AGENDA ITEM 12
February 9, 2010
Public Hearing
MEMORANDUM
TO:
FROM:
SUBJECT:
County Council
Robert
H. Drummer, Legislative Attorney
fh;:t
Retaliation
Public Hearing:
Bill 2-10, Personnel - Contracts
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
Management and Fiscal Policy (MFP) Committee worksession is tentatively scheduled for
March
1
at 2:00 p.m.
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.
This packet contains:
Bill 2-10
Legislative Request Report
Circle #
1
10
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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. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council Vice President Ervin, Councilmember Andrews, Councilrnember Trachtenberg,
Council President Floreen, Councilrnember Navarro and Councilrnember 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 lIB, Contracts and Procurement
Section IIB-36
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 unaffocted 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
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*
(1)
Access to information.
*
*
5
*
*
*
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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.
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*
*
*
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)
Disclosure ofillegal or improper actions.
practices;
complaint
procedures;
investigations;
penalties;]
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(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
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{j}
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BILL
No.
2-10
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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.]
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(b)
Protection for employees.
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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 subject
to review
Qy
the Merit Systems Protection Board under Section
33-12.
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ill
[Any] A merit system employee must not be subjected to
f!
personnel action in retaliation for:
®
[who refuses] refusing to obey an instruction involving
an illegal or improper action; or
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all
[who discloses] 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 and] the information
-&
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BILL
No. 2-10
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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:
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.cAl
[(1)
The]
employee's
actions
were
frivolous,
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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
~
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[(3)
The] employee was the subject of an otherwise
proper personnel [actions] action that would have been
taken regardless of the employee's disclosure
information concerning illegal or improper action
of
III
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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)
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[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
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-@
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BILL
No. 2-10
82
employee who alleges that he or she was subjected to
~
retaliatory
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personnel action in violation of subsection
®
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
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[(
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 must issue
~
written
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
subject matter of the complaint involved allegations more properly the
&
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Bill
No.
2-10
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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)
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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)
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Appeals.
An employee subject to the foregoing penalties based on the
merit system protection board's findings and decision may appeal to a
-f!)
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BILL No. 2-10
136
court of competent jurisdiction.]
33-13A. Audits, investigations and inquiries.
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*
*
*
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 -1 O(e)] .
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*
*
*
33-17. Prohibited personnel practices; criminal penalty.
*
(g}
County employee to:
*
*
~
A person must not threaten, promise, or take any action against
ill
ill
induce or coerce an employee to take an illegal or improper
action; or
retaliate against an employee for disclosing information to
~
County official or employee concerning an illegal or improper
action in County government that the employee has
~
good faith
belief is accurate.
*
*
*
Sec. 2. Section IIB-36 is added as follows:
IIB-36. Disclosure of illegal or improper actions.
ill
Definitions.
In this Section, the following words have the meaning
(j)­
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BILL
No. 2-10
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(Q}
indicated:
Contract
means an agreement to which the County is
f!
party for the
procurement or disposal of goods, services, or construction, including
any contract modification.
Covered employee
means an employee of
f!
contractor or subcontractor
who performed services under
f!
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
121
the employer that 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 position and salary.
Policy.
A covered employee must not be subjected to
f!
personnel
action for disclosing information involving the solicitation, award,
administration, or performance of any contract to
f!
County official or
employee that the employee reasonably believes is:
ill
(2)
an abuse of authority, gross mismanagement, or gross waste of
money;
f!
substantial and specific danger to public health or safety; or
f!
violation of law.
ill
!£l
Each contract must:
ill
(2)
prohibit retaliation against
f!
covered employee who discloses any
illegal or improper action described in subsection
nit.
and
specify that an aggrieved employee, as
f!
third-party beneficiary,
may
121
civil action recover compensatory damages, including
interest and
f!
reasonable attorney's fee, against the employer for
retaliation in violation of this Section.
®
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BILL
No. 2-10
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@
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 for 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.
~
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
ili1
Approved:
Nancy Floreen, President, COlmty Council
Date
198
199
Approved:
Isiah Leggett, County Executive
Date
200
201
This
is
a correct copy ofCouncil action.
Linda M. Lauer, Clerk of the Council
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
MUNICIPALITIES:
PENALTIES:
Not applicable.
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