Reporting Improper Government Activity - Protection of Whistleblowers
San Francisco Campaign and Governmental Conduct Code
Article IV: Protection of Whistleblowers
SEC. 4.100. - FINDINGS.
SEC. 4.105. - COMPLAINTS OF IMPROPER GOVERNMENT ACTIVITY; INVESTIGATION PROCEDURES; REFERRAL TO OTHER AGENCIES.
SEC. 4.107. - COMPLAINTS BY CITIZENS AND EMPLOYEES; WHISTLEBLOWER PROGRAM.
SEC. 4.110. - DEFINITIONS.
SEC. 4.115. - PROTECTION OF WHISTLEBLOWERS.
SEC. 4.120. - CONFIDENTIALITY.
SEC. 4.123. - CONFIDENTIALITY PROTECTION FOR WHISTLEBLOWER PROGRAM COMPLAINANTS AND INVESTIGATIONS.
SEC. 4.125. - FURNISHING FALSE OR MISLEADING INFORMATION; DUTY TO COOPERATE.
SEC. 4.130. - REPORTS TO THE BOARD OF SUPERVISORS.
SEC. 4.135. - LIMITATION OF LIABILITY.
SEC. 4.100. - FINDINGS.
The City and County of San Francisco has a paramount interest in protecting the integrity of its government institutions. To further this interest, individuals should be encouraged to report to the City's Ethics Commission, Controller, District Attorney, City Attorney and the complainant's department possible violations of laws, regulations and rules governing the conduct of City officers and employees.
This Chapter protects all City officers and employees from retaliation for filing a complaint with, or providing information to, the Ethics Commission, Controller, District Attorney, City Attorney or complainant's department about improper government activity by City officers and employees.
This Chapter ensures that complaints that do not allege a violation of law over which the Ethics Commission or Controller has jurisdiction are directed to the appropriate agency for investigation and possible disciplinary or enforcement action.
Finally, this Chapter implements Charter Appendix Section F1.107. Section F1.107 directs the Controller, as City Services Auditor, to administer a whistleblower program and investigate reports of complaints concerning the misuse of City funds, improper activities by City officers and employees, deficiencies in the quality and delivery of government services, and wasteful and inefficient City government practices.
(Added by Ord. 71-00, File No. 000358, App. 4/28/2000; amended by Ord. 29-02, File No. 020017, App. 3/15/2002; Ord. 205-08, File No. 080019, 9/18/2008)
SEC. 4.105. - COMPLAINTS OF IMPROPER GOVERNMENT ACTIVITY; INVESTIGATION PROCEDURES; REFERRAL TO OTHER AGENCIES.
(a) COMPLAINTS. Any person may file a complaint with the Ethics Commission, Controller, District Attorney or City Attorney, or a written complaint with the complainant's department alleging that a City officer or employee has engaged in improper government activity by: violating local campaign finance, lobbying, conflicts of interest or governmental ethics laws, regulations or rules; violating the California Penal Code by misusing City resources; creating a specified and substantial danger to public health or safety by failing to perform duties required by the officer or employee's City position; or abusing his or her City position to advance a private interest.
(b) ETHICS COMMISSION COMPLAINT PROCEDURES. The Ethics Commission shall investigate complaints filed under this Section that allege violations of local campaign finance lobbying, conflicts of interest and governmental ethics laws pursuant to the procedures specified in Charter Section C3.699-13 and the regulations adopted thereunder. Nothing in this subsection shall preclude the Ethics Commission from referring any matter to any other City department, commission, board, officer or employee or to other government agencies for investigation and possible disciplinary or enforcement action. The Ethics Commission may require that any City department, commission, board, officer or employee report to the Ethics Commission on the referred matter.
(c) REFERRAL. The Ethics Commission shall refer complaints that do not allege a violation of law, regulation or rule that is within the Ethics Commission's jurisdiction to the appropriate agency for investigation and possible disciplinary or enforcement action. The Commission may conduct preliminary investigations into such complaints to determine whether the complaint contains sufficient information to warrant referral. The Ethics Commission may require that any City department, commission, board, officer or employee report to the Ethics Commission on the referred matter. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000; amended by Ord. 29-02, File No. 020017, App. 3/15/2002)
SEC. 4.107. - COMPLAINTS BY CITIZENS AND EMPLOYEES; WHISTLEBLOWER PROGRAM.
(a) WHISTLEBLOWER PROGRAM. The Controller shall administer and publicize a whistleblower and citizen complaint program for citizens and employees to report the misuse of City funds, improper activities by City officers and employees, deficiencies in the quality and delivery of government services, and wasteful and inefficient City government practices. The Controller shall investigate and otherwise attempt to resolve complaints reported to the Whistleblower Program. The Controller shall administer a hotline telephone number and website and publicize the hotline and website through press releases, public advertising and communications to City employees.
