Does an Arkansas public employee have to try voluntary mediation before suing under the Whistleblower Act, and can civil-service rules block a whistleblower lawsuit?

Plain-English summary

State Representative David Kizzia asked AG Dustin McDaniel two questions about how the Arkansas Whistleblower Act (A.C.A. § 21-1-601 et seq.) interacts with mediation and with civil service rules:

1. Does the WBA require an employee to undergo "voluntary mediation" before filing suit?
2. If civil service rules would bar an administrative appeal of a particular disciplinary action, does that bar also prevent a WBA lawsuit?

The AG answered no to both.

On mediation: the WBA tells the Office of Personnel Management to set up a mediation program, and says that the employee or employer "may voluntarily participate" if they wish. The next subsection says "voluntary mediation shall occur before a civil action ... has been initiated." Read together, the AG concluded these mean (1) mediation is genuinely optional, the employee chooses whether to use it, and (2) the timing rule is just that if the employee wants mediation, it has to happen before the lawsuit is filed. After filing, the OPM mediation door closes. The provisions do not condition the right to sue on first attempting mediation.

On civil service: the WBA creates a separate, freestanding cause of action. An employee who suffers an "adverse action" because of whistleblowing can choose the WBA path even if the civil service rules would not have allowed an internal administrative appeal of that same action. The two systems run on parallel tracks. Nothing in either the WBA or the civil service statutes (A.C.A. §§ 14-49-304, 14-50-304, 14-51-301) makes the WBA remedy contingent on the existence of a civil service appeal.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Is voluntary mediation required before filing a whistleblower lawsuit in Arkansas?
Under the 2014 reading of the WBA, no. The mediation provisions in A.C.A. § 21-1-604(f) describe a mediation program that the Office of Personnel Management may set up. Participation is "voluntary" both in name and in operation: the employee chooses whether to invoke it. The "shall occur before a civil action" language sets a timing rule for those who want mediation, not a precondition to suing.

What's the "adverse action" the WBA protects against?
The WBA defines "adverse action" to include a range of employer actions taken in retaliation for protected whistleblowing activity, including terminations, suspensions, demotions, transfers, and other measures that materially harm the employee. An adverse action can fall short of termination or long suspension and still trigger WBA protection.

Can a civil service employee file a WBA lawsuit even if internal rules say the discipline isn't appealable?
Yes. The WBA creates its own remedy. If an employee suffers an adverse action that qualifies under the WBA, that employee can file a civil action under A.C.A. § 21-1-604(a) regardless of what the civil service rules say about administrative appeals. The two remedies are independent.

Why are civil service appeals and WBA suits treated separately?
The civil service statutes are designed to give employees a structured internal review of certain employment decisions, typically the most severe ones (terminations and longer suspensions). The WBA is a substantive protection against retaliation for whistleblowing. The legislature chose to protect whistleblowers in addition to whatever civil service protections might otherwise apply.

What happens to a pending mediation if the employee files suit?
Once the lawsuit is filed, the OPM mediation option closes. The AG read A.C.A. § 21-1-604(f)(2)'s "shall occur before a civil action ... has been initiated" as a one-way timing gate. After filing, the parties are in the litigation track. They can still settle privately or through court-supervised mediation, but the WBA's specific OPM mediation program is no longer available.

Where is the Arkansas Whistleblower Act located in the code?
A.C.A. § 21-1-601 et seq. The right-to-sue provision is A.C.A. § 21-1-604(a). The OPM mediation provisions are A.C.A. § 21-1-604(f).

Background and statutory framework

The Arkansas Whistleblower Act creates a cause of action for public employees who suffer retaliation after reporting waste, fraud, or violations of law. Key pieces:

• A.C.A. § 21-1-604(a): a public employee who alleges a WBA violation "may bring a civil action for appropriate injunctive relief or actual damages." No mediation precondition appears in this subsection.
• A.C.A. § 21-1-604(f)(1): in the event OPM implements an employee grievance mediation program, the employee or employer "may voluntarily participate in mediation under the office's mediation program if either one wishes to resolve a dispute." The triple use of "voluntarily / may / wishes" is what the AG hung the discretionary reading on.
• A.C.A. § 21-1-604(f)(2): "voluntary mediation shall occur before a civil action ... has been initiated in court." Read as a timing rule for those who choose mediation.

The civil service statutes the request cited (A.C.A. §§ 14-49-304, 14-50-304, 14-51-301) govern police, firefighter, and similar civil service appeals. They typically limit appealable actions to terminations and longer suspensions. The AG concluded these statutes do not occupy the field of public-employee retaliation remedies; the WBA sits alongside them.

Citations

• A.C.A. § 21-1-601 et seq. (Arkansas Whistleblower Act)
• A.C.A. § 21-1-604(a) (Repl. 2004) (right to bring civil action under WBA)
• A.C.A. § 21-1-604(f)(1) (voluntary OPM mediation program)
• A.C.A. § 21-1-604(f)(2) (mediation timing rule)
• A.C.A. § 14-49-304 (cited civil service appeal provision)
• A.C.A. § 14-50-304 (cited civil service appeal provision)
• A.C.A. § 14-51-301 (cited civil service appeal provision)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-044

June 23, 2014

The Honorable David Kizzia
State Representative

124 West 2nd Street

Malvern, Arkansas 72104-3708

Dear Representative Kizzia:

You have requested my opinion about the Arkansas Whistle-Blower Act ("WBA")
(codified at A.C.A. § 21-1-601 et seq.) and its relationship to the civil service rules
(you specifically cite A.C.A. §§ 14-49-304, 14-50-304, and 14-51-301). I have
combined the background information you have provided with your two questions
as follows:

1. The WBA authorizes public employees who suffer an "adverse
   action" to file a lawsuit in the appropriate circuit court. The WBA
   also states that if the Office of Personnel Management (OPM) has
   established a mediation program, then the public employee or
   employer "may voluntarily participate in mediation ... if either one
   wishes to resolve a dispute" about adverse action taken against the
   public employee. Yet the very next subsection of the WBA states
   that "[v]oluntary mediation shall occur before a civil action" has
   been initiated. (Emphases added.) Do these provisions establish that
   "voluntary mediation" is a prerequisite to filing a lawsuit under the
   WBA?

