HomeMy WebLinkAboutDiscussion on Existing Protections for City Employees and the Public Regarding Reporting of Alleged Violations of Public PolicyPage 1 of 11
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
Chris Kukulski, City Manager
SUBJECT: Discussion on Existing Protections for City Employees and the Public
Regarding the Reporting of Alleged Violations of Public Policy (i.e.
Whistle Blowing/Anti-Retaliation), and Discussion on Example Policies
and Direction to Staff
MEETING DATE: August 31, 2009
AGENDA ITEM: Action
RECOMMENDATION: After your review of local, state, and federal laws and policies that
detail the protections currently in place for employees and the public to report alleged violations
of public policy, staff recommends you provide specific direction regarding implementation of
policy areas not adequately covered by current protections. Based on your direction, staff will
bring back for your review appropriate regulatory or policy documents.
BACKGROUND: During the July 13, 2009 City Commission meeting, you expressed a need
for a "whistleblower policy" and directed staff to bring back information to you regarding
whistle blower protections and policy language related to whistle blowing and retaliation for
both City of Bozeman employees and outside citizens. Following are the motions from this
meeting:
It was moved by Cr. Krauss, seconded by Cr. Bryson that we direct staff to come back to
us within 4 weeks or 6 weeks a whistle blower policy that addresses the employees rights
to access the commission, the press and also that it examines citizens rights to be free of
retribution and that we add elements to the employee code of conduct that makes certain
employees that take actions against citizen comments can be part of that whistleblower
policy with the end result that we have a formal whistleblower policy at the City of
Bozeman.
Cr. Bryson clarified Cr. Krauss's intent in the motion stating that he wants something that
protects both current and future employees plus something that protects outside citizens when
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they have interaction with the City of Bozeman to say what they think is not right in the City of
Bozeman.
The motion was adopted by you on a vote of 5-0.
The purpose of this memorandum is not to give a detailed legal review of all of the protections
available to employees and the public as that will require a more thorough analysis of relevant
case law and, as such, is beyond the scope of a staff memorandum. The purpose of this
memorandum is, rather, to provide you an overview of the scope of protections available to
employees and the public generally under local, state and federal law. From that overview you
should be able to identify potential areas within your legislative and policy authority where you
would like to expand or provide for more specific protections.
We understand you are interested in ensuring employees and the public are protected from
retaliation in both their employment and within our community. We also understand you
wish to ensure these protections are meaningful so as to create an atmosphere where an
employee or member of the public knows not only that the protections are in place but has
faith that the protections will actually be afforded to them. As such, we encourage you to
work with the City Manager to move forward in adopting specific policies to be included in
the employee handbook as well as direct staff to bring back provisions to be included in the
Ethics Code.
These protections, once implemented, could serve as the basis for either a direct disciplinary
action against a public employee (if included by the City Manager in the City of Bozeman
Employee Handbook) or, if included in your Ethics Code, provided that an employee or elected
or appointed official will be subject to investigation upon complaint by the Ethics Board.
Current Protections:
As discussed below, City of Bozeman policies and ordinances in combination with Montana and
federal law provide significant protections for employees from retaliation when an employee
legitimately provides information related to allegations of violations of public policy. The City of
Bozeman's protections come in the form of statements in the Employee Handbook, the Ethics
Code, and grievance procedures found in all of the City's labor contracts. The State of Montana's
protections come primarily in the form of the Wrongful Discharge from Employment Act
(WDEA), the Montana Human Rights Act, and other statutory regimes. Title VII of the federal
Civil Rights Act of 1964 also protects against discrimination in the form of retaliation in
employment. In addition, of course, both the federal and state constitutions require due process
in disciplinary proceedings for public employees and provide freedom of speech protections for
public employees – issues related to your interest in whistle blower policies.
To assist you in your review, Exhibit A provides a listing of the local, state, and federal laws,
policies, rules, regulations and related court rulings which protect employees and the public from
retaliation.1
1 It is important to note the nature and extent of the protections of any of the policies and protections listed in
Exhibit A or discussed below will be based on fact specific circumstances; that is, the manner in which each of the
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Below you will find a description of the primary protections available under local, state and
federal law.
City of Bozeman:
Exhibit B contains elements of the Employee Handbook and the Ethics Code that apply to public
employees and elected and appointed officials. A discussion of the components most relevant to
your above motions follows:
Employee Handbook Provisions: As you will see from the outline below, the City of
Bozeman's Employee Handbook implicitly contains provisions related to whistle blowing
and retaliation. There are no provisions expressly providing whistle blower protections.
o Employee Conduct (Sect. II-1): "The proper operation of City government
requires that public officials and employees be independent, impartial, and
responsible." Furthermore, this section states that failure to adhere to the Ethics
Code may be cause for disciplinary action.
o Employee Conduct (Sect. IX):
Employees shall obey the provision of the City of Bozeman Code of
Ethics (Chpt. 2.01, BMC) (last amended by Ordinance 1759, May 2009).
