Item N02
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 15. 2009
Division: County Attorney
Bulk Item: Yes -2L- No
Staff Contact PersonlPhone #: Suzanne Hutton #3470
AGENDA ITEM WORDING:
Approval to advertise and hold a public hearing to consider approval of a County Ordinance to
strengthen "Whistleblower" protection policies for County employees.
ITEM BACKGROUND:
On January 28, 2009, State Attorney Dennis Ward addressed the Board concerning the County's
existing "Whistleblower" policies. On 2/18/09, following discussion, the' Board directed staff to
strengthen the County's "Whistleblower" policies to ensure maximum protection from reprisal for
Monroe County employees when reporting unlawful activity to appropriate authorities for investigation
or corrective action, resulting in the proposed Ordinance for consideration by the Board.
PREVIOUS RELEVANT BOCC ACTION:
2/18/09 BOCC direction to staff (Item K-2)
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/ A
INDIRECT COST: N/ A BUDGETED: Yes _No
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH_ Year
APPROVED BY: County Atty ~ OMBlPurchasing _ Risk Management_
DOCUMENTATION:
Included x
Not Required_
DISPOSITION:
Revised 1/09
AGENDA ITEM #
Commissioner Wigington
ORDINANCE NO.
- 2009
AN ORDINANCE CREATING MONROE COUNTY CODE
CHAPTER 2, ARTICLE X; PROVIDING FOR PROTECTION OF
EMPLOYEES AND APPLICANTS WHO FILE COMPLAINTS
ABOUT VIOLA TIONS OF LAW BY COUNTY AGENCIES,
OFFICIALS, PERSONNEL, AND INDEPENDENT
CONTRACTORS; PROVIDING FOR SEVERABILITY;
PROVIDING FOR THE REPEAL OF ALL ORDINANCES
INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE OF
ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. '
WHEREAS, Ordinance No. 002-2009, Seetion 10, provides protection for employees
who participate in the investigation for, initiation ot: testimony for, or assistance in an action
filed or to be filed under the County's False Claim Ordinance; and
WHEREAS, the Board of County Commissioners for Monroe County determine that it
is in the best interests of the public that its employees and independent contractors not fear loss
of their employment or other retaliation due to bringing to the attention of the administration, or
otherwise participating in the investigation for, initiation ot: testimony for, or assistance in an
action filed or to be filed concerning any violations of law by employees or independent
contractors; and '
NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION 1. WHISTLEBOWER'S ORDINANCE. Chapter 2, Article X, Adverse Action
Against Persons For Disclosing Information Of Specified Nature Prohibited; Remedy And
Relief, Monroe County Code, is hereby created to read:
Sec. 1. Le2:islative Intent
It is the intent of the Board of County Commissioners to prevent agencies or the County's
independent contractors from taking retaliatory action against an employee or applicant for
employment who reports to an appropriate agency violations of law on the part of Monroe
County or its independent contractors that create a substantial and specific danger to the public's
health, safety, or welfare. It is further the intent of the Board of County Commissioners to
prevent agencies or the County's independent contractors from taking retaliatory action against
any person who discloses information to an appropriate agency alleging improper use of
governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part
of an agency, public officer, or employee.
Whistleblower Ordinance
Sec. 2. Definitions.
As used in this section, unless otherwise specified, the following words or terms shall have the
meanings indicated:
(a) Agency means Monroe County, a political subdivision of the State of Florida; any
official, officer, department, division, or office of Monroe County government; as well as any
boards or committees established by the Board of County Commissioners or the County
Administrator.
(b) Employee means a person who performs services for, and under the control and
direction of, or contracts with, Monroe County or its independent contractors for wages or other
remuneration.
( c) Adverse personnel action means the discharge, suspension, transfer, or demotion of
any employee or the withholding of bonuses, the reduction in salary or benefits, or any other
adverse action taken against an employee within the terms and conditions of employment by an
agency or an independent contractor.
(d) Independent contractor means a person, other than an agency, engaged in any
business and who enters into a contract with Monroe County.
( e) Gross mismanagement means a continuous pattern of managerial abuses, wrongful
or arbitrary and capricious actions, or fraudulent or criminal conduct which may have a
substantial adverse economic impact.
(f) Applicant for employment means an applicant for employment with Monroe County
or its independent contractors.
Sec. 3. Actions Prohibited.
(a) An agency or independent contractor shall not dismiss, discipline, or take any other
adverse personnel action against an employee or applicant for employment for disclosing
information pursuant to the provisions of this section.
(b) An agency or independent contractor shall not take any adverse action that affects
the rights or interests of a person in retaliation for the person's disclosure of information under
this section.
(c) The provisions of this subsection shall not be applicable when an employee or
person discloses information known by the employee or person to be false.
Sec. 4. Nature of Information Disclosed.
