MFPITEM 1
March 1,2010
Worksession
MEMORANDUM
TO:
FROM:
SUBJECT:
Management and Fiscal Policy Committee
Robert H. Drummer, Senior Legislative Attorney
A9
Worksession: Bill 2-10, PersOlmel - Contracts - Retaliation
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. A public
hearing was held on February 9.
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
ofthis law.
Public Hearing
There were no speakers at the Council's February 9, 2010 public hearing.
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 fbnction has not been funded in
 PDF to HTML - Convert PDF files to HTML files
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 § I1B-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 165, 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 173, add "by the Employer" after the word "action" and again on line 181
after the word "retaliation." This is clarifying language.
On line 174, move the phrase "to a County official or employee" to line 173 after
the word "disclosing." This is clarifying language.
On line 183, add "covered" after the word "aggrieved."
language.
This
IS
(b)
(c)
(d)
(e)
(f)
clarifying
(g)
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."
Council staff recommendation: 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 Executive Amendment 1 at ©17. 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. Executive Amendment 1 would eliminate the need for
2
 PDF to HTML - Convert PDF files to HTML files
the County to investigate claims of retaliation by a covered employee in order to cancel,
terminate, or suspend the contract. The Amendment would pennit 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. DGS 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. DGS already has the general authority under its general conditions
to terminate a contract for violation of Federal, State, or County laws. Council staff
recommendation: approve Executive Amendment 1 at ©17.
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 infonnation to a
County official or employee. The Bill would not protect a County employee or a covered
employee from retaliation for disclosing infonnation 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 whistleblower'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. County employees
A recent survey of various Federal and State whistleblower laws can be found in 96
Calif.
L.
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
 PDF to HTML - Convert PDF files to HTML files
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. Council
staff recommendation: amend the Bill to add protection for a County employee who reports
illegal or improper action to a State or Federal official as follows:
Amend lines
51-57
asJollows:
(ill
[who discloses] disclosing, to a FederaLSt3:!e. or County official
or eI11ployee, information concerning illegal or improper action in
[county] County government [[to !! County official or employeeJJ
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].
Amend lines
172-175
asJollows:
ill
Policy.
A covered employee must not be subjected to !! personnel action for
disclosing. toa Fe<.icral, State, or County offici3:1 or employee. information
involving the solicitation, award, administration, or performance of any contract
[[to!! County official or employee]] that the employee reasonably believes is:
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. Council staff recommendation: do not
modify the protection from retaliation in the Bill for a covered employee of a County contractor.
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
 PDF to HTML - Convert PDF files to HTML files
This packet contains:
Bill 2-10
Legislative Request Report
Fiscal Impact Statement
County Attorney Bill Review Memorandum
David Dise Memorandum dated February 16
Executive Amendment 1
Circle #
1
10
11
13
16
17
F:\LAW\BTLLS\T 002 Personnel - Contracts-Retaliation\MFP Memo.Doc
5
 PDF to HTML - Convert PDF files to HTML files
Bill No.
2-10
Concerning: Personnel.
Contracts
Retaliation
Revised: January 13, 2010 Draft No,
L
Introduced:
January 19, 2010
Expires:
July 19, 2011
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-!.!.No~n.!-"e'__
_ _ _ _ __
Ch. _ _ Laws of Mont. Co. _ _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council Vice President Ervin, Council member Andrews, Councilmember Trachtenberg,
Council President Floreen, Councilmember 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-lO, 33-13A, and 33-17
By adding
Montgomery County Code
Chapter lIB, Contracts and Procurement
Section IlB-36
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
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 unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
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 information.
*
*
*
5
6
7
*
*
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
~
cooperating with, or in any
way assisting the Inspector General in connection with any
activity of that Office under this Section.
8
9
10
11
12
13
14
*
*
*
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
appeals.
(a)
]5
16
17
18
19
practices;
complaint procedures;
investigations;
penalties;]
Disclosure ofillegal or improper actions.
20
21
(1)
Employees should report illegal or improper actions in County
government.
22
23
24
(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.
25
26
27
[(3)
In unusual circumstances, or if a retaliatory action or coercion
&
f:\law\bills\1002 personnel - contracts-retaliation\bil 5.doc
 PDF to HTML - Convert PDF files to HTML files
BILL No. 2-10
28
29
30
31
32
33
has taken place, the employee may file a report directly with
either the Board or the Ethics Commission. Unless expressly
authorized by Section 19A-IO, 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.1
(b)
Protection for employees.
34
35
36
37
38
39
40
ill
A
personnel action
is an act or omission
Qy
f!
supervisor which
has
f!
significant adverse impact on the employee, or
f!
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
Qy
f!
supervisor that is not subj ect
to review
Qy
the Merit Systems Protection Board under Section
33-12.
41
42
43
44
45
46
47
48
49
50
51
ill
[Any1 A merit system employee must not be subjected to
f!
personnel action in retaliation for:
fA}
[who refuses] refusing to obey an instruction involving
an illegal or improper
action~
or
(ill
[who discloses1 disclosing information concerning illegal
or improper action in [county] County government to
f!