Employee Misconduct (Sect. IX-2): "Disciplinary action may be taken in
cases of employee misconduct. Employee misconduct means, but is not
limited to, any conduct on the job not in keeping with generally accepted
professional and personal standards of behavior associated with
employment, as well as other activities that might adversely affect the
confidence of the public, and serious violation of federal and/or state law."
o Disciplinary Action (Sect. X): This section lists numerous reasons (i.e. behaviors)
that can lead to disciplinary action. Please note that "An employee may be
terminated for serious or repeat violations." Pertinent to your motions regarding
whistle blower/ anti retaliation policies are the following (this list does not contain
ALL the behaviors that can lead to disciplinary action - please refer to the
Handbook for a complete list (emphasis is added)):
Violations of any policy in this handbook;
Violating job-related federal, state and/or local laws (Note: this will
include violation of the state WDEA in, for example, a constructive
discharge circumstance, or for violations of your Ethics Code);
Dishonesty, including but not limited to giving false information…;
Disrespect to the public or fellow employees;
Failing to follow the order(s) of your supervisor;
Inability to get along with your fellow employees and the public; and
Any other conduct on the job not in keeping with acceptable standards of
behavior generally associated with employment.
policies and laws listed below would be applied will obviously vary from case to case depending upon the facts of
this situation. In addition, procedural due process as guaranteed by both the federal and Montana constitutions plays
a significant role in how these policies and protections will be applied in any given circumstance.
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o Progressive Discipline Policy (Sect. X). This section spells out how discipline is
to be administered. The City complies with legal requirements for "progressive
discipline."
The Handbook states, "Your employment with the City depends, in part,
on your maintaining reasonable standards of job performance and personal
and professional conduct. Failure or refusal to meet these standards may
constitute cause for disciplinary action. "
The Handbook also states, "Progressive discipline is cumulative in nature.
The City may, in its sole discretion, use the level of discipline it deems
appropriate based on the facts and circumstances of an employee's
unsatisfactory performance or misconduct. Any and/or all of the first four
disciplinary actions may be combined and/or omitted.”
Please see pg. X-1 of the Handbook for the precise text regarding the
City's progressive disciplinary policies. The following are the five separate
and distinct actions the City may take as disciplinary action:
Written Reprimand;
Disciplinary Probation;
Suspension, with or without pay;
Demotion; or
Termination.
As stated above, employees are on notice the City may terminate an
employee for "serious or repeat violations."
City of Bozeman's Ethic Code (adopted as Chapter 2.01 of the Bozeman Municipal
Code). Sect. 2.01.040 of the BMC contains Standards of Conduct that binds all city
officials, members of the Parking Commission and Library Board, and City employees.
2.01.040 Standards of Conduct
A. Officials and employees have an obligation to act morally and honestly in
discharging their responsibilities.
B. Officials and employees shall conduct themselves with propriety, discharge
their duties impartially and fairly, and make continuing efforts toward attaining and
maintaining high standards of conduct.
C. Each official or employee serving on a multimember agency is expected to
devote the time and effort necessary to the successful functioning of such agency.
D. No official or employee shall improperly use, directly or indirectly, his city
position to secure any financial interest or personal interest for himself or others.
E. No official or employee shall, for any reason, use or attempt to use his
position to improperly influence any other official or employee in the performance of
his official duties.
F. No employee shall act in a private capacity on matters that they are directly
responsible for as an employee.
G. No official shall act in a private capacity on matters acted upon as an official.
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As you have seen from the above, neither the Employee Handbook nor the Code of Ethics
provide express protections for employees and the public against retaliation upon a report
of a violation of public policy. Certainly, it can easily be argued that a broad reading of certain
provisions within both documents does provide for protections of whistle blowers. Nonetheless,
as you have direct control over the Ethics Ordinance and the City Manager has control over the
Employee Handbook you should consider working with the Ethics Board and the City Manager
to create specific anti-retaliation policies.
State of Montana
Montana law provides significant protections against retaliations for reporting violations of
public policy yet those protections may not seem immediate enough in character to be considered
sufficient by some. Primary among those protections is the Montana Human Rights Act and the
Wrongful Discharge from Employment Act. Notes on other protections are briefly discussed
below.
