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HomeMy WebLinkAbout10173-12 Amend Code Ch 2 Art 8 Sec 2-125.1 Whistleblower ProtectionORDINANCE No. 10173-12 Passed by the Common Council of the City of South Bend, Indiana Attest: Attest: July 23, 2012 Presented by me to the Mayor of the City of South Bend, Indiana July 24, 12 20 City Clerk President of Common Council City Clerk Approved and signed by me JUZY Z-5,- 20 i LI ��--� nom. Substitute Bill No. 20 -12 Ordinance No. l ©(7 3 _ ( ), AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 2, ARTICLE 8, BY THE INCLUSION OF NEW SECTION 2 -125.1 OF THE SOUTH BEND MUNICIPAL CODE ADDRESSING WHISTLEBLOWER PROTECTION STATEMENT OF PURPOSE AND INTENT Indiana Code § 4- 15 -10 -4 sets for the whistleblower protection provisions which provide in part that a state employer cannot dismiss, withhold salary increases or employment- related benefits, transfer or reassignment if an employee reports a violation of a federal or state law. This particular section is part of the State Employees' Bill of Rights. Indiana Code § 5- 11 -5.5 sets forth the regulations address "False Claims and Whistleblower Protection" which apply to the state but not political subdivisions. Indiana Code § 21 -39 -3 sets forth various whistleblower protection regulations addressing employees of state educational institutions who make good faith reports of alleged violation of a law or university policy. Many municipalities throughout the country have ordinances which prohibit reprisals, including the City of Indianapolis, Indiana. On May 21, 2012, six (6) members of the South Bend Common Council voiced concern over the apparent lack of policies, procedures and protocols with regard to telephonic equipment and technology used by the City of South Bend. The City of South Bend currently posts on its city website various forms and policies and the effective date of each. These posted policies govern five (5) specific areas, namely: operating, finance, purchasing, human resources, and information technology. The topic of "human resources" lists its status as "In Draft ". In light of that status, the following ordinance is introduced to provide whistleblower protection to city employees. Section I. Chapter 2, Article 8, Section 2 -125.1 of the South Bend Municipal Code is created to read in its entirety as follows: Sec. 2 -125.1 Whistleblower Protection. 1 (a) Except as provided in I(b) herein, no city elected official, city employee or city appointee shall retaliate or threaten to retaliate against any person because the person did any of the following: (1) Filed a written complaint with the Director of Human Resources alleging wrongful conduct which is defined as a violation of applicable state and /or t The regulations are consistent with the following legal authority addressing protected activities and retaliatory adverse employment actions: Stone v. City of Indianapolis Pub. Utility Div., et al 281 F. 3d 640 (7th Cir. 2002); Whittaker v. Northern Illinois University, 424 F. 3d 640 (7th Cir. 2005); and Whirlpool Corp. v. Vanderburgh County-City, 875 N.E. 2d 751 (Ind. Ct. App. 2007) Substitute Bill 20 -12 Addressing whistleblower Protection Regulations Page 2 federal laws and /or regulations or a violation of citv ordinance(s) which must have been filed within thirty (30) dys of the alleged retaliatory adverse employment action on a form provided by the Director of Human Resources; Brea tte - the - attention of his- e�her- imnediat a ma #ff .,,h; °'� urj„ivuru Div° Msistent with geveming ever- operation while been appr-e, aedbythe proper- eity bear-d, genor other- eatity of the eity; (2) Provided information to the Office of Corporation Council or the Law Department which is one of the Executive Departments established in Section 2 -13 of the South Bend Municipal Code with regard to a written complaint filed pursuant to sub- naragranh (1): or Filed = e i`a wr -We (3) Testified at any ethics commission proceeding or similar venue established by the City of South Bend regarding a complaint properly pursuant to sub - paragraph (1). (b) An elected city official, city employee or city appointee who has proper jurisdictional authority over an individual who has taken any of the actions listed in paragraph (a) of this section, may take appropriate disciplinary action, if said person did not act in good faith or knowingly or recklessly provided false information or testimony. (c) A person who is found to have violated this section shall be subject to progressive disciplinary procedures as set forth in the City of South Bend's properly enacted Personnel Polices and Procedures, or other governing documents adopted under governing law. (d) All elected city officials, city employees or city appointees shall be properly trained in any and all ethics regulations, including but not limited to the City of South Bend Ethics Code signed by the Mayor on January 1, 2012, all ordinances addressing ethics, governing standards, policies and Substitute Bill 20 -12 Addressing Whistleblower Protection Regulations Page 3 protocols governing the tasks to which such officials, employees and appointees are charged to carry out as part of their employment with the City of South Bend. Section Il. If any part, subsection, sentence, clause or phrase of this ordinance is for any reason declared to be unconstitutional or otherwise invalid by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. Section III. This ordinance shall be in full force and effect from and after its passage by the Common Council, approval by the Mayor and legal publication. i Council -Member- IT6nry-Dayis, Jr. 2Z"Ltnct d Counc MeqibeV (Council Member Karen L.