A complaint about conditions in a nursing mothers’ room that does not allege a violation of law, waste of resources or abuse of authority is not a report of official misconduct, an essential element of a whistleblower claim. In re Martinez, CSA 10-17, 8 (7/19/17).
Claimed retaliation for filing a discrimination complaint does not allege retaliation for reporting official misconduct under the whistleblower ordinance. In re Martinez, CSA 10-17, 8 (7/19/17).
In pertinent part, this bill states:
Notwithstanding any Career Service rule to the contrary, during fiscal year 2009, no merit increases in excess of 1 step for Performance Enhancement Plan Reports (PEPRs) due in 2009 shall be awarded to any employee in the Career Service…Employees who would have been entitled to receive more than a 1 step merit increase under the Career Service rules for a PEPR due in 2009 will only receive a 1 step increase under this provision. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3 (5/20/09).
CODE OF ETHICS
Appellants’ admission that they did not request permission in advance before soliciting business for their own company proved a violation of this section of the code. In re Sawyer & Sproul, CSA 33-08 & 34-08, 15 (1/27/09).
The City has a legitimate interest in maintaining the public's confidence in the integrity of public service. In re Schultz, CSA 156-04, 8 (6/20/05); citing Crandon v. United States, 110 S. Ct. 997, 1005 (1990).
Conduct violates the spirit of the ethics code if it would cause the public to lose confidence that public employees are acting in the public interest. In re Schultz, CSA 156-04, 9 (6/20/05).
If an employee's private interest appears to influence his public duties or interests, an appearance of impropriety is created. In re Schultz, CSA 156-04, 9 (6/20/05), citing Fontes v. Dept. of Transportation, 51 MSPR 655 (1991).
The value of an item accepted by a city employee and its potential to influence public action are relevant to a determination of whether an employee created an appearance of impropriety. In re Schultz, CSA 156-04, 9 (6/20/05), citing Wells v. Dept. of Defense, 53 MSPR 637 (1992).
Employee’s removal of a vendor’s pen from supervisor's office would not create an appearance of private gain to a reasonable person who learned of it. In re Schultz, CSA 156-04, 9 (6/20/05).
Knowledge that an employee requested pens from a city vendor, or requested zoo tickets or special zoo tours, is not likely to harm the public's perception of city employees or create an impression of misuse of the privilege of city employment, and therefore does not violate city ethics code. In re Schultz, CSA 156-04, 9 (6/20/05).
Appellant violated City’s ethics rule, DRMC Article IV, sec. 2.60, Gifts for officers, officials and employees, where she: was a City employee; wrongfully solicited and accepted free equipment replacement; was in a position to take direct official action; accepted a thing of value without adequate compensation and the City had a contractual relationship with the vendor. In re Roybal, CSA 60-11, 9 (3/13/12).
2-67: USE OF PUBLIC OFFICE FOR PRIVATE GAIN
Appellant violated ordinance where she used her position to help her sister’s fraudulent application for public assistance. In re Abdi, CSA 63-07, 29 (2/19/08).
Appellant’s violation of DRMC §2-67, use of public office for private gain, constitutes violation of this rule as well. In re Abdi, CSA 63-07, 29 (2/19/08).
Appellant violated rule where she used her position to help her sister’s fraudulent application for public assistance. In re Abdi, CSA 63-07, 29 (2/19/08).
Deputy sheriff who asked police for “professional courtesy” when arrested for failing to pay for a beer while off duty failed to conduct himself in a manner reflecting credit on the city in violation of rule. In re Mergl, CSA 131-05, 6 (3/13/06) (decided under former § 15-20).
2-100: WHISTLEBLOWER PROTECTION ORDINANCE
The city's whistleblower ordinance prohibits retaliation against an employee on account of an employee's disclosure of official misconduct. In re Macieyovski, CSA 28-14, 8 (10/13/14).
Official misconduct is an act or omission that is: 1) a violation of law, rule, executive order or ethical standards; 2) a waste of city resources; or 3) an abuse of official authority. In re Macieyovski, CSA 28-14, 8 (10/13/14), citing In re Wehmhoefer, CSA 02-08, 4-5 (Order 2/14/08); D.R.M.C. § 2-107(d).