Montana Human Rights Act:
o Protects against discrimination affecting an employee or a member of the public.
o Prohibited Discriminatory Practices (retaliation prohibited): Sect. 49-2-301,
MCA, states, "It is unlawful discriminatory practice for a person [or]
[]governmental entity to discharge, expel, blacklist, or otherwise discriminate
against an individual because he has filed a complaint, testified, assisted, or
participated in any manner in an investigation or proceeding under this chapter."
o Similarly, Sect. 49-3-209, MCA (Governmental Code of Fair Practices/Duties of
Governmental Agencies and Officials/Retaliation Prohibited), states, "It is an
unlawful discriminatory practice for a state or local governmental agency to
discharge, expel, blacklist, or otherwise discriminate against an individual
because he has opposed any practices forbidden under this chapter or because he
has filed a complaint, testified, assisted, or participated in any manner in an
investigation or proceeding under this chapter. (Emphasis added).
o Further protections are provided in the State of Montana Administrative Rules:
Sect. 24.9.603, Admin. R. Mont.: Retaliation and Coercion Prohibited.
(1) It is unlawful to retaliate against or otherwise discriminate against a person because
the person engages in protected activity. "Protected activity" means the exercise of rights
under the act or code and may include: (a) aiding or encouraging others in the exercise of
rights under the act or code; (b) opposing any act or practice made unlawful by the act or
code; and (c) filing a charge, testifying, assisting or participating in any manner in an
investigation, proceeding or hearing to enforce any provision of the act or code.
(2) Significant adverse acts may include the following: (a) violence or threats of violence,
malicious damage to property, coercion, intimidation, harassment, the filing of a
factually or legally baseless civil action or criminal complaint, or other interference with
the person or property of an individual; (b) discharge, demotion, denial of promotion,
denial of benefits or other material adverse employment action; (c) expulsion,
blacklisting, denial of privileges or access, or other action adversely affecting the
availability of goods, services, facilities, or advantages of a public accommodation; (d)
eviction, denial of services or privileges, or other action adversely affecting the
availability of housing opportunities; and (e) denial of credit, financing, insurance,
educational, governmental or other services, benefits or opportunities.
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o These protections require filing a complaint with the Montana Human Rights
Commission and significant administrative processes.
Wrongful Discharge from Employment Act (WDEA) (Title 39, Chpt. 2, Part 9,
MCA)
o The WDEA states, "A discharge is wrongful only if: (a) it was in retaliation for
the employee's refusal to violate public policy or for reporting a violation of
public policy."
o For the act to apply, however, there must be a "discharge," which the Act defines
as: "Include[ing] a constructive discharge as defined in subsection (1) and any
other termination of employment, including resignation, elimination of the job,
layoff for lack of work, failure to recall or rehire, and any other cutback in the
number of employees for a legitimate business reason." Sect. 39-2-903(2), MCA.
A "constructive discharge" is defined as "the voluntary termination of
employment by an employee because of a situation created by an act or omission
of the employer which an objective, reasonable person would find so intolerable
that voluntary termination is the only reasonable alternative. Constructive
discharge does not mean voluntary termination because of an employer's refusal
to promote the employee or improve wages, responsibilities, or other terms and
conditions of employment." Sect. 39-2-903(1), MCA.
o In order for the Act to apply there must be a complete termination of employment.
Clark v. Eagle Systems, Inc. 927 P2d 995 (1996).
o The WDEA requires following the City's internal grievance procedures prior to
filing of a claim in district court.
o The WDEA does not generally apply to members of collective bargaining groups.
Other State Protections:
o Please refer to Exhibit A for a listing of other protections that exist on the state
level.
o Title 39, Chpt. 31 (Collective Bargaining for Public Employees) provides
additional protections for employees covered by a collective bargaining
agreement, including the ability to file an Unfair Labor Practice complaint with
the Montana Board of Personnel Appeals.
39-31-401. Unfair labor practices of public employer. It is an unfair
labor practice for a public employer to: (4) discriminate against an
employee because he has signed or filed an affidavit, petition, or
complaint or given any information or testimony under this chapter.
Admin. R. Mont., Sect. 24.26.530 (Freedom from Interference, Restraint,
Coercion, or Retaliation)
(1) If an employee's supervisor, or the agency for which the employee works,
directly or indirectly interferes, restrains, coerces or retaliates against an
employee because the employee has filed or attempted to file a grievance with
the board, the employee shall be entitled to file a complaint with the board.
NOTE: This process applies only when an employee feels one of the
above has occurred when the employee has filed or has attempted to file
an Unfair Labor Practice with the Montana Board of Personnel Appeal.
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o State Code of Ethics (Title 2, Chpt. 2, MCA).