County official or employee with a reasonable good-faith
belief that [such disclosures are true and1 the information
{])
f:\lawlbills\1002 personnel- contracls-retaliationlbiI5.doc
52
53
54
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 2-10
55
56
57
58
disclosed is accurate [shall be protected under procedures
authorized herein from any retaliatory or coercive
personnel action].
ill
This [provision] subsection does not [extend protection to]
protect a merit system employee [upon a determination that] if
the:
59
60
61
®
[(1)
The]
employee's
actions
were
frivolous,
62
63
64
65
66
67
unreasonable.). and without foundation, even though not
brought in bad faith;
(ill
[(2)
The] employee.). without good cause.). [failed to] did
not comply with [administrative] applicable regulations
concerning the making of such disclosures; or
(g
[(3)
The] employee was the subject of an otherwise
68
proper personnel [actions] action that would have been
taken regardless of the employee's disclosure of
information concerning illegal or improper action
III
69
70
71
72
73
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
74
75
76
77
78
79
80
81
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
@
f:\law\bills\1002 personnel- contracts-retaliation\biI5.doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 2-10
82
83
84
85
86
87
employee who alleges that he or she was subjected to
~
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
88
89
90
91
92
93
94
95
96
97
98
99
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
~
100
101
102
103
104
105
106
107
108
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
e
f:\Jaw\bills\1002 personnel- contracts-retaliation\biI5.doc
 PDF to HTML - Convert PDF files to HTML files
BILL NO. 2-10
109
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
110
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
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
merit system protection board's findings and decision may appeal to a
-@
f:\law\bills\1002 personnel- contracts-retaliation\bil5.doc
 PDF to HTML - Convert PDF files to HTML files
Bill
No.
2-10
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
court of competent jurisdiction ..
1
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)].
*
*
*
33-17. Prohibited personnel practices; criminal penalty.
*
(g}
County employee to:
*
*
A person must not threaten, promise, or take any action against
f!
ill
ill
induce or coerce an employee to take an illegal or improper
action; or
retaliate against an employee for disclosing information to
f!
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 I1B-36 is added as follows:
IIB-36. Disclosure of illegal
m:
improper actions.
W
Definitions.
In this Section, the following words have the meaning
0-
f:\law\bills\1002 personnel - contracts-retaliation\biI5.doc
 PDF to HTML - Convert PDF files to HTML files
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
indicated:
Contract
means an agreement to which the County is !! party for the
procurement or disposal of goods, services, or construction, including
any contract modification.
Covered employee
means an employee of !! contractor or subcontractor
who performed services under!! contract subject to this Section.
Director
means the Director of the Department of General Services or
the Director's designee.
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.
(hl
Policy.
A covered employee must not be subjected to !! personnel
action for disclosing information involving the solicitation, award,
administration, or performance of any contract to !! County official or
employee that the employee reasonably believes is:
ill
an abuse of authority, gross mismanagement, or gross waste of
money;
ill
ill
(f)
!! substantial and specific danger to public health or safety; or
!! violation of law.
Each contract must:
ill
prohibit retaliation against !! covered employee who discloses any
illegal or improper action described in subsection
~
and
ill
specifY that an aggrieved employee, as !! third-party beneficiary,
may
Qy
civil action recover compensatory damages, including
interest and
!!
reasonable attorney's fee, against the employer for
retaliation in violation of this Section.
®
f:\law\bills\1002 personnel - contracts-retaliationlbil5.doc
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 2-10
187
188
189
190
191
192
193
194
195
196
197
@
The Director may cancel, terminate, or suspend
~
contract, in whole or
in part, and declare
~
contractor or subcontractor ineligible for further
County contracts for non-compliance with this Section. The Director
may impose other appropriate sanctions and remedies as provided in
applicable regulations or hy contract. Each Contractor must bind its
subcontractors contractually to comply with this Section.
W
This Section does not prohibit
~
personnel action against
~
~
covered
employee that would have been taken regardless of
information described in subsection
ili1
Approved:
disclosure of
Nancy Floreen, President, County Council
Date
198
199
Approved:
Isiah Leggett, County Executive
Date
200
201
This is a correct copy o/Council action.
Linda M. Lauer, Clerk ofthe Council
Date
®
f:\law\bills\1002 personnel- contracts-retaliation\bil5.doc
 PDF to HTML - Convert PDF files to HTML files
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.
PROBLEM:
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.
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIP ALITIES:
PENALTIES:
Not applicable.
f:\Iaw\bills\1002 personnel - contracts-retaliation\lrr.doc
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF MANAGEMENT AND BUDGET
Isiah Leggett
County Executive
Joseph
F.
Beach
Director
MEMORANDUM
February
25~
201 0
c..::
TO:
FROM:
Nancy Floreen, President, County Council
Joseph F.
