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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 10

WHISTLEBLOWING DISCLOSURES BY EMPLOYEES

839-010-0000

Purpose and Scope

(1) The Civil Rights Division of the Oregon Bureau of Labor and Industries enforces the provisions of ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233 and S.B. 148, 77th Leg., Reg. Session (Or. 2013), prohibiting discrimination based on whistleblowing disclosures or activities that are described in the statutes. These rules apply to all such complaints and inquiries received on or after the effective date of these rules.

(2) The purpose of these rules is to clarify the provisions of the statutes.

(3) In accordance with ORS 659A.820, an individual claiming a violation of 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233, or these rules, may file a complaint with the Civil Rights Division, as provided in OAR 839-003-0025.

Stat. Auth.: ORS 652.355, 653.060, 659A.221, 659A.805.
Stats. Implemented: ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 - 659A.233, S.B. 148, 77th Leg., Reg. Session (Or. 2013)
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 12-2013, f. & cert. ef. 12-30-13

Disclosures by Public Employees

839-010-0010

Definitions

As used in ORS 659A.200 to 659A.224 and these rules:

(1) "Abuse of authority" means to deliberately exceed or make improper use of delegated or inherent authority or to employ it in an illegal manner.

(2) "Agency" for the purposes of OAR 839-010-0010 to 839-010-0060 refers to the state or any agency of or political subdivision in the state.

(3) "Disciplinary action" means any adverse action including dismissal, demotion, transfer, reassignment, supervisory reprimand, warning of possible dismissal, or withholding of work, whether or not the action affects or will affect employee compensation.

(4) "Disclosure" means a formal or informal internal or extra-agency communication, not including a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee providing the disclosure reasonably believes that the disclosure evidences:

(a) A violation of any federal or state law, rule, or regulation by the agency;

(b) Mismanagement;

(c) Gross misuse or waste of public resources or funds;

(d) Abuse of authority in connection with the administration of a public program or the execution of a public contract; or

(e) A substantial and specific danger to public health or safety resulting from agency action.

(5) "Employee" means a person employed by or under contract with:

(a) The state or any agency of or political subdivision in the state;

(b) Any person authorized to act on behalf of the state, or agency of the state or subdivision in the state, with respect to control, management or supervision of any employee;

(c) Employees of the public corporation created under ORS 656.751;

(d) Employees of a contractor who performs services for the state, agency or subdivision, other than employees of a contractor under contract to construct a public improvement; and

(e) Any person authorized by contract to act on behalf of the state, agency or subdivision.

(6) "Gross waste of funds" means an expenditure that is significantly out of proportion to the benefit expected to accrue to the agency and is more than a debatable expenditure.

(7) "Mismanagement" means serious agency misconduct having the effect of actually or potentially undermining the agency's ability to fulfill its public mission.

(8) "Public employer" means:

(a) The state or any agency of or political subdivision in the state; and

(b) Any person authorized to act on behalf of the state, or any agency of or political subdivision in the state, with respect to control, management or supervision of any employee.

(9) "Reckless disregard for its truth or falsity" means a conscious disregard of a substantial and justifiable risk that the information disclosed is false.

(10) "Substantial and specific danger" means a specified risk of serious injury, illness, peril or loss, to which the exposure of the public is a gross deviation from the standard of care or competence that a reasonable person would observe in the same situation.

Stat. Auth.: ORS 659A.805 & 659A.221
Stats. Implemented: ORS 659A.233 & 659A.200 - 659A.224
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08

839-010-0020

Prohibited Discrimination by Public Employers

(1) Oregon public employee whistleblower statutes prohibit public employers from taking action against or prohibiting employees from:

(a) Responding to legislative requests;

(b) Disclosing information the employee believes is evidence of violation of laws or disclosing evidence of mismanagement, gross waste or abuse of authority; or

(c) Reporting public endangerment resulting from an action by a public employer.

(2) No public employer may require an employee to give notice prior to making any disclosure described in sections (1)(a), (b) and (c) of this rule.

(3) No public employer may identify the employee who discloses the following information during any investigation of the information provided by the employee without the written consent of the employee:

(a) Matters described in ORS 659A.203(1)(b); and

(b) Reports required by ORS 659A.206(2).