2. Certain public employees are subject to civil service rules that only
   allow appeals for terminations or for suspensions lasting at least
   three days. But the WBA allows an employee to appeal an "adverse
   action," which includes actions that fall short of a termination or

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable David Kizzia
State Representative
Opinion No. 2014-044

Page 2

suspension. Suppose that an employee suffered a disciplinary action
that cannot be appealed under the civil service rules but that qualifies
as an "adverse action" under the WBA. Does the fact that the civil
service rules bar an appeal affect the employee's ability to file a
lawsuit under the WBA?

RESPONSE

In my opinion, the answer to both questions is "no." Regarding the first question,
and for purposes of this opinion, the WBA establishes two rules governing the
relationship between mediation and litigation. First, the mediation program offered
by OPM is "voluntary" in the sense that an employee is free to initiate it or forgo
it. That is why the WBA speaks about the mediation process as "voluntary" and
hinges mediation on the "wishes" of the parties. Second, if a lawsuit has already
been initiated, then it is too late to agree to enter OPM's mediation program. That
is the meaning of the second part of the WBA where it states that the "voluntary
mediation" "shall occur" before the lawsuit is initiated. Regarding the second
question, The WBA provides a unique avenue for an employee to seek redress of
an alleged wrong. Such an employee has the discretion to choose the WBA as his
or her means of redress, regardless of what the civil service rules would otherwise
require. There is no provision in either the civil service rules or the WBA that
requires otherwise.

DISCUSSION

Question 1: Does the WBA require, as a prerequisite to filing a civil lawsuit, that
a public employee first undergo "voluntary mediation"?

No. In section 21-1-604(a), the WBA states that any "public employee who alleges
a violation" of the WBA "may bring a civil action for appropriate injunctive relief
or actual damages."¹ Section -604(a) does not condition the right to sue on the
occurrence of mediation. Yet subsection -604(f)(2) states that "[v]oluntary
mediation shall occur before a civil action in which the public employee and
public employer are parties has been initiated in court." On its face, the phrase
"voluntary mediation shall occur" is a bit confusing. But the confusion is easily
resolved when we examine what is meant by "mediation" and the sense in which
that mediation is "voluntary." After explaining these two terms, we will be able to
clearly answer your question.

¹ A.C.A. § 21-1-604(a) (Repl. 2004).

The Honorable David Kizzia
State Representative
Opinion No. 2014-044

Page 3

To understand what subsection -604(f)(2) means by "voluntary mediation," we
need to examine how those terms are used in subsection -604(f)(1), which
introduces them. When section -604(f) uses the term "mediation," it has a specific
type of mediation in mind. This is evident by how "mediation" is used in
subsection -604(f)(1):

In the event [that OPM] ... implements an employee grievance
mediation program, a public employee or public employer may
voluntarily participate in mediation under the office's mediation
program if either one wishes to resolve a dispute between them that
involves an adverse action taken against the public employee.

The foregoing provision indicates that when section -604(f) uses the term
"mediation," the term is referring to a very specific type of mediation: the
mediation program established by OPM. This is evident in two ways. First, the
entirety of subsection -604(f) is premised on the existence of the OPM mediation
program: "In the event the Office of Personnel Management ... implements an
employee grievance mediation program...." (Emphasis added.) Second, assuming
that the program exists, the "public employee or public employer may voluntarily
participate in mediation under the office's mediation program...." (Emphasis
added.)

Further, this type of mediation is "voluntary" in the sense that the public employee
has the discretion to initiate it or forgo it entirely. This is evident from
subsection -604(f)(1)'s statement that the "public employee or public employer
may voluntarily participate in mediation [in OPM's] ... program if either one
wishes to resolve a dispute between them...." (Emphases added.) This provision
makes clear that the employee's "participation" is "voluntary" in the sense that the
participation is entirely dependent on the employee's "wishes."

Given the foregoing understanding of the term "voluntary mediation," we must
then ask what subsection -604(f)(2) means when it states that "voluntary
mediation shall occur before a civil action ... has been initiated in court." In my
opinion, this provision means that if a given public employee wants to enter
OPM's mediation program, he or she must do so before filing suit. Once the
lawsuit has been filed, the employee no longer has the option to engage in OPM's
mediation program. Section -604(f) does not require public employees to engage
in "voluntary mediation" as a precondition to filing a lawsuit under the WBA.

The Honorable David Kizzia
State Representative
Opinion No. 2014-044

Page 4

Question 2: Suppose that a public employee suffers an "adverse action" under
the WBA. Suppose further that the civil service rules bar an administrative
appeal of that employment action. Does the fact that the civil service rules bar
an appeal have any impact on the employee's ability to file a lawsuit under the
WBA?

No. The WBA provides a unique avenue for an employee to seek redress of an
alleged wrong. When an employee alleges that he or she has suffered "adverse
action" as a result of blowing the whistle, then the employee has the discretion to
choose (1) whether to have that action reviewed, and (2) the procedure by which
the action is reviewed. That is, the employee has the discretion to choose the WBA
as his or her means of redress, regardless of what the civil service rules would
otherwise require. There is no provision in either the civil service rules or the
WBA that requires otherwise.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

Dustin McDaniel
Attorney General

DM:RO/cyh