Summary and Action Requested
This memo provides information on legislation referred from the Board of Supervisors that would require the Controller’s Whistleblower Program to report to the Board of Supervisors the results of any whistleblower investigations that substantiate wrongdoing by City department heads or elected officials. Staff recommends the Commission consider the proposed legislation presented in Attachment 1 and vote to approve the ordinance as drafted.
Background
The Controller’s Office administers a Whistleblower Program that allows for potential instances of fraud, waste, and abuse by City officials and people doing business with the City to be reported and investigated by the Controller’s Office. Complaints made through this program may be referred to the Ethics Commission’s Enforcement Division, if the complaint indicates a potential violation of rules enforced by the Ethics Commission. Staff from the Commission’s Enforcement Division and the Controller’s Office meet regularly to review complaints and manage referrals to the Commission.
The Ethics Commission is also responsible for investigating allegations of retaliation taken in response to protected whistleblower activity, per Section 4.117 of the Campaign and Governmental Conduct Code (C&GCC).
Proposed Legislative Amendment
In 2022, Supervisor Ronen introduced the proposed legislation in response to instances in which the Board of Supervisors was first made aware of wrongdoing by senior City officials through the press. Supervisor Ronen’s staff have communicated that the intent of this legislation is to ensure that the Board of Supervisors is informed whenever the Controller’s Office concludes any whistleblower investigation that substantiates wrongdoing by a City department head or elected City officer.
The proposed legislation amends Article IV, Chapter 1 of the C&GCC. Per Section 4.103, as amended earlier year by Proposition D, Article IV, Chapter 1 of the C&GCC can only be amended by the Board of Supervisors if “the Ethics Commission approves the proposed amendment in advance by at least a four-fifths vote of all its member.” Thus, in order for the Board of Supervisors to approve this proposed legislation, the Ethics Commission must first approve the legislation by a four-fifths vote.
This legislation was referred to the Ethics Commission on October 22, with a request from Supervisor Ronen’s office that the Commission consider this legislation at its November meeting. This allowed minimal time for Commission staff to engage with this legislation. However, Staff have reviewed the proposed legislation and communicated with key stakeholders regarding the legislation. Following communications with the Controller’s office, the City Attorney’s office, and the Supervisor Ronen’s office, Staff is confident that the proposed legislation will not negatively impact or disrupt the Commission’s enforcement processes.
Staff were initially concerned this legislation would require the Controller to report on investigations conducted by the Ethics Commission, which could be disruptive to the Commission’s investigations or conflict with the confidentiality provisions of the Charter regarding Commission investigations. However, Staff have confirmed this new reporting requirement would only apply to investigations conducted by the Controller’s office and would not require the Controller to report on Ethics Commission investigations. Staff also confirmed with Supervisor Ronen’s office that this interpretation aligns with the intent of the legislation.
Overall, the legislation should give the Board of Supervisors more direct insight into substantiated complaints investigated by the Controller that involve wrongdoing by department heads and elected officials, while respecting the confidentiality rules of investigations and not disrupting Ethics Commission investigations.
Supervisor Ronen’s staff have confirmed that this legislation has been noticed to bargaining units and a meet and confer with the Municipal Executive’s Association (MEA) has been concluded.
The proposed legislation is included as Attachment 1 and the legislative digest is included as Attachment 2.
Recommended Next Steps
Considering the benefits of the Board having more direct insight into the Controller’s investigations, the limited scope of this legislation, and that it will not impact the Commission’s enforcement processes, Staff recommends the Commission vote to approve the legislation as drafted. Commission approval would allow the Board of Supervisors to move forward with their consideration and potential approval of this legislation.
Representatives from Supervisor Ronen’s office will be available during the Commission’s November meeting to discuss the legislation and respond to questions from the Commission on this matter.
Attachments:
Attachment 1: Legislation Requiring Expanded Reporting for Controller’s Whistleblower Program (File# 221072)
Attachment 2: Legislative Digest on Whistleblower Program Legislation (File# 221072)