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IN THE COUNCIL OF THE DISTRICT OF COLUMBIA Councilmember
Carol Schwartz introduced the following bill, which was referred to the Committee on
________.
To amend the District of Columbia Comprehensive Merit Personnel Act Merit Systems
Protection Act to provide increased protection for District employees who report waste,
fraud, abuse of authority, violation of law, or threat to public health without fear of
retribution, and to impose an enforceable obligation on District government supervisors to
make such reports when circumstances so require.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as
the "District of Columbia Whistleblower Reinforcement Act of 1997".
Sec. 2. The District of Columbia Government
Comprehensive Merit Personnel Act, effective March 3, 1979 (D.C. Law 2-139; D.C. Code §
1-601.1 et seq.) is amended as follows:
(a) Section 1501 is amended by inserting the following introductory language before the
phrase "The Council of the District of Columbia declares as its policy to:":
"Legislative finding and declarations. The Council of the District of Columbia
("Council") finds and declares that a District employee must be free to report
waste, fraud, abuse of authority, violation of law, or threat to public health without
fear of retribution. The Council further finds and declares that a public servant best
serves the citizenry when the public servant can be candid and honest without reservation
in conducting the people's business. Accordingly,"
(b) Section 1503 is emended to read as follows:
"Sec. 1-1503. Whistleblower Protections.
"(a) For purposes of this act, the term:
"(1) "Illegal order" means a directive to violate or assist in violating
a federal, state, or local law, a rule or regulation, or an order to work or cause others
to work in conditions that may threaten the health or safety of employees or of the
public."
"(2) "Prohibited personnel action" includes but is not limited to
termination, demotion, suspension, reprimand, involuntary transfer or reassignment,
referral for psychiatric or psychological counseling, or in any manner discriminating
against a former, current or prospective employee which results from that former, current,
or prospective employee's protected disclosure or failure to comply with an illegal order,
as those terms are defined in this act.
"(3) "Protected disclosures" means any communication or a demonstrated
intent to communicate a reasonable belief of the existence of:
"(A) Mismanagement;
"(B) Gross misuse or waste of public resources or funds;
"(C) Abuse of authority in connection with the administration of a public program
or the execution of a public contract;
"(D) Violation of a federal, state, or local law, rule, or regulation; or
"(E) A condition that may significantly threaten the health or safety of employees
or of the public."
"(4) "Public body" means"
"(A) The United States Congress, the Council, any state legislature, any
popularly-elected local governmental body, the District of Columbia Office of the
Inspector General, the Office of the District of Columbia Auditor, or any member or
employee of one of these bodies;
"(B) The federal, the District of Columbia ("District"), or any state or
local judiciary, any member or employee of these judicial branches, or any grand or petit
jury;
"(C) Any federal, District, state, or local regulatory, administrative, or public
agency or authority or instrumentality of one of these agencies or authorities;
"(D) Any federal, District, state, or local law enforcement agency, prosecutorial
office, or police or peace officer;
"(E) Any federal, District, state, or local department of an executive branch of
government; or
"(F) Any division, board, bureau, office, committee, commission or independent
agency of any of the public bodies described in subparagraphs (A) through (E) of this
paragraph.
"(5) "Retaliate" means to threaten, take, or fail to take any action
against a former, current, or prospective employee that is the result of that former,
current, or prospective employee's protected disclosure or failure to comply with an
illegal order, as those terms are defined in this section.
"(6) "Supervisor" means any individual employed by the District
government, including an agency head, who has the authority to direct and control the work
performance of an employee, or who has the authority to recommend or take remedial or
corrective action for the violation of a law or rule, or the misuse of government
resources, that an employee may allege or report pursuant to this act.
"(7) "Whistleblower" means a person who makes a protected disclosure as
that term is defined in this section.
"(b) Prohibitions. A person shall not recommend or take a prohibited personnel
action or otherwise retaliate against a former, current, or prospective employee as a
result of that former, current, or prospective employee's protected disclosure to a
supervisor or to a public body or refusal to comply with an illegal order.
"(c) Enforcement.
"(1) A violation of subsection (b) of this act constitutes a complete affirmative
defense for a former, current, or prospective employee to a prohibited personnel action in
an administrative review, challenge, or adjudication of that action."
"(2) A former, current, or prospective employee aggrieved by a violation of
subsection (b) of this act may bring a civil action in the Superior Court of the District
of Columbia ("Court") seeking relief and damages, including but not limited to
injunction, reinstatement to the same position held before the prohibited personnel
action, or to an equivalent position and reinstatement of the employee's or former
employee's seniority rights, restoration of lost benefits, back pay and interest on back
pay, compensatory damages, and, when appropriate, punitive damages and reasonable costs
and attorney fees. A civil action shall be filed within 1 year after a violation occurs or
within 1 year after the former, current, or prospective employee first becomes aware of
the violation."
"(3) In a civil action or administrative proceeding, once it has been demonstrated
by a preponderance of the evidence that an activity protected by this section was a
contributing factor in the alleged prohibited personnel action against a former, current,
or prospective employee, the burden of proof must be on the employing District agency to
prove by clear and convincing evidence that the alleged action would have occurred for
legitimate, independent reasons even if the employee had not engaged in activities
protected by this section."
"(d) Discipline for commission of a prohibited personnel action. A supervisor,
manager, department director, or other state official who violates subsection (b) of this
act shall be subject to appropriate discipline up to and including dismissal from
office."
"(e) Effect on other rights. The institution of a civil action in accordance with
paragraph (c)(2) of this section shall not diminish the rights, privileges, or remedies of
an employee under another federal or District law or under an employment contract."
"(f) The District shall conspicuously display notices of an employee's protections
and obligations under this act in each personnel office and in other public places, and
shall use all other appropriate means to keep all employees so informed, including but not
limited to the inclusion of annual notices of an employee's protections and obligations
under this section with the employee's Internal Revenue Service tax reporting documents.
(c) Section 1801 is amended as follows:
(1) Section 1901 is redesignated as Section 1511.
(2) The title of section l801isamendedtoread"Sec.1801.Employee
Responsibilities.".
(3) Paragraph (a-l) is amended to read as follows:
"(a-l) As a matter of public policy, each supervisor within of the District
government shall make all protected disclosures pursuant to § 1-616-.3, as soon as that
employee becomes aware of the violation or misuse of resources."
(4) A new paragraph (a-2) is added to read as follows:
"(a-2) The failure by a District government supervisor to make protected
disclosures pursuant to section (a-l) shall be subject to appropriate discipline up to and
including dismissal from office."
(5) A new paragraph (a-3) is added to read as follows:
"(a-3) Adverse actions taken pursuant to this section shall be handled according
to the provisions specified in D.C. Code § 1-617.1."
Sec. 3. The Council adopts the fiscal impact statement in the
committee report as the fiscal impact statement required by section 602(c)(3) of the
District of Columbia Self Government and Governmental Reorganization Act, approved
December 24, 1973 (87 Stat. 813; D.C. Code § 1- 233(c)(3)).
Sec. 4. This act shall take effect following approval by the Mayor (or
in the event of veto by the Mayor, action by the Council to override the veto), approval
by the Financial Responsibility and Management Assistance Authority as provided in section
203(a) of the District of Columbia Financial Responsibility and Management Assistance Act
of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code § 47-392.3(a)), and a 30-day
period of Congressional review as provided in section 602(c)(1) of the District of
Columbia Self Government and Governmental Reorganization Act, approved December 24, 1973
(87 Stat. 813, D.C. Code § 1- 233(c)(1)), and publication in the District of Columbia
Register. |
