AGENDA ITEM 5
March 16,2010
Action
MEMORANDUM
TO:
FROM:
SUBJECT:
County Council
Robert H. Drummer, Senior Legislative Attorney
;(\
/11J
Action:
Bill 2-10, Personnel - Contracts - Retaliation
Management and Fiscal Policy Committee recommended (3-0) approval of the
amendments.
Bill 2-10, Personnel - Contracts - Retaliation, sponsored by Council Vice President
Ervin, Councilmember Andrews, Councilmember Trachtenberg, Council President Floreen,
Councilmember Navarro and Councilmember EIrich, was introduced on January 19. At the
public hearing, held on February 9, no one spoke. A Management and Fiscal Policy Committee
held a worksession on March 1.
Background
Bill 2-10 would prohibit retaliation against a County employee or an employee of a
County contractor or subcontractor for disclosing information about illegal or improper action in
County government to a County official or employee. The Bill would protect an employee who
has a good faith belief the information disclosed is accurate even if it is not.
The Bill would also permit an appeal to the Merit System Protection Board by a County
employee who alleges a retaliatory personnel action in violation of this law. Finally, the Bill
would require County contracts and subcontracts to specify that an aggrieved employee, as a
third-party beneficiary, may by civil action recover compensatory damages, including interest
and a reasonable attorney's fee, against the contractor or subcontractor for retaliation in violation
of this law.
Issues
1. What is the Bill's fiscal and economic impact?
The Bill should not have a significant fiscal impact on the County. The Department of
General Services (DGS) may need to expend additional staff time to publicize and implement the
new contract requirements, but the additional time should be reduced over time. DGS and the
County Attorney's Office may also have to spend some additional time in contract enforcement
actions on an intermittent basis. The Bill would remove the Merit System Protection Board
(MSPB) authority to investigate retaliation claims, but this function has not been funded in
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recent years. On the positive side, the Bill should increase the likelihood that the County will
detect illegal or improper actions that result in wasteful spending of scarce County resources.
Finally, it is unlikely that the Bill would increase bid prices or County contractor costs. The
Office of Management and Budget concluded that the fiscal impact of the Bill was
indeterminate. See ©11-12.
2. What are the suggested amendments from the County Attorney's Office?
The Office of the County Attorney (OCA) Bill review memorandum (©13-15)
recommended the following amendments:
(a)
The Bill adds a new §llB-36. However, this section already exists in the Code.
The new section should be changed to I1B-35A.
The Bill adds definitions for "Director" and "Contract" that duplicate existing
definitions in §§11B-l(d) and
(i)
and can be removed from the Bill.
On line 166 at ©8, change the "who performed" to "that performs or performed."
This change would extend coverage to an employee of a contractor who does not
actually perform services under the contract. This change is consistent with the
intent of the Bill.
On line 178 at ©8, add "by the Employer" after the word "action" and again on
line 187, at ©9, after the word "retaliation." This is clarifying language.
On line 180 at ©8, move the phrase "to a County official or employee" to line
178, at ©8, after the word "disclosing." This is clarifying language.
On line 190 at ©9, add "covered" after the word "aggrieved." This is clarifying
language.
Add the following definition for "Employer."
"Employer
means a contractor or
subcontractor that, through the use of a covered employee, performs or performed
services under a County contract." See lines 170-172 of the Bill at ©8.
(b)
(c)
(d)
(e)
(f)
(g)
Committee recommendation (3-0): approve all of the amendments recommended by
the OCA.
3. Should the Director's authority to cancel, terminate, or suspend a contract be limited to
situations where a court has issued a final judgment against the contractor in favor of a
covered employee for retaliation in violation of the law?
DGS Director David Dise, in a memorandum dated February 16 (©16) recommended an
amendment that would only permit the Director to cancel, terminate, or suspend a contract for
violation of this law based upon a final court judgment in favor of a covered employee for
retaliation. See lines 194-198 of the Bill at ©9. Under the Bill, a covered employee would have
a cause of action as a third party beneficiary of the County contract to file a civil action for
retaliation against his or her employer. This Amendment would eliminate the need for the
2
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County to investigate claims of retaliation by a covered employee in order to cancel, terminate,
or suspend the contract. The Amendment would permit the Director to act only after a final
court judgment. However, a contract may be completed before a covered employee can achieve
a final court judgment for illegal retaliation. DOS does not currently have the resources
necessary to investigate retaliation claims from covered employees and prosecute these cases in
order to cancel, terminate, or suspend a contract. The Amendment would leave this task to the
individual covered employee. DOS already has the general authority under its general conditions
to terminate a contract for violation of Federal, State, or County laws. Committee
recommendation (3-0): approve the Amendment. See lines 194-198 of the Bill at ©9.