(4) No public employer may prohibit or take action against employees for disclosing that a person receiving public assistance is also subject to arrest.

Stat. Auth.: ORS 659A.805 & 659A.221
Stats. Implemented: ORS 659A.233 & 659A.200 - 659A.224
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08

839-010-0040

Discussions with Legislative Assembly Members

(1) ORS 659A.203(1)(a) and (d) prohibit a public employer from prohibiting, discouraging, restraining, dissuading, coercing or otherwise interfering with any employee responding to an official legislative request to discuss the activities of the state or any branch, agency or political subdivision thereof, or from discussing the activities of any person authorized to act on behalf of those entities.

(2) In order to be protected by ORS 659A.203(1)(a), a public employee must be responding to an official legislative request, whether orally or in writing. The request must be made by or at the direction of a Legislative Assembly member and must invite discussion with a Legislative Assembly member or legislative committee staff acting under the direction of a Legislative Assembly member;

(a) No employee may be required to inform the employer prior to engaging in the requested legislative discussion except when the legislative request for information is directed to the agency and the employee will speak or testify on behalf of the agency;

(b) Regarding legislative testimony or discussion with representatives of Legislative Assembly members, the whistleblower law is not intended to:

(A) Authorize an employee to represent the employee's personal opinions as the opinions of the agency or subdivision;

(B) Authorize an employee to disclose information required to be kept confidential under state or federal law, rule or regulation, or allow disclosure of records exempt from disclosure except as provided in ORS 192.501 to 192.505 or 659A.212;

(C) Prevent public employers from prohibiting employee disclosure of information of an advisory nature to the extent that it covers other than purely factual materials and is preliminary to any final agency determination of policy or action.

(3) An employee is not entitled to leave work without following the employer's applicable rules and policies pertaining to leave, unless the employee is requested by a Legislative Assembly member or a legislative committee to appear before a legislative committee. If the employee's testimony is so requested, the employee may elect to take personal time off in accordance with the employer's normal procedure.

(a) The employer may confirm the date and time for testimony but may not inquire into the substance of the testimony.

(b) The employer must excuse the employee's absence from work during the time required for testimony and travel to and from the location of the committee.

(c) If an employee appears to testify and testimony is not taken at the designated date and time, the absence must be treated in the same manner as if the testimony had been taken.

(d) If an employee is subsequently recalled to testify, the subsequent request must be treated by the employer and employee in the same manner an initial request is treated.

(e) An employee may take time off to testify following the employer's regular time off policy without notifying the employer of the purpose of the absence.

(4) No public employer may take any disciplinary action against an employee for employee activity described by ORS 659A.203(1)(a). An employer, however, is not precluded from taking disciplinary action if:

(a) The information disclosed by the employee is known to be false;

(b) The employee discloses the information with reckless disregard for its truth or falsity;

(c) The information disclosed relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health and safety.

Stat. Auth.: ORS 659A.805 & ORS 659A.221
Stats. Implemented: ORS 659A.200 - ORS 659A.224
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08

839-010-0050

Disclosure of Malfeasance

(1) ORS 659A.203(1)(b) and (d) require that a public employer not prohibit, discourage, restrain, dissuade, coerce, or otherwise interfere with any employee disclosing to any person, or take or threaten to take disciplinary action against an employee for disclosing any information that the employee reasonably believes is evidence of:

(a) A violation of any federal or state law, rule or regulation by action of the state agency or political subdivision;

(b) Mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision.

(2) No employee may be required to give notice to a public employer prior to making any disclosure described in ORS 659A.203. If the employee elects to give notice to an employer the employer must protect the employee against retaliatory or disciplinary action by its supervisory personnel for such disclosure.

(3) In making disclosures described in this rule, the whistleblower law is not intended to:

(a) Authorize an employee to represent the employee's personal opinions as the opinions of the agency or subdivision;

(b) Authorize an employee to disclose information required to be kept confidential under state or federal law, rule or regulation, or allow disclosure of records exempt from disclosure except as provided in ORS 192.501 to 192.505, or as required by ORS 659A.212; or

(c) Prevent public employers from prohibiting employee disclosure of information of an advisory nature to the extent that it covers other than purely factual materials and is preliminary to any final agency determination of policy or action.

