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Whistleblower Protection

IN GENERAL 

Whistleblower claim fails when, even if whistleblower meets his burden of proof, the agency proves it would have reached the same conclusions about appellant’s violations even in the absence of the protected conduct. In re Wilson, CSA 38-17, 13 (12/8/17), citing Taylor v. Regents of Univ. of Colo., 179 P.3d 246 (Colo.App. 2007); Ward v. Industrial Commission, 699 P.2d 960, 968 (Colo. 1985).

“Official misconduct” includes any act or omission by any officer or employee…that constitutes a violation of any applicable rule, regulation or executive order, or an abuse of official authority. In re Wilson, CSA 38-17, 11 (12/8/17), citing In re Steward, CSA 18-08, 2-3 (4/11/08);  DRMC 2-108.

Discussions between an employee and his supervisor about working conditions that do not assert official misconduct are personnel matters, not disclosures of official misconduct under the Whistleblower Ordinance. In re Wilson, CSA 38-17, 11 (12/8/17), citing In re Steward, CSA 18-08, 2-3 (4/11/08).

“[O]n account of” element in Whistleblower Ordinance requires a claimant to establish his notice of official misconduct was a substantial or motivating factor in the retaliatory act. In re Wilson, CSA 38-17, 12 (12/8/17), citing Taylor v. Regents of Univ. of Colo., 179 P.3d 246 (Colo.App. 2007).

16-month gap between appellant’s alleged reporting of official misconduct and his demotion failed to support the “on account of” element of Whistleblower Ordinance. In re Wilson, CSA 38-17, 12 (12/8/17).

Complaints about workplace or personnel matters are not reports of official misconduct under the Whistleblower Ordinance. In re Wilson, CSA 38-17, 12 (12/8/17), [additional citations omitted].

Appellant’s mere recitation of sources of authority fail to establish official misconduct. In re Wilson, CSA 38-17, 12 (12/8/17).

Appellant did not prove agency misconduct where it matched his claim, that he was unaware of any authority permitting restructuring DSD that made him subordinate to another chief, with an equally persuasive denial. In re Wilson, CSA 38-17, 13 (12/8/17).

Appellant did not prove whistleblower retaliation with allegations that the agency: replaced his agency-provided SUV with a sedan usually associated with a lower rank; excluded him from participation in some meetings; and relocated his office, and agency rebutted those claims with its legitimate right to reorganize. In re Wilson, CSA 38-17, 13 (12/8/17).

Appellant did not prove whistleblower retaliation with his complaint over a personnel matter, which is not intended to be covered under the Whistleblower Ordinance. In re Wilson, CSA 38-17, 13 (12/8/17).

Appellant’s complaint about conditions in a nursing mothers’ room that did not allege a violation of law, waste of resources or abuse of authority was not a report of official misconduct, an essential element of a whistleblower claim. In re Martinez, CSA 10-17, 8 (7/19/17).

A claim under the Whistleblower Ordinance is raised by allegations that a supervisor imposed or threatened an adverse employment action on account of an employee’s disclosure of information about official misconduct, i.e. a violation of law or other authority, a waste of City resources, or an abuse of official authority. In re Schofield, CSA 08-17, 16 (10/9/17), citing In re Wehmhoefer, CSA 02-08, 4 (Order 2/14/08); DRMC 2-106 et seq.

A whistleblower claim is proven by (1) disclosure of official misconduct (2) to an appropriate reporting authority and proof that (3) the whistleblower suffered an adverse employment action (4) on account of that disclosure. In re Schofield, CSA 08-17, 16 (10/9/17).

Appellant did not establish her whistleblower claim “disclosure” element through her conversations with non-supervisory co-workers and her anonymous report to a news reporter. In re Schofield, CSA 08-17, 17 (10/9/17).

Appellant’s verbal complaints to co-workers that the DA’s nephew was an unqualified hiree, failed to assert a “disclosure” under the Whistleblower Ordinance as she did not disclose official misconduct. In re Schofield, CSA 08-17, 17 (10/9/17).

A news reporter is not “an appropriate reporting authority” under the Whistleblower Ordinance. In re Schofield, CSA 08-17, 17 (10/9/17).

It is questionable whether the DA, as a state employee, is subject to Denver’s Whistleblower Ordinance. In re Schofield, CSA 08-17, 17 (10/9/17).

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). 

The Whistleblower Ordinance prohibits retaliation against an employee on account of the 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 agency’s adverse action right after an employee’s protected activity is some evidence of its intent to retaliate for that protected activity. In re Macieyovski, CSA 28-14, 9 (10/13/14), citing Clark County 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, not unduly harsh in light of the seriousness of the conduct and compared to actions taken against similarly situated employees, and based on believable evidence from which a reasonable administrator would take such action. In re Macieyovski, CSA 28-14, 8 (10/13/14).
Dismissal of appellant’s whistleblower claim was proper where appellant argued she did not withdraw all her whistleblower claims, but she did not dispute findings of 2 claims and she did not identify the remaining 3 claims or the Hearing Officer’s error in dismissing them. In re Redacted, CSB 67-11A, 7 (4/4/13).