The Montana Code Ethics does not specifically provide for protections
against retaliatory acts for employees or members of the public alleging
violations of the Code. The Code provides for complaints alleging
violations of the Code to be filed either with the County Attorney or, for
local governments with an ethics board, with the ethics board.
o Protection of Speech for Public Employees: Art. II, Sect. 7 (Montana
Constitution). Art. II, Sect. 7 of the Montana Constitution protects the freedom
of speech. Not all speech, however, is protected. "The threshold question in
assessing a free speech claim by a public employee is whether the employee is
speaking out as an employee on a matter of personal interest, or as a citizen on a
matter of public interest." Ray v. Montana Tech of the University of Montana,
2007 MT 21, ¶ 42 (citation omitted). Matters of public concern are those which
relate to matters of social or political concern in the community. Id (holding
termination of a Montana Tech department head was justified because a reason
for the termination of department head at Montana Tech was based on the internal
structural arrangement and administrative procedures of the school and thus did
not transcend the internal workings of the university to affect the political or
social life of the community). If an employee speaks out to others in the public, to
the Commission, or to the press on a matter that is of public interest that affects
the political or social life of the community that speech may be afforded
constitutional protection. Any retaliation against the individual may violate that
constitutional protection and be actionable under Montana law.
Federal Protections:
Federal law2 establishes numerous protections for members of the public alleging violations of
public policy. However, many of those protections are not germane to the operations of the City
of Bozeman. Below is a discussion of two of the more important protections available to
employees under federal law. On Exhibit A, you will find a listing of additional federal law
protections.
An employee may file an anti-retaliation claim under Title VII of the Civil Rights Act
of 1964. Beaver v. Dept. of Natural Resources and Conservation, 2003 MT 287 (citing
Wrighten v. Metropolitan Hosp. Inc. 726 F2d 1346 (9th Cir. 1984). Under Title VII, prior
to an employer being found liable for retaliation the employer must take an adverse
employment action against an employee. Such adverse employment actions include
termination, demotion, and withholding compensation, among others.3
2 A discussion of federal constitutional freedom of speech claims related to public employees and the public is
beyond the scope of this memorandum. 3 Please note there are numerous substantive and procedural factors that are implicated when an employee brings a
claim under Title VII that are beyond the scope of this memorandum.
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o This past January, the U.S. Supreme Court, in Crawford v. Metropolitan
Government of Nashville and Davidson County, Tennessee, 129 S.Ct. 846,
determined an employee who speaks out about discrimination during an internal
company investigation is protected under the anti-retaliation provision of Title
VII. The Court stated that if “an employee’s reporting discrimination in
answer to an employer’s questions could be penalized with no remedy,
prudent employees would have a good reason to keep quiet about Title VII
offenses.” The Court’s opinion does not suggest whether an employee’s
statements must be truthful in order to be protected under the opposition clause of
Title VII’s anti-retaliation provision. However, in other cases interpreting the
opposition clause, courts have generally held that plaintiffs can establish a prima
facie case of retaliation if they show that they had a reasonable belief that the
employer engaged in an unlawful employment practice.4
Federal Constitutional Procedural Due Process Protections: Under Cleveland Board
of Education v. Loudermill, 470 U.S. 532 (1985), for an employee who can be discharged
only for cause, as is primarily the situation for employees in Montana, a pre-termination
hearing must be held. This pre-termination opportunity to be heard must include "notice
to the employee and an explanation of the evidence against him as well as an opportunity
to respond." Wolny v. City of Bozeman, 2001 MT 166, ¶ 18 (citations omitted). This
process is included in the City’s grievance procedures. Under the City’s procedures,
whenever an employee faces a monetary-based sanction a "Loudermill" hearing is
required. These sanctions include the possibility of demotion, suspension without pay, or
termination.
Exhibit A- Additional Information:
As stated above, in Exhibit A you will find the listing of the various protections and a brief
description of how each applies. The purpose of the attachment is to provide a resource
document for your use in these discussions. In Exhibit A:
The first column lists the type of complaint to which the protection applies. For example,
several protections would apply to a City employee or member of the public that reports
s/he was retaliated against because s/he participated in an investigation of sex-based
discrimination. The first column lists the type of complaint to which the protection
applies.
The second column lists the specific law, rule, regulation, act, or policy which provides
this protection. In the case of the example regarding a discrimination investigation as
described above, the City's Employee Handbook, the Montana Human Rights Act and the
federal Civil Rights Act could apply.
