Chapter 2.76
OFFICIAL MISCONDUCT AND WHISTLEBLOWERS
Sections:
2.76.030 Improper governmental action – Reports – Investigation.
2.76.040 Retaliation – Reports – Investigation.
2.76.050 Implementation responsibilities.
2.76.010 Purpose.
It is the policy of the city that employees should be encouraged to disclose improper governmental action by city officials and other employees. The purpose of this chapter is to protect employees who make good faith reports to appropriate governmental officials and to provide remedies for such individuals who are subjected to retaliation for having made such reports. [Ord. 492B, 1993.]
2.76.020 Definitions.
Unless the context clearly indicates otherwise, definitions in this section apply throughout this chapter:
“Good faith” means an honest intention to abstain from taking advantage of or injuring another in the absence of malice, ill will, or other improper or inappropriate motives.
“Improper governmental action” means any action by a city officer or employee that:
1. Is undertaken in the performance of the officer’s or employee’s official duties, whether or not the action is within the scope of the employee’s employment; and
2. Is in violation of any federal, state, or local law or rule, is an abuse of authority, is of substantial and specific danger to the public health or safety, or is a gross waste of public funds; but
3. Does not include personnel actions, including, but not limited to, employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of collective bargaining agreements, civil service rules and regulations, or employee policies, alleged labor agreements, violations, reprimands, or any action that may be taken under Chapter 41.08, 41.12, 41.14, 41.56, 41.59 or 53.18 RCW or RCW 54.04.170 and 54.04.180.
“Retaliatory action” means any adverse change in an employee’s employment status or his/her terms and conditions of employment, including denial of adequate staff to perform duties, frequent staff changes, frequent and undesirable office changes, refusal to assign meaningful work, unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations, demotions, transfer, reassignment, reduction in pay, denial of promotion, suspension, dismissal, or any other disciplinary action motivated primarily by desire to punish an employee because he/she made a good faith complaint of improper governmental action.
“Whistleblower” means an employee who, in good faith, reports alleged improper governmental action to appropriate officials pursuant to this policy. It also means an employee who cooperates and provides information to officials investigating improper governmental actions in accordance with this policy. [Ord. 492B, 1993.]
2.76.030 Improper governmental action – Reports – Investigation.
A. Every employee has the right to report information concerning alleged improper governmental action to an appropriate official.
B. An employee may report improper governmental action to any of the following:
1. The employee’s department head;
2. The city manager;
3. The finance manager;
4. The chief of police;
5. The city attorney; or
6. The Lewis County prosecuting attorney.
C. The employee should submit the report in writing and give appropriate details of the improper governmental action. The employee shall sign the report, which shall remain confidential to the extent possible under law.
D. Within five working days after receipt of the report, the receiving official shall acknowledge in writing receipt of the report to the employee.
E. A preliminary investigation shall be conducted and if, after such investigation, it appears that the matter is so unsubstantiated that no further investigation, prosecution, or action is necessary, the whistleblower shall be so advised in writing containing a summary of the information received, a summary of the results of the preliminary investigation, and the preliminary determination made.
F. The identity of the whistleblower shall remain confidential to the extent possible under law, unless he/she authorizes the disclosure of his/her identity in writing or unless the preliminary investigation determines that the information has been provided other than in good faith.
G. In no case will officials investigate allegations made against themselves. If deemed advisable, the assistance of an outside agency to conduct the investigation may be requested. In the case of alleged criminal activity, the assistance of an appropriate law enforcement agency and either the city attorney or county prosecuting attorney shall be enlisted as may be appropriate.
H. The person investigating the report will normally prepare a written response to the whistleblower within 20 working days of receiving the complaint. If the investigator is unable to prepare a report within 20 working days, the whistleblower shall be notified of the delay and the reason therefor. At the conclusion of the investigation, the investigator shall make a finding as to whether or not there was improper governmental action and indicate who was responsible for it. If it is not possible to make either of these findings the report shall so indicate.
I. If the investigator finds that the report is without merit, a further attempt shall be made to determine if it was made in good faith by the whistleblower, and the investigator shall make findings accordingly. An employee who reports alleged improper governmental action in other than good faith shall not receive the protection provided in these procedures.
J. In all cases the report of the investigation and findings shall be provided to the whistleblower within one year of the complaint having been made, except that personnel actions taken as a result of the investigation may be kept confidential. [Ord. 831B, 2007; Ord. 766B, 2004; Ord. 492B, 1993.]
2.76.040 Retaliation – Reports – Investigation.
A. It is unlawful for any official or employee of the city to take retaliatory action against another employee.
B. An employee who believes that he or she has been retaliated against for reporting improper governmental action may, within 30 days of the alleged retaliation, advise his or her department head or other city official listed in CMC 2.76.030(B), in writing, who shall take appropriate action to investigate and respond to the complaint of retaliation and relief requested.
C. If the complaint of retaliation is not resolved to the employee’s satisfaction within 30 days, the employee may request a hearing before a state administrative law judge to establish that retaliatory action occurred and to obtain appropriate relief. Such request must be delivered in writing to the city clerk within 15 days of the unsatisfactory response or within 45 days after the complaint was filed if no response is given.
D. The city clerk must apply for an adjudicative proceeding to the State Office of Administrative Hearings within five days of the receipt of such request.
E. In considering the evidence or the course of action to be taken, the burden will be on the employee, as the initiating party, to prove his/her claim by a preponderance of the evidence.
F. The relief that may be granted by the administrative law judge consists of reinstatement with or without back pay, and such injunctive relief as may be found to be necessary in order to return the employee to the position that he or she had before the retaliatory action, and to prevent any recurrence of retaliatory action. The administrative law judge may award costs and reasonable attorney’s fees to the prevailing party.
G. If a determination is made that retaliatory action has been taken against the employee, the administrative law judge may, in addition to any other remedy, impose a civil penalty personally upon the retaliator of up to $3,000 payable by each person found to have retaliated against the employee and recommend to the city that any person found to have retaliated against the employee be suspended without pay or dismissed. All penalties recovered shall be deposited in the general fund.
H. The final decision of the administrative law judge is subject to judicial review. Relief ordered by the administrative law judge may be enforced by petition to superior court. [Ord. 492B, 1993.]
2.76.050 Implementation responsibilities.
The city manager is responsible for implementing the city’s policies and procedures for reporting improper governmental action and for protecting employees against retaliatory actions. This includes ensuring that this policy and these procedures are permanently posted where all employees will have reasonable access to them, are made available to any employee upon request, and are provided to all newly hired employees. Officers, managers, and supervisors are responsible for ensuring that the procedures are fully implemented within their areas of responsibility. [Ord. 492B, 1993.]