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HomeMy WebLinkAboutItem B: Whistleblower Protections ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Work Session: Whistleblower Protections Meeting Date: October 27, 2008 Agenda Item Number: B Department: City Manager’s Office Staff Contact: Mary Walston www.eugene-or.gov Contact Telephone Number: 682-5406 ______________________________________________________________________________ ISSUE STATEMENT This work session is being held as a result of a work session request made by Councilor Bettman in April of 2008, to determine if there is interest to draft an ordinance to place “whistleblower” protections in the Eugene Code, and, if so, what the major features of such an ordinance would be. BACKGROUND In requesting the work session, Councilor Bettman outlined the questions and issues to be addressed: ? What are the whistleblower protections and ordinances in other communities or organizations? ? What are the provisions and processes we would like to implement here? ? How can we encourage an open and transparent organization so that employees are safe to report inefficiencies, risks, and violations? The City Attorney’s Office provided research on the topic and the summary of this research is attached. In brief, there are federal and state (Oregon) whistleblower protections in place at the current time, but very few at the local level; in fact, no city in Oregon has a local whistleblower ordinance. The federal protections are administered by the Occupational Safety and Health Administration (OSHA) and address a myriad of work place safety issues found in seventeen federal statutes. OSHA is the body with whom a retaliation complaint is filed; in turn OSHA conducts an investigation to determine if there was retaliation. The State of Oregon has implemented a law that protects a public employee if that employee discloses information that the employee feels represents a violation of federal, state or local laws or gross mismanagement of public funds. The Oregon law also includes a provision that makes it unlawful to discourage or prevent the disclosure of such information. The Civil Rights division of the Bureau of Labor and Industries (BOLI) has adopted administrative rules to implement this law. While there were no municipalities in Oregon found to have whistleblower protection laws, the City of Seattle is a city in the northwest with a law. The provisions of protection are similar to that of the State of Oregon, but the process is a bit different. In Seattle, the employee is to make the report to an appropriate city official while the Oregon law allows the employee to make the report to any one, and does not require that notice be given to the public employer prior to disclosure. Z:\CMO\2008 Council Agendas\M081027\S081027B.doc Under the Seattle law, complaints of retaliation are filed with the mayor’s office and the complainant has the option of a hearing by a state hearings official. Under the Oregon law, the complainant may file a retaliation complaint with BOLI and has the option of a civil suit against the entity. The questions to be answered at this work session by members of the City Council include: ? Is there a need or desire to implement a local whistleblower protection ordinance, given that there exist state and federal laws to address this concern? ? If there were a direction to create local whistleblower protection what would be the scope and breadth of such an ordinance? Would this cover only City of Eugene employees in regard to City of Eugene issues, or would this have broader intent? ? How would the procedure work? Currently in place within City Code are provisions for reporting ethics violations by public officials and the recently enacted complaints against public officials. In both of these instances, a form is filed with the City Recorder and the City Attorney’s Office has a role in determining the merit of the complaint and advises on a course of action. Should whistleblower disclosures and retaliation follow the same path or should there be a third party, external to the City organization involved? ? Should there be a requirement to notify management within the City organization of a whistleblower disclosure prior to doing so or should the disclosure be made to anyone? ? How should complaints of retaliation be processed? RELATED CITY POLICIES There are no existing City policies addressing whistleblower protections. There are, however, in the Eugene Code, provisions to address ethics complaints against public officials and a newly enacted process for complaints related to public officials. COUNCIL OPTIONS The City Council can direct staff to develop an ordinance for further consideration addressing whistleblower protections after outlining the various provisions to be included in such an ordinance, or it can decide that the current Oregon protection laws provide the level of protection desired and no further action is required. There may be other options to be considered after this initial work session on the topic. CITY MANAGER’S RECOMMENDATION As this is a work session, the City Manager makes no recommendation at this time. If the council directs a draft ordinance to be created, the City Manager will provide recommendations at that time. SUGGESTED MOTION None at this time; this is a work session to determine the sense and direction the City Council wishes to take on this issue. Z:\CMO\2008 Council Agendas\M081027\S081027B.doc ATTACHMENTS A. Summary of Whistleblower Laws (prepared by the City Attorney’s Office) FOR MORE INFORMATION Staff Contact: Mary Walston Telephone: 682-5406 Staff E-Mail: mary.f.walston@ci.eugene.or.us Z:\CMO\2008 Council Agendas\M081027\S081027B.doc ATTACHMENT A Summary of Whistleblower Laws October 20, 2008 Many federal laws include Whistleblower protections. The Occupational Safety and Health Administration (OSHA) administers the whistleblowing provisions of seventeen federal statutes through its Office of the Whistleblower Protection Program. The federal statutes generally protect employees from retaliation for reporting violations related to workplace safety and health, commercial motor carrier safety, pipeline safety, air carrier safety, nuclear safety, environmental degradation, Securities and Exchange Commission regulations and corporate fraud. If a retaliation complaint is filed with OSHA, OSHA conducts an investigation to determine whether the employee was retaliated against. OSHA will find retaliation if: 1) the employee engaged in protected activity; 2) the employer knew about the protected activity; 3) the employer took an adverse action; and 4) the protected activity was the motivating factor (or under some federal statutes, a contributing factor) in the decision to take adverse action against the employee. The State of Oregon has implemented a Whistleblower Law that offers protections for public employee whistleblowers. Oregon’s Whistleblower Law provides that it is an unlawful employment practice for a public employer to prohibit any employee from disclosing, or to take or threaten to take disciplinary action against an employee who discloses, information that the employee reasonably believes is evidence of: 1) a violation of any federal or state law, or rule or regulation promulgated by the state, an agency or a political subdivision; or 2) mismanagement, gross waste of funds, abuse of authority or substantial and specific danger to public health and safety resulting from the action of the state, an agency or a political subdivision. It is also an unlawful employment practice to discourage, restrain, dissuade, coerce, prevent or otherwise interfere with the disclosures described above. The Civil Rights Division of the Bureau of Labor and Industries (BOLI) has adopted administrative rules to implement the Whistleblower Laws. The rules provide that the Whistleblower Law does not restrict or preclude disciplinary action against an employee if the employee knows the information disclosed is false, if the employee discloses the information with reckless disregard for its truth or falsity, or if the information disclosed relates to the employee’s own violations, mismanagement, gross waste of funds, abuse of authority or endangerment of public health or safety. The Whistleblower Law gives employees the right to file a retaliation complaint with BOLI or to file a civil lawsuit against the City. Staff did not find any local jurisdictions in Oregon that have adopted their own whistleblower ordinances. However, the City of Seattle has adopted a Whistleblower Protection Code. The protections provided by the Seattle Code are essentially the same as those provided under Oregon law, but the procedures mandated by the Seattle Code are somewhat different. The Seattle Code requires that, except in an emergency, a city employee report improper governmental action first to the appropriate city official. Oregon law allows an employee to disclose information related to improper government action to anyone, and prohibits the public employers from requiring an employee to give the public employer notice before making a disclosure. The law allows the City to establish an optional procedure by which an employee may first disclose information about improper governmental action to his or her supervisor, but the City cannot require an employee to disclose improper governmental action to his or her supervisor before disclosing the information to anyone else. Under the Seattle Code, complaints of retaliatory action are made to the Mayor’s office, and the complainant then has the option of a hearing by a state hearings official. As noted above, in Oregon, state law gives employees the right to file a retaliation complaint with BOLI, or to file a civil suit against the City.