Seattle's Newly Expanded Whistleblower Protection Code

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:

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.

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).

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.

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:

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.

Robert Wechsler
Director of Research-Retired, City Ethics

---