September 15, 2014
Final Reports

Grand Jury Whistleblower Recommendation

Summary | Issue | Background | Findings | Conclusions | Recommendations| Responses

Summary:

Whistleblower protections have evolved over the years through labor laws and practices, legislative concerns for the public health, welfare and safety, as well as ethical and conscientious fiscal management. There has been significant legislation over the last 25 years creating national agencies to receive reports and increasing whistleblower protection. Most state governments, including California, have whistleblower protection legislation. There is little available in the area of model local legislation or policies. In response to a Grand Jury recommendation made in 2002, on April 6, 2004 a draft whistleblower ordinance "Reporting of Improper Governmental Activity," was presented to the Board of Supervisors for consideration.

The proposed ordinance designates three separate offices to which complaints might be made (i.e., Board of Supervisors, County Counsel and District Attorney). The ordinance applies only to improper governmental activity of County employees and officers. There is no reference to improper activities of vendors, contractors, volunteers or others serving the County.

The Grand Jury concludes that the proposed ordinance was hastily assembled without considering complete procedures to support the policy, protect the complainants, and ensure the policy is not abused.

The County should have an ordinance that provides:

  • Effective notification of the County's policies or procedures to employees, citizens and others who have relationships with the County.
  • Effective notification to complainants of the potential results of their actions and feedback about any investigation.
  • Status reports to the Board in those instances when County Counsel or the District Attorney handles the investigation.

The Grand Jury makes recommendations to the Board of Supervisors to:

  • Adopt a comprehensive policy or direct the County Manager to establish procedures to assure appropriate investigation of complaints and protection of those making complaints.
  • Establish a single point of contact for all such complaints within the Board of Supervisors offices or assign coordination to an outside agency under contract to the County.
  • Include coverage for members of the public, vendors and others serving the County.

Issue:
Has San Mateo County government created a Whistleblower process consistent with the response to the Grand Jury's recommendation in 2003?
 
Background:

Judge Jonathan Karesh, the Grand Jury presiding judge for 2003-2004 advised that the Grand Jury's responsibility is "…to monitor the effectiveness of our government in our counties, in our cities, in our school districts. And your primary job is to manage this task and to provide to our citizens leadership for our future and suggestions as to how these agencies and governmental bodies can improve themselves."

County government is an important force in the everyday life of its citizens, heavily involved in local health care, child welfare, elder care, emergency preparedness, health, environmental protection, policing, incarceration of law offenders, in addition to areas where financial concerns may be the highest priority.

The Grand Jury determined that a whistleblower program was essential to the proper oversight of the County's many public entities. In its 2002-2003 report the San Mateo County Civil Grand Jury made the following recommendation:

"The Board of Supervisors should immediately establish a "whistleblower" process. Until such time as the Independent County Auditor position is established, all whistleblower reports and responses should be reported monthly to the Board of Supervisors with appropriate procedures for confidentiality".

The response to the Grand Jury, approved by the Board of Supervisors on August 12, 2003 was:

"Concur. The Board of Supervisors and the County Managers Office will work collaboratively with the Controller in establishing a formal whistleblower process that may include employee and public access via the County's intranet web pages. Once developed, the process would include a formal response procedure and periodic notifications to the Board of Supervisors. The County will provide quarterly updates to the Grand Jury on the progress of designing and implementing the improved process."

A separate recommendation to create an Independent County Auditor (who would ultimately run the whistleblower program) was rejected.

To determine if the collaborative work described in the response to the Grand Jury recommendation has taken place the Grand Jury interviewed representatives of the Controller's office, County Counsel's office and the author of the book "Whistle-blowing - When it Works and Why." The Grand Jury reviewed materials from the Government Accountability Project, numerous whistleblower protection policies and model procedures, the San Mateo County Controller's (Controller) website, websites of independent whistleblower hotlines and qui tam law firms, and the National Whistleblower Center's Model Whistleblower law.

Findings:

While the Grand Jury did not investigate, and does not now represent, that any significant problems exist within San Mateo County, at least one whistleblower lawsuit has been filed against the County since that recommendation and response were made. Web searches on the subject indicate that there are a large number of attorneys ready to involve themselves in whistleblower lawsuits.

Whistleblower protections have evolved over the years through labor laws and practices, legislative concerns for the public health, welfare and safety, as well as ethical and conscientious fiscal management. There has been significant legislation over the last 25 years creating national agencies to receive reports and increasing whistleblower protection. The Sarbanes-Oxley Act, in reaction to highly publicized corporate scandals, is the most recent action at the national level to expand whistleblower protection. The United States, through the Government Accountability Project, has become a world leader in the area of whistleblower protection.

Most state governments, including California, have whistleblower protection legislation. There is little available in the area of model local legislation or policies. Some organizations use independent third parties to receive whistleblower complaints to create at least the perception of an independent review of claims made. A review of whistleblower related policies and literature indicate the following items should be included in a whistleblower policy:

  • Purpose of the policy
  • Individuals and organizations covered
  • Definitions of actions to be reported
  • Roles and responsibilities of the reporting party
  • Roles and responsibilities of parties receiving the complaint
  • The potential impact to the complainant of filing a claim
  • Policy regarding retaliatory action and alternatives regarding resolution
  • Expectations regarding confidentiality
  • A general description of the investigation process
  • The complainants expectation of communication of results of the investigation
  • Procedures to monitor that problems disclosed in the whistleblower process do not reoccur.

Whistleblower laws and policies are made to protect the whistleblower from retaliation as well as to protect individuals from false accusations and to discourage claims that lack credibility.

