At least two lawmakers are working on a drafts for the next legislative session to address the state's protection of its whistleblowers.

Rep. Tracy Potter, D-Bismarck, submitted a draft of a bill to the Legislative Council in an effort to better define the winding path a state employee must go down when reporting perceived violations in the workplace.

Rep. Pam Gulleson, D-Rutland, also is drafting a bill that "ensures the law is meaningful in terms of providing protection …"

Currently, a state employee is ensured protection under the North Dakota Century Code, chapter 34-11.1, the public employees relations act; the act says an employee may report, without fear of reprisal, in writing to the employee's respective agency head, a state's attorney, the attorney general or an employee organization a job-related violation or misuse of public resources.

For doing so, an employer should not retaliate against an employee.

But the law seems to provide little by way of protection, perhaps only leaving an employee who may have been a victim of retaliation to follow up with a civil suit or to wait to see if the complaint of retaliation will be investigated and prosecuted.

Attorney General Wayne Stenehjem and Burleigh County State's Attorney Richard Riha have cited conflicts of interest with at least one agency that's seen the most recent eruption of whistleblower requests - Workforce Safety and Insurance.

Five employees have filed for whistleblower protection from WSI, the state's workers' compensation agency, citing concerns of retaliation for reporting a myriad of issues.

One, Jim Long, chief of support services, was put on paid administrative leave shortly after sending a 30-page document, which outlined perceived violations, including open meetings circumvention and disclosure of confidential information, among others, to the North Dakota Highway Patrol.

Another whistleblower, Todd Flanagan in the special investigations unit, was fired in early December.

Shortly thereafter, Stenehjem requested a highway patrol investigation into whether there was evidence of retaliation; that investigation, along with Long's 30-page document, was given to Grand Forks' State's Attorney Peter Welte.

Welte, who was at the North Dakota State's Attorneys Association conference in Mandan this week, said his office has just begun reviewing the investigation.

"We haven't had time to completely review it, but we're in the process of doing that,"he said.

Afurther section of North Dakota employment law, NDCC 34-01-20, provides only for private employees, ultimately allowing for civil action or mediation by the Department of Labor; however, the Department of Labor has no authority to investigate or enforce a complaint, only to act as a mediator between the company and the employee, said Lisa Fair McEvers, commissioner of the Department of Labor.

The department does, however, investigate retaliation in relation to other complaints, but not for whistleblowers, she said.

The two bills would seek to change the Department of Labor's role.

Potter's bill would actually require the employee report the initial violation to the state auditor's office, which would be given the authority to investigate the claim. The auditor's office would then put its stamp of approval or disapproval on the claim.

"The auditor is an elected official,"Potter said. "Ithink it ought to be someone who is responsible to the taxpayers of North Dakota."

Bob Peterson, state auditor, said the office has attempted to pass legislation giving them such investigative authority at least two times; both times, the bill has failed.

"It would have allowed us just to walk over there, to just go over there and take a look without doing all the steps that are required for a formal audit,"Peterson said. After the informal investigation, the office would decide whether an formal audit were in order.

"If there was something there, then we would have to make a determination as to the immediacy of it,"he said. "And of course, we would have to act."

Potter's proposed bill then puts the responsibility of investigating retaliation in the hands of the Department of Labor.

Gulleson's bill uses similar reasoning, but keeps the filing of the violation and the protection of the employee all within the Department of Labor. In fact, her bill also would require the department to investigate when a complaint is filed.

"It also says that the state agency must cooperate and participate in the investigation,"she said. "Because right now, there's no requirement in the law that they have to be cooperative."

Both Potter and Gulleson expressed concerns that the current law does not clearly define a state employee's recourse for retaliation, leaving state employees with little confidence in bringing their concerns forward.

"It's just a chilling effect on the free exchange of information,"Potter said of the law.