SENATE BILL NO. 382

INTRODUCED BY S. BARTLETT

A BILL FOR AN ACT ENTITLED: "AN ACT ENACTING THE MONTANA TRUTH IN GOVERNMENT ACT; PROVIDING DEFINITIONS; PROHIBITING A MANAGERIAL EMPLOYEE OF A STATE AGENCY FROM TAKING AN ADVERSE PERSONNEL ACTION AGAINST ANOTHER STATE EMPLOYEE FOR MAKING A PROTECTED DISCLOSURE OR REFUSING TO FOLLOW AN ILLEGAL ORDER; PROVIDING A BURDEN OF PROOF; PROVIDING REMEDIES FOR VIOLATION OF THE ACT; AND AUTHORIZING DISCIPLINARY ACTION AGAINST A MANAGERIAL EMPLOYEE VIOLATING THE ACT AND REQUIRING NOTICE OF THAT DISCIPLINARY ACTION."

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

NEW SECTION. Section 1. Short title.[Sections 1 through 9] may be cited as the "Montana Truth in Government Act".

NEW SECTION. Section 2. Legislative findings and declaration. The legislature finds and declares that a state employee must be free to report waste; fraud; abuse of authority; violation of law, rule, or written policy; or threat to public health or safety without fear of retribution. The legislature further finds and declares that a public servant best serves the citizenry when the public servant can be candid and truthful without reservation in conducting the people's business.

NEW SECTION. Section 3. Definitions. (1) As used in [sections 1 through 9], the following definitions apply:

(a) "Administrative proceeding" includes:

(i) an informal or formal proceeding within an agency held pursuant to an administrative rule or written policy of the agency, not held before the board, and not subject to the Montana Administrative Procedure Act;

(ii) a proceeding held before the board; and

(iii) a proceeding that is subject to the Montana Administrative Procedure Act.

(b) "Adverse personnel action" includes but is not limited to:

(i) termination, refusal to promote, involuntary demotion, involuntary reduction in compensation, involuntary reduction of duties, issuance of an oral or written warning, suspension of duties with or without pay, oral or written reprimand, placement of adverse information in the employee's personnel file, involuntary transfer or reassignment, referral for psychiatric or psychological counseling, or in any manner discriminating against a former, current, or prospective employee; and

(ii) a threat to take an action listed in subsection (1)(b)(i) as well as withholding or making a threat to withhold a favorable personnel action.

(c) "Employee" means an employee of a state agency.

(d) "Illegal order" means an oral or written directive to:

(i) violate or assist in violating:

(A) a federal or state constitutional provision;

(B) a federal, state, or local law;

(C) a rule or regulation; or

(D) a written policy of the agency.

(ii) work or cause others to work in conditions that may threaten the health or safety of an employee or the public.

(e) "Managerial employee" means an employee who, as the chief of a bureau, administrator of a division, director of a department, or otherwise, supervises another employee.

(f) "Protected disclosure" means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence:

(i) mismanagement;

(ii) gross waste of public money;

(iii) abuse of authority in connection with the administration of a public program or the execution of a public contract;

(iv) violation of a federal, state, or local law, rule, or regulation;

(v) violation of a federal or state constitutional provision;

(vi) violation of a written policy of a state agency; or

(vii) a condition that may significantly threaten the health or safety of an employee or the public.

(2) Terms used in [sections 1 through 9] not defined in subsection (1) have the meanings provided in 2-18-101.

NEW SECTION. Section 4. Prohibition. A managerial employee may not take or cause another employee to take an adverse personnel action and may not otherwise retaliate or discriminate against another former, current, or prospective employee for:

(1) making a protected disclosure;

(2) initiating a civil action against an agency or a managerial employee pursuant to [section 6 or 7]; or

(3) refusing to follow an illegal order.

NEW SECTION. Section 5. Burden of proof in disciplinary action -- effect. (1) In an administrative proceeding or civil action against a former, current, or prospective employee for the purposes of taking an adverse personnel action, once it has been demonstrated by a preponderance of evidence that the making of a protected disclosure or the refusal to follow an illegal order may have been a contributing factor in the adverse personnel action that is the subject of the proceeding or action, the burden of proof is upon the state agency or managerial employee to prove by clear and convincing evidence that the adverse personnel action is supported by legitimate, independent reasons of the employee's conduct or job performance that are unrelated to the protected disclosure or illegal order.

(2) If the defense of making a protected disclosure or refusing to follow an illegal order has been raised by an employee as provided in subsection (1), a state agency or managerial employee may not take or cause another employee to take an adverse personnel action against that employee unless the managerial or other employee satisfies the burden of proof required of a state agency or managerial employee in subsection (1).

NEW SECTION. Section 6. Cause of action authorized. (1) A former, current, or prospective employee aggrieved by a violation of [section 4 or 5] may bring a civil action in the district court in which the former, current, or prospective employee resides, seeking damages or other temporary or permanent relief as the court may consider just and proper, or both damages and other relief, including but not limited to:

(a) back pay and interest on back pay;

(b) compensatory damages;

(c) injunction;

(d) reinstatement;

(e) restoration of lost benefits, including seniority; and

(f) expungement of material in the employee's personnel record.

(2) A civil action brought pursuant to this section must be filed within 2 years after a violation of [section 4 or 5] occurs or within 2 years after the employee first becomes aware of the violation, whichever is later.

NEW SECTION. Section 7. Cause of action for attorney fees and costs authorized. The prevailing party in an action brought pursuant to [section 6] may bring a civil action, in the same court in which the action brought pursuant to [section 6] was heard, for costs and reasonable attorney fees and the court, in its discretion, may award those costs and fees.

NEW SECTION. Section 8. Discipline of retaliator -- exception -- remedies. (1) A managerial employee who violates [section 4 or 5] is subject to appropriate disciplinary action, including dismissal from office, by the employee's managerial employee.

(2) An employee against whom an adverse personnel action is brought in violation of [section 4 or 5] must be notified in writing by one of the individuals described in subsection (3) of the following:

(a) whether disciplinary action will be taken against the managerial employee and, if not, the reason for the lack of disciplinary action;

(b) if disciplinary action is to be taken, what action will be taken; and

(c) if disciplinary action will be taken, the time in which that action will be taken.

(3) The notice required by subsection (2) must be provided by one of the following individuals:

(a) the director or other executive head of an agency, including a constitutional officer or other elected official of state government, for a violation by an employee of that agency;

(b) the governor, for a violation by a director or other executive head of an agency who is appointed by the governor; and

(c) the full-time or part-time presiding officer of a board or commission, for a violation by an executive head of an agency who is appointed by that board.

(4) This section does not apply to an adverse personnel action taken by a constitutional officer or other elected official of state government.

(5) Disciplinary action for which notice is given to an employee pursuant to this section does not preclude or limit other remedies available to an employee.

NEW SECTION. Section 9. Effect on other rights. [Sections 1 through 9] do not diminish the rights, privileges, or remedies of an employee under the state or federal constitution, another federal or state law, rule, or regulation, a written agency policy, or under an employment contract.

NEW SECTION. Section 10. Codification instruction. [Sections 1 through 9] are intended to be codified as an integral part of Title 2, chapter 18, and the provisions of Title 2, chapter 18, apply to [sections 1 through 9].

NEW SECTION. Section 11. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before October 1, 1999.

NEW SECTION. Section 12. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

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