S T A T E O F N E W Y O R K
________________________________________________________________________
5200--A
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
___________
Introduced by M. of A. BRODSKY, GALEF -- read once and referred to the
Committee on Labor -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public authorities law, the public service law, the
labor law, the civil service law and the executive law, in relation to
establishing a nuclear whistleblower access and assistance program
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The legislature finds that safe operation of the publicly
and privately owned nuclear-powered electric generating facilities with-
in the state is a matter of paramount public concern. The legislature
further finds that an essential component of any safety strategy is a
program which assures that employees who have first-hand knowledge of
potential safety problems can freely communicate their concerns without
fear of retaliation. Although laws and regulations exist at both the
state and federal level to protect whistleblowers, the legislature finds
that the purpose served by such laws will be furthered if an affirmative
program exists which encourages employees to come forward with safety-
related concerns. The legislature finds that the state, as the owner of
the power plants operated by the power authority of the state of New
York, has an interest and obligation to ensure that such facilities are
being managed in a way that provides the highest possible level of safe-
ty. The legislature also finds that the state has an interest in
protecting and an obligation to protect its citizens from the possible
hazards of privately owned nuclear-powered electric generating facili-
ties.
S 2. The public authorities law is amended by adding a new section
1873 to read as follows:
S 1873. NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM. 1.
"EMPLOYEES AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY" MEANS
THOSE PERSONS EMPLOYED AT PUBLICLY AND PRIVATELY OWNED NUCLEAR-POWERED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06962-02-9
A. 5200--A 2
ELECTRIC GENERATING FACILITIES, INCLUDING BUT NOT LIMITED TO: FULL-TIME
AND PART-TIME EMPLOYEES, CONTRACTORS, THOSE EMPLOYEES ON PROBATION, AND
TEMPORARY EMPLOYEES.
2. THE AUTHORITY, AFTER CONSULTATION WITH THE UNITED STATES NUCLEAR
REGULATORY COMMISSION, THE CHAIR OF THE PUBLIC SERVICE COMMISSION, AND
THE COMMISSIONER OF THE DEPARTMENT OF LABOR, SHALL ESTABLISH A NUCLEAR
WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM.
3. THE NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM SHALL
INCLUDE, AT A MINIMUM, THE FOLLOWING PROVISIONS:
(A) THE AUTHORITY SHALL EVALUATE AND COMMENT ON WHISTLEBLOWER PROGRAMS
PROPOSED BY OPERATORS OF NUCLEAR-POWERED ELECTRIC GENERATING FACILITIES
PURSUANT TO SECTION ONE THOUSAND FIVE OF THIS CHAPTER AND SECTION
SIXTY-FIVE OF THE PUBLIC SERVICE LAW;
(B) THE AUTHORITY SHALL ESTABLISH TOLL-FREE TELEPHONE AND FACSIMILE
LINES AVAILABLE TO CONTRACTORS, ADVOCATES SHIELDING THE IDENTITY OF
INSIDE WHISTLEBLOWERS, AND ALL PERSONS WITHIN THE STATE OF NEW YORK'S
NUCLEAR INDUSTRY WHO HAVE KNOWLEDGE OF ISSUES THAT AFFECT PUBLIC HEALTH
AND SAFETY. THE AUTHORITY SHALL OFFER:
(I) ADVICE REGARDING THE EMPLOYEE'S RIGHTS UNDER APPLICABLE STATE AND
FEDERAL LAWS AND ADVICE AND OPTIONS AVAILABLE TO ALL PERSONS;
(II) AN OPPORTUNITY FOR CONTRACTORS, ADVOCATES SHIELDING THE IDENTITY
OF INSIDE WHISTLEBLOWERS, AND ALL PERSONS WITHIN THE STATE OF NEW YORK'S
NUCLEAR INDUSTRY TO IDENTIFY CONCERNS REGARDING ANY SAFETY ISSUE AT A
NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, INCLUDING BUT NOT LIMITED
TO ANY VIOLATIONS OR POTENTIAL VIOLATIONS OF REGULATIONS OF THE NUCLEAR
REGULATORY COMMISSION;
(III) THE OPTION OF CONTACTING A NEUTRAL CONSULTANT FOR THE PURPOSE OF
SEEKING UNBIASED, NON-GOVERNMENTAL INFORMATION TO HELP RESOLVE SAFETY
CONCERNS;
