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San Francisco slouches toward protecting whistleblowers

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Over the past decade, San Francisco has spent $58.2 million settling a variety of “prohibited personnel practice” lawsuits. (Courtesy photo)

San Franciscans instinctively understand that city employees who whistle-blow about waste, fraud and abuse do so to prevent corruption and misconduct for the good of society. City officials don’t appreciate savings to The City from whistleblowers exposing corruption.

Whistleblowers deserve meaningful anti-retaliation protections guaranteed by San Francisco’s Whistleblower Protection Ordinance.

Take Dr. Derek Kerr, a 20-year physician at Laguna Honda Hospital, who filed several whistleblower complaints. Kerr documented the patient gift fund — a trust restricted for patients — was raided to fund staff perks. Laguna Honda was ordered to repay $350,000 misappropriated.

Kerr also exposed a contract illegally steered to Davis Ja by his wife, Deborah Sherwood. The City Controller eventually cancelled the contract, saving taxpayers $400,000. Kerr was wrongfully terminated for filing complaints. He won a $750,000 settlement, which The City spent $450,493 fighting, for a combined $1.2 million.

Consider Joanne Hoeper, a 20-year City Attorney senior employee, who claims she blew the whistle on the City Attorney’s Claims Bureau for allegedly approving false claims involving approximately $10 million in unnecessary sewer repairs. After the jury answered “Yes” to the question of whether Hoeper had acted to stop false claims, and the judge doubled the jury’s initial “past lost earnings” award based on §12653(b) of California’s “False Claims Actions” statute, Hoeper’s wrongful termination lawsuit involved a unanimous $2.6 million jury award in her favor, estimated city expenses of $3 million fighting her and approximately $2.5 million for her lawyer’s fees, for a combined $8.1 million.

There are numerous examples of city employee whistleblowers saving significant sums.

Over the past decade, San Francisco has spent $58.2 million settling a variety of “prohibited personnel practice” lawsuits, including $31.5 million in City Attorney fees, and $26.7 million in settlement awards, including 57 wrongful termination cases costing $14.3 million — 24.6 percent of the $58.2 million — with 11 such lawsuits unsettled.

San Francisco’s 2014–15 Civil Grand Jury issued a report in June 2015 — “Whistleblower Protection Ordinance Is in Need of Change” — noting voters passed Proposition C in 2003 requiring the Board of Supervisors to “enact and maintain an ordinance … protecting City officers and employees from retaliation” for filing complaints about improper government activity, and noting a dozen years passed without board action.

The Ethics Commission held a paucity of public hearings and finally submitted proposed WPO amendments to the Board of Supervisors a year later, in April 2016. The board has taken another year collaborating with three city departments to further revise proposed amendments.

Among other recommendations, the Ethics Commission proposed in April 2016 expanding the types of complaints covered and expanding protections allowing whistleblower’s to disclose reports to city agencies other than the complainant’s own department and to other county, state or federal agencies. But that provision vanished from the January 2017 collaborative revisions.

We’re back to square one. Employees may still be restricted to filing complaints only with their own departments and four city agencies listed in the current ordinance, but not to other city, county, state or federal agencies, or the media.

This contradicts Labor Code §1102.5(b) — California’s Whistleblower Protection Act — and §1102.5(a) prohibiting employers (including The City) from adopting regulations preventing employees from disclosing information to State or federal agencies.

San Francisco’s Sunshine Ordinance §67.22(e) states “[City] employees shall not be … disciplined for disclosing any information that is public information or a public record to any journalist or any member of the public.” That sunshine language should be replicated, as is, into San Francisco’s WPO §4.115(a).

Critical amendments still aren’t addressed adequately.

Larry Bush, co-founder of Friends of Ethics, says the group believes that if identified failures in the amendments aren’t corrected, they expect it will need another rewrite submitted to voters within a year — perhaps after another million-dollar settlement award by a court that recognizes San Francisco fails to fully protect employees against retaliation.

“It’s inconceivable an employee or contractor could be disciplined or lose their job if they notify the FBI rather than a city manager,” Bush notes. “That doesn’t include taxpayer costs from bid-rigging, payoffs and other creatures from the swamp.”

Why is The City unwilling to broaden the WPO’s scope? After slouching through this 14-year delay, it’s time for genuine, meaningful whistleblower protections to be enacted. The Ethics Commission should submit WPO amendments eliminated by the board directly to voters, as promised.

Patrick Monette-Shaw is a columnist for the westsideoberver.com. An expanded version of this article is available at stoplhhdownsize.com.

Editor’s note: This article has been updated for accuracy and clarity.

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