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CITY COUNCIL AGENDA REPORT
City of Anaheim
CITY MANAGER’S OFFICE
DATE: OCTOBER 24, 2023
FROM: CITY MANAGER’S OFFICE
SUBJECT: WHISTLEBLOWER PROTECTION POLICY
ATTACHMENT (Y/N): YES ITEM # 21
GOVERNMENT CODE § 84308 APPLIES: NO
REQUESTED ACTION:
That the City Council discuss and provide direction to staff on (1) the possible expansion of a whistleblower protection policy, (2) the possible expansion or modification to the City’s ethics hotline, (3) possible consequences for findings of Council Member misconduct.
DISCUSSION:
At the August 29, 2023 Council meeting, the City Council approved a priority list of reforms stemming from the recommendations in the JL Group investigative report, and a calendar of when these items were to be brought forward for City Council discussion and action. The discussion regarding the creation of a whistleblower protection policy was calendared for October 24, 2023, to include discussion on (but not limited to) the following: the creation of an expanded hotline for staff to report unwelcome behavior, creation of a reporting process to report, investigate and address conduct by elected officials, the City Manager’s Office, executives, and supervisors, and the creation of an investigative process for City Council and staff complaints. The following is an overview of the City’s current whistleblower policies.
A. Existing Law and City Regulations Regarding Whistleblowing Labor Code § 1102.5 prohibits whistleblower retaliation, which is defined as the employer taking adverse action against an employee who disclosed information that the employee has reasonable cause to believe shows a violation of law. The Fair Employment and Housing Act (“FEHA”), Gov. Code 12940(h) also prohibits retaliation against any employee who complains, testifies or assists in a proceeding on such a complaint, but it is limited to complaints about violations of FEHA’s provisions (e.g. discrimination, harassment, retaliation, requests for accommodation etc.). The Meyers- Milias-Brown Act, Gov. Code § 3506, prohibits retaliation (defined as “interfere with, intimidate, restrain, coerces or discriminate”) against public employees for engaging in protected union activities.
Whistleblower Protection Policy
October 24, 2023
The City’s Administrative Regulations (“A.R.”) cover this topic as well. A.R. 243 prohibits retaliation generally against employees who exercise a right under the law, report a complaint, associate with a complainant, or participate in an investigation. A.R. 243 also expressly prohibits whistleblower retaliation and retaliation for union activities.
A.R. 240 outlines the City’s non-discrimination program and prohibits “retaliation or reprisal for filing a complaint, or for cooperating as a witness.” Retaliation is also prohibited in A.R. 245 (Anti-Violence Policy), A.R. 130 (Fraud Policy), and A.R. 252 (Lactation Accommodations).
Staff is comfortable that the current laws and regulations provide sufficient protection for potential whistleblowers. However, there are always opportunities to further educate employees and officials about their rights and obligations to ensure that no one is deterred from whistleblowing and that those who whistleblow are sufficiently protected from retaliation.
B. Fraud Hotline
To increase accountability and transparency within City operations, a fraud hotline was launched by the City in May 2017. The Fraud Hotline offers city employees, contractors, residents, and others a way to report suspected fraud, waste, and abuse on an around the clock/365 days a year basis. The City’s Internal Audit Division is responsible for overseeing the fraud hotline and managing the hotline services and confidential reporting tool provided by Navex Global.
A.R. 130 provides guidance to employees when fraud, waste, or abuse of authority and/or position is known or suspected. A.R. 130 defines the acts that constitute reporting as well as the reporting procedures which outline that a report is to be filed with any of the following:
Department Head;
Internal Audit Manager;
City Manager (if the Department Head is the subject of the report); Human Resources Director; or
The Fraud Hotline via the confidential reporting mechanism which includes either a live conversation with an intake person or via a web intake reporting tool.
1. Complaint Processing
The initial review of an incoming complaint is typically performed by the Audit Division with the matter being evaluated for next steps and possible investigation. Any investigations will be coordinated with the Human Resources Director, City Attorney and other necessary individuals or authorities having jurisdiction.
If the investigation substantiates that a reportable matter has occurred, Internal Audit in coordination with the applicable department head will issue a written memo or report to the City Manager, City Attorney, and Human Resources Director, and to the City Council, if deemed appropriate. Decisions to refer a report to the City’s Police Whistleblower Protection Policy
October 24, 2023
Department for criminal investigation will be made in conjunction with the Human Resources Director and City Attorney.
For complaints of fraud, waste, or abuse of authority and/or position involving the City Manager, City Attorney, or City Clerk, the Mayor and/or City Council will be notified.
The Mayor and/or City Council are responsible for determining further action on these complaints.
It is important to point out that A.R. 130 requires that matters involving City campaign and lobbying violations be referred to the City Clerk’s Office as opposed to reporting through the hotline.
2. Fraud Hotline Moving Forward
The Audit Division is currently studying the hotlines of other cities and counties with a focus on identifying opportunities to improve our wording and descriptions used on the City’s website and in the marketing materials. There are some easy changes that can be made by adding additional examples of the types of issues to report. The goal is to broaden the existing hotline language to better ensure it captures matters of misconduct that may not be explicitly described within the hotline currently. These steps will help ensure the hotline will be aligned with the proposed whistleblower protection policy.
C. Consequences for Findings of Misconduct
The Council has discussed whether there is anything that can be done to bolster the consequences to Council Members, including the Mayor, when they are found to have engaged in misconduct or malfeasance. Because Council Members are elected officials, the traditional forms of discipline (such as suspensions, demotions, and terminations) are not available. However, the Council has an inherent legislative right to censure its members at a public hearing by vote of the majority. While a censure is not “disciplinary” per se, it is a formal statement of disapproval in the form of a resolution that may impact the Council Member, at least symbolically.
In addition to the above, it should be noted that sustained findings of misconduct by Council Members are very likely to be considered public records under current case law.
So, for example, were a Public Records Act record made for a report finding that a member of the City Council engaged in malfeasance, the City would likely be obligated to produce that record, or a summary thereof, after appropriate redactions. At its discretion, the Council could consider a policy that mandates the publication in some way of such findings after a determination that they amount to public records, with necessary redactions (particularly those designed to protect the privacy interest of complaining parties and witnesses), and after giving the elected official notice of the City’s intent to publish.
Whistleblower Protection Policy
October 24, 2023
IMPACT ON BUDGET:
There is no impact on the General Fund.
Respectfully submitted,
Jim Vanderpool
City Manager
Attachments:
1. Administrative Regulation 243
2. Administrative Regulation 240
3. Administrative Regulation 130