Section 105.055

Title VIII PUBLIC OFFICERS AND EMPLOYEES, BONDS AND RECORDS

Chapter 105

Effective - 28 Aug 2010, 3 histories, see footnote   (history) 

  105.055.  State employee reporting mismanagement or violations of agencies, discipline of employee prohibited — appeal by employee from disciplinary actions, procedure — disciplinary action defined — violation, penalties — civil action, when. — 1.  No supervisor or appointing authority of any state agency shall prohibit any employee of the agency from discussing the operations of the agency, either specifically or generally, with any member of the legislature, state auditor, attorney general, or any state official or body charged with investigating such alleged misconduct.

  2.  No supervisor or appointing authority of any state agency shall:

  (1)  Prohibit a state employee from or take any disciplinary action whatsoever against a state employee for the disclosure of any alleged prohibited activity under investigation or any related activity, or for the disclosure of information which the employee reasonably believes evidences:

  (a)  A violation of any law, rule or regulation; or

  (b)  Mismanagement, a gross waste of funds or abuse of authority, or a substantial and specific danger to public health or safety, if the disclosure is not specifically prohibited by law; or

  (2)  Require any such employee to give notice to the supervisor or appointing authority prior to making any such report.

  3.  This section shall not be construed as:

  (1)  Prohibiting a supervisor or appointing authority from requiring that an employee inform the supervisor or appointing authority as to legislative requests for information to the agency or the substance of testimony made, or to be made, by the employee to legislators on behalf of the employee to legislators on behalf of the agency;

  (2)  Permitting an employee to leave the employee's assigned work areas during normal work hours without following applicable rules and regulations and policies pertaining to leaves, unless the employee is requested by a legislator or legislative committee to appear before a legislative committee;

  (3)  Authorizing an employee to represent the employee's personal opinions as the opinions of a state agency; or

  (4)  Restricting or precluding disciplinary action taken against a state employee if:  the employee knew that the information was false; the information is closed or is confidential under the provisions of the open meetings law or any other law; or the disclosure relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority or endangerment of the public health or safety.

  4.  As used in this section, "disciplinary action" means any dismissal, demotion, transfer, reassignment, suspension, reprimand, warning of possible dismissal or withholding of work, whether or not the withholding of work has affected or will affect the employee's compensation.

  5.  Any employee may file an administrative appeal whenever the employee alleges that disciplinary action was taken against the employee in violation of this section.  The appeal shall be filed with the administrative hearing commission; provided that the appeal shall be filed with the appropriate agency review board or body of nonmerit agency employers which have established appeal procedures substantially similar to those provided for merit employees in subsection 5 of section 36.390.  The appeal shall be filed within thirty days of the alleged disciplinary action.  Procedures governing the appeal shall be in accordance with chapter 536.  If the commission or appropriate review body finds that disciplinary action taken was unreasonable, the commission or appropriate review body shall modify or reverse the agency's action and order such relief for the employee as the commission considers appropriate.  If the commission finds a violation of this section, it may review and recommend to the appointing authority that the violator be suspended on leave without pay for not more than thirty days or, in cases of willful or repeated violations, may review and recommend to the appointing authority that the violator forfeit the violator's position as a state officer or employee and disqualify the violator for appointment to or employment as a state officer or employee for a period of not more than two years.  The decision of the commission or appropriate review body in such cases may be appealed by any party pursuant to law.

  6.  Each state agency shall prominently post a copy of this section in locations where it can reasonably be expected to come to the attention of all employees of the agency.

  7.  (1)  In addition to the remedies in subsection 6 of this section, a person who alleges a violation of this section may bring a civil action for damages within ninety days after the occurrence of the alleged violation.

  (2)  A civil action commenced pursuant to this subsection may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides.

  (3)  An employee must show by clear and convincing evidence that he or she or a person acting on his or her behalf has reported or was about to report, verbally or in writing, a prohibited activity or a suspected prohibited activity.

  (4)  A court, in rendering a judgment in an action brought pursuant to this section, shall order, as the court considers appropriate, actual damages, and may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees.

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(L. 1987 H.B. 659 § 1, A.L. 1993 S.B. 180, A.L. 2000 S.B. 788, A.L. 2004 H.B. 1548, A.L. 2010 H.B. 1868)