Whistleblower Ordinance was not rendered retrospective merely because the facts upon which it operates occurred before the date it was adopted. 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 legislative history of the Whistleblower Ordinance indicates that it was intended to mesh well with the Colorado whistleblower law, and they use similar wording, so state case law interpreting the statute is persuasive authority in interpreting the ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 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, 89-07 & 90-07, 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, 89-07 & 90-07, 66 (6/17/10), citing Methvin v. Batholomew, 971 P.2d 151 (Alaska 1998).

Inclusion of the word “mismanagement” in Whistleblower Ordinance’s list 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 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 misconduct addressed by the Whistleblower Ordinance. In re Harrison, CSA 55-07, 89-07 & 90-07, 66 (6/17/10).

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

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

Discussions between employee and supervisor about working conditions that do not assert official misconduct are not disclosures under the Whistleblower Ordinance. In re Steward, CSA 18-08, 4 (Order 4/11/08).  

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 (Order 2/14/08); DRMC 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 (Order 2/14/08); DRMC 2-107(d). 

CRS 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 (7/7/05). 

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 (7/7/05) (decided under CSR 15-106 [now 16-22]).  

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

FOUND 

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 Whistleblower Ordinance, and its language including withholding of work as an adverse employment action. In re Muller, CSB 48-08A, 2 (10/24/08).

Agency’s placement of an employee on investigatory leave is “withholding of work” under the Whistleblower Ordinance, since it did not permit him to perform his normal job duties in the workplace. In re Muller, CSB 48-08A, 2 (10/24/08).

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

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

Agency’s placement of an employee on investigatory leave is an adverse action under the Whistleblower Ordinance, but it is not an adverse action for other kinds of claims under the CSRs. In re Muller, CSB 48-08A, 2 (10/24/08).

NOT FOUND 

Appellant failed to prove the agency’s dismissal of him was retaliation for 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 on which the agency disciplined him. In re Macieyovski, CSA 28-14, 9 (10/13/14).

Appellant did not prove claim that agency committed official misconduct by delaying implementation of energy conservation measures where the director had decided they were fiscally imprudent for a number of reasons, and appellant failed to rebut that evidence. In re Macieyovski, CSA 55-13, 8 (4/1/14).

Appellant’s information was not a disclosure under the Whistleblower Ordinance where agency was aware of the energy audit, which was the original source of his information. In re Macieyovski, CSA 55-13, 7 (4/1/14), citing Ward v. Industrial Commission, 699 P.2d 960 (Colo. 1985).  

Appellant did not prove his claim that the agency's failure to implement certain energy audit recommendations violated the fiscal rule requiring that spending must be reasonable and in the best interest of the City, where the director had decided they were fiscally imprudent for a number of reasons, and appellant failed to rebut that evidence. In re Macieyovski, CSA 55-13, 6 (4/1/14).

Appellant did not prove his claim that the agency's failure to implement certain energy audit recommendations violated two executive orders on energy conservation and best management practices where his only evidence was that his supervisor received credit for his conservation ideas. In re Macieyovski, CSA 55-13, 5 (4/1/14).

Appellant’s advocacy of conservation measures was not a disclosure of official misconduct. In re Macieyovski, CSA 55-13, 7 (4/1/14).

Appellant failed to prove whistleblower claim with evidence of her reports in past years to City Council that youth program funds were being blended into other work because 1) she failed to allege that this conduct violated a law or other authority or wasted city funds, 2) she did not prove the new appointee who disciplined her knew of her past reports, and 3) the passage of time since her reports argues against a finding that they 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 her disclosure occurred after the agency adverse action and could not have caused it. In re Harrison, CSA 55-07, 89-07 & 90-07, 62 (6/17/10).

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

A six-week delay in installing a reconciliation function into an unfinished Interactive Voice Recognition design did not constitute fiscal misconduct under the City fiscal accountability rules. In re Harrison, CSA 55-07, 89-07 & 90-07, 62-63 (6/17/10).

City 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).

Appellant did not provide evidence of her allegation that manager tried to delay her report to the auditor of contract mismanagement, 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).

Appellant failed to prove that terms of investigative leave prevented her from making further disclosures of official misconduct, since she had obtained agency documents and learned her options under the Whistleblower Ordinance from City officials. In re Harrison, CSA 55-07, 89-07 & 90-07, 67 (6/17/10).

Since appellant made no disclosures of official misconduct until after the agency adverse employment actions, she failed to prove her disclosures were a substantial or motivating factor for any of its adverse actions. In re Harrison, CSA 55-07, 89-07 & 90-07, 68 (6/17/10).

Appellant’s mere citation of rules allegedly violated is insufficient to allege that her suspension was based on her disclosure of official misconduct, for purposes of establishing jurisdiction over her jurisdiction claim. In re Moore, CSA 103-09 & 21-10, 2 (Order 5/26/10).

Employee's disagreement about the basis for her discipline and complaints about her treatment by her supervisor do not allege official misconduct for purposes of establishing jurisdiction over her whistleblower claim. In re Moore, CSA 103-09 & 21-10, 2 (Order 5/26/10).

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 (Order 4/11/08); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). 

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).   

Hearing Officer lacks jurisdiction over whistleblower appeal based solely on a pre-disciplinary letter, which is not itself 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).

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

Appellant did not engage in a protected activity, an element of a retaliation claim, when she complained that she was required to do work that other employees should have performed, as she did not allege waste of public funds, abuse of authority, mismanagement of an agency or any other matter relating to the public interest. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 8-9 (1/27/05), citing CRS 24-50.5-102.

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

 
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