(b) REFERRAL OF CERTAIN COMPLAINTS. The Controller shall refer the following complaints as set forth in this Section:
(i) Those which another City agency is required by federal, state, or local law to adjudicate: To that agency;
(ii) Those which may be resolved through a grievance mechanism established by collective bargaining agreement or contract: To the official or agency designated in the agreement or contract;
(iii) Those which involve allegations of conduct which may constitute a violation of criminal law: To the District Attorney or other appropriate law enforcement agency;
(iv) Those which are subject to an existing, ongoing investigation by the District Attorney, City Attorney, or Ethics Commission, where the applicable official or Commission states in writing that investigation by the Controller would substantially impede or delay his, her or its own investigation of the matter: To the investigating office; and
(v) Those which allege conduct that may constitute a violation of governmental ethics law: to the Ethics Commission and the City Attorney.
Where the conduct that is the subject of the complaint may violate criminal law and any civil or administrative law, statute, ordinance or regulation, the Controller may take action on the noncriminal aspects of the matter under this Section even if a referral has been made to another agency under this Section.
If a complaint is referred under this Section, the Controller shall inform the complainant of the appropriate procedure for the resolution of the complaint.
(c) TRACKING AND INVESTIGATION. The Controller shall receive, track and investigate complaints made or referred to the Whistleblower Program. The investigation may include all steps that the Controller deems appropriate, including the review of the complaint and any documentary or other evidence provided with it, the gathering of any other relevant documents from any City department or other source, and interviews of the complainant and other persons with relevant information.
(d) INFORMATION PROVIDED UNDER PENALTY OF PERJURY. In those instances in which the Controller deems it appropriate, the Controller may require that persons making complaints or providing information swear to the truth of their statements by taking an oath administered by the Controller, or an agent of the Controller, or through written declarations made under penalty of penury under the laws of the State of California,
(e) REFERRAL AND RECOMMENDATION BY CONTROLLER. The Controller may refer the complaint to a City department for investigation, either before conducting an initial investigation or after doing so. and may recommend that a City department take specific action based on the Controller's initial investigation. Within 60 days of receiving a complaint for investigation or a recommendation by the Controller for specific action, or such other time as the Controller shall specify, the City department shall report to the Controller in writing the results of the department's investigation and any action that the department has taken in response to a recommendation by the Controller that the department take specific action.
(f) REPORT BY DEPARTMENT AND FURTHER ACTION BY CONTROLLER. If the Controller has recommended that a City department take disciplinary or other corrective action that the department has declined to take, the department shall report to the Controller its reasons for failing to do so within the timeframe that the Controller specifies for reporting on its investigation of the complaint. If the Controller determines that the department's reasons are inadequate and that further investigation may be appropriate, the Controller may refer the matter to the Mayor, City Attorney or District Attorney or to any officer or agency that has jurisdiction over the matter.
(g) RESPONSIBILITY OF DEPARTMENTS. The department head shall be responsible for compliance by his or her department with these duties. If department staff fail to comply with the duties to investigate complaints referred by the Controller and to make the reports required by this Section, the Controller shall notify the department head. If the department head fails to take action to obtain the department's compliance with these duties, the Controller may refer the matter to the Mayor, City Attorney or District Attorney or to any officer or agency that has jurisdiction over the matter. (Added by Ord. 205-08, File No. 080019, 9/18/2008)
SEC. 4.110. - DEFINITIONS.
For purposes of this Chapter, the following words and phrases shall have the following meanings:
(a) The term "City" means the City and County of San Francisco, its departments, commissions and boards.
(b) The term "complainant's department" includes the complainant's supervisor, the executive director or highest ranking officer in the complainant's department, and the board or commission overseeing the complainant's department.
(c) The term "preliminary investigation" shall be limited to, but need not include: review of the complaint and any documentary evidence provided with the complaint; interview of the complainant; interview of the respondent, counsel to respondent and any witnesses who voluntarily agree to be interviewed for this purpose; review of any relevant public documents and documents provided voluntarily to the Commission. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000; amended by Ord. 29-02, File No. 020017, App. 3/15/2002)
SEC. 4.115. - PROTECTION OF WHISTLEBLOWERS.
