MISSISSIPPI LEGISLATURE

2016 Regular Session

To: Judiciary A

By: Representative Lamar

House Bill 1245

AN ACT TO AMEND SECTION 25-9-171, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS FOR "GOVERNMENTAL ENTITY" AND "EMPLOYEE"; TO AMEND SECTION 25-9-172, MISSISSIPPI CODE OF 1972, TO MAKE NON-SUBSTANTIVE REVISIONS; TO AMEND SECTION 25-9-173, MISSISSIPPI CODE OF 1972, TO REVISE THE ACTIONS THAT ARE PROHIBITED AS A RESULT OF AN EMPLOYEE'S REPORT OF IMPROPER GOVERNMENTAL ACTION; TO REVISE AN EMPLOYER'S RIGHT TO DISCIPLINE AN EMPLOYEE UNDER THIS ACT; TO AMEND SECTION 25-9-175, MISSISSIPPI CODE OF 1972, TO REMOVE THE INDIVIDUAL LIABILITY FOR EMPLOYERS WHO RETALIATE AGAINST AN EMPLOYEE FOR REPORTING ALLEGED IMPROPER GOVERNMENTAL ACTION; TO AMEND SECTION 25-9-177, MISSISSIPPI CODE OF 1972, TO PROVIDE A TIMELINE FOR FILING A CIVIL ACTION AGAINST AN EMPLOYER; 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 following 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 an agency, board, commission, department, division, bureau, council, authority, office or other agency of the state or a political subdivision of the state.  The term shall include the offices of the executive, legislative and judicial branches of government.

          (c)  " * * *EmployeeEmployer" means any individual employed or holding office in any * * *department or agency of state or local government governmental entity as defined in paragraph (b) of this section who has the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign or discipline employees.

          (d)  "Improper governmental action" means any employer 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 an employee's employment or official duties:

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

              (ii)  * * *Which is of substantial Substantially and specifically dangers * * *to the public's health or safety; or

              (iii)  * * *Which is discrimination Discriminates based on race or gender.

     "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 Sections 25-9-171 through 25-7-177, 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.  Section 25-9-172, Mississippi Code of 1972, is amended as follows:

     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 this title, Mississippi Code of 1972.

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

     25-9-173.  (1)  No * * *agency governmental entity shall * * *dismiss discharge, demote, transfer * * *or otherwise , adversely affect the compensation or employment status of * * *any an * * *public employee, or otherwise discriminate against an employee because the * * *public employee testified or provided information to a state investigative body regardless of 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 * * *.; and

(h)  Transfer.

 * * * (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.

     ( * * *43)  Nothing in this section prohibits a governmental entity from making any decision exercising its authority to terminate, suspend or discipline an * * *employee employer 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.

(4)  Nothing in this act shall prevent an employer from disciplining, discharging, transferring or otherwise affecting the terms and conditions of an employee's employment not connected with the conduct protected under this act. 

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

     25-9-175.  (1)  Any * * *agency governmental entity  * * *which that violates the provisions of Section 25-9-173 * * *shall may 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. 

(2)  * * *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 employee's residence.  Any such action must be filed within two (2) years of the alleged occurrence.  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 Section 25-9-175 and this section, and the employee shall be required to exhaust such remedies prior to instituting an action authorized under Section 25-9-175 and this section.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2016.

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