4. Should a County employee or a covered employee of a contractor be protected against
retaliation for disclosing information about illegal or improper actions to Federal or State
officials?
.
The Bill would limit protection to a covered employee who discloses information to a
County official or employee. The Bill would not protect a County employee or a covered
employee from retaliation for disclosing information to a Federal or State official. Other
"whistleblower laws" around the nation have taken different approaches to this issue.
I
Both the Federal Whistleblower Law protecting Federal employees at 5 USC §2302
(b)(8) and the State Whistleblower Law protecting State Executive Branch employees at §5-305
of the State Personnel and Pensions Article
2
are silent as to whom the protected disclosure must
be made. However, this statutory omission in both the Federal law and the State law has been
interpreted to require a protected disclosure to be made to a higher authority in a position to
correct the alleged wrongdoing. See
Hooven-Lewis v. Caldera,
249 F.3d 259, 276 (4th Cir.
2001); DNR v. Heller,
391 Md. 148 (2006).
State whistleblower laws differ on the appropriate recipient of the whistle blower' s report.
Some require that the report be made to an external government agency, some require an internal
report to a supervisor or senior executive, and some cover a report to either.
An
external
reporting requirement has the advantage of providing a public accounting of private wrongdoing.
The disadvantage of an external reporting requirement is that it may discourage reports when
employees are most comfortable with reporting to a supervisor or senior executive. An internal
reporting requirement gives an employer the opportunity for self-correction without the expense
and publicity of a public investigation, but it may discourage reports where the company culture
discourages dissent. An internal reporting requirement may also encourage a quick fix at the
expense of third parties that may have suffered damages due to the wrongdoing.
A recent survey of various Federal and State whistleblower laws can be found in 96
Calif.
1.
Rev.
1633 (Gerard
Sinzdak 2008).
I
Maryland has a comprehensive whistleblower law protecting employees working in the Executive Branch of State
government. Maryland does not have a comprehensive whistleblower law protecting private sector employees.
Maryland law does protect certain private sector workers from retaliation for reporting violations of laws governing
medical care, occupational health, and fair employment.
2
3
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A. County employees
Bill 2-10 would protect a County employee who reports illegal or improper actions to a
County official or employee. This limitation covers both internal reporting and some types of
external reporting. For example, a report to the Inspector General would be external reporting.
A report to the employee's supervisor would be covered internal reporting. However, the Bill
would not protect a County employee from retaliation for reporting illegal
or
improper action to
a State or Federal official. Adding further protection for County employees would be consistent
with the goal of the Bill to encourage detection of illegal or improper County actions.
Committee recommendation (3-0):
amend the Bill to add protection for a County employee
who reports illegal or improper action to a State or Federal official. See lines 51-52 of the Bill at
©3 and line 154 of the Bill at ©7.
B. Covered employee of a County contractor
A report of illegal or improper action to a County official or employee by a covered
employee of a County contractor is an external report to a government official. The Bill would
not protect a covered employee of a contractor from retaliation for making an internal report to a
supervisor or executive of the contractor.
3
The County has a strong interest in making sure that a
report from a covered employee of a County contractor is disclosed to the County so that the
County can investigate and possibly remedy the problem. An internal report to a company
executive is unlikely to provide the County with timely notice of the improper conduct.
Similarly, a report by a covered employee to a Federal or State official may not be reported to
the County in a timely manner. The underlying purpose of providing a covered employee
protection from retaliation is to detect improper action.
Committee recommendation (3-0):
do
not modify the protection from retaliation in the Bill for a covered employee of a County
contractor.
This packet contains:
Bill 2-10
Legislative Request Report
Fiscal Impact Statement
County Attorney Bill Review Memorandum
David Dise Memorandum dated February 16
F:\LAW\BILLS\I
002
Personnel - Contracts-Retaliation\ACTION Memo.Doc
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10
11
13
16
3
An at-will employee of a contractor who is fired for a report of improper action that is not protected by County law
may still have a cause of action for wrongful discharge under Maryland common law. See
Wholey v. Sears, 370
Md. 38 (2002).
