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.”
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.
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:
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:
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:
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.
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.
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.
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:
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:
If you are unsure if the Ethics Commission is the appropriate agency to file your complaint, speak to an investigator by calling 415-252-3100.
Registration fees, late fees, penalties and settlements can be paid online using an e-check, debit card, or credit card.
Scan with a QR reader to access page:
https://sfethics.org/enforcement/retaliation