(C) ANY COMMUNICATIONS BETWEEN AN EMPLOYEE AND THE AUTHORITY PURSUANT
TO THIS SECTION SHALL BE HELD STRICTLY CONFIDENTIAL BY THE AUTHORITY,
UNLESS THE EMPLOYEE SPECIFICALLY WAIVES IN WRITING THE RIGHT TO CONFI-
DENTIALITY (THE PERSON ALLEGING A SAFETY VIOLATION IS NOT REQUIRED TO
IDENTIFY HIMSELF/HERSELF) TO ANY ENTITY, INCLUDING THE NUCLEAR REGULATO-
RY COMMISSION;
(D) THE AUTHORITY SHALL PERFORM A PRELIMINARY EVALUATION OF ANY SAFETY
CONCERN IDENTIFIED BY A CALLER WITHIN SEVENTY-TWO HOURS AND GIVE THE
CALLER EVALUATION RIGHTS IF HE OR SHE SO DESIRES AND CONDUCT FOLLOW-UP
REPORTS EVERY TWO WEEKS THEREAFTER FOR AN APPROPRIATE LENGTH OF TIME TO
BE DETERMINED BY THE AUTHORITY;
(E) REGARDING ANY CONCERN FOR WHICH THE AUTHORITY LACKS SUFFICIENT
EXPERTISE TO REACH A CONCLUSION OR WHICH, IN THE AUTHORITY'S JUDGMENT,
REPRESENTS A SIGNIFICANT PUBLIC HEALTH OR SAFETY CONCERN, THE AUTHORITY
SHALL CONTACT THE UNITED STATES NUCLEAR REGULATORY COMMISSION, SHALL
COMMUNICATE SUCH CONCERN, AND SHALL MAINTAIN COMMUNICATIONS WITH THE
COMMISSION AND THE CALLER, WHENEVER POSSIBLE, REGARDING ANY INVESTI-
GATION OF SUCH CONCERN; AND
(F) THE AUTHORITY SHALL CONSULT WITH THE DEPARTMENT OF LAW REGARDING
ANY EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY WHO MAY
HAVE RECOURSE TO AN ACTION PURSUANT TO SECTION SEVEN HUNDRED FORTY OF
THE LABOR LAW OR SECTION SEVENTY-FIVE-B OF THE CIVIL SERVICE LAW.
4. WHETHER OR NOT THE AUTHORITY PROCEEDS, THE WHISTLEBLOWER, IF IDEN-
TIFIED OR THE ADVOCATE WHO IS SHIELDING THE IDENTITY OF AN INSIDE WHIST-
LEBLOWER, SHALL HAVE STANDING TO LITIGATE AND SHALL BE ENTITLED TO EXPE-
DITED PROCEEDINGS IN THE COURTS OF THIS STATE WITHOUT REGARD TO HAVING
EXHAUSTED ADMINISTRATIVE REMEDIES.
A. 5200--A 3
S 3. Section 1005 of the public authorities law is amended by adding
a new subdivision 16 to read as follows:
16. AT EACH NUCLEAR-POWERED ELECTRIC GENERATING FACILITY OWNED OR
OPERATED BY THE AUTHORITY, THE AUTHORITY SHALL ESTABLISH AND IMPLEMENT A
WHISTLEBLOWER PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS
SUBDIVISION, THE AUTHORITY SHALL SUBMIT TO THE NEW YORK STATE ENERGY
RESEARCH AND DEVELOPMENT AUTHORITY A PROPOSED PLAN FOR A PROGRAM TO
IMPLEMENT THE PURPOSES OF THIS SUBDIVISION. SUCH PROGRAM SHALL INCLUDE,
AT A MINIMUM:
(A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU-
NICATING SAFETY CONCERNS THAT AFFECT PUBLIC HEALTH AND SAFETY;
(B) EDUCATION REGARDING EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO
APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS, INCLUDING, TO THE
EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI-
NENT LOCATIONS WITHIN THE FACILITY OF THE TOLL-FREE TELEPHONE NUMBER
WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP-
MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM
ESTABLISHED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE OF THIS
CHAPTER.
S 4. Section 65 of the public service law is amended by adding a new
subdivision 12 to read as follows:
12. AT EACH NUCLEAR-POWERED ELECTRIC GENERATING FACILITY OWNED OR
OPERATED BY AN ELECTRIC CORPORATION, THE CORPORATION SHALL ESTABLISH AND
IMPLEMENT A WHISTLEBLOWER PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE
DATE OF THIS SUBDIVISION, THE CORPORATION SHALL SUBMIT TO THE NEW YORK
STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY A PROPOSED PLAN FOR A
PROGRAM TO IMPLEMENT THE PURPOSES OF THIS SUBDIVISION. SUCH PROGRAM
SHALL INCLUDE, AT A MINIMUM:
(A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU-
NICATING SAFETY CONCERNS;
(B) EDUCATION REGARDING EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO
APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS, INCLUDING, TO THE
EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI-
NENT LOCATIONS WITHIN THE FACILITY OF THE TOLL-FREE TELEPHONE NUMBER
WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP-
MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM.
