On November 13, 2017, Mayor Kenney signed an Executive Order providing additional protections for whistleblowers, as well as specific requirements for city agencies, contractor, and subcontractors in addressing complaints, aimed at encouraging discovery, investigation and remediation of waste and corruption in city affairs.
The Executive Order protects city employees, as well as employees of city contractors and subcontractors, from retaliation or the threat of retaliation by city employees, contractors and subcontractors, by providing a direct path of administrative investigation and remedy for potential whistleblowers under the jurisdiction of the city’s inspector general.
The Executive Order defines “employee” to include both paid and unpaid persons performing work for any city agency, department, commission or contractor, extending the protections to volunteer workers in addition to compensated personnel.
Before seeking further relief, whistleblowers must make a prompt and detailed written complaint, including all relevant facts and circumstances describing the retaliatory acts or threats, to the appropriate city officer, agency or department head, or, where the complaint involves a contractor, to the supervisor in charge of administrating the city contract. Once a complaint is lodged, the recipient must do the following:
- Investigate the allegations of obstructive or retaliatory action;
- Take appropriate action to resolve any complaint; and
- Provide written notice of all complaints, investigations and resolutions to the inspector general.
If no satisfactory resolution is possible internally, the whistleblower must complain directly to the inspector general, who must then:
- Investigate the complaint;
- Determine whether a violation has occurred, and issue the determination in writing; and
- Make recommendations regarding any remedies for the whistleblower, disciplinary action for the violator(s), and contractual remedies, if appropriate, with the recommendations made in writing.
Within 30 days of the inspector general’s determination and recommendations, the responding agency, department or contractor must provide the inspector general with a written report detailing its plan to comply with the recommendations and correct any identified violations. The inspector general may then advise any overseeing city authority, including the mayor and/or city solicitor, if the compliance plan is inadequate.
While the Executive Order does not provide any right of private remedy to whistleblowers, the Order makes clear that these remedies are in addition to, and do not interfere with, any other rights or remedies whistleblowers may have under other laws, or from contractual rights; nor does the Order limit any right of whistleblowers to seek judicial review.
This Executive Order took immediate effect when signed November 13. Given the specific requirements to conduct investigations and provide written reports for any complaints lodged under this Order, city contractors and subcontractors should make sure they have policies and procedures in place that make clear:
- How and to whom employees should lodge complaints;
- Who will conduct investigations of complaints;
- That the people conducting investigations have appropriate training on investigative methods and relevant company policies;
- The obligation of all personnel to cooperate truthfully in any investigation; and
- Who and how the determinations of any complaints and investigations will be communicated to the appropriate city authority.