Grand Jury Report Finds City Whistleblower Ordinance Provides Little Real Protection

San Francisco’s whistleblower protection ordinance is too narrow and restrictive to protect most whistleblowers and offers few remedies for victims of retaliation, according to a Civil Grand Jury report released this week.

The city first enacted whistleblower protections in 1989, but subsequent changes in the law made through legislation and through ballot measures have effectively narrowed those protections to the point where they provide little real protection, according to the grand jury report released Monday.

The ordinance as it is written now only covers those who make complaints through certain official channels within city government, and only about certain specific types of wrongdoing. The ordinance does not cover allegations of waste, fraud, abuse or violations of general law, for instance, or those whistleblowers who share information with the media or outside agencies such as the FBI, according to the report.

In addition, the ordinance only covers certain very limited forms of retaliation against whistleblowers and provides “no substantial remedy to victims of retaliation,” the report found.

So restrictive is the city ordinance and complaint procedure that of the 34 whistleblower retaliation complaints received by the San Francisco Ethics Commission between Jan. 1, 2011 and Nov. 18, 2014, 15 fell outside the scope of the ordinance, the grand jury found.

In the period between Jan. 1, 2004 and Nov. 18, 2014, a total of 20 complaints were received that fell within the ordinance’s purview. Eighteen of those complaints were dismissed after a preliminary review and two were dismissed by the ethics commission after a formal investigation, the grand jury found.

“In the fifteen-year history of the Commission, no complaint of whistleblower retaliation has ever resulted in a public accusation of wrongdoing, and all complaints have been investigated in secret and dismissed without any public proceeding,” the grand jury report said.

While there are federal and state whistleblower protection laws on the books, the federal law only protects federal employees and the state law requires employees to file a potentially costly and time-consuming lawsuit. The city ordinance does not require a lawsuit to be filed and could potentially fill a real need if it were broad enough to be effective, the grand jury concludes.

The grand jury report calls for the Board of Supervisors, the Ethics Commission and the Mayor’s Office to take steps to amend the city’s whistleblower protection ordinance to make it more effective. All three agencies are required to respond to the civil grand jury report and the Board of Supervisors is required to hold a hearing on the subject, according to grand jury officials.

Sara Gaiser, Bay City News

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