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The City and County of San Francisco (“City”) has a paramount interest in protecting the integrity of its government institutions. To further this interest, individuals should be encouraged to report possible violations of laws, regulations, and rules governing the conduct of City officers and employees, City contractors, and employees of City contractors.
This Chapter 1 fulfills the Charter’s requirements for two City programs relating to whistleblowers, as required by Charter Appendix Section F1.107. First, as required by the Charter, the Office of the Controller has authority to receive and investigate whistleblower complaints concerning deficiencies in the quality and delivery of City government services, wasteful and inefficient City government practices, misuse of City funds, and improper activities by City officers, employees, and contractors.
Second, as required by the Charter, this ordinance protects the confidentiality of whistleblowers, and protects City officers and employees from retaliation for filing whistleblower complaints or providing assistance with the investigation of such complaints. As set forth in this Chapter 1, the Ethics Commission has primary responsibility for ensuring such protections.
(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; Ord. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(a) The amendment furthers the purposes of this Chapter;
(b) The Ethics Commission approves the proposed amendment in advance by at least a four-fifths vote of all its members;
(c) The proposed amendment is available for public review at least 30 days before the amendment is considered by the Board of Supervisors or any committee of the Board of Supervisors; and
(d) The Board of Supervisors approves the proposed amendment by at least a two-thirds vote of all its members.
(Added by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(a) COMPLAINTS. Any person may file a complaint for investigation with the Office of the Controller’s Whistleblower Program, Ethics Commission, District Attorney, City Attorney, or the complainant’s department alleging that a City officer or employee has engaged in improper government activity, misused City funds, caused deficiencies in the quality and delivery of government services or engaged in wasteful and inefficient government practices, or that a City contractor or employee of a City contractor has engaged in unlawful activity in connection with a City contract.
(b) ETHICS COMMISSION COMPLAINT PROCEDURES. The Ethics Commission shall investigate complaints filed under this Section 4.105 that contain potential 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 (b) 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 any City department to provide a written report regarding the department’s investigation and any action that the department has taken in response to the Ethics Commission’s referral within a time-frame that the Ethics Commission shall specify.
(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. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(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 government activities by City officers and employees, deficiencies in the quality and delivery of government services, and wasteful and inefficient City government practices. Subject to subsection (b), 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 subsection (b):
(1) Those which another City agency is required by federal, state, or local law to adjudicate: To that agency;
(2) 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;
(3) Those which involve allegations of conduct which may constitute a violation of criminal law: To the District Attorney or other appropriate law enforcement agency;
(4) 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
(5) Those which allege conduct that may constitute a violation of local campaign finance, lobbying, conflict of interest, or governmental ethics laws, regulations, or rules: 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 4.107 even if a referral has been made to another agency under this subsection (b).
If a complaint is referred under this subsection (b), 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 perjury 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 time frame 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 4.107, 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; amended by Ord. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
For purposes of this Chapter 1, the following words and phrases shall have the following meanings:
“City” or “City agency” shall mean the City and County of San Francisco, its departments, commissions, task forces, committees, and boards.
“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.
“Deficiencies in the quality and delivery of government services” shall mean the failure to perform a service, when performance is required under any law, regulation or policy, or under a City contract or grant.
“Improper government activity” shall mean violation of any federal, state, or local law, regulation, or rule, including but not limited to laws, regulations, or rules governing campaign finance, conflicts of interest, or governmental ethics laws; or action which creates a danger to public health or safety by the failure of City officers or employees to perform duties required by their positions. “Improper government activity” does not include employment actions for which other remedies exist.
“Misuse of City funds” shall mean any use of City funds for purposes outside of those directed by the City.
“Preliminary investigation” shall be limited to, but need not include all of the following: 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.
“Supervisor” shall mean any individual having the authority, on behalf of the City, to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees, or the responsibility to routinely direct them, to adjust their grievances, or to effectively recommend such action, if, in connection with the foregoing, the exercise of that authority is not merely routine or clerical, but requires the use of independent judgment.
