(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)