Brief⁽¹⁾

The bill would name the "Kansas Whistleblower Act" and amend existing law to add auditing agencies, as defined in the bill, to the statute that provides certain protections to state employees who discuss state agency operations with legislators. Specifically, state employees could not be dismissed, demoted, transferred, reassigned, suspended, reprimanded, warned of possible dismissal, or have work withheld as punishment for discussing agency operations with legislators or auditing agencies. The bill also extends the protections to include discussions of "matters of public health, safety or welfare" in addition to operations of the state agency.

The bill would define the term "auditing agency" to include employees of the Division of Post Audit, certified public accountants under contract to the Post Auditor, and any state or federal entity performing auditing or oversight activities authorized by law. The bill also would add definitions of the terms "state agency" and "firm" as those terms are defined in the Post Audit Act. "State agency" would be defined to mean any state office, officer, department, board, commission, institution, bureau, agency, or authority or any division or unit thereof. "Firm" would be defined to mean any entity legally entitled to practice as a Certified Public Accountant.

Under the bill, state agency supervisors could not prohibit agency employees from discussing agency operations or other matters of public concern, including health, safety, or welfare with an auditing agency. Under current law, the protection extends only to discussions of the agency's operations with legislators. As under current law regarding requests for information from legislators, supervisors could require employees to inform them about requests for information from auditing agencies or testimony provided to those agencies. Employees could leave their work without following normal procedures for absences if requested to meet with an auditing agency. Existing law includes the same provision regarding employees who appear before a legislative committee at the request of a legislator.

Supervisors could discipline employees who disclose privileged information. Under current law, only confidential information is included in the exception.

Classified employees would have 90 days, rather than the current 30 days, in which to file with the State Civil Service Board an appeal of disciplinary action covered by the Act. That amendment of current law would make the length of time classified employees have to file an appeal equal to that currently provided for unclassified employees. The Civil Service Board would be authorized to award costs, including attorney fees, to the prevailing party in an appeal under the Act.

Existing law provides for an appeal of the Board's decision to district court. The bill would authorize the court to award costs, including attorney fees, to the prevailing party in an appeal of a Board decision.

Unclassified employees could appeal a disciplinary action that violates the Act using the procedure established by the Act for Judicial Review and Civil Enforcement of Agency Actions. The court would be authorized to award the prevailing party in such an action costs including attorney fees. Under current law, the court may award costs to the employee in addition to ordering reinstatement, payment of back wages, reinstatement of full fringe benefits and seniority rights, actual damages, or any combination as deemed appropriate by the court.

The bill specifically would state that the Act could not be interpreted to authorize disclosure of any confidential or privileged information.

The bill would become effective upon publication in the Kansas Register.

Background

The bill was introduced by the Legislative Post Audit Committee. The Post Auditor presented testimony on behalf of the Post Audit Committee to the Senate Federal and State Affairs Committee. The Post Auditor noted that the protections contained in the bill might make state employees more willing to discuss with auditors matters pertinent to audits. She also indicated that provisions allowing the Civil Service Board or the court to award costs to the prevailing party might help prevent filing of frivolous appeals.

A representative of the Kansas Bar Association presented testimony to the Senate Committee in which a number of questions were raised about the policies embodied in the bill.

The Senate Committee amended the bill to narrow the scope of topics that could be discussed with auditors and legislators under the protections provided by the bill. The other Committee amendment is technical in nature.

The Senate Committee of the Whole amended the bill to reinsert "other matters of public concern" to the description of what can be discussed. That phrase had been deleted from the bill by the Senate Committee.

The Division of the Budget's fiscal note on the introduced version of the bill states that the fiscal impact will depend on the number of additional hearings held by the Civil Service Board. Currently, the Board holds one or two whistleblower hearings per year at a cost of $238 per hearing. According to the Department of Administration, if the number of hearings increases, the Board would require additional funds. The fiscal note was prepared on the introduced version of the bill, and therefore does not address any fiscal impact of amendments.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.