“Unlawful activity” shall mean violations of any federal, state or local law, regulation or rule including but not limited to those laws, regulations or rules governing campaign finance, conflicts of interest or governmental ethics laws; or actions which create a danger to public health or safety by the failure of City officers or employees to perform duties imposed by a City contract.
“Wasteful and inefficient City government practices” shall mean the expenditure of City funds that could be eliminated without harming public health or safety, or reducing the quality of government services.
(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. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(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
(1) filed a complaint as set forth in Section 4.105(a);
(2) attempted to file a complaint through the procedures set forth in Section 4.105(a) but, in good faith, did not file the complaint with the appropriate City department or official; or
(3) provided any information in connection with or otherwise cooperated with any investigation conducted under this Chapter 1.
(b) COMPLAINTS OF RETALIATION.
(1) 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 4.115 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 4.115 pursuant to the procedures specified in 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 (b)(1) 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 any City department to provide a written report regarding the department’s investigation and any action that the department has taken in response to the Ethics Commission’s referral within a time frame that the Ethics Commission shall specify.
(2) 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 4.115 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.
(3) Burden of Establishing Retaliation. In order to establish under this Section 4.115 that retaliation occurred, a complainant in a civil action must demonstrate, or the Ethics Commission in an administrative proceeding must determine, 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 respondent may rebut this claim if the respondent demonstrates by a preponderance of the evidence that he, she, or it would have taken the same employment action irrespective of the complainant’s participation in protected activity.
(4) Duty to Assist with Retaliation Complaints. Supervisors who receive a complaint alleging retaliation under this Chapter 1 must keep the complaint confidential and immediately assist the complainant by referring the complainant to the Ethics Commission and documenting the referral in writing. Documentation must include the date and time of the referral and that the complaint was about retaliation. Supervisors who fail to comply with this subsection (b) are subject to the penalties and remedies set forth in subsection (c).
(c) PENALTIES AND REMEDIES.
(2) Redress for Retaliatory Employment Action. Following an administrative hearing and after making a finding that an adverse employment action has been taken for purposes of retaliation, the Ethics Commission may, subject to the Charter’s budgetary and civil service provisions, recommend the cancellation of the retaliatory termination, demotion, suspension or other adverse employment action.
(3) Discipline by Appointing Authority. Any City officer or employee who violates subsections (a) or (b)(4) of this Section 4.115 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.
(4) Civil Penalties. Any City officer or employee who violates subsection (a) of this Section 4.115 may be personally liable in a civil action authorized under subsection (b)(2) of this Section for a civil penalty not to exceed $10,000.
(d) RESERVATION OF AUTHORITY.
(1) Civil Service Commission. Nothing in this Section 4.115 shall interfere with the powers granted to the Civil Service Commission by the Charter.
(2) Appointing Authority. Nothing in this Section 4.115 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 as set forth in Section 4.105(a), attempted to file such a complaint in good faith, or cooperated with an investigation of such a complaint.
(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.
(f) WHISTLEBLOWER PROTECTION AWARENESS TRAINING.
(1) The Controller, in collaboration with the Ethics Commission, shall prepare, and all City departments shall distribute, materials to publicize and promote whistleblower protections as part of each department’s new hire training programs.
(2) The Ethics Commission, in collaboration with the Controller and Department of Human Resources, shall prepare, and all City departments shall distribute, materials to publicize and promote supervisors’ responsibilities under this Chapter 1. In addition, the Department of Human Resources, in collaboration with the Controller and Ethics Commission, shall prepare web-based training for supervisors regarding their responsibilities under this Chapter 1, which shall be implemented by January 1, 2020. This training must be provided to all City supervisors annually by April of each year thereafter.