4
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Bill No.
2-10
Concerning: Personnel,
Contracts
Retaliation
Revised: March 1,2010 Draft No.
L
Introduced:
January 19, 2010
Expires:
July 19,2011
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
- - ' - 1 = ' - -_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council Vice President Ervin, Councilmember Andrews, Councilmember Trachtenberg,
Council President Floreen, Council member Navarro and Councilmember EIrich
AN
ACT to:
(1)
(2)
(3)
provide an appeal to the Merit System Protection Board by certain employees who
allege retaliation for certain actions;
prohibit retaliation against a County employee or an employee of certain contractors
or subcontractors for disclosing certain information; and
generally amend the law regarding retaliation for disclosure of illegal or improper
actions in County government.
By amending
Montgomery County Code
Chapter 2, Administration.
Section 2-151.
Chapter 33, Personnel and Human Resources
Sections 33-10, 33-13A, and 33-17
By adding
Montgomery County Code
Chapter 11 B, Contracts and Procurement
[[Section IlB-36JJ
~~~~~
Boldface
., ., .,
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No.
2-10
1
Sec. 1. Sections 2-151,33-10, 33-13A, and 33-17 are amended as follows:
2-151. Inspector General
2
3
4
*
(1)
Access to iriformation.
*
*
*
*
5
6
*
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 infonnation
~
cooperating with, or in any
way assisting the Inspector General in connection with any
activity ofthat Office under this Section.
7
8
9
10
11
12
13
*
*
*
14
15
16
33-10. Disclosure of illegal or improper actions in [county] County
government; protection for merit system employees against retaliation or
coercion [for disclosing illegal or improper actions in county government;
prohibited practices;
appeals.
(a)
Disclosure ofillegal 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
17
18
19
complaint procedures;
investigations;
penalties;]
20
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25
26
27
@
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BILL
No. 2-10
28
has taken place, the employee may file a report directly with
either the Board or the Ethics Commission. Unless expressly
authorized by Section 19A-I0, 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.]
29
30
31
32
33
34
35
36
37
38
39
40
(b)
Protection for employees.
ill
A
personnel action
is an act or omission .!2y
~
supervisor which
has
~
41
42
43
44
significant adverse impact on the employee, or
~
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.!2y
~
supervisor that is not subject
to review .!2y the Merit Systems Protection Board under Section
45
46
47
48
49
50
ill
[Any] A merit system employee must not be subjected to
personnel action in retaliation for:
~
®
ill)
[who refuses] refusing to obey an instruction involving
an illegal or improper action; or
[who discloses] disclosin& to a Federal. State. or County
official or employee, information concerning illegal or
improper action in [county] County government [[to
~
51
52
53
54
County official or employee]] with a reasonable good­
0-
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BILL
No. 2-10
55
56
57
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].
58
59
60
61
ill
This [provision] subsection does not [extend protection to]
protect a merit system employee [upon a determination that] if
the:
62
63
CA)
[(1)
The]
employee's
actions
were
frivolous,
unreasonable.1 and without foundation, even though not
brought in bad faith;
64
65
66
67
mJ
[(2)
The] employee.1 without good cause.1 [failed to] did
not comply with [administrative] applicable regulations
concerning the making of such disclosures; or
(Q}
68
69
[(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 m
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)
70
71
72
73
74
75
76
77
78
79
80
[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
81
0)
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BILL
No. 2-10
82
Improper action
III
county government.]
Appeal.
A merit system
83
84
85
86
87
88
employee who alleges that he or she was subjected to
f!
retaliatory
personnel action in violation of subsection
(hl
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)
(2)
(3)
(4)
The employee's name and signature;
The employee's home address and telephone number;
The name of the individual who allegedly took the action;
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
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
[(
e)
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
- - - - -
written
must issue a
decision, including necessary findings of fact and conclusions of law,
and may order any remedy authorized
Qy
Section 33-14.
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
-0
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BILL
No.
2-10
109
110
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.]
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
[(t)
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)
(4)
Reimbursement of expenses incurred by all parties;
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
t;:6
J
IV
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BILL
No.
2-10
136
137
138
139
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142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
merit system protection board's findings and decision may appeal to a
court of competent jurisdiction.]
33-13A. Audits, investigations and inquiries.
*
*
*
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)].
*
*
(g}
*
*
*
*
33-17. Prohibited personnel practices; criminal penalty.
A person must not threaten, promise, or take any action against
f!
