Whistleblower Protection

Generally 

Board affirms hearing officer's dismissal of whistleblower claim where appellant never identified the claim or the nature of the error by the hearing officer in dismissing the claim.  In re Redacted CSB 67-11 (4/4/2013).

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).

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).

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).

The broad scope of the Whistleblower Protection Ordinance includes direct and indirect forms of discipline and threats of discipline.   In re Muller, CSB 48-08, 2 (10/24/08).

Whistleblower Protection Ordinance does not provide for attorney’s fees as a remedy.   In re Muller, CSB 48-08 (3/10/09)

A claim under the whistleblower 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 Wehmhoefer, CSA 02-08, 4 (2/14/08); D.R.M.C. § 2-106 et. seq.

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 Wehmhoefer, CSA 02-08, 4-5 (2/14/08); D.R.M.C. § 2-107 (d). 

Section 15-106 evidences the Career Service Authority's interest in maintaining an efficient city by providing protection from reprisal to employees who aid city investigations.  In re Smith, CSA 17-05, 7 (7/07/05).   

When a city audit is an investigation into a complaint about the expenditure of public funds, employees who assist the audit by providing information are protected from retaliation by the rule.  In re Smith, CSA 17-05, 7 (7/07/05) (decided under § 15-106).  

Appellant’s good faith reporting of improper co-worker practices constituted whistleblowing activity protected from retaliation.  In re Freeman, CSA 40-05, 75-04, 7 (3/3/05) citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999).   

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Whistleblowing claim established 

Where agency placed appellant on investigatory leave immediately after he complained to his supervisor about mismanagement, agency argument that placing appellant on investigatory leave is not an adverse action ignores the broad scope of the ordinance, which specifically includes withholding of work as an adverse employment action.   In re Muller, CSB 48-08, 2 (10/24/08).

The placement of an employee on investigatory leave is “withholding of work” under the whistleblower ordinance, since he is not permitted to perform his normal job duties in the workplace.   In re Muller, CSB 48-08, 2 (10/24/08).

Agency’s order to employee on investigatory leave, that he is to stay at home and have no contact with any of his co-workers, may be viewed as an indirect form of discipline or penalty within the broad scope of the ordinance.   In re Muller, CSB 48-08, 2 (10/24/08).

Cases that define an adverse employment action in the context of civil rights claims are inapplicable to the broader language used in Denver’s whistleblower ordinance.   In re Muller,CSB 48-08, 2 (10/24/08).

While placement of an employee on investigatory leave is an adverse action under the whistleblower ordinance, investigatory leave may not be an adverse action for other kinds of claims under the career service rules.    In re Muller CSB 48-08, 2 (10/24/08).

Whistleblowing claim not established

Appellant failed to establish whistleblower claim by evidence of her reports in past years to city council that youth program funds were being blended into other work because 1) appellant failed to allege that this conduct violated a law or other standard or wasted city funds, 2) appellant did not prove the new appointee who imposed the discipline knew of her reports, and 3) the passage of time argues against a finding that the reports motivated the discipline.  In re Mack, CSA 43-12, 10 (3/18/13). 

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).

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).

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).

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).

Employee complaint about conduct of co-worker was not a disclosure of official misconduct, as it did not rise to the level of a matter of public concern sufficient to affect the interests of the city and the larger interests of the citizens of Denver.  In re Rems, 31-10, 2 (Order 5/12/10), citing In re Steward, CSA 18-08, 4 (4/11/08); Pickering v. Bd. of Educ., 391 US 563 (1968). 

Mere citation of rules allegedly violated 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).

Employee's disagreement about the basis for discipline and complaints about her treatment by supervisor do not allege official misconduct for purposes of establishing whistleblower jurisdiction.  In re Moore, CSA 21-10 (Order 5/26/10). 

A whistleblower claim supported only by a pre-disciplinary letter does not assert an adverse action.  In re Thomas, CSA 13-10 (Order 3/15/10).   

Agency’s withdrawal of retaliatory action which gave rise to appellant’s whistleblower claim removes that claim from hearing officer’s jurisdiction.   In re Muller,CSA 48-08 (Order 4/15/09). 

Where appellant does not state how his superior’s revocation of liquor code penalties violated rules and regulations or abused her authority, he failed to allege an act of official misconduct as necessary to assert a whistleblower claim.  In re Wehmhoefer, CSA 02-08, 5 (2/14/08).   

Complaint alleging that appellant was required to do work that other employees should have performed does not allege waste of public funds, abuse of authority, mismanagement of an agency or any other matter relating to the public interest is not a protected activity within the meaning of the rule prohibiting retaliation.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, p. 8-9 (1/27/05), citing CRS § 24-50.5-102. 

Where employee raised complaint affecting the public interest, asserting misuse of city equipment, and supervisor took action to correct misuse on the same day, employee did not prove she was adversely affected by her whistleblower complaint.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 9 (1/27/05).  

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OHR Employee Relations Unit
201 W. Colfax Ave., Dept 412
Denver, CO 80202

For general employee relations questions contact:
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