OAR 839-010-0040: Disclosures by Public Employees: Discussions with Legislative Assembly Members

(1) ORS 659A.203(1)(a) and (d) prohibit a public employer from prohibiting, discouraging, restraining, dissuading, coercing or otherwise interfering with any employee responding to an official legislative request to discuss the activities of the state or any branch, agency or political subdivision thereof, or from discussing the activities of any person authorized to act on behalf of those entities. (2) In order to be protected by ORS 659A.203(1)(a), a public employee must be responding to an official legislative request, whether orally or in writing. The request must be made by or at the direction of a Legislative Assembly member and must invite discussion with a Legislative Assembly member or legislative committee staff acting under the direction of a Legislative Assembly member; (a) No employee may be required to inform the employer prior to engaging in the requested legislative discussion except when the legislative request for information is directed to the agency and the employee will speak or testify on behalf of the agency; (b) Regarding legislative testimony or discussion with representatives of Legislative Assembly members, the whistleblower law is not intended to: (A) Authorize an employee to represent the employee's personal opinions as the opinions of the agency or subdivision; (B) Authorize an employee to disclose information required to be kept confidential under state or federal law, rule or regulation, or allow disclosure of records exempt from disclosure except as provided in ORS 192.501 to 192.505 or 659A.212; (C) Prevent public employers from prohibiting employee disclosure of information of an advisory nature to the extent that it covers other than purely factual materials and is preliminary to any final agency determination of policy or action. (3) An employee is not entitled to leave work without following the employer's applicable rules and policies pertaining to leave, unless the employee is requested by a Legislative Assembly member or a legislative committee to appear before a legislative committee. If the employee's testimony is so requested, the employee may elect to take personal time off in accordance with the employer's normal procedure. (a) The employer may confirm the date and time for testimony but may not inquire into the substance of the testimony. (b) The employer must excuse the employee's absence from work during the time required for testimony and travel to and from the location of the committee. (c) If an employee appears to testify and testimony is not taken at the designated date and time, the absence must be treated in the same manner as if the testimony had been taken. (d) If an employee is subsequently recalled to testify, the subsequent request must be treated by the employer and employee in the same manner an initial request is treated. (e) An employee may take time off to testify following the employer's regular time off policy without notifying the employer of the purpose of the absence. (4) No public employer may take any disciplinary action against an employee for employee activity described by ORS 659A.203(1)(a). An employer, however, is not precluded from taking disciplinary action if: (a) The information disclosed by the employee is known to be false; (b) The employee discloses the information with reckless disregard for its truth or falsity; (c) The information disclosed relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health and safety.