The City and County of San Francisco has a paramount interest in protecting the integrity of its government institutions. To further this interest, City law provides a process for reporting improper government activity, and an additional process for protecting whistleblowers from retaliation they might face in response to having reported such activity. Whistleblower protections apply to City officers and employees who file complaints for investigation with specifically enumerated City departments (and those who cooperate in the resulting investigations), and to City contractors and their employees who file complaints with any City supervisor (and again those who cooperate in the resulting investigations). Accordingly, whistleblowing constitutes “protected activity.”
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Retaliation Prohibited
The Whistleblower Protection Ordinance prohibits a City officer or employee from taking an adverse action against an individual who has engaged in protected activity, where the individual’s protected activity was a substantial motivating factor for the adverse action.
Retaliation Against a City Officer or Employee
In the case of retaliation against a City officer or employee, the Ordinance provides that no City officer or employee may terminate, demote, suspend, or take other similar adverse employment action against any other City officer or employee because the latter officer or employee in good faith engaged in certain kinds of protected activity. The Ordinance defines protected activity in this context to include the following:
- Filing a complaint for investigation with the Office of the Controller’s Whistleblower Program, Ethics Commission, District Attorney, City Attorney, or the complainant’s department alleging that a City officer or employee has engaged in improper government activity, misused City funds, caused deficiencies in the quality and delivery of government services or engaged in wasteful and inefficient government practices, or that a City contractor or employee of a City contractor has engaged in unlawful activity in connection with a City contract;
- Attempting to file a complaint as described above but, in good faith, mistakenly not filing the complaint with the appropriate City department or official; or
- Providing any information in connection with or otherwise cooperating with any investigation of the complaints described above.
Retaliation Against a City Contractor or Employee of a City Contractor
In the case of retaliation against a City contractor or employee of a City contractor, the Ordinance provides that no City officer or employee may take steps to terminate a contract with a City contractor, refuse to use a City contractor for contracted services, request that a City contractor terminate, demote, or suspend one of its employees, or take other similar adverse action against any City contractor or employee of a City contractor because the contractor or the contractor’s employee engaged in certain kinds of “protected activity.” The Ordinance defines protected activity in this context to include the following:
- Filing a complaint with any supervisor within a City agency alleging that a City officer or employee engaged in improper government activity, misused City funds, caused deficiencies in the quality and delivery of government services, or engaged in wasteful and inefficient government practices;
- Filing a complaint with any supervisor within a City agency alleging that another City contractor, or employee of another City contractor, engaged in unlawful activity, misused City funds, caused deficiencies in the quality and delivery of government services or engaged in wasteful and inefficient government practices; or
- Providing any information in connection with or otherwise cooperating with any investigation of the complaints described above.
Protected Activity
In either the City officer and employee context or the City contractor and contractor employee context, protected activity under the law means reporting specifically enumerated kinds of issues, as defined:
- “Improper government activity” means a violation of any federal, state, or local law, regulation, or rule, including but not limited to laws, regulations, or rules governing campaign finance, conflicts of interest, or governmental ethics laws; or action which creates a danger to public health or safety by the failure of City officers or employees to perform duties required by their positions; but not including employment actions for which other remedies exist;
- “Misuse of City funds” means any use of City funds for purposes outside of those directed by the City;
- “Deficiencies in the quality and delivery of government services” means the failure to perform a service, when performance is required under any law, regulation or policy, or under a City contract or grant;
- “Wasteful and inefficient City government practices” means the expenditure of City funds that could be eliminated without harming public health or safety, or reducing the quality of government services; and
- “Unlawful activity” means violations of any federal, state or local law, regulation or rule including but not limited to those laws, regulations or rules governing campaign finance, conflicts of interest or governmental ethics laws; or actions which create a danger to public health or safety by the failure of City officers or employees to perform duties imposed by a City contract.
Ethics Commission Jurisdiction
The Ethics Commission retains jurisdiction to investigate allegations of retaliation taken in response to the protected activity described above. The Commission lacks jurisdiction to investigate allegations of retaliation taken in response to an underlying complaint that was outside the scope of these specifically enumerated categories. For example, when an employee faces retaliation in response to an underlying complaint he or she filed alleging workplace harassment or discrimination, the Equal Employment Opportunity (EEO) division within the City’s Department of Human Resources retains jurisdiction to investigate allegations of any resulting retaliation.
An additional requirement for the Ethics Commission to retain jurisdiction over a complaint is that it must be filed no later than two years after the date of the alleged retaliation.
File a Complaint
To file a complaint alleging retaliation, fill out our Complaint Form or call the Commission and ask to speak with an on-duty investigator.
To file instead a complaint alleging alleging that a City officer or employee has engaged in improper government activity, misused City funds, caused deficiencies in the quality and delivery of government services or engaged in wasteful and inefficient government practices, or that a City contractor or employee of a City contractor has engaged in unlawful activity in connection with a City contract, contact the Controller’s Office Whistleblower Program.
Proving Retaliation
To prove a case of retaliation, the Ethics Commission must demonstrate by a preponderance of the evidence that the complainant’s participation in protected activity was a substantial motivating factor for the adverse employment action. The respondent may rebut this claim if he or she can demonstrate by a preponderance of the evidence that he or she would have taken the same employment action irrespective of the complainant’s participation in protected activity.
Available Remedies
If the Commission finds that a City officer or employee unlawfully retaliated against another City officer or employee by taking an adverse employment action after learning that the employee engaged in protected activity, then the Commission may:
- Assess an administrative penalty of $5,000 against the City officer or employer who took the adverse employment action;
- Recommend the cancellation of the retaliatory termination, demotion, suspension or other adverse employment action, subject to the Charter’s budgetary and civil service provisions;
- In certain circumstances, refer the matter to the Civil Service Commission for disciplinary proceedings under Charter Section A8.341.
In addition to these remedies, any City officer or employee who believes he or she has been the subject of retaliation may bring a civil lawsuit against the City officer or employee who took the adverse employment action. Under the Whistleblower Protection Ordinance, a California trial court may impose civil penalties up to $10,000.
If the Commission finds that a City officer or employee unlawfully retaliated against a City contractor or employee of a City contractor by taking an adverse action after learning that the contractor or contractor employee engaged in protected activity, then the Commission may:
- Assess an administrative penalty of $5,000 against the City officer or employer who took the adverse action;
- Order the cancellation of retaliatory adverse action taken against a City contractor or employee of a City contractor, subject to the Charter’s budgetary and contracting provisions;
- In certain circumstances, refer the matter to the Civil Service Commission for disciplinary proceedings under Charter Section A8.341.