Seattle's Newly Expanded Whistleblower Protection Code

Anonymous

Fri, 02/21/2014 - 11:04

City Related

This week, Seattle's expanded Whistleblower Protection Code became
effective (attached; see below). As what appears to be the most
extensive local whistleblower code, it deserves a look from any
local government seeking to draft or improve whistleblower
provisions. 
 
The major changes to the code, according to the ethics commission's
(SEEC) website, are:<blockquote>

Employees who report wrongdoing to their supervisor or other
person in their chain of command will now be protected from
retaliation. 
 
The SEEC will now investigate allegations of retaliation. 
 
If reasonable cause is found that retaliatory actions have
occurred, options to address the harm of retaliation are
expanded. 
 
Both the institutional effects of retaliation, such as
demotion and transfers, and retaliatory acts by individuals can
be addressed and sanctioned.</blockquote>

This is a comprehensive code. For example, its
definition of "adverse change," a way to describe all the things
that can be done in retaliation against a whistleblower, consists of
twelve lines of acts, ending with a catchall, "any other significant
unfavorable action that is inconsistent compared to actions taken
before the employee engaged in action protected by this chapter, or
compared to other employees who have not engaged in action protected
by this chapter." 
 
The kinds of "improper governmental actions" deserving of whistleblowing is also comprehensive,
going well beyond ethical and criminal violations to include a
violation of any law, a risk of injury or loss, gross waste of
public funds or resources, and even the prevention of the
dissemination of scientific opinion or the alteration of technical
findings without valid justification (with some caveats). It is this
breadth that makes it reasonable to draft a separate code rather
than including such extensive provisions in an ethics code, where
many whistleblowers will not go looking for it, because what they have learned about has nothing to do with conflicts of interest. 
 
However, Seattle's whistleblower protection code is enforced by the
SEEC. This is unusual, because other enforcement officials generally
do not want an ethics program to have jurisdiction over anything in
their areas. I assume this shows respect for Seattle's excellent
ethics program. 
 
Retaliation Provisions 
In addition to the whistleblower protection code, a new provision
has been added to the ethics code. This provision (§4.16.070.F)
(below) prohibits not only retaliation, but also directly or
indirectly threatening or intimidating in order to interfere with an
employee's attempt to communicate with or provide testimony to the
SEEC. In addition, anyone who is complicit in such conduct is also
in violation of the ethics code (a very good thing).<blockquote>

F. Retaliate against a City Employee as prohibited under Section
4.20.810 of the Whistleblower Protection Code; or directly or
indirectly threaten or intimidate a City employee for the purposes
of interfering with that employee's right to communicate with the
Commission, its employees, or its agents; or directly or indirectly
threaten or intimidate an employee for the purposes of interfering
with or influencing an employee's cooperation in an inquiry or
investigation, or interfering or influencing testimony in any
investigation or proceeding arising from a report; or knowingly take
or direct others to take any action for the purpose of: 
 
1. influencing an employee's cooperation in an inquiry or
investigation based on a report of improper governmental action; or 
 
2. interfering or influencing testimony in any investigation or
proceeding arising from a report. </blockquote>

Settlement Provision 
One of the best things about Seattle's code is its settlement
provisions (§4.20.860(F)-(G)). Settlement is too often left out of
ethics codes themselves, so that settlement is either considered
impossible or improper, or there is no guidance regarding how to
proceed. It is better to work out a dispute regarding retaliation
than to expend substantial resources on a proceeding and allow a
dark cloud to hang over an agency, board, or the entire government for many
months. 
 
The settlement provisions allow the SEEC executive director to use
the services of Seattle’s Alternative Dispute Resolution office or
the King County Inter-local Conflict Resolution Group. The only
drawback in the provision is that a settlement becomes an issue only
after reasonable cause has been found. If a respondent is willing
and the executive director does not feel that the respondent is
trying to get the case closed before damaging evidence can be discovered, it
might be valuable to start settlement talks earlier, even while an
investigation is going on (a settlement can say that the matter will be reoponed if evidence of any further retaliation is discovered). 
 
It's true that the provision does not expressly prohibit
earlier settlement talks, but it could be construed to do this. In any event, one of the best things about this provision is its requirement that the SEEC's executive director consider the
feasibility of settlement talks at a reasonable point in the
proceeding. 
 
Training, Advice, and Enforcement 
The code requires training on the whistleblower code, and that that a
written summary of the code be sent annually to each employee. In addition, under the definition of
"report" (that is, what a whistleblower reports), there is a good subparagraph that prohibits officials from retaliating
against an employee who seeks advice about reporting. 
 
Besides administrative enforcement by the SEEC and a hearing
examiner, the code allows a whistleblower to file a civil action if
the SEEC dismisses the matter or finds no reasonable cause. 
 
Some Problems with the Code 
One thing I don't like about the code is the language about
reporting (§4.20.810(A)(1)): "Every employee shall have the
right to report in good faith pursuant to this subchapter an
assertion of improper governmental action." This is not a right,
it's an obligation. A government employee has a fiduciary obligation
to the community to prevent and disclose improper action by other
employees, which is, by definition, harmful to the community. It is precisely because the employee is fulfilling her obligation to the community that retaliation against her is damaging not only to the individual, but also to the community, and why it is inappropriate for such an individual to have to file a civil action. The government, through its ethics program, should take care of the matter. 
 
Another problem is the fact that, in §4.20.810(A)(2), it says that a
whistleblower's identity will be kept confidential, "unless such
disclosure is required under applicable law." It would be very
helpful to enumerate which laws might require disclosure, and in
what concrete instances, so that whistleblowers can feel comfortable
that their case will not require disclosure (or, on the other hand,
recognize that they will have to act publicly). 
 
Another problem is the provision on reporting "improper governmental
action" to the SEEC's executive director (§4.20.830). The first
sentence is a legalistic turnoff. Not only is it a statute of
limitations, without being called that, but it brings in someone who
almost never blows a whistle: the similarly situated
reasonable person:<blockquote>

A report of improper governmental action should be made within 12
months of when a reasonable person similarly situated to the
reporting employee would have become aware of the occurrence.</blockquote>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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