(4) An employee is not entitled to leave the employee's assigned work areas during normal work hours without following applicable rules and policies pertaining to leaves, unless the employee is requested by a member of the Legislative Assembly or a legislative committee to appear before a legislative committee as described in OAR 839-010-0040(3).

(5)(a) No public employer may identify the employee who discloses matters described in this rule during any investigation of the information provided by the employee without the written consent of the employee.

(b) No supervisory or management employee of a public employer may reveal to an employee accused of malfeasance the identity of the employee who discloses matters described in ORS 659A.203 or reports described in ORS 659A.212.

(6) No public employer may take any disciplinary action against an employee for employee activity described by this section. An employer, however, is not precluded from taking disciplinary action if:

(a) The information disclosed is known by the employee to be false;

(b) The employee discloses the information with reckless disregard for its truth or falsity; or

(c) The information disclosed relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health or safety.

Stat. Auth.: ORS 659A.805 & ORS 659A.221

Stats. Implemented: ORS 659A.200 - ORS 659A.224
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-010-0060

Reports Concerning Arrest Warrants for State Beneficiaries

(1) Under ORS 659A.212, if a public employee reasonably believes that a person receiving services, benefits or assistance from the state or any agency or political subdivision thereof is subject to an arrest warrant, the public employee must promptly report this, or cause to be reported, to the employee's immediate supervisor or a person designated by the agency to receive such report. That recipient must promptly notify the Oregon State Police of the information supplied by the employee.

(2) Such report is authorized, notwithstanding confidentiality provisions of state or federal law, rule or regulation.

(3) No public employer may identify the employee who makes such a report or causes such a report to be made during any investigation of information provided by the employee without the written consent of the employee.

(4) No public employer may invoke or impose any disciplinary action against an employee for making a report required by ORS 659A.212. An employer, however, is not precluded from taking disciplinary action if the information disclosed by the employee is known to be false, or if the employee discloses the information with reckless disregard for its truth or falsity.

Stat. Auth.: ORS 659A.221
Stats. Implemented: ORS 659A.200 - ORS 659A.224
Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

Protection from Discrimination for Reporting Violations
of Law or Aiding Criminal, Civil or Administrative Proceeding

839-010-0100

Prohibited Discrimination by Employers

(1) ORS 659A.199 prohibits any employer with one or more employees in Oregon from discharging, demoting, suspending, or in any manner discriminating or retaliating against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information to anyone that the employee believes is evidence of a violation of any state or federal law, rule or regulation.

(2) ORS 659A.230 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against an employee because the employee has in good faith, or the employer believes the employee has:

(a) Reported to any person, orally or in writing, criminal activity by any person;

(b) Reported to any person, orally or in writing, any activity the employee believed to be criminal;

(c) Caused criminal charges to be brought against any person, whether by the complainant's information or by a complaint, as defined in ORS 131.005(3) and (4);

(d) Cooperated with a law enforcement agency criminal investigation, whether or not under subpoena;

(e) Brought a civil proceeding against an employer; or

(f) Testified at a civil proceeding or criminal trial, whether or not under subpoena. (With regard to civil proceedings, see also OAR 839-010-0140.)

(3) ORS 659A.233 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against a current, former, or any other employer's employee because the employee has in good faith:

(a) Reported possible violations of ORS chapter 441, ORS 443.400 to 443.455;

(b) Testified at an unemployment compensation hearing; or

(c) Testified at a hearing conducted pursuant to ORS chapter 657.

(4) ORS 652.355 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against a current, former, or any other employer's employee because:

(a) The employee has made a wage claim or has discussed with anyone, inquired of anyone, or consulted an attorney or agency about a wage claim; or

(b) The employee has caused to be instituted, has testified in or is about to testify in any proceedings under or related to ORS 652.310 to 652.414.

(5) ORS 659A.060 prohibits any employer with one or more employees in Oregon from discharging or in any other manner discriminating against a current, former, or any other employer's employee because:

(a) The employee has made an oral or written complaint to anyone that the employee has not been paid wages in accordance with ORS 653.010 to 653.261;

(b) The employee has caused to be instituted or is about to cause to be instituted or has testified or is about to testify in any proceeding under or related to ORS 653.010 to 653.261.