Beach.
Di~
.
~'"-)
,1..;
I
SUBJECT: Council Bill 2-10, Personnel, Contracts - Retaliation
The pmpose of this memorandum is to transmit a fiscal and economic impact
statement.to the Council on the subject legislation.
LEGISLATION SUMMARY
..
~~"".""
."".,
\ ..11
\./1
The purpose of this legislation is to provide an appeal to the Merit System
Protection Board by certain employees who allege retaliation for providing infonnation to,
cooperating with, or in any way assisting the Inspector General
in
connection with any activity of
that Office.
In
addition this legislation prohibits retaliation against a County employee or an
employee of certain con1ractors or subcontractors for disclosing infonnation to a County official
or employee concerning an illegal or improper action in County government that the employee
has a good fuith belief is accurate.
FISCAL AND ECONOMIC SUMMARY.
The fiscal impact of this
k~gislation
on Montgomery County Government is
indetenninate 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 adminis1rative 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 con1ract under the legislation. This could have
an economic impact on an individual con1ractor
and
its
employees. That impact
is
not expected
to
be
significant for the County as a whole, since it is assumed another contractor could perfonn
the work.
Office of the Director
101 Monroe Street, 14th Floor· Rockville, Maryland 20850 • 240-777-2800
www.montgomerycountymd.gov
 PDF to HTML - Convert PDF files to HTML files
Nancy Floreen, President, County Council
February 25, 2010
Page 2
The following contributed to and concurred
with
this analysis: Lori O'Brien, Office
of Management and Budget; Karen Federman·Henry, Office of the County Attorney; Michael
Coveyou, Department of Finance; and David Platt, Department ofFinance.
1FB:lob
c:
Kathleen Boucher, Assistant Chief Administrative Officer
Dee Gonzalez, Offices ofthe County Executive
Marc P. Hansen, Acting County Attorney
Karen Federman-Henry, Office of the County Attorney
Michael Coveyou, Department ofFinance
David Platt, Department of Finance
John Cuff, Office of Management and Budget
@
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF THE COUNTY ATIORNEY
Isiah Leggett
County Executive
Marc P. Hansen
Acting County Attorney
MEMORANDUM
TO:
Kathleen Boucher
Assistant Chief Administrative Officer
Marc P. Hansen
ina-
Acting County Attorney
VIA:
{#L
",'
;L.~
,
FROM:
Bernadette Lamson'
Associate County Attorney
Richard Melnick
~C\)'\
Associate County Attorney
DATE:
RE:
February 3,2010
Bill2-IO
You have requested the Office of the County Attorney ("OCA") to provide comments
concerning the legality of CB 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,
§
33-1 O(d) of the County Code permits a County ernployee 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.
101
Monroe
Street,
Rockville, Maryland
20850-2580
(240) 777-6742. TTD (240) 777-2545. FAX (240) 777-6705.
Bemadette.Larnson@ rnontgornerycountymd.gov
 PDF to HTML - Convert PDF files to HTML files
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 ("IG") under
§2~151(l)(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 ofthe Bill related to Chapter 11 B prohibit a County contractor or
subcontractor from retaliating against, or penalizing, its employee for providing a County official
or employee infonnation 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 of law.
As a preliminary matter, the Bill, at Section 2, purports to add to the Procurement law. in
the County Code, a Section "11 B-36. Disclosure of illegal or improper actions." However,
§
11B-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 §§11B-l (d)
& (i),
respectively, and should be deleted.
Additionally. a definition of the tenn "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 perfonned" to
"that performs or performed"
before the word "services," to allow for the
present tense, and to be more clear that the reference to perfonning
"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.
 PDF to HTML - Convert PDF files to HTML files
Kathleen Boucher
Assistant Chief Administrative Officer
February 4,2010
Page 3
d.
e.
Line 183, after the word "aggrieved," add the word
"coveretf'
before the
word "employee," to be consistent with the defined term
Add, alphabetically, a definition for
"Employer,"
that states
"for purpose$
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.
 PDF to HTML - Convert PDF files to HTML files
I>EPARTMENT OF GENERAL SERVICES
lsiah Leggett
COUIll)' Er:(!,;Ulivt?
David E. Dise
Director
MEMORANDUM
TO:
Kathleen Boucher
Assistant Chief Administrative Officer
rI;
FROM:
David E. Dise, Director
Department of General Services
February 16, 20 10
Bill 2-1 0
6J
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 of contractor 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 of the
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 of this 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).
 PDF to HTML - Convert PDF files to HTML files
Executive's
Amendment 1
Amend lines
187-192
as/allows:
@
In addition to other authority granted by law, [[The]] the Director may
cancel, terminate, or suspend!! contract, in whole or in part, and declare
!! 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 [[non-compliance with]] this Section. The
Director may impose other appropriate sanctions and remedies as
provided in applicable regulations or
Qy
contract. Each Contractor must
bind its subcontractors contractually to comply with this Section.