S 5. Paragraph (a) of subdivision 2 of section 740 of the labor law,
as amended by chapter 442 of the laws of 2006, is amended to read as
follows:
(a) discloses, or threatens to disclose to a supervisor or to a public
body an activity, policy or practice of the employer that is in
violation of law, rule or regulation which violation creates and
presents a substantial and specific danger to the public health or safe-
ty, or which constitutes health care fraud, OR, IN THE CASE OF AN
EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, DISCLOSES OR
THREATENS TO DISCLOSE ANY PUBLIC HEALTH OR SAFETY CONCERN, REGARDLESS OF
WHETHER OR NOT SUCH CONCERN RELATES TO A VIOLATION OF A LAW, RULE, OR
REGULATION;
S 6. Subdivision 3 of section 740 of the labor law is amended by
adding a new undesignated paragraph to read as follows:
THIS SUBDIVISION SHALL NOT APPLY TO ANY DISCLOSURE MADE BY AN EMPLOYEE
AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, AS DEFINED PURSUANT
TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE OF THE PUBLIC AUTHORITIES LAW,
WHO BELIEVES IN GOOD-FAITH THAT A DISCLOSURE TO A SUPERVISOR WOULD BE
INCONSISTENT WITH THE FEDERAL OBSTRUCTION OF JUSTICE LAWS CODIFIED AT 18
U.S.C. 1512 OR THE ATOMIC ENERGY ACT/ENERGY REORGANIZATION ACT.
A. 5200--A 4
S 7. Paragraph (c) of subdivision 1 of section 75-b of the civil
service law, as added by chapter 660 of the laws of 1984, is amended to
read as follows:
(c) "Governmental body" shall mean (i) an officer, employee, agency,
department, division, bureau, board, commission, council, authority or
other body of a public employer, (ii) employee, committee, member, or
commission of the legislative branch of government, (iii) a represen-
tative, member or employee of a legislative body of a county, town,
village or any other political subdivision or civil division of the
state, (iv) a law enforcement agency or any member or employee of a law
enforcement agency, [or] (v) the judiciary or any employee of the judi-
ciary, (VI) EMPLOYEES AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY,
OR (VII) THE UNITED STATES NUCLEAR REGULATORY COMMISSION.
S 8. Paragraph (a) of subdivision 2 of section 75-b of the civil
service law, as amended by chapter 899 of the laws of 1986, is amended
to read as follows:
(a) A public employer shall not dismiss or take other disciplinary or
other adverse personnel action against a public employee regarding the
employee's employment because the employee discloses to a governmental
body information: (i) regarding a violation of a law, rule or regulation
which violation creates and presents a substantial and specific danger
to the public health or safety; [or] (ii) which the employee reasonably
believes to be true and reasonably believes constitutes an improper
governmental action; OR (III) FOR AN EMPLOYEE AT A NUCLEAR-POWERED ELEC-
TRIC GENERATING FACILITY, AS DEFINED PURSUANT TO SECTION EIGHTEEN
HUNDRED SEVENTY-THREE OF THE PUBLIC AUTHORITIES LAW, WHICH RELATES TO A
PUBLIC HEALTH OR SAFETY CONCERN, REGARDLESS OF WHETHER OR NOT SUCH
CONCERN RELATES TO A VIOLATION OF LAW, RULE, OR REGULATION. "Improper
governmental action" shall mean any action by a public employer or
employee, or an agent of such employer or employee, which is undertaken
in the performance of such agent's official duties, whether or not such
action is within the scope of his employment, and which is in violation
of any federal, state or local law, rule or regulation.
S 9. Paragraph (b) of subdivision 2 of section 75-b of the civil
service law, as added by chapter 660 of the laws of 1984, is amended to
read as follows:
(b) Prior to disclosing information pursuant to paragraph (a) of this
subdivision, an employee shall have made a good faith effort to provide
the appointing authority or his or her designee the information to be
disclosed and shall provide the appointing authority or designee a
reasonable time to take appropriate action unless there is imminent and
serious danger to public health or safety. For the purposes of this
subdivision, an employee who acts pursuant to this paragraph shall be
deemed to have disclosed information to a governmental body under para-
graph (a) of this subdivision. THIS PARAGRAPH SHALL NOT APPLY TO ANY
DISCLOSURE MADE BY AN EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING
FACILITY, AS DEFINED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE
OF THE PUBLIC AUTHORITIES LAW.
S 10. Section 63 of the executive law is amended by adding a new
subdivision 16 to read as follows:
16. BRING, UPON THE RECOMMENDATION OF THE NEW YORK STATE ENERGY
RESEARCH AND DEVELOPMENT AUTHORITY, ACTIONS PURSUANT TO SECTION SEVEN
HUNDRED FORTY OF THE LABOR LAW AND SECTION SEVENTY-FIVE-B OF THE CIVIL
SERVICE LAW ON BEHALF OF EMPLOYEES AT NUCLEAR-POWERED ELECTRIC GENERAT-
ING FACILITIES, AS DEFINED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVEN-
TY-THREE OF THE PUBLIC AUTHORITIES LAW.
A. 5200--A 5
S 11. This act shall take effect immediately.