; TO AMEND SECTION 25-9-177, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY ADMINISTRATIVE REMEDIES PROVIDED FOR STATE-SERVICE EMPLOYEES, OR ANY REMEDIES UNDER A GRIEVANCE OR APPEAL PROCESS OF THE EMPLOYING GOVERNMENTAL ENTITY RELATING TO SUSPENSION OR TERMINATION OF EMPLOYMENT OR ADVERSE PERSONNEL ACTION, SHALL NOT BE EXHAUSTED OR DIMINISHED AS A RESULT OF ANY LEGAL ACTION TAKEN BY THE EMPLOYEE; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 25-9-171, Mississippi Code of 1972, is amended as follows:

25-9-171. For purposes of Sections 25-9-171 through 25-9-177, the following terms shall have the meanings ascribed to them herein:

(a) "Abuse" means acting in an arbitrary and capricious manner that adversely affects the accomplishment of a function of any governmental entity.

(b) "Governmental entity" means a board, commission, department, office or other agency of the state or a political subdivision of the state.

(c) "Employee" means any individual employed or holding office in any department or agency of state or local government.

(d) "Improper governmental action" means any action by an employee which is undertaken in the performance of the employee's official duties, whether or not the action is within the scope of the employee's employment:

(i) Which is in violation of any federal or state law or regulation, is an abuse of authority, results in substantial abuse, misuse, destruction, waste, or loss of public funds or public resources; or

(ii) Which is of substantial and specific danger to the public health or safety.

"Improper governmental action" does not include personnel actions for which other remedies exist, including, but not limited to, employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the state personnel system or local personnel policies, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or any personnel action which may be taken under federal or state law.

(e) "Misuse" means an illegal or unauthorized use.

(f) "Personnel action" means an action that affects an employee's promotion, demotion, transfer, work assignment or performance evaluation.

(g) "State investigative body" shall mean the Attorney General of the State of Mississippi, the State Auditor, the Mississippi Ethics Commission, the Joint Legislative Committee on Performance Evaluation and Expenditure Review or any other standing committee of the Legislature, or any district attorney of the State of Mississippi.

(h) "Use of official authority or influence" includes taking, directing others to take, recommending, processing or approving any personnel action such as an appointment, promotion, transfer, assignment, reassignment, reinstatement, restoration, reemployment, performance evaluation or other disciplinary action.

(i) "Waste" means an unnecessary or unreasonable expenditure or use.

(j) "Whistleblower" means an employee who in good faith reports an alleged improper governmental action to a state investigative body, initiating an investigation. For purposes of the provisions of this act, the term "whistleblower" also means an employee who in good faith provides information to a state investigative body, or an employee who is believed to have reported alleged improper governmental action to a state investigative body or to have provided information to a state investigative body but who, in fact, has not reported such action or provided such information.

SECTION 2. The following shall be codified as Section 25-9-172, Mississippi Code of 1972:

25-9-172. (1) Upon receipt of a signed written complaint of alleged improper governmental action, a state investigative body shall keep a record of the complaint and shall have the authority to investigate the complaint in accordance with its powers and duties provided by the laws of the State of Mississippi.

(2) Each state investigative body shall develop and maintain a standard form for use by the whistleblower when reporting alleged improper governmental action. Such form shall require as a minimum the name, address and telephone number of the whistleblower, and a description of the alleged improper governmental action.

(3) If any state investigative body receives a complaint that contains allegations outside its expertise, then the state investigative body may refer the complaint to another state investigative body unless contrary to the laws of the State of Mississippi.

(4) In any case to which this section applies, the identity of the whistleblower shall be kept confidential unless the state investigative body determines that the information has been provided other than in good faith, or unless the confidentiality requirement conflicts with Article 1, Chapter 4 of Title 25, Mississippi Code of 1972.

SECTION 3. Section 25-9-173, Mississippi Code of 1972, is amended as follows:

25-9-173. (1) No agency shall dismiss or otherwise adversely affect the compensation or employment status of any public employee because the public employee testified or provided information to a state investigative body whether or not the testimony or information is provided under oath.

(2) Any person who is a whistleblower, as defined in Section 25-9-171, and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action is entitled to the remedies provided under Section 25-9-175. For the purpose of this section, "reprisal or retaliatory action" means, but is not limited to:

(a) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;

(b) Demotion;

(c) Reduction in pay;

(d) Denial of promotion;

(e) Suspension;

(f) Dismissal; and

(g) Denial of employment.

(3) An employee who has filed a valid whistleblower complaint may not recover the damages and other remedies provided under Section 25-9-175 unless the dismissal or adverse action taken against him was the direct result of providing information to a state investigative body.

(4) Nothing in this section prohibits a governmental entity from making any decision exercising its authority to terminate, suspend or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower.

(5) A governmental entity is not precluded from taking any action in accordance with established personnel policies against an employee who knowingly and intentionally provides false information to a state investigative body.

SECTION 4. Section 25-9-175, Mississippi Code of 1972, is amended as follows:

25-9-175. Any agency which violates the provisions of Section 25-9-173 shall be liable to the public employee for back pay and reinstatement. In addition, an employee whose employment is suspended or terminated or who is subjected to adverse personnel action in violation of Section 25-9-173 is entitled to sue for injunctive relief, compensatory damages, court costs and reasonable attorney's fees; provided, however, that an employee may not recover an amount that exceeds the limitations provided in Section 11-46-15. Additionally, each member of any agency's governing board or authority may be found individually liable for a civil fine of up to Ten Thousand Dollars ($10,000.00) for each violation of Section 25-9-173. In any instance where the agency in violation of Section 25-9-173 has no governing board or authority, the agency's executive director may be found individually liable for a civil fine not to exceed Ten Thousand Dollars ($10,000.00). If the court determines that any action filed under this section by an employee is frivolous and unwarrantable, the court may award to the employer court costs and reasonable expenses, including attorney's fees, incurred in defense of actions brought by the employee under this section.

SECTION 5. Section 25-9-177, Mississippi Code of 1972, is amended as follows:

25-9-177. Actions to recover civil fines and other remedies provided for under Section 25-9-175 may be instituted in the Circuit Court for the First Judicial District of Hinds County or in the circuit court of the public employees' residence. In such actions, the public employee shall prove by a preponderance of the evidence that, but for his providing information or testimony to a state investigative body prior to occurrence of the dismissal or any adverse action, his dismissal or any adverse action taken against him would not have occurred. Remedies provided for herein shall be supplemental to any other remedies, judicial or administrative, provided for under law. * * * Any administrative remedies provided for state-service employees under Sections 25-9-127 through 25-9-131, Mississippi Code of 1972, or any remedies under a grievance or appeal process of the employing governmental entity relating to suspension or termination of employment or adverse personnel action, shall not be exhausted or diminished as a result of any action taken by the employee under Sections 25-9-175 and 25-9-177, and the employee shall be required to exhaust such remedies prior to instituting an action authorized under Sections 25-9-175 and 25-9-177.

SECTION 6. This act shall take effect and be in force from and after its passage.