County employee to:
ill
ill
induce or coerce an employee to take an illegal or improper
action; or
retaliate against an employee for disclosing information to
f!
FederaL State, or County official or employee concerning an
illegal or improper action in County government that the
employee has
f!
good faith belief is accurate.
*
*
*
Sec. 2. Section [[11B-36]] 11B-35A is added as follows:
[[11B-36]] 11B-35A. Disclosure
of illegal
or improper actions.
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Bill No. 2-10
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
ill
Definitions.
In
this Section, the following words have the meaning
indicated:
([Contract
means an agreement to which the County is
£!
Q.ill:ty
for the
procurement or disposal of goods, services, or construction, including
any contract modification.]]
Covered employee
means an employee of
£!
contractor or subcontractor
[[who]] that perfonns Qr perfonned services under
£!
contract subject to
this Section.
[[Director
means the Director of the Department of General Services or
the Director's designee.]]
Emplover
means a contractor or subcontractQr that. though the use of a
covered employee, perfonns or perfonned services under a County
contract.
Personnel action
means an act or omission
Qy
the employer that has
£!
significant adverse impact on the employee, or
£!
change in the
employee's duties or responsibilities which is inconsistent with the
employee's position and salary.
(Q)
Policy.
A covered employee must not be subjected to
£!
personnel
action
b):
the Employer for disclosing, to a County official or employee.
infonnation involving the solicitation, award, administration, or
performance of any contract ([to
£!
County official or employee]] that
the employee reasonably believes is:
ill
ill
ill
!£.)
an abuse of authority, gross mismanagement, or gross waste of
money;
£!
substantial and specific danger to public health or safety; or
£!
violation oflaw.
Each contract must:
®
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BILL
No. 2-10
187
188
189
190
191
192
193
194
195
196
197
198
199
200
ill
prohibit retaliation by the Employe.r against
f!
covered employee
who discloses any illegal or improper action described in
subsection
ili).;.
and
ill
specify that an aggrieved covered employee, as
f!
third-party
beneficiary, may by civil action recover compensatory damages,
inc1uding interest and
f!
reasonable attorney's fee, against the
employer for retaliation in violation of this Section.
@
In addition to other authority granted by law, [[The]] the Director may
cancel, terminate, or suspend
f!
contract, in whole or in part, and declare
f!
contractor or subcontractor ineligible for further County contracts
basedmupon a final court judgment in favor of a cQvered 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.
201
202
203
W
This Section does not prohibit
f!
personnel action against
f!
covered
employee that would have been taken regardless of
f!
disclosure of
information described in subsection
(Q1
204
205
206
Approved:
Nancy Floreen, President, County Council
Date
207
Approved:
208
Isiah Leggett, County Executive
Date
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LEGISLATIVE REQUEST REPORT
Bill
2-10, Personnel, Contracts - Retaliation
DESCRIPTION:
Bill 2-10 would prohibit retaliation against a County employee or an
employee of a County contractor or subcontractor for disclosing
information to a County official or employee concerning an illegal or
improper action in County government that the employee has a good
faith belief is accurate. The Bill would also provide a contractual
remedy for an employee of a contractor or subcontractor alleging
retaliation and permit an appeal to the Merit System Protection Board
by a County employee alleging retaliation
in
violation of the law.
Current County law does not prohibit retaliation against an employee
of a County contractor or subcontractor for disclosing information to
a County official or employee other than the Office of Legislative
Oversight. Although current law prohibits retaliation against a
County employee,
it
does not provide a clear remedy for a County
employee or an employee of a contractor or subcontractor who
alleges such retaliation.
Increase the protection of County employees and employees of
County contractors and subcontractors for disclosing information
about County waste and fraud.
Inspector General, Merit System Protection Board, Office of Human
Resources, Department of General Services
To be requested.
To be requested.
To be requested.
Maryland State law and Federal law protect whistleblowers.
Robert H. Drummer, Senior Legislative Attorney
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIP ALITIES:
PENALTIES:
Not applicable.
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OFFICE OF MANAGEMENT AND BUDGET
Isiah Leggett
County Executive
Joseph F. Beach
Director
MEMORANDUM
February 25,.2010
TO:
FROM:
Nancy Floreen, President, County Council
Joseph F.
Beach,D~
SUBJECT: Council Bill 2-10, Personnel, Contracts - Retaliation
The purpose of this memorandum is to transmit a fiscal and economic impact
statement,to the Council on the subject legislation.
