I received the this Ask Your Government questions from a Wahpeton reader:
Q. I am wondering what the purpose of the "whistleblower protection" is? It is my recent experience that there is neither an investigation nor protection when you file for whistleblower protection. So, why waste my time and the North Dakota government's time when nothing is done when this is filed?
What does a person have to do to actually get protection? Does it matter if your complaint is against a North Dakota university to get protection? Why is it that when an accusation of possible fraud is brought up to the Board of Higher Education, the employer is allowed to do their own investigation without an impartial third party present even after proper channels have been followed?
When the North Dakota Labor Department does an investigation, why is it that you have only 15 days to complain to the EEOC about the lack of investigation when it takes much longer than 15 days to even get your paperwork from the North Dakota Labor Department to see what they actually investigated?
A. Here's what Labor Commissioner Tony Weiler said:
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"Employer retaliation protection in North Dakota can be found at North Dakota Century Code section 34-01-20. For public employees, Section 34-11.1-04 provides guidance.
"Basically, under both sections of state law, an employer may not take any action against an employee who, in good faith, reports a violation or suspected violation of state or federal law. An employer who willfully violates Section 34-01-20 is guilty of an infraction. Further, an employee asserting a violation of Section 34-01-20 may bring a civil action.
"A public employee has to follow certain administrative steps under Section 34-11.1-04 and has remedies under the Administrative Agencies Practice Act and through state district court.
"Under both sections, the North Dakota Department of Labor can receive complaints of violations of this section but does not have any investigative powers under state law and may only attempt to obtain voluntary compliance of this section through informal advice, negotiation or conciliation.
"If a person wants assistance from the Department of Labor, they may file a complaint within 300 days of the alleged act.
"In 2009, the department opened 27 charges of retaliation and closed 39. Thirty-six were closed administratively, two were settled,and one was withdrawn. Administrative closure means no settlement could be reached between the parties so the complaint was closed, and the charging party was advised of the right to pursue a civil action.
"In 2010 (to date), the department has opened 30 charges of retaliation and closed 32. Thirty were closed administratively, one was settled and one was withdrawn. No determination is made by the department on the merits of the claim in any case.
"If the North Dakota Department of Labor determines there is no cause to pursue a case under federal equal employment opportunity laws, a claimant is free to seek a 'substantial weight review' from the Federal Equal Employment Opportunity Commission.
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"Based on federal law, this must be done within 15 days. All requests to the Department of Labor are subject to North Dakota's open records laws. The Department of Labor strives to respond within a reasonable time to all requests, but certain confidential material must be redacted.
"The amount of time this takes can vary depending on the size of the file. Sometimes, this takes more than 15 days, but other times, it takes less."
(Note: Readers, you can find the Century Code listed above at www.legis.nd.gov/cencode/t34c01.pdf and www.legis.nd.gov/cencode/ t34c111.pdf . The Administrative Agencies Practice Act is at www.legis.nd.gov/cencode/t28c32.pdf .)
And here's the response provided by Pat Seaworth, general counsel for the North Dakota University System:
"The State Board of Higher Education has adopted a Code of Conduct and requires that each University System institution have a Code of Conduct requiring reporting of suspected violations of the code -- including fraud or other unlawful conduct -- to the employee's supervisor, some other manager or administrator, or legal counsel.
"Every 'benefited' employee (generally, employees who work at least one-half time in a regular position) annually must certify that the employee has reviewed the code. In addition, the University System maintains an anonymous fraud hot line for reporting suspected violations.
"Fraud hot line reports are simultaneously filed with the appropriate campus and the University System office. The system office monitors these reports for proper handling.
"The board, chancellor and institution presidents are ultimately responsible and accountable for management of the university system and ensuring compliance with applicable laws and regulations.
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"Accordingly, unless allegations implicate those officers, it makes sense that investigations are conducted under direction of University System officers. However, in the event of a credible allegation of a crime (for example, embezzlement or theft of property), University System officials will forward the information to law enforcement officials and cooperate with a criminal investigation.
"In addition to making referrals to law enforcement agencies, University System officials may request assistance of an external investigator or retain a third party to conduct an investigation if the institution or system lacks resources or expertise to conduct an investigation.
"In addition to 'whistleblower protection' under state law, board policy provides protection against retaliation for any University System employee who in good faith reports suspected fraud or other violations.
"In other words, a University System entity may not take any adverse action against an employee in retaliation for a report made or complaint filed in good faith by that employee alleging wrongdoing, including suspected fraud or other law or policy violations by a supervisor or administrator."
(Note: The University System said 15 anonymous fraud hot line reports have been received so far this year. The hot line number is 866-91-ALERT or www.
eidebailly.com/hotline).
Do you have a question for a North Dakota state government official or agency? Send us your question, and we'll do our best to find an answer.
E-mail politics@wday.com (Subject: Ask your government).
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You may also write to Teri Finneman c/o Forum Communications, Press Room, State Capitol, Bismarck, ND 58505.
Please include your name, town and a phone number to reach you for verification.
Finneman is a multimedia reporter for Forum Communications Co., which owns the Herald.
