Thursday, June 16, 2011

New York Whistleblower Laws

There has been a question as to if the Oswego County Clerk violiated New York State Whistleblower Laws?

The following is the law for public employees.

NYS Public Sector Whistleblower Law, NY Civil Service Law, § 75-B
§ 75-b. Retaliatory action by public employers.


1. For the purposes of this section the term:
(a) "Public employer" or "employer" shall mean (i) the state of New
York, (ii) a county, city, town, village or any other political
subdivision or civil division of the state, (iii) a school district or
any governmental entity operating a public school, college or
university, (iv) a public improvement or special district, (v) a public
authority, commission or public benefit corporation, or (vi) any other
public corporation, agency, instrumentality or unit of government which
exercises governmental power under the laws of the state.
(b) "Public employee" or "employee" shall mean any person holding a
position by appointment or employment in the service of a public
employer except judges or justices of the unified court system and
members of the legislature.
(c) "Governmental body" shall mean (i) an officer, employee, agency,
department, division, bureau, board, commission, council, authority or
other body of a public employer, (ii) employee, committee, member, or
commission of the legislative branch of government, (iii) a
representative, member or employee of a legislative body of a county,
town, village or any other political subdivision or civil division of
the state, (iv) a law enforcement agency or any member or employee of a
law enforcement agency, or (v) the judiciary or any employee of the
judiciary.
(d) "Personnel action" shall mean an action affecting compensation,
appointment, promotion, transfer, assignment, reassignment,
reinstatement or evaluation of performance.
2. (a) A public employer shall not dismiss or take other disciplinary
or other adverse personnel action against a public employee regarding
the employee's employment because the employee discloses to a
governmental body information: (i) regarding a violation of a law, rule
or regulation which violation creates and presents a substantial and
specific danger to the public health or safety; or (ii) which the
employee reasonably believes to be true and reasonably believes
constitutes an improper governmental action. "Improper governmental
action" shall mean any action by a public employer or employee, or an
agent of such employer or employee, which is undertaken in the
performance of such agent's official duties, whether or not such action
is within the scope of his employment, and which is in violation of any
federal, state or local law, rule or regulation.
(b) Prior to disclosing information pursuant to paragraph (a) of this
subdivision, an employee shall have made a good faith effort to provide
the appointing authority or his or her designee the information to be
disclosed and shall provide the appointing authority or designee a
reasonable time to take appropriate action unless there is imminent and
serious danger to public health or safety. For the purposes of this
subdivision, an employee who acts pursuant to this paragraph shall be
deemed to have disclosed information to a governmental body under
paragraph (a) of this subdivision.
3. (a) Where an employee is subject to dismissal or other disciplinary
action under a final and binding arbitration provision, or other
disciplinary procedure contained in a collectively negotiated agreement,
or under section seventy-five of this title or any other provision of
state or local law and the employee reasonably believes dismissal or
other disciplinary action would not have been taken but for the conduct
protected under subdivision two of this section, he or she may assert
such as a defense before the designated arbitrator or hearing officer.
The merits of such defense shall be considered and determined as part of
the arbitration award or hearing officer decision of the matter. If

there is a finding that the dismissal or other disciplinary action is
based solely on a violation by the employer of such subdivision, the
arbitrator or hearing officer shall dismiss or recommend dismissal of
the disciplinary proceeding, as appropriate, and, if appropriate,
reinstate the employee with back pay, and, in the case of an arbitration
procedure, may take other appropriate action as is permitted in the
collectively negotiated agreement.
(b) Where an employee is subject to a collectively negotiated
agreement which contains provisions preventing an employer from taking
adverse personnel actions and which contains a final and binding
arbitration provision to resolve alleged violations of such provisions
of the agreement and the employee reasonably believes that such
personnel action would not have been taken but for the conduct protected
under subdivision two of this section, he or she may assert such as a
claim before the arbitrator. The arbitrator shall consider such claim
and determine its merits and shall, if a determination is made that such
adverse personnel action is based on a violation by the employer of such
subdivision, take such action to remedy the violation as is permitted by
the collectively negotiated agreement.
(c) Where an employee is not subject to any of the provisions of
paragraph (a) or (b) of this subdivision, the employee may commence an
action in a court of competent jurisdiction under the same terms and
conditions as set forth in article twenty-C of the labor law.
4. Nothing in this section shall be deemed to diminish or impair the
rights of a public employee or employer under any law, rule, regulation
or collectively negotiated agreement or to prohibit any personnel action
which otherwise would have been taken regardless of any disclosure of
information.

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