5.18 Whistle Blower Policy
Origination date: 10/1/93
Applicability: Academic Professionals, Administrators, Classified Staff, Faculty, Service Professionals
To prohibit supervisory personnel from taking adverse personnel action against an employee as a result of the employee's disclosure of alleged wrongful conduct. The employee who discloses and subsequently suffers an adverse action as a result, is a 'whistle blower.'
NAU Whistle blower Policy is conducted in accordance with the Arizona Board of Regents Policy #6-914
Arizona Revised Statutes 38-531; 38-533
All faculty, academic professionals, administrators, service professionals and classified staff who disclose alleged wrongful conduct, as defined in this policy, and, who, as a result of the disclosure, are subject to an adverse personnel action, and the supervisors of those employees.
This policy is applicable to all categories of employees of the university.
No adverse personnel action may be taken against an employee in retaliation or reprisal for the disclosure of information to a public body concerning an alleged violation of law, gross waste of moneys or public funds, or abuse of authority, (collectively referred to herein as "alleged wrongful conduct"). Public body is defined as the Arizona Attorney General, the Arizona Legislature, the Governor of Arizona, Arizona Board of Regents, or a university supervisory employee with authority to act on the information disclosed.
It is a prohibited personnel practice for any supervisor, director, chair, dean, department head or any other employee who has control over personnel actions, to take an adverse personnel action against an employee in retaliation for disclosing alleged wrongful conduct to the public body. Any university employee found to have so retaliated or otherwise violated this policy shall be subject to disciplines, up to and including termination of employment, in accordance with existing university policies and procedures.
Any employee (including probationary employees) who believes s/he has been subjected to an adverse personnel action based on prior disclosure of alleged wrongful conduct may grieve the action. (Refer to Policy 5.21 Grievance Policy, Faculty should refer to Faculty Grievance Procedures, Appendix A of the Faculty Handbook). Arizona universities allow the final decision for whistle blower claims to be made by an outside agency.
Any NAU employee who knowingly makes false allegations of alleged wrongful conduct to a public body shall be subject to disciplines, up to and including termination of employment, in accordance with university rules, policies, and procedures. This policy shall not shield an employee from the consequences of an adverse personnel action taken 'for cause' or other legitimate reasons and in accordance with university policies and procedures. It shall not be a violation of the whistle blower policy to take adverse personnel action against an employee whose conduct or job performance warrants that action. If a supervisory employee proves by a preponderance of the evidence that the adverse personnel action in question was taken 'for cause' or other legitimate reason, and in accordance with university policies and procedures; then irrespective of this policy:
- the supervisory employee shall not be disciplined pursuant to this policy; and
- the prior wrongful conduct disclosure shall not alter the adverse action.
Abuse of Authority: generally meaning action or decision that is outside the scope of the alleged violator's position, scope of duties or level of authority as authorized by the president or designee. However, even actions that are within the alleged violator's authority may constitute abuse of authority if the violator's motive or purpose is to harass, intimidate or treat the employee arbitrarily or capriciously under the applicable facts and circumstances.
Adverse Personnel Action: an employment related act or decision of a supervisor or higher level authority which impacts an employee negatively. The following are adverse personnel actions in the university's personnel system: termination of employment (including denial of tenure, nonrenewal, or dismissal for cause), demotion with salary reduction, suspension without pay, written reprimand, failure to promote, receipt of unwarranted performance evaluation score, withholding of appropriate salary adjustments, imposition of involuntary transfer or reassignment, and other significant change in job responsibilities that is inconsistent with the employee's position, salary or grade.
Alleged Wrongful Conduct: violation of law, mismanagement/gross waste of money; or abuse of authority (see specific definitions herein).
Complainant: a current or former employee who disclosed the alleged wrongful conduct to a public body, and who subsequently is subject to an adverse personnel action as a result of making the prior disclosure.
Day: calendar day excluding Saturdays, Sundays, holidays, and university break periods. In cases of faculty and other employees appointed on an academic year (nine month) basis, day does not include summer, semester, or other similar break periods.
Disclosure: report by an employee to a public body of alleged wrongful conduct.
Mismanagement/gross waste of public funds: action or decision that is outside the scope of the alleged violator's spending on budgetary authority, or even when the action or decision was within budgetary authority, the action would be considered by a reasonable person to be grossly excessive or wasteful of public funds.
Public Body: the Arizona Attorney General, the Arizona Legislature, the Governor of Arizona, a federal, state or local law enforcement agency, the Coconino County Attorney, a member of the Arizona Board of Regents, a university president, provost, vice president or vice provost.
Reprisal: an adverse personnel action taken by a supervisor or other authority against an employee for a prior disclosure of alleged wrongful conduct. Respondent: individual accused of wrongful conduct.
University Officer: NAU president, provost, vice-provost, vice-president.
Whistle Blower Complaint: a written complaint filed by a Complainant with a university officer alleging that an adverse personnel action was taken in reprisal for a prior disclosure of alleged wrongful conduct to a public body.
