75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 2782
 
                         House Bill 2717
 
Sponsored by Representative THOMPSON
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Allows court to award punitive damages in public employee
whistleblower case. Requires court to award attorney fees to
prevailing plaintiff in public employee whistleblower case.
  Requires Oregon Government Ethics Commission to appoint
ombudsman for public employees. Requires ombudsman to act as
advocate for public employees by accepting, investigating and
attempting to resolve complaints concerning alleged violations of
whistleblower laws.
 
                        A BILL FOR AN ACT
Relating to whistleblowing by public employees; creating new
  provisions; and amending ORS 659A.885.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 659A.885, as amended by section 12, chapter 100,
Oregon Laws 2007, section 8, chapter 180, Oregon Laws 2007,
section 3, chapter 278, Oregon Laws 2007, section 1, chapter 280,
Oregon Laws 2007, section 4, chapter 525, Oregon Laws 2007,
section 13, chapter 903, Oregon Laws 2007, and section 16,
chapter 36, Oregon Laws 2008, is amended to read:
  659A.885. (1) Any person claiming to be aggrieved by an
unlawful practice  { + in violation of a statute + } specified in
subsection (2) of this section may file a civil action in circuit
court. In any action under this subsection, the court may order
injunctive relief and any other equitable relief that may be
appropriate, including but not limited to reinstatement or the
hiring of employees with or without back pay. A court may order
back pay in an action under this subsection only for the two-year
period immediately preceding the filing of a complaint under ORS
659A.820 with the Commissioner of the Bureau of Labor and
Industries, or if a complaint was not filed before the action was
commenced, the two-year period immediately preceding the filing
of the action. In any action under this subsection, the court may
allow the prevailing party costs and reasonable attorney fees at
trial and on appeal. Except as provided in subsection (3) of this
section:
  (a) The judge shall determine the facts in an action under this
subsection; and
  (b) Upon any appeal of a judgment in an action under this
subsection, the appellate court shall review the judgment
pursuant to the standard established by ORS 19.415 (3).
 
  (2) An action may be brought under subsection (1) of this
section alleging a violation of ORS 25.337, 25.424, 171.120,
399.235, 408.230, 476.574, 652.355, 653.060, 659A.030, 659A.040,
659A.043, 659A.046, 659A.063, 659A.069, 659A.100 to 659A.145,
659A.150 to 659A.186, 659A.194, 659A.203, 659A.218, 659A.230,
659A.233, 659A.236, 659A.250 to 659A.262, 659A.277, 659A.300,
659A.306, 659A.309, 659A.315, 659A.318 or 659A.421.
  (3) In any action under subsection (1) of this section alleging
a violation of ORS 25.337, 25.424, 659A.030, 659A.040, 659A.043,
659A.046, 659A.069, 659A.100 to 659A.145, 659A.230, 659A.250 to
659A.262, 659A.318 or 659A.421:
  (a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory damages or
$200, whichever is greater, and punitive damages;
  (b) At the request of any party, the action shall be tried to a
jury;
  (c) Upon appeal of any judgment finding a violation, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1); and
  (d) Any attorney fee agreement shall be subject to approval by
the court.
  (4) In any action under subsection (1) of this section alleging
a violation of ORS 652.355 or 653.060, the court may award, in
addition to the relief authorized under subsection (1) of this
section, compensatory damages or $200, whichever is greater.
  (5) In any action under subsection (1) of this section alleging
a violation of ORS 171.120, 476.574, 659A.203 or 659A.218
 { - , - }  { + :
  (a) + } The court may award, in addition to the relief
authorized under subsection (1) of this section, compensatory
damages or $250, whichever is greater { + , and punitive damages;
and
  (b) The court shall award a prevailing plaintiff costs and
reasonable attorney fees at trial and on appeal. The amount of
attorney fees awarded under this paragraph may not exceed the
amount of attorney fees paid by the public employer to defend the
action + }.
  (6) Any individual against whom any distinction, discrimination
or restriction on account of race, color, religion, sex, sexual
orientation, national origin, marital status or age, if the
individual is 18 years of age or older, has been made by any
place of public accommodation, as defined in ORS 659A.400, by any
employee or person acting on behalf of the place or by any person
aiding or abetting the place or person in violation of ORS
659A.406 may bring an action against the operator or manager of
the place, the employee or person acting on behalf of the place
or the aider or abettor of the place or person. Notwithstanding
subsection (1) of this section, in an action under this
subsection:
  (a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory and punitive
damages;
  (b) The operator or manager of the place of public
accommodation, the employee or person acting on behalf of the
place, and any aider or abettor shall be jointly and severally
liable for all damages awarded in the action;
  (c) At the request of any party, the action shall be tried to a
jury;
  (d) The court shall award reasonable attorney fees to a
prevailing plaintiff;
  (e) The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails only if the
court determines that the plaintiff had no objectively reasonable
basis for asserting a claim or no reasonable basis for appealing
an adverse decision of a trial court; and
 