Stat. Auth.: ORS 659A.805, 652.355(2) & 653.060(2)
Stats. Implemented: ORS 659A.230, 652.355, 653.060, 659A.199
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BLI 6-1998, f. & cert. ef. 10-22-98; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 11-2010, f. & cert. ef. 2-24-10

839-010-0140

Protection in Activities Related to Civil Proceedings

Under ORS 659A.230 and these rules, an employee is protected in activities related to civil proceedings. A civil proceeding, as used in ORS 659A.230 and these rules, includes a proceeding before an administrative agency or a court. The employee is protected under the statute if:

(1) The employee has brought, in good faith, a civil proceeding against an employer.

(a) Bringing a civil proceeding, as used in ORS 659A.230 and the rules, includes filing complaints to or cooperation with administrative agencies as well as courts.

(b) An employee is considered to have initiated a civil proceeding when the employee has contacted an administrative agency the employee believes in good faith to have jurisdiction and the ability to sanction the employer.

(c) The employer against whom a civil proceeding is filed or initiated need not be the employee's current employer.

(2) The employee has testified in good faith, whether or not under subpoena, in any civil proceeding.

(3) The employer believes that the employee has engaged in the civil proceedings acts described above.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.230
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BL 10-1996, f. & cert. ef. 12-4-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 6-1998, f. & cert. ef. 10-22-98; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 11-2010, f. & cert. ef. 2-24-10

Whistleblowing Disclosures by Nursing Staff

839-010-0200

Statement of Purpose

(1) ORS 441.174 prohibits a hospital from retaliating against a nursing staff because the nursing staff has taken "whistleblower" actions detailed in the statute.

(2) The purpose of these rules is to clarify the provisions of the statutes.

(3) In accordance with ORS 441.178, an individual claiming a violation of ORS 441.174, or these rules, may file a complaint with the Civil Rights Division, as provided in OAR 839-003-0025.

Stat. Auth: ORS 659A.805 & 441.178
Stats. Implemented: ORS 441.174 & 441.178
Hist.: BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

839-010-0205

Definitions

For purposes of ORS 441.174 and these rules:

(1) "Affiliated hospital" means a hospital that has a business relationship with another hospital.

(2) "Hospital" means an acute inpatient care facility as defined in ORS 442.470 or a hospital as described in ORS 442.015:

(a) "Acute inpatient care facility" means a licensed hospital with an organized medical staff, with permanent facilities that include inpatient beds, and with comprehensive medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims. ORS 442.470.

(b) "Hospital" means a facility with an organized medical staff, with permanent facilities that include inpatient beds and with medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims, to provide treatment for the mentally ill or to provide treatment in special inpatient care facilities. ORS 442.015.

(3) "Manager" means a person who:

(a) Has authority to direct and control the work performance of nursing staff;

(b) Has authority to take corrective action regarding a violation of law or a rule or a violation of professional standards of practice, about which a nursing staff has complained; or

(c) Has been designated by a hospital to receive the notice described in ORS 441.174(2) and OAR 839-010-0210(1).

(4) "Nursing staff" means a registered nurse, a licensed practical nurse, a nursing assistant or any other assistive nursing personnel.

(5) "Public body" has the meaning given that term in ORS 30.260.

(6) "Retaliatory action" means the discharge, suspension, demotion, harassment, denial of employment or promotion, or layoff of a nursing staff, or other adverse action taken against a nursing staff in the terms or conditions of employment of the nursing staff by a hospital, because the nursing staff:

(a) Discloses or intends to disclose to a manager, a private accreditation organization or a public body an activity, policy or practice of the hospital or of a hospital that the nursing staff reasonably believes is in violation of law or a rule or is a violation of professional standards of practice that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public;

(b) Provides information to or testifies before a private accreditation organization or a public body conducting an investigation, hearing or inquiry into an alleged violation of law or rule or into an activity, policy or practice that may be in violation of professional standards of practice by a hospital that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public;

(c) Objects to or refuses to participate in any activity, policy or practice of a hospital that the nursing staff reasonably believes is in violation of law or rule or is a violation of professional standards of practice that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public; or

(d) Participates in a committee or peer review process or files a report or a complaint that discusses allegations of unsafe, dangerous or potentially dangerous care.

