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.