An adverse action that occurs right after a protected activity is some evidence of an intent to retaliate for that protected activity. In re Macieyovski, CSA 28-14, 8 (10/13/14), citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001), Coleman v. District of Columbia, 893 F. Supp. 2d 84, 102-03 (D.D.C. 2012).
Factors to evaluate in whistleblower claims include whether the discipline was supported by good cause, was not unduly harsh in light of the seriousness of the conduct and compared to actions taken against similarly situated employees, and was based on believable evidence from which a reasonable administrator would take such action. In re Macieyovski, CSA 28-14, 8 (10/13/14).
Appellant failed to prove his dismissal was motivated by his whistleblowing where: a supervisor’s order to audit appellant’s work occurred one week before appellant’s alleged whistleblowing; his supervisors were unaware of appellant’s whistleblowing email until three months after his dismissal; and appellant presented no evidence that contradicted the essential facts of agency’s notice of discipline. In re Macieyovski, CSA 28-14, 9 (10/13/14).
Whistleblower ordinance was not rendered retrospective merely because the facts upon which it operates occur before the date it was adopted. In re Harrison, CSA 55-07, 59 (6/17/10), citing Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo.App. 1991); Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180 (Colo.App. 1991); Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).
Based on the legislative history of the whistleblower ordinance indicating that it was intended to mesh well with state whistleblower law and their use of similar wording, state case law interpreting the Colorado statute is persuasive authority in construing the intended meaning of the ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 59-60 (6/17/10).
Placement of an employee on investigatory leave is withholding of work under the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).
When an agency tells an employee not to contact co-workers during investigation of his mismanagement claim, such agency action may be viewed as an indirect form of discipline or penalty within the broad scope of the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).
Rule permitting placement of employee on investigatory leave pending an investigation of a possible rule violation or failure to meet performance standards obviously contemplates the placement of the target of the investigation on leave, not the whistleblower. In re Muller, CSB 48-08, 2 (10/24/08), citing § 16-30.
Civil rights cases cited by agency for the proposition that placing an employee on investigatory leave is not an adverse employment action are inapplicable, as they do not define an adverse action in the context of the broader language used by city council in providing protection for whistleblowers. In re Muller, CSB 48-08, 2 (10/24/08).
Fact that investigatory leave was not in conformity with § 16-30 adds further support to the board’s finding that agency’s placement of whistleblower on investigatory leave was an adverse employment action. In re Muller, CSB 48-08, 2 (10/24/08).
Whistleblower ordinance definition of adverse employment action is broadly worded to include not only the adverse agency actions specified in the ordinance, but any direct or indirect form of discipline or penalty, or the threat of discipline or penalty. In re Muller, CSA 48-08 (Order 7/24/08), citing DRMC 2-107(b).
In the light most favorable to appellant, placement of appellant on investigatory leave within minutes of his complaint of mismanagement alleges an adverse action sufficient to state a claim for relief under whistleblower ordinance. In re Muller, CSA 48-08 (Order 7/24/08).
2-106: LEGISLATIVE DECLARATION
A whistleblower claim is established by proof that 1) an employee disclosed official misconduct to an appropriate reporting authority, 2) the agency imposed or threatened to impose an adverse action, and 3) the disclosure was a substantial or motivating factor for the adverse action. In re Hamilton, CSA 100-09, 27-28 (9/17/10), citing In re Harrison, CSA 55-07, 89-07 & 90-07, 59 (6/17/10).
Director’s imposition of verbal reprimand for appellant’s statements at a meeting is a convincing indication that director did not view the statements as serious misconduct. In re Hamilton, CSA 100-09 & 107-09, 28 (9/17/10).
Whistleblower ordinance narrowly defines reportable misconduct and adverse employment action. In re Steward, CSA 18-08 (Order 4/11/08).
Legislative history of whistleblower ordinance shows that its intent is to protect reports of actual wrongdoing as opposed to disputes that are really personnel matters, and to discourage frivolous reporting. In re Steward, CSA 18-08 (Order 4/11/08).