The information disclosed under this section must include:
(a) Any violation or suspected violation of any federal, state, or local law, rule, or
regulation committed by an employee or agent of an agency or independent contractor which
creates and presents a substantial and specific danger to the public's health, safety, or welfare.
Whistleblower Ordinance
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(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross
waste of public funds, or gross neglect of duty committed by an employee or agent of an agency
or independent contractor.
Sec. 5. To Whom Information Disclosed.
The information disclosed under this section must be disclosed to the County Administrator or
his/her designee, pursuant to procedures established by the County Administrator.
Sec. 6. Emolovees and Persons Protected.
This section protects employees and persons who disclose information on'their own initiative in
a written and signed complaint; who are requested to participate in an investigation, hearing, or
other inquiry conducted by any agency or other government entity; who refuse to participate in
any adverse action prohibited by this section; or who initiate a complaint through the state's
whistle-blower's hotline; or employees who file any written complaint to their supervisory
officials or employees who submit a complaint to the chief county administrator or county
attorney. The provisions of this section may not be used by a person while he or she is under the
care, custody, or control of the state correctional system or, after his or her release from the care,
custody, or control of the state correctional system, with respect to circumstances that occurred
during any period of incarceration. No remedy or other protection under this section or SS
112.3187-- 112.31895, F.S. applies to any person who has co~itted or intentionally
participated in committing the violation or suspected violation for which protection under this
section is being sought.
Sec. 7. Remedies.
(a) The County Administrator shall establish a procedure for receipt and investigation of
whistle-blower information and complaints of retaliatory adverse action received from members
of the public. The procedure shall provide for the prevention of retaliation, and corrective action
for any retaliatory adverse action taken by an agency or independent contractor.
(b) The County Administrator shall establish a procedure for the investigation and
review of employee and applicant for employment complaints of unlawful adverse personnel
action filed pursuant to this section. The procedure shall include a step for review of complaints
by a panel of impartial persons to be designated by the County Administrator. The County
Administrator may designate members of County staff to serve on the review panel if such staff
were not personally involved in the case and are not in the relevant chain of command for the
parties involved. Upon hearing a complaint, the panel must make findings of fact and
conclusions ofIaw for a final decision by the county administrator.
( c) Within sixty (60) days after an action prohibited by this section, any employee or
applicant for employment protected by this section may file a complaint with the County
Administrator or his/her designee.
(d) The County Administrator is authorized to award the following remedies where
appropriate to effectuate the intent of this section:
Whistleblower Ordinance
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(i) Reinstatement of the employee to the same position held before the adverse action
was commenced, or to an equivalent position or reasonable front pay as alternative relief
(ii) Reinstatement of the employee's full fringe benefits and seniority rights, as
appropriate.
(iii) Compensation, if appropriate, for lost wages, benefits, or other lost
remuneration caused by the adverse action.
(iv) Regarding applicants for employment, any relief deemed by the County
Administrator to be appropriate under the circumstances.
Sec. 8. Defenses.
It shall be an affirmative defense to any action brought pursuant to this section that the adverse
action was predicated upon grounds other than, and would have be'en taken absent, the
employee's or person's exercise of rights protected by this seetion.
Sec. 9. Existine Riehts.
This section does not diminish the rights, privileges, or remedies of an employee or applicant for
employment under any other law or rule or under any collective bargaining agreement or
employment contract.
Sec. 10. Rules and Procedures. The County Administrator is authorized to promulgate
such rules and procedures necessary to effectuate the intent of this section.
Sec. 11. Public Records.
The Florida Public Records Law, Ch. 119, Florida Statutes, applies to records generated in the
course of administering the provisions of this Article, and only such exemptions as are allowed
by state law apply to public records, as defined in state statute, received or produced in
furtherance of this Article.
SECTION 2. SEVERABILITY. Should any provision of this Ordinance be declared by a
court of competent jurisdiction to be invalid, the same shall not affect the validity of this
Ordinance as whole, or any part thereof, other than the part declared to be invalid. If this
ordinance or any provision thereof shall be held to be inapplicable to any person, property or
circumstances, such holding shall not affect its applicability to any other person, property or
circumstances.
Whistleblower Ordinance
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SECTION 3. CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of
ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict.
SECTION 4. INCLUSION IN THE CODE OF ORDINANCES. The provisions of this
Ordinance shall be included and incorporated in the Code of Ordinanees of the County of
Monroe, Florida, as an addition or amendment thereto, and shall be appropriately renumbered to
conform to the uniform numbering system ofthe code.
SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on ,
provided that this Ordinance shall be filed with the Department of State as provided in section
125.66(2), Florida Statutes.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the _ day of ,2009.
MayorGeorge Neugent
Mayor Pro Tern Sylvia Murphy
Commissioner Heather Carruthers
Commissioner Mario DiGennaro
Commissioner Kim Wigington
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY~ FLORIDA
By
By
Deputy Clerk
Mayor/Chairperson
Whistleblower Ordinance
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