Even with protection against retaliation there may be unintended consequences resulting from a whistleblower's action. The process of investigation and resolution of a complaint may result in changes in organizational structure, workplace relationships with co-workers or other changes that may not ultimately be desirable in the opinion of the complainant.

The Grand Jury searched the websites of the cities within the County and found only Burlingame has a general complaint form for anyone wishing to make a complaint of any kind.

The fall 2003 issue of "Dollar wise," the Controller's newsletter, announced the introduction of a Whistleblower Process web page. Quoting from that newsletter, "The Grand Jury made this recommendation to the Audit Division because the Controller is the Chief Auditing Officer in the County, an independently elected official." As referenced previously, the Grand Jury recommended that the Board of Supervisors (Board) establish a whistleblower process under an independent auditor, not the Controller, with reports provided to the Board on a regular basis. The Grand Jury does not consider the Controller to be independent of the operations of county government by virtue of the fact that it is an elected position.

This new Whistleblower Process web page is a second level subsidiary page of the Controller's home page (three clicks). It lists the names, addresses, email addresses, telephone and fax numbers of the Deputy Controller and Controller as contact numbers for the Whistleblower Process. The web page offers no assurance of protection of the confidentiality of the reporting party, no mention of the process to be followed, and no assurances that there would be no retaliation for making any report. Further, there is no established procedure for reporting complaints to the Board.

On April 6, 2004 well over a year after the Grand Jury recommendation for a whistleblower process, a draft whistleblower ordinance "Reporting of Improper Governmental Activity", adding a chapter 2.206 to the County Ordinance Code, was presented to the Board for consideration. The ordinance was modified by the Board to allow direct reporting of complaints to the Board of Supervisors, County Counsel, or the District Attorney.

The proposed ordinance incorporates reference to California Labor Code section 1102.5 that provides broad protection and fines to employers who retaliate against whistleblowers, but does not reference other protections within the Labor Code relating to the responsibilities of employers and employees, or the penalties that may be imposed for violation of the law.

The proposed ordinance designates three separate offices to which complaints might be made (i.e., Board of Supervisors, County Counsel and District Attorney). The ordinance applies only to improper governmental activity of County employees and officers. There is no reference to improper activities of vendors, contractors, volunteers or others serving the County.


The proposed ordinance does not:

  • Provide any formal procedure for filing a complaint or monitoring its status.
  • Provide specific direction as to what type of complaint should be directed to each department.
  • Specify any course of action that would be taken by any of the recipients of a complaint.
  • Specify any procedure to notify the complainant of the results of an investigation or any action to be taken.
  • Require reports regarding the status of complaints to be forwarded to the Board of Supervisors from County Counsel or the District Attorney.
  • Indicate that complainants be advised of the potential serious consequences of their actions.
  • Provide for any disciplinary action or remedy in the event that an employee makes a false or bad faith complaint.
  • Provide any provision to mediate disputes between whistleblowers and the County.
Conclusions:

The present website and proposed ordinance do not reflect the adoption of a comprehensive policy to encourage and protect those who may have a serious concern about the actions of employees, vendors and others serving the County. The lack of such a comprehensive policy may result in increased litigation, or worse yet, needless endangerment to the health and safety of County employees, those in the County's care or its residents or guests.

The Grand Jury concludes that the proposed ordinance was hastily assembled without considering complete procedures to support the policy, protect the complainants, and ensure the policy is not abused.

The County should have an ordinance that provides:

  • Effective notification of the County's policies to employees, citizens and others who have relationships with the County.
  • Effective notification to complainants of the potential results of their actions and feedback about any investigation.
  • Status reports to the Board in those instances when the investigation is handled by County Counsel or the District Attorney.

The Grand Jury should continue to monitor the effectiveness of government practices including the County whistleblower process and in 2004-2005 evaluate:

  • Implementation of the whistleblower ordinance,
  • The process for filing and investigating of whistleblower complaints, and
  • The effective resolution of complaints.
Recommendations:
1. By October 1, 2004, the Board of Supervisors should modify the proposed ordinance
  • To include coverage for members of the public, vendors and others serving the County;
  • To include information about protection under California Labor Code Section 1102;
  • To change the title of the ordinance to encompass this broader coverage.

2. Upon adoption of the pending ordinance, or if no ordinance is adopted, the Board of Supervisors should immediately direct the County Manager to:

2.1 Adopt a policy or procedures that include:
  • Purpose of the policy or procedure
  • Individuals and organizations covered
  • Definitions of actions to be reported
  • How to file a complaint
  • Roles and responsibilities of the reporting party
  • Roles and responsibilities of parties receiving the complaint
  • The potential impact to the complainant of filing a claim
  • Information regarding retaliatory action and alternatives regarding resolution
  • Penalties for false reporting
  • Expectations regarding confidentiality
  • A general description of the investigation process
  • The complainants expectation of communication of results of the investigation
  • Action the complainant may take if retaliation results from filing a complaint
  • Steps to monitor that problems disclosed in the whistleblower process do not reoccur

2.2 Include information about the County's whistleblower policy in all employee manuals, on County contracts and on County purchase orders.

2.3 Establish a single point of contact for all such complaints within the Board of Supervisors offices or assign coordination to an outside agency under contract to the County. Complaints should be referred by this control point to the Board of Supervisors staff, County Counsel or the District Attorney, as appropriate, for investigation with provision to request regular status reports to the Board of Supervisors.
Response
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