OAR 839-010-0050: Disclosures by Public Employees: Disclosure of Malfeasance

(1) ORS 659A.203(1)(b) and (d) require that a public employer not prohibit, discourage, restrain, dissuade, coerce, or otherwise interfere with any employee disclosing to any person, or take or threaten to take disciplinary action against an employee for disclosing any information that the employee reasonably believes is evidence of: (a) A violation of any federal or state law, rule or regulation by action of the state agency or political subdivision; (b) Mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision. (2) No employee may be required to give notice to a public employer prior to making any disclosure described in ORS 659A.203. If the employee elects to give notice to an employer the employer must protect the employee against retaliatory or disciplinary action by its supervisory personnel for such disclosure. (3) In making disclosures described in this rule, 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 as required by ORS 659A.212; or (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. (4) An employee is not entitled to leave the employee’s assigned work areas during normal work hours without following applicable rules and policies pertaining to leaves, unless the employee is requested by a member of the Legislative Assembly or a legislative committee to appear before a legislative committee as described in OAR 839-010-0040(3). (5)(a) No public employer may identify the employee who discloses matters described in this rule during any investigation of the information provided by the employee without the written consent of the employee. (b) No supervisory or management employee of a public employer may reveal to an employee accused of malfeasance the identity of the employee who discloses matters described in ORS 659A.203 or reports described in 659A.212. (6) No public employer may take any disciplinary action against an employee for employee activity described by this section. An employer, however, is not precluded from taking disciplinary action if: (a) The information disclosed is known by the employee to be false; (b) The employee discloses the information with reckless disregard for its truth or falsity; or (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 or safety.