Whistle Blower Complaint Review: a review by a university officer of a whistle blower complaint, resulting in a written decision which the university officer provides to the complainant.
Whistle Blower External Hearing: a hearing conducted by an external hearing officer if the complainant is dissatisfied with the decision of the university officer following a whistle blower complaint review.
Making a Disclosure that Qualifies as Whistle Blowing
In order to allow NAU an opportunity to review alleged wrongful conduct and to take any necessary corrective action, employees shall report in writing a disclosure of alleged wrongful conduct to a university president, provost, vice president, or vice provost ('university officer') so that an investigation can be initiated. The university officer and/or designees will conduct an investigation into the allegations of the disclosure and will take necessary corrective action as warranted. At the conclusion of the investigation, the university officer will notify the discloser and other affected employees in writing of the determination. A copy of the determination shall be retained by the investigating university officer and be provided to the discloser and the alleged violator. A discloser must suffer adverse personnel action after and as a result of making disclosure in order to file a whistle blower complaint and receive a hearing.
Whistle Blower Complaint
A current or former employee who allegedly has been subjected to an adverse personnel action based on his or her prior disclosure of alleged wrongful conduct may protest the action by filing a written whistle blower complaint with the president, provost, vice president or vice provost (university officer). The university officer or designee, on receipt of a whistle blower complaint, shall review the complaint expeditiously and investigate to determine 1) whether the complainant reported alleged wrongful conduct to a public body before an adverse personnel action was imposed; 2) whether the complainant made that complaint knowing it to be false; and 3) whether the complainant suffered an adverse personnel action after and as a result of reporting the alleged wrongful conduct to a public body. Within 30 days after receipt of the complaint, the university officer shall notify the complainant in writing of the results of the review and whether the adverse personnel action is affirmed, reversed or modified, with a copy of the decision to the employee's supervisor. The supervisor will verify implementation in writing to the university officer within 10 days after receipt of the university officer's decision.
Whistle Blower External Hearing Process
A complainant who is dissatisfied with the decision of the university officer on the whistle blower complaint may file a request for a whistle blower hearing and proceed under the following procedures.
Request for Hearing
NAU has contracted with the American Arbitration Association (AAA) to provide qualified external hearing officers and a hearing process for a complainant who is dissatisfied with the university officer's decision. The purpose of the hearing is to determine whether an adverse personnel action resulted from the complainant's prior disclosure of alleged wrongful conduct. The hearing officer cannot be a university employee and, except for the contractual arrangement to provide hearing officers services, cannot have substantial interest in or connection to the university. This is the final step of the university administrative procedure for whistle blower complaints. No suit, claim, or judicial review may be brought alleging violation of the whistle blower policy until this step has been completed.
Request for hearing - Within 15 days after receipt of the university officer's decision, a complainant who desires an external hearing must file a written request for hearing.
Contents of Request for Hearing - A request for hearing must contain the following:
- A specific statement that is a request for a whistle blower hearing by an external hearing officer.
- For a current employee: the name, work address, work telephone number and position of the complainant; for a former employee, the current work or home telephone number and home or work address.
- The name and position of the university officer who issued a decision on the complainant's whistle blower complaint.
- A statement of the reasons for requesting a hearing including the objectionable potion of the university officer's decision.
- A statement of the specific relief or remedy requested.
- Copies of 1) the employee's prior disclosure, and 2) the university officer's decision on the whistle blower complaint.
Appointing of Hearing Officer - Within 20 days after receipt of a request for hearing, a Human Resources Department representative (HR) will determine whether the complainant qualifies for an external hearing based on the following:
- the complaint identifies an adverse personnel action imposed on the employee and the date of notice of the action.;
- the complainant made a prior disclosure of alleged wrongful conduct to a public body which included a report to the president, provost, vice president, or vice provost and the date of the disclosure;
- the complainant alleges the adverse personnel action resulted from the prior disclosure;
- the complainant attached the disclosure, and the decision on the whistle blower complaint review to the request for the hearing.
If the request does not qualify for a whistle blower hearing, the request will be returned to the complainant with written reasons for objection. If the request for hearing does qualify, the HR representative shall forward it to American Arbitration Association (AAA) to initiate the hearing procedure.
Submission of the Record - Within twenty (20) days after receipt of the request for hearing, the AAA shall notify complainant and the identified university officer that the request for hearing is accepted and assist the parties with the mutual selection of the hearing officer, the procedures for a prehearing conference in person or by telephone, and the procedures which will be followed in conducting the hearing, including submission of evidence, documents and witness lists. The hearing officer may require the parties to submit summaries of their positions before the hearing commences.
The hearing will be conducted within 90 days after the request is received by the AAA, unless the hearing officer extends the time for good cause.