2-107 D: OFFICIAL MISCONDUCT
Appellant’s statement at a meeting in opposition to a proposal that was never implemented was not a disclosure of official misconduct because it did not communicate the commission of an act that employee reasonably believed was official misconduct. In re Hamilton, CSA 100-09 & 107-09, 28 (9/17/10).
Appellant failed to establish that director selected appellant for layoff based on her statements at a meeting in opposition to director’s proposal. In re Hamilton, CSA 100-09 & 107-09, 28 (9/17/10).
Appellant’s statement to ethics board that private contractor had a conflict of interest was not a disclosure of official misconduct, which must be an act or omission by a city officer or employee. In re Hamilton, CSA 100-09 & 107-09, 29 (9/17/10).
Appellant failed to establish that director selected appellant for layoff where director was ordered by mayor to abolish positions, and director took no part in actions in lieu of lay-off. In re Hamilton, CSA 100-09 & 107-09, 28 (9/17/10).
A six-week delay in installing a reconciliation function into an unfinished IVR design did not constitute fiscal misconduct under the fiscal accountability rules. In re Harrison, CSA 55-07, 89-07 & 90-07, 62-63 (6/17/10).
Fiscal accountability rules do not mandate reconciliations of individual city contracts. In re Harrison, CSA 55-07, 89-07 & 90-07, 63 (6/17/10).
An allegation of misconduct by a contractor does not assert official misconduct by a city officer or employee, as required to prove whistleblower violation. In re Harrison, CSA 55-07, 89-07 & 90-07, 63 (6/17/10).
Allegation that manager tried to delay appellant's report to the auditor of contract mismanagement was not supported by the evidence, and did not establish report of official misconduct under whistleblower ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 64 (6/17/10).
Complaints about workplace or personnel matters are not reports of official misconduct under whistleblower ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10), citiing Methvin v. Batholomew, 971 P.2d 151 (Alaska 1998).
The ordinance's use of the word mismanagement in a list which includes violations of law, rules, ethics and abuse of authority, indicates an intent to target serious violations of the standards affecting public employees and the larger interests of the citizens of Denver. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).
Mistakes or even neglect by a city employee in performing his work, without more, do not rise to the level of the type of misconduct targeted by the whistleblower ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).
Mistakes or oversights during administration of a lengthy service contract that are resolvable by contract amendments or other means are not the type of significant misconduct addressed by the whistleblower ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).
Mere citation of rules is insufficient to allege that suspension was based on employee's disclosure of official misconduct for purposes of establishing whistleblower jurisdiction. In re Moore, CSA 103-09 & 21-10 (Order 5/26/10).
Disagreement about the basis for discipline and complaints about supervisor's treatment of employee do not allege official misconduct. In re Moore, CSA 103-09 & 21-10 (Order 5/26/10).
“Official misconduct” means any act or omission by any officer or employee that constitutes 1) a violation of law, 2) a violation of any applicable rule, regulation or executive order, 3) a violation of the code of ethics or any other applicable ethical rules and standards, 4) the misuse, misallocation, mismanagement or waste of any city funds or other city assets, or 5) an abuse of official authority. In re Steward, CSA 18-08 (Order 4/11/08).
Existence of mold in workplace is not by itself a violation of law, rule or regulation necessary to prove official misconduct under whistleblower ordinance. In re Steward, CSA 18-08 (Order 4/11/08).
Discussions between employee and supervisor about working conditions that do not assert official misconduct are not disclosures protected by the Whistleblower Protection Act. In re Steward, CSA 18-08 (Order 4/11/08).
Even if an official’s future action with regard to reported mold in the workplace issue is found to violate a law or regulation, an employee’s initial report of the problem to his supervisor is not thereby rendered a disclosure of official misconduct under the ordinance. In re Steward, CSA 18-08 (Order 4/11/08).
2-108: RETALIATION PROHIBITED
Hearing office does not have jurisdiction to hear whistleblower appeal supported only by a pre-disciplinary letter, which is not an adverse employment action. In re Thomas, CSA 13-10 (Order 3/15/10).
