Office of the Mayor Edwin M. Lee San Francisco August 7, 2015 The Honorable John K. Stewart Presiding Judge Superior*

R1

4: If the Ethics Commission and the Board fail to act within a reasonable time, that the Mayor introduce legislation to the Board of Supervisors that would amend the WPO to provide real protection to whistleblowers, in conformity with the Charter mandate of Proposition C. Recommendation will not be implemented. This sub-recommendation is part of a larger recommendation that first calls for the Ethics Commission to submit an amendment to the WPO to the Board of Supervisors. If the Ethics Commission fails to do so, the Board of Supervisors is to act on its own to amend the WPO. In the event that the Ethics Commission does not take action or the recommended amendment is not enacted by the Board of Supervisors, the Ethics Commission is to submit an amendment directly to the voters. In the event that none of these recommendations occur, Recommendation 1.4 calls for the Mayor to introduce legislation to the Board of Supervisors to amend the ordinance. The amendment to the WPO recommended here is too vaguely-defined for the Mayor to take a position on it at this time. Further, the sequencing described in the recommendation is not consistent with the way the Mayor's Office approaches major changes to City law. If such changes were to be contemplated, a consensus-based approach would be adopted, with engagement from relevant City departments, stakeholders, legal and subject-matter experts, as well as other elected officials. This is a more effective method of enacting changes to City law.

R2

1: That amendments to the WPO expand the definition of whistleblowing to cover oral complaints to the complainant's department; disclosures to a City department or commission other than the complainant's own; and providing information to any of the recipients listed in the Charter mandate (hereafter "listed recipients"), outside of the formal complaint or investigation process. The recommendation requires further analysis.

R3

That amendments to the WPO provide a meaningful remedy for the effects of retaliation, by authorizing the Ethics Commission to order cancellation of a retaliatory job action, and increasing the limit of the civil penalty available under the WPO to an amount adequate to repay the financial losses that can result from such an action. The recommendation will not be implemented. Under the WPO, the Ethics Commission is provided with punitive, not restorative, powers to respond to findings of retaliatory job action. However, there are a number of other avenues a complainant can pursue in such circumstances. As the Civil Grand Jury notes, "City officers and employees have successfully litigated complaints of whistleblower retaliation in state court." Contrary to the Jury's claim that this proves the ineffectiveness of the WPO, it in fact demonstrates that there is an established process for filing a civil action. In addition, if an employee believes that he or she has been disciplined without just cause or has suffered an adverse job impact in retaliation for blowing the Mayoral Response to the Civil Grand Jury - Whistleblower Protection Ordinance August 7, 2015 whistle, the employee can file a grievance through his or her union. A grievance of this nature may be resolved at the department or Department of Human Resources level, or be escalated to arbitration, in accordance with the negotiated rules of the employee's Memorandum of Understanding. If the Ethics Committee had investigated and found that a job action was in fact retaliation for activities protected by the Whistleblower Protection Ordinance, this ruling would likely influence the independent arbitrator, who does have the power to reverse a retaliatory job action. While the investigation and ruling of the Ethics Commission would be a critical step in the process, as the Ethics Commission notes in their response, labor relations are the responsibility of the Department of Human Resources. Given the sufficient availability of existing options for complainants to pursue both civil penalties and reversal of the retaliatory job action, there is no need to amend the WPO in the manner recommended.

R4

That amendments to the WPO include a revision of Subsection 4.115(b)(iii) providing that the burden of proof set forth therein does not apply during preliminary review and investigation of administrative complaints to the Commission. The recommendation will not be implemented. As noted above, the burden of proof requirement provides critical balance to the WPO by eliminating the element of moral hazard that its removal would enable. Thank you again for the opportunity to comment on this Civil Grand Jury report. Sincerely, Edwin M. Lee Mayor