(a) RETALIATION PROHIBITED. No City officer or employee may terminate, demote, suspend or take other similar adverse employment action against any City officer or employee because the officer or employee has in good faith (i) filed a complaint with the Ethics Commission, Controller, District Attorney or City Attorney, or a written complaint with the complainant's department, alleging that a City officer or employee engaged in improper government activity by: violating local campaign finance, lobbying, conflicts of interest or governmental ethics laws, regulations or rules; violating the California Penal Code by misusing City resources; creating a specified and substantial danger to public health or safety by failing to perform duties required by the officer or employee's City position; or abusing his or her City position to advance a private interest, (ii) filed a complaint with the Controller's Whistleblower Program, or (iii) provided any information or otherwise cooperated with any investigation conducted under this Chapter.
(b) COMPLAINTS OF RETALIATION FOR HAVING FILED A COMPLAINT ALLEGING IMPROPER GOVERNMENT ACTIVITY.
(i) Administrative Complaints. Any city officer or employee, or former city officer or employee, who believes he or she has been the subject of retaliation in violation of Subsection (a) of this Section may file a complaint with the Ethics Commission. The complaint must be filed no later than two years after the date of the alleged retaliation.
The Ethics Commission shall investigate complaints of violations of Subsection (a) of this Section pursuant to the procedures specified in San Francisco Charter Section C3.699-13 and the regulations adopted thereunder. The Ethics Commission may decline to investigate complaints alleging violations of Subsection (a) if it determines that the same or similar allegations are pending with or have been finally resolved by another administrative or judicial body. Nothing in this Subsection shall preclude the Ethics Commission from referring any matter to any other City department, commission, board, officer or employee, or to other government agencies for investigation and possible disciplinary or enforcement action. The Ethics Commission may refer matters to the Department of Human Resources with a recommendation. The Ethics Commission may require that any City department, commission, board, officer or employee report to the Ethics Commission on the referred matter.
(ii) Civil Complaints. Any City officer or employee who believes he or she has been the subject of retaliation in violation of Subsection (a) of this Section may bring a civil action against the City officer or employee who committed the violation. Such action must be filed no later than two years after the date of the retaliation.
(iii) Burden of Establishing Retaliation. In order to establish retaliation under this Section, a complainant must demonstrate by a preponderance of the evidence that the complainant's engagement in activity protected under Subsection (a) was a substantial motivating factor for the adverse employment action. The employer may rebut this claim if it demonstrates by a preponderance of the evidence that it would have taken the same employment action irrespective of the complainant's participation in protected activity.
(c) PENALTIES.
(i) Charter Penalties. Any City officer or employee who violates Subsection (a) of this Section may be subject to administrative penalties pursuant to Charter Section C3.699-13.
(ii) Discipline by Appointing Authority. Any City officer or employee who violates Subsection (a) of this Section shall be subject to disciplinary action up to and including dismissal by his or her appointing authority. If no disciplinary action is taken by the appointing authority, the Ethics Commission may refer the matter to the Civil Service Commission for action pursuant to Charter Section A8.341.
(iii) Civil Penalties. Any City officer or employee who violates Subsection (a) of this Section may be personally liable in a civil action authorized under Subsection (b)(ii) of this Section for a civil penalty not to exceed $5,000.
(d) RESERVATION OF AUTHORITY.
(i) Civil Service Commission. Nothing in this Section shall interfere with the powers granted to the Civil Service Commission by the San Francisco Charter.
(ii) Appointing Authority. Nothing in this Section shall interfere with the power of an appointing officer, manager, or supervisor to take action with respect to any City officer or employee, provided that the appointing officer, manager, or supervisor reasonably believes that such action is justified on facts separate and apart from the fact that the officer or employee filed a complaint with, or cooperated with, an Ethics Commission investigation of such complaint; or filed a complaint with or provided information to the Controller, District Attorney, City Attorney or the complainant's department.
(e) NOTICE OF WHISTLEBLOWER PROTECTIONS. The Controller shall prepare, and each City department shall post a notice of whistleblower protections. The notice shall be posted in a location that is conspicuous and accessible to all employees.
(Added by Ord. 71-00, File No. 000358, App. 4/28/2000; amended by Ord. 29-02, File No. 020017, App. 3/15/2002; Ord. 205-08, File No. 080019, 9/18/2008)
SEC. 4.120. - CONFIDENTIALITY.
(a) WHISTLEBLOWER IDENTITY. Any individual who files a complaint under Section 4.105 of this Chapter may elect to have his or her identity kept confidential as provided by Charter Section C3.699-13(a). Such election must be made at the time the complaint is filed.
(b) COMPLAINTS AND INVESTIGATIONS. The Ethics Commission shall treat as confidential complaints made under Section 4.105 of this Chapter, and related information, including but not limited to materials gathered and prepared in the course of investigation of such complaints, and deliberations regarding such complaints, as provided by Charter Section C3.699-13(a).
