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Denver Revised Municipal Code (DRMC)

Appellants’ admission that they did not request permission in advance of 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); quoting 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).

An appearance of impropriety under the code of ethics is created when an employee's private interest reasonably appears to influence his public duties or interests. 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).

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).

No violation of City’s ethics code established by employee’s request for four or fewer pens from a city vendor, zoo tickets, and special zoo tours, since, public's perception of city employees is not likely to be harmed, nor would it create an impression of misuse of the privilege of city employment. In re Schultz, CSA 156-04, 9 (6/20/05). 

Appellant violated City’s ethics rule where she: was a City employee; wrongfully solicited and accepted free equipment replacement from a vendor; could take direct official action on its contract; accepted a thing of value from it without adequate compensation; and the City had a contractual relationship with it. In re Roybal, CSA 60-11, 9 (3/13/12).

Appellant violated DRMC 2-67 by using her public office 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” to avoid prosecution when arrested for failing to pay for a beer while off duty sought undue advantage in violation of ordinance. In re Mergl, CSA 131-05, 6 (3/13/06) (decided under former CSR 15-20).

The whistleblower ordinance prohibits retaliation against an employee on account of that 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); DRMC 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, 9 (10/13/14), citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

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 misconduct and of the discipline taken against similarly situated employees, and was based on credible evidence from which a reasonable administrator would take such action. In re Macieyovski, CSA 28-14, 9 (10/13/14).

Appellant failed to prove his dismissal was motivated by his whistleblowing where: a supervisor ordered an audit of appellant’s work one week before his alleged whistleblowing; appellant’s supervisors were unaware of his whistleblowing email until three months after his dismissal; and appellant presented no evidence that contradicted the essential facts of agency’s dismissal notice. In re Macieyovski, CSA 28-14, 9 (10/13/14).

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 & 107-09, 27-28 (9/17/10), citing In re Harrison, CSA 55-07, 89-07 & 90-07, 59 (6/17/10).

Director’s 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 was not rendered retrospective merely because the facts upon which it operates occurred before its adoption. In re Harrison, CSA 55-07, 89-07 & 90-07, 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).  

The whistleblower ordinance’s legislative history indicates an intent to mesh well with Colorado’s whistleblower law and they use similar wording, hence state case law interpreting the  state law is persuasive authority in construing 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, and therefore an adverse employment action, under the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).

An agency directive to an employee, not to contact co-workers during investigation of his mismanagement claim, may be viewed as an indirect form of discipline or penalty within 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 possible misconduct or inadequate performance contemplates the placement of the target of the investigation on leave, not the whistleblower. In re Muller, CSB 48-08, n.1 (10/24/08), citing CSR 16-30.

Civil rights cases holding that 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 of the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).

Agency’s placement of whistleblower on investigatory leave not in conformity with CSR 16-30 adds further support to the CSB’s finding that agency’s use of investigatory leave was an adverse employment action. In re Muller, CSB 48-08, n.1 (10/24/08).

Whistleblower ordinance broadly defines an adverse employment action to include not only the adverse agency actions specified in the ordinance, but any direct or indirect form or threat of discipline or penalty. In re Muller, CSA 48-08, 1-2 (Order 7/24/08), citing DRMC 2-107(b).

Appellant stated a claim for relief under whistleblower ordinance where agency’s placed him on investigatory leave – an adverse action - within minutes after his complaint of mismanagement. In re Muller, CSA 48-08, 2 (Order 7/24/08).

Whistleblower ordinance’s legislative history states that the ordinance narrowly defines reportable misconduct and adverse employment action. In re Steward, CSA 18-08, 3 (Order 4/11/08).

Legislative history of whistleblower ordinance indicates its intent was to protect reports of actual wrongdoing, as opposed to personnel disputes, and to discourage frivolous reporting. In re Steward, CSA 18-08, 3 (Order 4/11/08).

Appellant’s statement at a meeting in opposition to a proposal that the agency never implemented was not a disclosure of official misconduct because she did not communicate the commission of an act she reasonably believed was official misconduct. In re Hamilton, CSA 100-09 & 107-09, 28-29 (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, 28-29 (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 interactive voice recognition 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, required to prove whistleblower violation. In re Harrison, CSA 55-07, 89-07 & 90-07, 63 (6/17/10).

Appellant did not establish report of official misconduct under whistleblower ordinance where the evidence did not support her allegation that manager tried to delay her report of contract mismanagement to the auditor. In re Harrison, CSA 55-07, 89-07 & 90-07, 64 (6/17/10).

General complaints of mismanagement that are part of an escalating dispute between the employee and his supervisors are personal, and not matters of public whistleblower concern. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10), citing Methvin v. Bartholomew, 971 P.2d 151 (Alaska 1998) (interpreting Alaska’s whistleblower statute). 

Inclusion of the word mismanagement in a list in the ordinance which also 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, are not the 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 misconduct addressed by the whistleblower ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).

Appellant’s mere citation of rules is insufficient to allege her  disclosure of official misconduct necessary to establish whistleblower jurisdiction. In re Moore, CSA 103-09 & 21-10, 2 (Order 5/26/10).

Appellant’s vague disagreement about the basis for , and her complaint about supervisor's treatment of her, do not allege official misconduct. In re Moore, CSA 103-09 & 21-10, 2 (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, 2-3 (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, 3 (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 ordinance. In re Steward, CSA 18-08, 4 (Order 4/11/08).

An employee’s initial report of mold in the workplace to his supervisor would not become a disclosure of official misconduct under the ordinance by an official’s future action on it that violates a law or regulation. In re Steward, CSA 18-08, 4 (Order 4/11/08).

Evidence did not establish appellant reasonably believed her alleged disclosure that a city official or contractor caused or could have caused a default on city bond or distortion of city financial reports. Moreover, and she made disclosure after agency’s adverse action, so it could not have caused the adverse action. In re Harrison, CSA 55-07, 89-07 & 90-07, 61-62 (6/17/10).

Since appellant alleged contract mismanagement by the agency after it imposed adverse actions on her, her allegation could not have caused the adverse actions. In re Harrison, CSA 55-07, 89-07 & 90-07, 62 (6/17/10).

Appellant’s allegation that terms of investigative leave prevented her from making further disclosures of official misconduct was not credible since she already obtained numerous agency documents and spoke to several officials about her options. In re Harrison, CSA 55-07, 89-07 & 90-07, 67 (6/17/10).

Appellant failed to prove her disclosures of alleged official misconduct were a substantial or motivating factor for the agency adverse actions since she made them several months after the adverse actions. In re Harrison, CSA 55-07, 89-07 & 90-07, 68 (6/17/10).

A pre-disciplinary letter is not an adverse employment action. In re Thomas, CSA 13-10 (Order 3/15/10).   

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 Steward, CSA 18-08, 2 (Order 4/11/08), citing In re Wehmhoefer, CSA 02-08 (Order 2/14/08); DRMC 2-108. 

Appeal filed three years after agency action is untimely since appellant received notice through his paycheck of agency’s failure to pay him 6.9% increase for serving in acting capacity in higher job classification. In re Gibbons, CSA 49-05 (Order 8/17/05) (decided under former CSR 18-12). 

Appellant confirmed his notice of adverse agency action was 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 CSR 18-12). 

Hearing officer lacked jurisdiction over appeal of untimely grievance filed over five months late. In re Mullen, CSA 72-05 (Order 8/9/05) (decided under former CSR 18-12).

The ordinance is harmonious with common law deliberative process privilege and does not confer automatic privilege on 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).

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.; DRMC 18-1, reversed on other grounds In re Sample, CSB 72-07 (10/16/08).

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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