(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; Ord. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(a) RETALIATION PROHIBITED. No City officer or employee may take steps to terminate a contract with a City contractor; refuse to use a City contractor for contracted services; request that a City contractor terminate, demote, or suspend one of its employees; or take other similar adverse action against any City contractor or employee of a City contractor because the contractor or the contractor’s employee:
(1) filed a complaint with any supervisor within a City agency alleging that a City officer or employee engaged in improper government activity, misused City funds, caused deficiencies in the quality and delivery of government services, or engaged in wasteful and inefficient government practices;
(2) filed a complaint with any supervisor within a City agency alleging that another City contractor, or employee of another City contractor, engaged in unlawful activity, misused City funds, caused deficiencies in the quality and delivery of government services or engaged in wasteful and inefficient government practices; or
(3) provided any information in connection with or otherwise cooperated with any investigation conducted under this Chapter 1.
(b) COMPLAINTS OF RETALIATION.
(1) Administrative Complaints. Any City contractor or employee of a City contractor, who believes it, he, or she has been the subject of retaliation in violation of subsection (a) of this Section 4.117
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 4.117 pursuant to the procedures specified in 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 any City department to provide a written report regarding the department’s investigation and any action that the department has taken in response to the Ethics Commission’s referral, within a time frame that the Ethics Commission shall specify.
(2) Burden of Establishing Retaliation. In order to establish that retaliation occurred under this Section 4.117
, the Ethics Commission in an administrative proceeding must determine, 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 action. The respondent may rebut this claim if it demonstrates by a preponderance of the evidence that it would have taken the same adverse action irrespective of the complainant’s participation in protected activity.
(c) PENALTIES AND REMEDIES.
(2) Redress for Retaliatory Adverse Action. Following an administrative hearing and after making a finding that an adverse action has been taken for purposes of retaliation, the Ethics Commission may, subject to the Charter’s budgetary and contracting provisions, order the cancellation of retaliatory adverse action taken against a City contractor or employee of a City contractor.
(3) Discipline by Appointing Authority. Any City officer or employee who violates subsection (a) of this Section 4.117
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.
(d) NOTICE OF WHISTLEBLOWER PROTECTIONS. The Controller shall prepare, and each City department shall post, a notice of the whistleblower protections established by this Section 4.117
. City contractors shall distribute the notice of protections to all of their employees.
(Added by Ord. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(a) WHISTLEBLOWER IDENTITY. City officers and employees shall treat as confidential the identity of any person who files a complaint as set forth in Section 4.105(a). A complainant may voluntarily disclose his or her identity.
(b) COMPLAINTS AND INVESTIGATIONS. City officers and employees shall treat as confidential complaints filed under Sections 4.105, 4.115, and 4.117, and related information, including but not limited to materials gathered and prepared in the course of investigating such complaints, and deliberations regarding such complaints.
(c) PENALTIES. Except as provided in subsection (d), violations of subsections (a) and (b) may be subject to the administrative proceedings and penalties set forth in Charter Section C3.699-13, in addition to disciplinary action up to and including dismissal by his or her appointing authority.
(d) EXCEPTIONS.
(1) Conduct of Investigations. Nothing in this Section 4.120 shall preclude the Controller’s Office, Ethics Commission, District Attorney, and City Attorney from disclosing the identity of an individual or other information to the extent necessary to conduct its investigation.
(2) Legal Proceedings. Nothing in this Section 4.120 shall preclude City officers and employees from disclosing the identity of an individual or other information relating to a complaint to the extent required by the rules governing an administrative or court proceeding.
(3) Referrals. Nothing in this Section 4.120 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; amended by Ord. 299-18, File No. 180317, App. 12/21/2018, Eff. 1/21/2019; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
(a) WHISTLEBLOWER IDENTITY AND INVESTIGATIONS. Every officer and employee of the City shall keep confidential:
(1) 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.
(2) 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; re-enacted by Proposition D, 3/5/2024, Eff. 4/12/2024, Oper. 10/12/2024)
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