Bill No. 2-10
Concerning: Personnel, Contracts – Retaliation
Revised: March 1, 2010 Draft No. 6
Introduced: January 19, 2010
Enacted: March 16, 2010
Executive: March 26, 2010
Effective: June 25, 2010
Sunset Date: None
Ch. 8 , Laws of Mont. Co. 2010
For Montgomery County, Maryland
AN ACT to:
(1) provide an appeal to the Merit System Protection Board by certain employees who allege retaliation for certain actions;
(2) prohibit retaliation against a County employee or an employee of certain contractors or subcontractors for disclosing certain information; and
(3) generally amend the law regarding retaliation for disclosure of illegal or improper actions in County government.
Montgomery County Code
Chapter 2, Administration.
Chapter 33, Personnel and Human Resources
Sections 33-10, 33-13A, and 33-17
Montgomery County Code
Chapter 11B, Contracts and Procurement
[[Section 11B-36]] Section 11B-35A
Boldface Heading or defined term. Underlining Added to existing law by original bill. [Single boldface
from existing law by original bill. Double
by amendment. [[Double boldface
from existing law or the bill by amendment. *
* * Existing law unaffected by bill.
Boldface Heading or defined term.
Underlining Added to existing law by original bill.
[Single boldface brackets] Deleted from existing law by original bill.
Double underlining Added by amendment.
[[Double boldface brackets]] Deleted from existing law or the bill by amendment.
* * * Existing law unaffected by bill.
Sec. 1. Sections 2-151, 33-10, 33-13A, and 33-17 are amended as follows:
2-151. Inspector General
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(l) Access to information.
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(5) An employee of the County government or any instrumentality of the County, and an employee of any contractor or subcontractor with the County or any instrumentality of the County, must not be retaliated against or penalized, or threatened with retaliation or penalty, for providing information to, cooperating with, or in any way assisting the Inspector General in connection with any activity of that Office under this Section.
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(a) Disclosure of illegal or improper actions.
(1) Employees should report illegal or improper actions in County government.
(2) Employees should first report illegal or improper actions to the individual responsible for corrective action. That person may be anyone from the employee's immediate supervisor [up] to [and including] the County Executive, or for legislative branch employees, the County Council.
[(3) In unusual circumstances, or if a retaliatory action or coercion has taken place, the employee may file a report directly with either the Board or the Ethics Commission. Unless expressly authorized by Section 19A-10, the identity of both the employee filing a report and the county employee or official who is the subject of this report must be kept confidential unless waived in writing by each party, respectively. The Board or the Ethics Commission must refer the report to the government agency, including the Board or the Ethics Commission, that is responsible for addressing the unlawful conduct raised in the report. That government agency must then conduct an inquiry.]
(b) Protection for employees.
(1) A personnel action is an act or omission by a supervisor which has a significant adverse impact on the employee, or a change in the employee's duties or responsibilities which is inconsistent with the employee's grade and salary. A personnel action does not include an act or omission by a supervisor that is not subject to review by the Merit Systems Protection Board under Section 33-12.
(2) [Any] A merit system employee must not be subjected to a personnel action in retaliation for:
(A) [who refuses] refusing to obey an instruction involving an illegal or improper action; or
(B) [who discloses] disclosing, to a Federal, State, or County official or employee, information concerning illegal or improper action in [county] County government [[to a County official or employee]] with a reasonable good-faith belief that [such disclosures are true and] the information disclosed is accurate [shall be protected under procedures authorized herein from any retaliatory or coercive personnel action].
(3) This [provision] subsection does not [extend protection to] protect a merit system employee [upon a determination that] if the:
(A) [(1) The] employee's actions were frivolous, unreasonable, and without foundation, even though not brought in bad faith;
(B) [(2) The] employee, without good cause, [failed to] did not comply with [administrative] applicable regulations concerning the making of such disclosures; or
(C) [(3) The] employee was the subject of an otherwise proper personnel [actions] action that would have been taken regardless of the employee’s disclosure of information concerning illegal or improper action in County government [taken for disciplinary reasons and not for retaliatory purposes prohibited by this section].
[A "personnel action" shall mean any administrative act or omission which has a significant adverse impact upon the employee, or a change in the employee's duties or responsibilities inconsistent with the employee's grade and salary.]
(c) [Prohibited practices. It shall be unlawful for any person to coerce any merit system employee into taking an illegal or improper action or take any retaliatory action against any merit system employee because of that employee's disclosure of information relating to illegal and improper action in county government.] Appeal. A merit system employee who alleges that he or she was subjected to a retaliatory personnel action in violation of subsection (b) may appeal to the Merit System Protection Board under Section 33-12.
