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).

2-100:    Whistleblower Protection Ordinance

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, 59-60 (6/17/10).

Placement of an employee on investigatory leave is withholding of work under the whistleblower ordinance.  In re Muller, CSA 48-08, 2 (CSB 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, CSA 48-08, 2 (CSB 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, CSA 48-08, 2 (CSB 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, CSA 48-08, 2 (CSB 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, CSA 48-08, 2 (CSB 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 (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 (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, 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, 28 (9/17/10).

Whistleblower ordinance narrowly defines reportable misconduct and adverse employment action.  In re Steward, CSA 18-08 (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 (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 appellant reasonably believed was official misconduct.  In re Hamilton, CSA 100-09, 28 (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, 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, 29 (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, 62-63 (6/17/10).

Fiscal accountability rules do not mandate reconciliations of individual city contracts.  In re Harrison, CSA 55-07, 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, 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, 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, 66 (6/17/10), citing 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, 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, 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, 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 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 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 (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 (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 (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 (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 (4/11/08), citing In re Wehmhoefer, CSA 2-08 (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, 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, 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, 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, 68 (6/17/10).