6.20 Whistleblower Protection

In response to a legislative directive, the Governing Board has adopted the following policy:

1. It is a prohibited personnel practice for an employee who has control over personnel actions to knowingly take an adverse personnel action against an employee in reprisal for disclosing to a public body, pursuant to A.R.S. § 38-532, information that the employee reasonably believes evidences a violation of any law, mismanagement, a gross waste of monies or abuse of authority to a public body. Any District employee found to have committed a prohibited personnel practice is subject to dismissal and a civil penalty of up to five thousand dollars, except that upon a finding that an employee committed a prohibited personnel practice against an employee who disclosed information that the employee reasonably believed evidenced a violation of any law, the employee who knowingly committed the prohibited personnel practice is subject to a civil penalty of up to ten thousand dollars, the employer shall dismiss the employee and the employee is barred from any future employment by the government entity.
2. The following terms shall have the meaning given to them by A.R.S. § 38-531:
   
   1. Employee
   2. Former Employee
   3. Law Enforcement Officer
   4. Personnel Action
   5. Public Body
   6. Reprisal
3. It shall not be a violation of this policy to take an adverse personnel action towards an employee whose conduct or performance warrants discipline.
   
   For purposes of this administrative regulation, an adverse personnel action is defined as the following:
   1. Termination of employment
   2. Demotion, with or without a salary reduction
   3. Imposition of suspension without pay
   4. Receipt of written reprimand
   5. Failure to appoint, promote or reemploy
   6. An unsupported negative performance evaluation
   7. Withholding of appropriate salary adjustments
   8. Involuntary transfer or reassignment
   9. Elimination of the employee's position absent a reduction in force, reorganization or by reason of a decrease or lack of sufficient funding, monies or workload
   10. Significant changes in duties or responsibilities which are inconsistent with the employee's salary or grade level
4. An employee or former employee who believes he or she has been subjected to an adverse personnel action based on disclosure of information pursuant to A.R.S. § 38-532 may file a complaint with the Governing Board.
   
   1. The complaint must be in writing, must set forth the basis for the claim or reprisal, and must be filed with the Assistant to the Governing Board within 10 days of the effective date of the action taken against the complainant. In all instances, except those in which the complaint alleges wrongful conduct by the Chancellor, the Assistant to the Governing Board must forward the complaint to the Chancellor or designee immediately, and in no case more than one business day after receipt of the complaint. If the complaint alleges wrongful action by the Chancellor, the Assistant to the Governing Board shall forward the complaint to the President of the Governing Board, or Secretary, if the President is not available, within one business day.
   2. In all instances, except those in which the complaint alleges wrongful actions by the Chancellor, the Chancellor or designee shall, within five business days after receipt of a complaint, establish a Whistleblower Hearing Committee (Committee) to hear the complaint.
   3. In instances in which the complaint alleges wrongful actions by the Chancellor, the Governing Board shall, within five days after receipt of the complaint, name an independent, external Hearing Officer to hear the complaint.
   4. The Committee shall be composed of three persons not associated with the incident or allegations. The make-up of the Committee shall be as follows: one College President from a college not related to the alleged violation to be named by the Chancellor; one District employee named by the complainant; one District employee named by the individual who is accused of committing a prohibited personnel practice.
   5. The Committee or Hearing Officer shall make an initial determination of jurisdiction over the subject matter within 10 business days after receipt of the complaint by the Chancellor. The Committee or Hearing Officer shall decide, based upon the contents of the written complaint and any additional information the parties desire to submit, whether (1) the complainant did, in fact, disclose information to a public body concerning an alleged violation of law, mismanagement, gross waste of monies or abuse of authority and (2) whether an adverse personnel action as defined herein took place. If the answer to either (1) or (2) is “no,” the Committee or Hearing Officer shall inform the parties that the complaint has been dismissed for lack of jurisdiction.
   6. If the answers to both (1) and (2) in paragraph 5(E) are yes, the Committee or Hearing Officer shall accept jurisdiction and set a hearing date no later than 30 calendar days after receipt of the complaint by the Chancellor.
   7. The hearing shall be for the purpose of determining of whether a prohibited personnel practice occurred.
   8. All parties at the hearing may be represented by counsel.
   9. The hearing will be open to the public except where the complainant requests a confidential hearing. The hearing will not be subject to the technical rules of evidence, except the rule of privilege recognized by the court. Each side will have the opportunity to call witnesses, present evidence, and cross-examine the other party's witnesses. The hearing will be recorded and transcribed upon the request of either party. The requesting party will bear the cost of transcription.
   10. Within 15 days after the conclusion of the hearing, the Committee or Hearing Officer shall issue findings of fact and a recommended decision, including recommendations as to any appropriate discipline and the amount, if appropriate, of a civil penalty pursuant to A.R.S. § 38-532(C). The civil penalty many not exceed $5,000.00, except that a upon a finding that an employee committed a prohibited personnel practice against an employee who disclosed information that the employee reasonably believed evidenced a violation of any law, the employee who knowingly committed the prohibited personnel practice is subject to a civil penalty of up to ten thousand dollars, the employer shall dismiss the employee and the employee is barred from any future employment by the government entity.
   11. The findings and recommendations shall be immediately forwarded to the Governing Board. The Governing Board may accept, reject or modify the findings and recommendations.
5. The District shall have Ombudsperson Services that are available to the external (non-employees) community and internal employee community to address complaints and concerns relative to the operations of the Maricopa County Community College District. These services may be staffed by District employees or may be contracted or both. The District shall also maintain a 24-hour hotline for the submission of complaints and concerns (anonymous or otherwise). These services are not considered to be services of the "public body" as defined in section 2 of this policy; persons seeking whistleblower protection may avail the services of the public body as defined in section 1.
   
   1. Among the concerns or complaints that may be reviewed by the Ombudsperson are unsolicited, derogatory and anonymous complaints or concerns about employees. These shall not be reviewed separately by the Governing Board.
   2. Quarterly, the Chancellor shall submit to the Governing Board and District Audit and Finance Committee summary information on the number of Ombuds and 24-Hour Hotline complaints in the District. Such report shall protect the identity of Ombuds and 24-Hour Hotline reporters from disclosure. Quarterly, the Chancellor also shall submit to the Governing Board and District Audit and Finance Committee summary information on complaints and concerns submitted to the external and internal Ombudsperson Services. Identities shall be protected from disclosure.