(d) [Filing of complaints. If an employee believes a retaliatory action or coercion has taken place or been attempted because of his refusal to obey an illegal or improper instruction or disclosure of same, the employee may file a written complaint with the board. The complaint must be filed within sixty (60) days of the alleged violation or action and must contain:]
[(1) The employee's name and signature;
(2) The employee's home address and telephone number;
(3) The name of the individual who allegedly took the action;
(4) A concise description of the alleged coercion or retaliatory action and reasons for believing it to be so. The identity of all parties shall be kept confidential unless and until there is a finding of probable cause or all parties waive such confidentiality in writing.
The board may initiate an inquiry of any person suspected of taking retaliatory or coercive action, with or without a written complaint from an employee.] Decision. The Board must issue a written decision, including necessary findings of fact and conclusions of law, and may order any remedy authorized by Section 33-14.
[(e) Investigations. All complaints charging a violation of subsection (c) shall be promptly investigated by the board's staff, who shall determine whether probable cause exists to believe a violation of that subsection has occurred. Should the board's staff determine that the subject matter of the complaint involved allegations more properly the subject of an employee grievance or complaint to be filed under the provisions of the personnel regulations or other laws or regulations, the complainant shall be so advised and the complaint dismissed; and the period of limitations for the bringing of such other action shall be deemed to run from the date of the dismissal. Should the board's staff determine that no probable cause exists, that determination shall be final and the complaint dismissed unless board reconsideration is requested. Should the board's staff determine that probable cause does exist, the staff shall prepare and cause to be served on the person believed to have violated subsection (c) a statement of charges fairly describing the alleged violation and the sanctions sought to be imposed for such violation. The charges shall then be certified to the board to schedule and conduct hearings in accordance with the provisions of this chapter. The case in support of charges shall be presented by the board's staff.]
[(f) Penalties. If a county employee is found guilty of coercion, harassment or retaliation, the merit system protection board may order the imposition of one (1) or more of the following penalties:
(1) Any disciplinary action provided for in the personnel regulations up to and including dismissal;
(2) A monetary fine in any amount up to two thousand dollars ($2,000.00);
(3) Reimbursement of expenses incurred by all parties;
(4) Other penalties as may be deemed appropriate and consistent with the charter and laws of Montgomery County, Maryland.]
[(g) Appeals. An employee subject to the foregoing penalties based on the merit system protection board's findings and decision may appeal to a court of competent jurisdiction.]
There is hereby created the position of special personnel investigator. The special personnel investigator shall exercise the following powers and perform the following duties and functions:
(a) Investigate any matter referred to him by the merit system protection board[, including matters arising under section 33-10, in which case he shall be deemed board staff as provided in section 33-10(e)].
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33-17. Prohibited personnel practices; criminal penalty.
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(g) A person must not threaten, promise, or take any action against a County employee to:
(1) induce or coerce an employee to take an illegal or improper action; or
(2) retaliate against an employee for disclosing information to a Federal, State, or County official or employee concerning an illegal or improper action in County government that the employee has a good faith belief is accurate.
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Sec. 2. Section [[11B-36]] 11B-35A is added as follows:
[[11B-36]] 11B-35A. Disclosure of illegal or improper actions.
(a) Definitions. In this Section, the following words have the meaning indicated:
[[Contract means an agreement to which the County is a party for the procurement or disposal of goods, services, or construction, including any contract modification.]]
Covered employee means an employee of a contractor or subcontractor [[who]] that performs or performed services under a contract subject to this Section.
[[Director means the Director of the Department of General Services or the Director’s designee.]]
Employer means a contractor or subcontractor that, though the use of a covered employee, performs or performed services under a County contract.
Personnel action means an act or omission by the employer that has a significant adverse impact on the employee, or a change in the employee's duties or responsibilities which is inconsistent with the employee's position and salary.
(b) Policy. A covered employee must not be subjected to a personnel action by the Employer for disclosing, to a County official or employee, information involving the solicitation, award, administration, or performance of any contract [[to a County official or employee]] that the employee reasonably believes is:
(1) an abuse of authority, gross mismanagement, or gross waste of money;
(2) a substantial and specific danger to public health or safety; or
(3) a violation of law.
(c) Each contract must:
(1) prohibit retaliation by the Employer against a covered employee who discloses any illegal or improper action described in subsection (b); and
(2) specify that an aggrieved covered employee, as a third-party beneficiary, may by civil action recover compensatory damages, including interest and a reasonable attorney’s fee, against the employer for retaliation in violation of this Section.
(d) In addition to other authority granted by law, [[The]] the Director may cancel, terminate, or suspend a contract, in whole or in part, and declare a contractor or subcontractor ineligible for further County contracts based upon a final court judgment in favor of a covered employee for retaliation in violation of [[for non-compliance with]] this Section. The Director may impose other appropriate sanctions and remedies as provided in applicable regulations or by contract. Each Contractor must bind its subcontractors contractually to comply with this Section.
(e) This Section does not prohibit a personnel action against a covered employee that would have been taken regardless of a disclosure of information described in subsection (b).