(7) For purposes of subsection (6) of this rule, "other adverse action" includes, but is not limited to:

(a) Constructive discharge as defined in OAR 839-005-0035;

(b) A significant or material change in a term or condition of employment, such as transferring a nursing staff to another location, shift or work schedule, or reducing work hours or remuneration for services;

(c) Making a decision that causes a significant or material change in an employment benefit;

(d) Removal of significant or material duties or responsibilities;

(e) Restriction or prohibition of access to the hospital or other facility, whether or not the action affects or will affect pay or other compensation;

(f) Withholding career-advancing opportunities such as training or participation in seminars or committees; or

(g) Supervisory reprimands, warnings of possible dismissal or withholding of work.

(8) For purposes of ORS 441.174 and these rules, a nursing staff "reasonably believes" if:

(a) A reasonable nursing staff in the circumstances would believe that an activity, policy or practice of a hospital:

(A) Is in violation of law or a rule or is in violation of professional standards of practice; or

(B) Poses a risk to the health, safety or welfare of a patient or the public; or

(b) An activity, policy or practice is in violation of law or rule or is in violation of professional standards of practice.

Stat. Auth.: ORS 659A.805 & 441.178
Stats. Implemented: ORS 441.172, 441.174 & 441.178
Hist.: BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

839-010-0210

Exceptions to Retaliatory Action

(1) Except as provided in section 2 of this rule, the protection against retaliatory action provided for in ORS 441.174(1) and OAR 839-010-0205(6) and (7) does not apply to a nursing staff unless the nursing staff, before making a disclosure to a private accreditation organization or a public body as described in ORS 441.174(1)(a) and OAR 839-010-0205(6)(a):

(a) Gives written notice to a manager of the hospital of the activity, policy, practice or violation of professional standards of practice that the nursing staff reasonably believes poses a risk to public health; and

(b) Provides the manager a reasonable opportunity to correct the activity, policy, practice or violation.

(2) A nursing staff is not required to comply with the provisions ORS 441.174(2) and OAR 839-010-0205(1) if the nursing staff:

(a) Is reasonably certain that the activity, policy, practice or violation is known to one or more managers of the hospital or an affiliated hospital and an emergency situation exists;

(b) Reasonably fears physical harm as a result of the disclosure; or

(c) Makes the disclosure to a private accreditation organization or a public body for the purpose of providing evidence of an activity, policy, practice or violation of a hospital or an affiliated hospital that the nursing staff reasonably believes is a crime.

(3) For the purposes of subsection (2) of this rule, a nursing staff "reasonably believes is a crime" means:

(a) The activity, policy, practice or violation of law or rule is a crime; or

(b) Whether or not the activity, policy, practice or violation of law or rule is a crime, a reasonable nursing staff in the circumstances would believe that it is a crime.

Stat. Auth: ORS 659A.805 & 441.178
Stats. Implemented: ORS 441.174
Hist.: BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

Whistleblowing Disclosures RegardingViolations of Election Laws

839-010-0300

Application

These rules apply to a person who pays money or offers other valuable consideration for obtaining signatures of electors on a state initiative, referendum, or recall petition or on a prospective petition of a state measure to be initiated.

Stat. Auth.: ORS 659A.805
Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 12-2013, f. & cert. ef. 12-30-13

839-010-0305

Unlawful Employment Practice

In addition to the conduct prohibited in ORS 659A.199, it is an unlawful employment practice for a person described in OAR 839-010-0300 to discriminate or retaliate against another person with respect to hire or tenure, compensation or other terms, conditions or privileges of employment for the reason that the person has in good faith reported information that the person believes is evidence of a violation of a state or federal election law, rule or regulation.

Stat. Auth.: ORS 659A.805
Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 12-2013, f. & cert. ef. 12-30-13

839-010-0310

Inspection

(1) The Commissioner of the Bureau of Labor and Industries may inspect the accounts of a chief petitioner of an initiative or referendum petition relating to a state measure who pays any person money or other valuable consideration to obtain signatures on the petition or prospective petition, under reasonable circumstances at any time before the deadline for filing signatures on the petition or during the period specified for retention of the accounts, as provided in S.B. 148, 77th Leg., Reg. Session (Or. 2013) Section 5.

(2) The right of inspection may be enforced by a writ of mandamus issued by any court of competent jurisdiction.

Stat. Auth.: ORS 659A.805
Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 12-2013, f. & cert. ef. 12-30-13

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