SAFE-T Act: Whistleblower Protections Added to the Public Officer Prohibited Activities Act

On July 1, 2021, many of the provisions of the recently signed criminal justice reform bill “SAFE-T Act” will go into effect. Among these is a new whistleblower protection provision under the Public Officer Prohibited Activities Act.

The SAFE-T Act amends the Public Officer Prohibited Activities Act and prohibits a unit of local government, any agent or representative of a unit of local government, or another employee from retaliating against an employee or contractor who:

1. Reports an improper governmental action as defined under Section 4.1;
2. Cooperates with an investigation by an auditing official related to a report of improper governmental action; or
3. Testifies in a proceeding or prosecution arising out of an improper governmental action.

In order to qualify for these whistleblower protections, an employee must make a written report of the improper governmental action to the appropriate auditing official. If the employee believes retaliation has occurred in violation of Section 4.1 of the Public Officer Prohibited Activities Act, said employee must submit a written report to the auditing official within 60 days of gaining knowledge of the retaliatory action (or a State’s Attorney if the auditor is the individual doing the improper governmental action). To the extent allowed by law, the identity of an employee reporting information about an improper governmental action shall be kept confidential unless said complainant waives confidentiality in writing. Reasonable measures by the auditor may be taken to protect whistleblowers who reasonably believe they may be subject to bodily harm for reporting such improper government actions.

Said auditor must establish written processes and procedures for managing complaints filed under this new Section 4.1, and shall investigate and dispose of reports of improper governmental action in accordance with those processes and procedures. In the case of the auditor concluding that either an improper governmental action has taken place or that the relevant unit of local government, department, agency, or supervisory officials have hindered the auditor’s investigation into the report, the auditing official must notify (in writing) the chief executive of the local government and anyone else the auditor deems necessary.

The auditor has discretion to transfer any report to another auditing official for investigation if the auditor deems it appropriate including, but not limited to, the appropriate State’s Attorney.

An auditor may reinstate, reimburse for lost wages or expenses incurred, promote, or provide some other form of restitution to the whistleblower, as well as make the findings of the investigation available for the purposes of aiding in the whistleblower or whistleblower’s attorney’s effort to make the employee whole if restitution alone will not suffice (in the determination of the auditor).

Anyone who engages in prohibited retaliatory action is subject to a fine of $500 – $5,000, suspension without pay, demotion, discharge, civil or criminal prosecution, or any combination of these penalties.

Every employee must receive a complete copy or summary of Section 4.1 upon starting employment and at least once each year of employment thereafter. Additionally, employees shall also receive a copy of the written processes and procedures for reporting improper governmental actions from the applicable auditing official.