A claim under the Whistleblower Protection Ordinance is raised by allegations that 1) a supervisor imposed or threatened to impose 2) an adverse employment action upon an employee 3) on account of the employee’s disclosure of information about any official misconduct to any person. In re Steward, CSA 18-08 (Order 4/11/08), citing In re Wehmhoefer, CSA 02-08 (Order 2/14/08); D.R.M.C. § 2-108.
Evidence did not support conclusion that appellant reasonably believed a city official or contractor caused or could have caused a default on city bond or distortion of city financial reports, and disclosure occurred after the adverse action. In re Harrison, CSA 55-07, 89-07 & 90-07, 62 (6/17/10).
Since allegation of contract mismanagement by the agency was not disclosed until after adverse actions were imposed, allegation could not have been the cause of the adverse actions. In re Harrison, CSA 55-07, 89-07 & 90-07, 62 (6/17/10).
Appellant failed to prove that terms of investigative leave prevented her from making further disclosures of official misconduct. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).
Since appellant made no disclosures of official misconduct until after the adverse employment actions, she failed to prove her disclosures were a substantial or motivating factor for any of the adverse actions. In re Harrison, CSA 55-07, 89-07 & 90-07 68 (6/17/10).
2-376 (c) – OIM AND OTHER PROTECTED DELIBERATIVE PROCESS PRIVILEGE
The ordinance is harmonious with common law deliberative process privilege and does not confer automatic privilege for any and all communications between any agency and the OIM. It simply confers membership in the group protected by deliberative process privilege, in other words, the ordinance confers status, not substantive blanket protection. In re Steckman, CSA 30-15, 3 (Order 8/21/15).
Under Ordinance 2-376(c), the OIM must still establish why otherwise-relevant documents, properly required to be disclosed, are protected by the deliberative process privilege. In re Steckman, CSA 30-15, 3 (Order 8/21/15).
18-1: CAREER SERVICE AUTHORITY CREATED
Denver’s career service system provides for merit-based appointment of applicants and performance-based retention of city employees. In re Sample, CSA 72-07, 5-6 (6/12/08), citing City Charter §1.2.1.rev’d on other grounds, In re Sample, CSB 72-07 (10/16/08).
Appeal filed three years after agency action is untimely when appellant received paycheck in Nov. 2001 giving him notice of agency’s failure to give him 6.9% pay increase for serving in acting capacity in higher job classification. In re Gibbons, CSA 49-05 (Order 8/17/05) (decided under former § 18-12).
Appellant’s notice of adverse agency action was proven by his request for pay increase three times after receiving paycheck without 6.9% raise for higher job classification. In re Gibbons, CSA 49-05 (Order 8/17/05) (decided under former § 18-12).
Appellant’s failure to timely file his grievance of his “meets expectations” PEPR he claimed was retaliatory deprives the hearing officer of jurisdiction to hear the retaliation claim. In re Schultz, CSA 78-05, 2 (Order 8/15/05) (decided under former §§ 18-12, 19-10).
Where appellant claims that a PEPR rating was retaliatory, a grievance filed based on that claim is not appealable unless appellant complies with the grievance procedure under Rule 18. In re Schultz, CSA 78-05 (Order 8/15/05).
When appellant filed his second-step grievance late, hearing officer was without jurisdiction to hear appeal. In re Schultz, CSA 78-05 (Order 8/15/05) (decided under former § 18-12).
Grievance filed over five months after action giving rise to grievance is untimely, and therefore hearing officer has no jurisdiction over appeal of grievance. In re Mullen, CSA 72-05 (Order 8/9/05) (decided under former § 18-12).
An employee may grieve a written reprimand, but may not appeal the unfavorable disposition of the grievance even though there is no alternative forum for appeal. In re Black, CSA 16-09 (Order 3/12/09).
The Board has excluded written reprimands from hearing office jurisdiction. In re Black, CSA 16-09 (Order 3/12/09).
18-114: ACTING SHERIFF PAY
A sheriff department major became de facto acting division chief for three months, entitling him to acting pay, where the acting director delegated his authority to a division chief, and the division chief re-delegated his authority to a major by asking him to “run the Division” call him only “if anything big happens,” and the major performed all division chief duties. In re Anderson & Connors, CSA 61-10, 63-10, 66-10 & 67-10, 5-6 (12/22/10).
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