-White Council Member at Large Council Member at Large �tt hn V orde, City Clerk `resented' by me to Pete Buttigieg, the Mayor of the City of South Bend, Indiana, on the Z`4\ day of 2012, at CO' 107 r o'clock C�. m. —�0 1-znl Jani alboom, Deputy Clerk Substitute Bill 20 -12 Addressing Whistleblower Protection Regulations Page 4 ,proved-and ,FiSned- by me on the Z3' day of 1Vt'f , 2012, at i= �.�o'clock f. M. 1 st READING b_( l- l L PUBLIC HEARING � - Z-3- (( a -J� 5 3 rd READING I _ L3 -C L a5 NOT APPROVED REFERRED PASSED OL S- S t t S Pete Buttigie Mayor of the City o Bend, Indiana Filed in, lee b--ffjc F�UL 2 0 ?Q1 4 'OX d CITY CLERK, SOUTH BEI , EIA� TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 20 -12 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 2, ARTICLE 8, BY THE INCLUSION OF NEW SECTION 2- 125.1 OF THE SOUTH BEND MUNICIPAL CODE ADDRESSING WHISTLEBLOWER PROTECTION Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation as substituted (see cover letter for changes). This bill was heard by the Personnel & Finance Committee. Karen L. White Chairperson, Committee of the Whole OUT 8� City of South Bend C „ E Common Council 1865 441 County -City Building • 227W. Jefferson Blvd South Bend, Indiana 46601 -1830 Derek D. Dieter President Oliver J. Davis Vice - President July 19, 2012 (574) 235 -9321 Fax (574) 235 -9173 http://www.southbendin.gov Karen L. White Members of the South Bend Common Council Chairperson, Committee 4th Floor County -City Building of the Whole South Bend, Indiana 46601 Tim Scott First District Re: Substitute Bill No. 20 -12 Whistleblower Protection Regulations Henry Davis, Jr. Dear Council Members: Second District We are pleased to file the attached Substitute Bill setting forth Whistleblower Third Distri ct Valerie Protection Regulations for your review, discussion and passage. District Fred Ferlic Since the initial version of the proposed regulations were filed with the Office of Fourth District the City Clerk on June 6, 2012, the Council Attorney and Interim City Attorney have had the opportunity to meet and do additional detailed research. As a David Varner result, the proposed regulations reflect their joint recommendations based on Fifth District case and statutory authorities addressing alleged retaliatory adverse employment actions. Cases from the Indiana Court of Appeals and the 7th Circuit Court of Oliver J. Davis Appeals have been reviewed and a reference to some of those decisions are Sixth District now included in the footnote reference included in the Substitute Bill. In Derek D. Dieter summary, the changes have been highlighted in the substitute bill to indicate At Large new language which is underlined and prior language which is now proposed to be deleted being crossed out. Key highlights are as follows: Gavin Ferlic At Large . Requires a written complaint to be filed with the Director of Human Karen L. White Resources for the City of South Bend At Large • Requires that such a written complaint must have been filed within thirty (30) days of the alleged retaliatory adverse employment action • Requires that a written complaint be filed on a form provided by the Director of Human Resources • Adds a reference to the Law Department which is one of the Executive Departments established in Section 2 -13 of the South Bend Municipal Code Cover Letter to Substitute Bill No. 20 -12 Whistleblower Protection Regulations July 19, 2012 Page 2 • Maintains that any complaint which was not filed in good faith, or knowingly or recklessly provided false information or testimony is a violation subject to disciplinary action • Maintains the requirement that proper training on ethics regulations would be an ongoing requirement of the City Administration. The proposed regulations are believed to be fair and reasonable. We seek your support for these whistleblower protection regulations. Thank you. Most sincerely, Council Member Henry Davis, Jr. 2"d District Council Member Co ncil Member Karen L. ite Council Member at Large Chairperson of Personnel & Finance Committee �;:a Council Member Tim Scott 1 st District Council Member I Z� &; Council President Derek D. Dieter Council Member at Large Attachment Filed .. . Office 4 2 0 'Z012 r OORD Cl", CLEW, SOUTH BraND, tpy