Conduct of Hearing
Hearings before the hearing officer shall be conducted according to this policy and the rules and procedures of the American Arbitration Association (AAA). The procedures designated in this policy supercede AAA rules, if there is a conflict. The formal rules of procedures or evidence do not govern the hearing. Generally, the party advocating a particular point or fact has the burden of proof on that point or fact. Generally, the person seeking review has the burden of persuading the hearing officer that the adverse action was based on a prior disclosure of alleged wrongful conduct to a public body.
The hearing shall be recorded through a court reporter and transcribed at NAU's expense. The complainant may obtain a copy of the transcript through NAU at a cost $0.10 per page.
Attorneys or Advisors
Either party, at its own expense, may be assisted before the hearing by and may have present at the hearing an attorney or other advisor. Such attorney or advisor, however, may not present the respective cases or otherwise directly participate in the hearing. The attorney or advisor may only advise the respective party in such a manner as not to disrupt or unduly delay the hearing. If the complainant participates in the hearing unaccompanied by an attorney or advisor, then the university representative will also participate in the hearing unaccompanied by an attorney or advisor.
Resolution by Agreement
At any time, the parties may agree upon a resolution of the matter. In such event, a written agreement shall be presented to the Human Resources Department representative who shall close the case and notify the AAA, and the parties in writing that the matter is 'resolved by agreement.'
Hearing Officer's Decision
Within 30 days after the close of the hearing, AAA shall provide 2 copies of the hearing officer's written report to the parties and to the university president. The report will contain findings of fact and the evidence relied upon to sustain those facts, conclusions including reference of applicable law, rules, or policies and a decision by the hearing officer that the adverse personnel action was or was not based on a prior disclosure. The president will order an appropriate remedy, based on the hearing officer's decision.
Probationary Faculty/Academic Professionals
Non-renewal or denial of tenure and promotion
If the hearing officer decides a violation of the whistle blower policy has occurred, as defined in this policy, the decision of the hearing officer is not the equivalent of granting renewal or awarding tenure and promotion. Such award or renewal shall only be granted by the provost or designee after an appropriate showing that the candidate has met the standards of the academic unit in which he or she is to be renewed, tenured, or promoted. A determination by the provost, based on the decision of the external hearing officer, that there has been an error in a candidate's review as a result of a prior disclosure or whistle blowing, is not a showing that the standards of the academic unit have been met. Therefore, the provost shall take steps to determine whether the standards have been met. He or she may return the application to the academic unit from which it arose, with instructions to reconsider the application and set in place appropriate and fair procedures for the reconsideration.
If, based on the report of the external hearing officer, the provost determines that it is not likely that the candidate will receive fair consideration from the academic unit or unit head to which the application would ordinarily be returned, provost will devise an ad hoc procedure to determine if the candidate has met the standards of the academic unit. Such a procedure, for example, could involve excluding certain persons from the peer review process and substituting others who are qualified to judge whether the candidate met the standards of the unit, or submitting the candidate's application and the unit standards to a committee consisting of members of the academic unit and one or more external qualified faculty members or academic professionals from a similar academic unit of another university.
- Terminal Contract: denial of tenure or continuing status - When the provost determines that an application for tenure/continuing status must be reconsidered, the candidate's appointment should be adjusted to ensure that he or she will have an additional year under a terminal contract in which to find a new position, if the reconsideration results in a denial of tenure or continuing status.
- Terminal Contract: non-renewal prior to tenure or continuing review - If a probationary faculty or academic professional is non-renewed prior to review for tenure or continuing status, the reconsideration review should take place during the terminal year and, at the option of the provost, may or may not result in an additional terminal appointment, if the reconsideration results in non-renewal.
Dismissal of Tenure Faculty or Continuing Academic Professionals
Whistle Blower Dismissal: Internal Process
Board of Regents policy 6-201, 'Conditions of Faculty Service' provides extensive due process and procedures in dismissal of tenured faculty or continuing academic professionals, including review and/or hearings by university committees consisting of faculty members elected to a grievance committee and appointed to a conciliation committee. Therefore, in such dismissal cases, the internal grievance hearing process shall be as set out in the hearing provisions of Board policy 6-201(and not as set forth in above paragraph E), and will be completed with a recommendation from the appropriate academic grievance committee to the president for decision. The grievance committee will consider the whistle blower and other grievances issues raised by the grievant.
Whistle Blower Dismissal: External Process
If the faculty member or academic professional disagrees with the president' decision on the whistle blower issues, i.e. on whether the adverse action of dismissal was based on prior disclosure or whistle blowing, the grievant may submit a request to the president for an external whistle blower hearing to be conducted through AAA as set forth above. The issue subject to review by the external hearing officer is whether the adverse action of dismissal was based on a prior disclosure as defined in this whistle blower policy. Following the external hearing, the hearing officer shall submit a report and decision to the president that the dismissal either was or was not based on a prior disclosure. If the hearing officer determines that the dismissal was based on a prior disclosure, the president, in consultation with the appropriate academic grievance committee, shall order a re-consideration of the dismissal decision and set in place appropriate and fair procedures for the reconsideration.