LEGISLATION SUMMARY
Ul
Vl
The purpose of this legislation is to provide an appeal to the Merit System
Protection Board by certain employees who allege retaliation for providing information to,
cooperating with, or in any way assisting the Inspector General in connection
with
any activity of
that Office.
In
addition this legjslation prohibits retaliation against a County employee or an
employee of certain contractors or subcontractors for disclosing information to a County official
or employee concerning an illegal or improper action in County government that the employee
has a good faith belief is accurate.
FISCAL AND ECONOMIC SUMMARY.
The fiscal impact ofthis higislation on Montgomery County Government is
indeterminate at this time. To the extent the law serves as a deterrent, the impact would be
minimal;
to the extent
the
law provides an avenue for action, there would be a more significant
impact. Greater impact would result from increased administrative processes to address
retaliation claims, which could include the need to hire additional. staff
if
the Office of County
Attorney could not absorb the additional workload.
The County may cancel or suspend a contract under the legislation. This could have
an economic impact on an individual contractor and its employees. That impact
is
not expected
to be significant for the County as a whole, since it is assumed another contractor could perform
the work.
.
Office oftbe
10] Monroe Street,
n:_~_J.
•. _
Floor· Rockville, Malyland 20850 • 240-777.2800
www.montgomerycountymd.gov
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Nancy Floreen, President, County Council
February 25, 2010
Page
2
The following contributed to and concmred
with
this analysis:
Lori
O'Brien, Office
of Management and Budget; Karen Fedemtan-Henry, Office of the County Attorney; Michael
Coveyou, Department of Finance; and David Platt, Department ofFinance.
.TFB:1ob
c:
Kathleen Boucher, Assistant Chief Administrative Officer
Dee Gonzalez, Offices ofthe County Executive
Marc P. Hansen, Acting County Attorney
Karen Fedemtan-Henry, Office ofthe County Attorney
Michael Coveyou, Department ofFinance
David Platt, Department of Finance
John Cuff, Office ofManagement and Budget
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OFFICE OF THE COUNTY ATIORNEY
Isiah Leggett
County Executive
Marc P. Hansen
Acting County Attorney
MEMORANDUM
TO:
VIA:
Kathleen Boucher
Assistant Chief Administrative Officer
Marc P. Hansen
111~
<E
~~-
'
J
Acting County Attorney
~
Bernadette Lamson
Associate County Attorney
Richard Melnick
~/l\r(.\
Associate County Attorney
.
FROM:
DATE:
RE:
February 3,2010
Bill 2-10
You have requested the Office of the County Attorney ("OCA") to provide comments
concerning the legality ofCB 2-10 (the "Bill"). Although the Bill amends the personnel law and
the procurement law, the Bill complies with Montgomery County Code, §2-82(a)(i) because it
concerns one subject - whistle blowing. The Bill protects the County's financial well being
because it permits individuals working directly for the County or a County contractor to report
waste, abuse or wrong doing without fear of retaliation or reprisal. OCA finds the Bill legally
sufficient and in proper form.
OCA provides the following comments for each amendment.
Chapter
33,
Personnel
Currently, § 33-10(d) of the County Code permits a County employee to file a "whistle
blower" complaint with the MSPB or the Ethics Commission if the employee is retaliated against
for disclosing an illegal or improper act in County government. Section 33-10(e) requires the
MSPB to investigate the employee's complaint and determine whether "probable cause exists» to
support the employee's claim.
lOt Monroe Street, Rockville, Maryland 20850·2580
(240) 777-6742 •
TfD
(240) 777·2545 • FAX (240) 777·6705 • Bernadette.Lamson@ montgomerycountymd.gov
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Kathleen Boucher
Assistant Chief Administrative Officer
February 4,2010
Page 2
As written, CB 2-10 removes the MSPB's and Ethics Commission's authority to
investigate "whistle blower" complaints filed by employees. Instead, the employee could report
fraud, waste or abuse to the Inspector General (HIG") under §2-151 (1)(4). If a County employee
files a report with the IG or participates in an IG investigation, the Bill protects County
employees from retaliatory actions by allowing them to appeal said actions to the MSPB.
Chapter liB, Procurement
The portions of the Bill related to Chapter lIB prohibit a County contractor or
subcontractor from retaliating against, or penalizing, its employee for providing a County official
or employee information regarding a contract that the employee "reasonably believes" involves:
abuse or gross mismanagement, a substantial and specific public health or safety danger, or a
violation oflaw.
