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(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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