  (f) Upon any appeal of a judgment under this subsection, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1).
  (7) When the commissioner or the Attorney General has
reasonable cause to believe that a person or group of persons is
engaged in a pattern or practice of resistance to the rights
protected by ORS 659A.145 or 659A.421 or federal housing law, or
that a group of persons has been denied any of the rights
protected by ORS 659A.145 or 659A.421 or federal housing law, the
commissioner or the Attorney General may file a civil action on
behalf of the aggrieved persons in the same manner as a person or
group of persons may file a civil action under this section. In a
civil action filed under this subsection, the court may assess
against the respondent, in addition to the relief authorized
under subsections (1) and (3) of this section, a civil penalty:
  (a) In an amount not exceeding $50,000 for a first violation;
and
  (b) In an amount not exceeding $100,000 for any subsequent
violation.
  (8) In any action under subsection (1) of this section alleging
a violation of ORS 659A.145 or 659A.421 or alleging
discrimination under federal housing law, when the commissioner
is pursuing the action on behalf of an aggrieved complainant, the
court shall award reasonable attorney fees to the commissioner if
the commissioner prevails in the action. The court may award
reasonable attorney fees and expert witness fees incurred by a
defendant that prevails in the action if the court determines
that the commissioner had no objectively reasonable basis for
asserting the claim or for appealing an adverse decision of the
trial court.
  (9) In an action under subsection (1) or (7) of this section
alleging a violation of ORS 659A.145 or 659A.421 or
discrimination under federal housing law:
  (a) 'Aggrieved person' includes a person who believes that the
person:
  (A) Has been injured by an unlawful practice or discriminatory
housing practice; or
  (B) Will be injured by an unlawful practice or discriminatory
housing practice that is about to occur.
  (b) An aggrieved person in regard to issues to be determined in
an action may intervene as of right in the action. The Attorney
General may intervene in the action if the Attorney General
certifies that the case is of general public importance. The
court may allow an intervenor prevailing party costs and
reasonable attorney fees at trial and on appeal.
  SECTION 2.  { + (1) The Oregon Government Ethics Commission
shall appoint an ombudsman for public employees. The ombudsman is
under the supervision and control of the commission and the
commission may terminate the ombudsman.
  (2) The ombudsman for public employees shall:
  (a) Act as an advocate for public employees by accepting,
investigating and attempting to resolve complaints concerning
alleged unlawful employment practices under ORS 659A.200 to
659A.224, 659A.230, 659A.233 or 659A.236;
  (b) Provide information to public employees to enable them to
protect their rights under ORS 659A.200 to 659A.224, 659A.230,
659A.233 and 659A.236; and
  (c) Report to the Governor and the commission in writing at
least once each quarter. A report shall include a summary of the
services that the ombudsman provided during the quarter and the
ombudsman's recommendations for improving ombudsman services and
for protecting public employees' rights under ORS 659A.200 to
659A.224, 659A.230, 659A.233 and 659A.236. + }
  SECTION 3.  { + The amendments to ORS 659A.885 by section 1 of
this 2009 Act apply only to civil actions filed on or after the
effective date of this 2009 Act. + }
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