As a preliminary matter, the Bill, at Section 2, purports to add to the Procurement law, in
the County Code, a Section "II B-36. Disclosure of illegal or improper actions." However,
§11 B-36 already exists as "Protests of solicitation and awards." Accordingly, this reference in
the Bill would need to be modified in any legislation enacted. The Bill also includes definitions
for both "Contract" and "Director," which are redundant to the definitions that already exist in
the Procurement law at §§IIB-l (d)
&
(i), respectively, and should be deleted.
Additionally, a definition of the term "Employer" would be helpful, to help identify to the
reader the entity that must not retaliate against a "covered employee" (I.e. the County's
contractor or subcontractor), rather than the County or another entity. As we discussed, today,
please note the following suggested modifications to help clarify this and other items in the Bill:
a.
Line 165, under the definition of "Covered employee," after the words
"contractor or subcontractor," change the words from
~'who
performed" to
"that performs or performed"
before the word "services," to allow for the
present tense, and to be more clear that the reference to performing
"services under a contract subject to this section" relates to the contractor,
not the employee, if that is the intent.
Line 173, after the word "action," and line 181, after the word
"retaliation," add
"by the Employer."
Line 173, after the words "for disclosing," move, insert, and add
parenthetical commas to the phrase that presently begins at Line 174
stating ",
to a County official or employee,
".
b.
c.
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Kathleen Boucher
Assistant Chief Administrative Officer
February 4,2010
Page 3
d.
e.
Line 183, after the word "aggrieved," add the word
"covered"
before the
word "employee," to be consistent with the defined term
Add, alphabetically, a definition for
"Employer,"
that states
''for purposes
ofthis Section only, means a contractor or subcontractor that, through
the use ofa covered employee, performs or performed services under a
County contract."
In the event of non-compliance with the Bill, by a contractor or subcontractor, the
Director of General Services, or designee, may: cancel, terminate, or suspend a contract; declare
a non-compliant contractor or subcontractor ineligible for future contracts; or, impose other
sanctions provided under the contract or regulation. Each contractor must contractually bind its
subcontractors to comply with this law. And, each County contract must specify that an
aggrieved employee of a County contractor or subcontractor is a third-party beneficiary, who
may bring a civil action for retaliation against the employer.
Montgomery County Code, §2-151, Inspector General
Section 2-151(1)(4) of the County Code directs that fraud, waste and abuse should be
reported to the IG. The bill protects County employees and County contractor or subcontractor
employees from retaliation or reprisal for providing information to or cooperating with the IG.
If you have any concerns or questions concerning this memorandum please call either
Bernadette Lamson (x6742) or Richard Melnick (x6738). Thank you.
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I)EPARTMENT OF
(~ENERAL
SERVICES
Isiah Leggett
Coullt)' Er:e,;Ulivt!
David E. Dise
Director
MEMORANDUM
TO:
Kathleen Boucher
Assistant Chief Administrative Officer
David E. Dise, Director
Department of General Services
February 16,2010
Bill 2-10
FROM:
t9
DATE:
SUBJECT:
You have requested that the Department of General Services (DGS) propose clarification
language for CB 2-10 (the "Bill").
Current law and regulations provide the DGS Director with authority to take action,
including contract termination or suspension/debarment of a contractor in the event of contractor
waste, fraud, abuse, or other wrongdoings. The Bill would provide the Director with additional
authority to act in the event ofcontractor or subcontractor retaliation against its employee for
disclosing illegal or improper actions.
To clarifY that this is in addition to current authority, I am proposing the addition ofthe
words, "In addition to other authority of the Director under applicable law," following (d) at the
beginning ofline 187.
I am also proposing to add language to clarifY when the Director may take action against
a contractor or subcontractor. Specifically, in line 189, after "County contracts," the proposed
change would add, "if a court determines that a contractor or subcontractor retaliates or has
retaliated against an aggrieved covered employee in violation ofthis section, as determined by a
court by section (c)(2) above,". While the County may elect to undertake its own investigation(s)
as it determines necessary, this addition ensures a definitive finding of retaliation by a court.
For your convenience, accompanying this memorandum is the bill text with the
recommended amendments referenced above. If you have any concerns or questions concerning
this memorandum please call either Mary Ellen Davis-Martin (7-8151) or me directly (7-6191).
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