The letter begins: “It is with a heavy heart that I make this disclosure.” As reported by the media, the recent letter was sent by an unnamed whistleblower to the Arizona Attorney General and the Arizona Corporation Commission. The letter alleged that a former Commissioner had held numerous secret meetings with representatives of the Arizona Public Service [APS] that helped to derail electric competition, reduce incentives for solar energy, and brought into question recent rate increases by the utility. The letter alleged that the whistleblower was instructed to do as he was told and that if he kept secret, he would be made a deputy director; if did not keep quiet, veiled threats of future “misfortunes” to befall him were made.
“Misfortunes” can cover any number of actions, including termination of employment. These very recent allegations raise the question of what protection does Arizona provide to someone who blows the whistle on what they believe to be illegal or improper activities by their employer.
The Arizona whistleblower law
Under current Arizona law, an employer is prohibited from terminating an employee in retaliation for refusing to commit an act when such an act would violate the Arizona Constitution or state laws. The prohibition also extends to “reasonable” employee disclosures that the employee, or the employer or another employee will violate Arizona law and either makes that disclosure to someone the employee reasonable believes in a managerial or supervisory position with the authority to take corrective action, or discloses it to an employee of a state or local agency.
There are several things that should be pointed out about this law. First, the prohibition against employers only covers the termination of an employee but does not cover personnel actions that fall short of termination, such as demotion, failure to promote, or a change in working conditions. Second, in order to be protected, the disclosure must be reporting an action that is violation of Arizona law. Disclosure of an act that may be immoral, unfair, or unethical is not protected unless it violates state law. The Arizona Court of Appeals in Harris v. GoDaddy.Com, Inc. recently affirmed another limitation of the whistleblower law: Disclosures of possible violations of federal law or regulation are not covered under the law. A final caution about the Arizona law: Disclosures to the media have no protection.
Seeking experienced representation
Other laws may be implicated in disclosures by employees of employer wrongdoing and other protections may be available. Anyone who is contemplating becoming a whistleblower, and anyone who has suffered an adverse employment action because of disclosing an employer’s actions should consult with an Arizona attorney who is experienced in litigating employment law cases.