The third column describes the specific anti-retaliation provision contained within the
law, rule, regulation, act or policy. For example, if an employee was retaliated against by
4 http://www.employerlawreport.com/2009/01/articles/eeo/title-viis-antiretaliation-provisions-apply-to-statements-
made-during-internal-investigations/>
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another employee for participating in the sex-based discrimination investigation, the act
of retaliation may, at a minimum, constitute 'disrespect to a fellow employee' and
'conduct on the job not in keeping with acceptable standards of behavior generally associ-
ated with employment'. Both of these are included among the reasons for Disciplinary
Action listed in the Disciplinary Policy of the Employee Handbook.
Suggestions for Moving Forward:
Obviously, you cannot at this time have a meaningful influence over state or federal protections;
as such, we suggest you consider requesting the City Manager consider amendments to the
Employee Handbook and to direct staff to bring back amendments to the Ethics code which will
more clearly define the City's policies regarding anti-retaliation/whistle blowing.
Important components of such a policy may include the following:
A provision which affords an employee or a member of the public an opportunity to
make a complaint if they believe they have been retaliated against. Included here should
be a requirement that the information provided in a complaint be regarding a matter of
public policy or public interest. Public employees are likely to learn about these abuses
during their normal scope and course of employment, and they should have a mechanism
to address/report them. Members of the public may see these abuses during their every
day interactions with City government.
Clearly state in unequivocal terms that no retaliation will occur by an employee or
official for making legitimate complaints under the policies.
Clear statements regarding who is protected (i.e. employees and/or the public) and who
the policy applies to, including employees and elected and appointed officials;
Indicate repeat offenses will be dealt with even more harshly than an initial offense, but
that a person may be dismissed for a first offense if it is of a serious enough nature.
Caution against and provide consequences for making complaints falsely or in bad faith.
A method to widely disseminate the policy. The City’s Code of Ethics requires annual
training and creation of an ethics handbook.5 These are good mechanisms for
dissemination.
Provide for a workable and reasonable complaint protocol:
o The policy should identify clear cut procedures to be followed. It must have a
mechanism whereby a complaint can be made in an alternative manner if the
‘retaliator’ is the person who normally would be the recipient of the complaint.6
o The investigation process should follow existing Handbook procedures and
existing procedures in the Ethics Code.
Finally, the policy should require prompt and effective remedial action in the event any
retaliation occurs.
5 The Ethics Board is currently making progress toward creation of such a handbook, as required by the Ethics Code. 6 A form could be developed which allows the person who makes the complaint to provide the person receiving the
complaint with as much information as possible (including names, dates, incidents, and a description of similar
events.)
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As stated above, we also suggest you consider developing a standard that provides notice that an
employee or official may be faced with disciplinary action if an employee or official alleges
another employee, a supervisor, a manager or an elected or appointed official is violating public
policy, and the investigation into those allegations determines:
The allegations were not founded in fact;
The allegations were made in bad faith; or
Based on the evidence, the allegations were themselves intended as a means to retaliate
against another employee.
Doing so will ensure a whistle blowing claim cannot be used as a subterfuge to realize a vendetta
against another employee.
We include numerous examples from other local governments to illustrate for you the myriad of
ways these issues have been addressed. These are attached as Exhibits C, D, E, F, G, H, I, and
include whistle blowing provisions for the City of Reading, PA (personnel policies) (Exhibit C);
Austin, TX (personnel policies) (Exhibit D); Fairbanks, AK (personnel policies) (Exhibit E);
(ordinance) (Exhibit F) ; Seattle, WA (ordinance) (Exhibit G); Missoula, MT (personnel
policies) (Exhibit H); Billings, MT (personnel policies) (Exhibit I); and www.cityethics.org
(model policy) (Exhibit J). Please note that several of these examples are polices that are put in
place based on specific state enabling legislation. Montana does not have any comparable
specific enabling legislation.
As stated above, suggested amendments to the Handbook can be accomplished by working
with the City Manager who could then implement those changes through an
Administrative Order. Amendments to the Ethics Ordinance will need to follow your
adopted procedures for amending the Bozeman Municipal Code and, in addition, will need
to be passed through your Ethics Board for a recommendation. See Sect. 2.01.030.4.ii and
Sect. 2.01.030.5, BMC.
FISCAL EFFECTS: None (staff time only).
ALTERNATIVES: As suggested by the City Commission.
Attachments:
Exhibit A: Listing of Protections for Employees Alleging Violations of Public Policy
Exhibit B: Provisions from the Employee Handbook
Exhibit C: Reading, PA
Exhibit D: Austin, TX
Exhibit E: Fairbanks, AK
Exhibit F: Redding, CA
Exhibit G: Seattle, WA
Exhibit H: Missoula, MT
Exhibit I: Billings, MT
Exhibit J: Model Whistleblower Policy from www.cityethics.org
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