(c) EXCEPTIONS.
(i) Conduct of Investigations. Nothing in this Section shall preclude the Ethics Commission from disclosing the identity of an individual or other information to the extent necessary to conduct its investigation.
(ii) Referrals. Nothing in this Section shall preclude the Ethics Commission from referring any matter to any other City department, commission, board, officer or employee, or to other government agencies for investigation and possible disciplinary or enforcement action. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000)
SEC. 4.123. - CONFIDENTIALITY PROTECTION FOR WHISTLEBLOWER PROGRAM COMPLAINANTS AND INVESTIGATIONS.
(a) WHISTLEBLOWER IDENTITY AND INVESTIGATIONS. Every officer and employee of the City shall keep confidential: Controller
(i) The identity of any person who makes a complaint to the Whistleblower Program under Section 4.107 of this Chapter, and any information that would lead to the disclosure of the person's identity, unless the person who made the complaint provides written authorization for the disclosure.
(ii) Complaints or reports to the Whistleblower Program and information related to the investigation of the matter, including drafts, notes, preliminary reports, working papers, records of interviews, communications with complainants and witnesses, and any other materials and information gathered or prepared in the course of the investigation.
The protection of confidentiality set forth in this Section applies irrespective of whether the information was provided in writing and whether the information was provided or is maintained in electronic, digital, paper or any other form or medium.
(b) INQUIRY REGARDING IDENTITY PROHIBITED. In order to assure effective implementation of the provisions of this Section providing confidentiality to whistleblowers, City officers and employees may not use any City resources, including work time, to ascertain or attempt to ascertain directly or indirectly the identity of any person who has made a complaint to the Whistleblower Program, unless such person has provided written authorization for the disclosure. Nothing in this Section shall preclude an officer or employee assigned to investigate a complaint under this Chapter from ascertaining the identity of a complainant to the extent necessary to conduct the investigation.
(c) EXCEPTIONS. Nothing in this Section shall preclude the Controller from (i) disclosing the identity of a person or other information to the extent necessary to conduct a civil or criminal investigation or to take any enforcement action, including any action to discipline an employee or take remedial action against a contractor, or (ii) releasing information as part of a referral when referring any matter to another City department, commission, board, officer or employee, or to other governmental agencies, for investigation and possible disciplinary, enforcement or remedial action, or (iii) releasing information to the Citizens Audit Review Board so that it may carry out its duty to provide advisory input to the Controller on the Whistleblower Program, provided that information is prepared so as to protect the confidentiality of persons making complaints and of investigations, or (iv) releasing information to inform the public of the nature of the actions taken by the Controller in the operation of the Whistleblower Program provided that information is prepared so as to protect the confidentiality of persons making complaints and of investigations.
(Added by Ord. 205-08, File No. 080019, 9/18/2008)
SEC. 4.125. - FURNISHING FALSE OR MISLEADING INFORMATION; DUTY TO COOPERATE.
(a) FURNISHING FALSE OR MISLEADING INFORMATION PROHIBITED. When making or filing a complaint pursuant to this Chapter or participating in an investigation conducted by the Controller, Ethics Commission, District Attorney, City Attorney or any other department or commission, or any of their agents, as authorized under this Chapter, City officers and employees may not knowingly and intentionally furnish false or fraudulent evidence, documents, or information, misrepresent any material fact, or conceal any evidence, documents or information for the purpose of misleading any officer or employee or any of their agents.
(b) COOPERATION REQUIRED. All City departments, commissions, boards, officers and employees shall cooperate with and provide full and prompt assistance to the Controller, Ethics Commission, District Attorney, City Attorney, and all other commissions and departments, and any of their agents, in carrying out their duties under this Chapter.
(Added by Ord. 71-00, File No. 000358, App. 4/28/2000; Ord. 205-08, File No. 080019, 9/18/2008)
SEC. 4.130. - REPORTS TO THE BOARD OF SUPERVISORS.
The Ethics Commission shall provide an annual report to the Board of Supervisors which shall include the following:
(1) The number of complaints received;
(2) The type of conduct complained about;
(3) The number of referrals to the Civil Service Commission, other City departments, or other government agencies;
(4) The number of investigations the Ethics Commission conducted;
(5) Findings or recommendations on policies or practices resulting from the Ethics Commission's investigations;
(6) The number of disciplinary actions taken by the City as a result of complaints made to the Ethics Commission; and
(7) The number and amount of administrative penalties imposed by the Ethics Commission as a result of complaints made to the Commission. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000)
SEC. 4.135. - LIMITATION OF LIABILITY.
In adopting and enforcing this Chapter, the City undertakes to promote the general welfare. The City is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000)
