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CITY OF CARMEL-BY-THE-SEA

Council Report
January 5, 2015
To:

Honorable Mayor, Members of the City Council
Douglas J. Schmitz, City Administrator

From:

Sullivan Carey-Lang, Special Projects Manager

Subject:

A Resolution of the City Council of the City of Carmel-by-theSea Adopting a Whistleblower Policy and giving the City
Administrator Direction to Implement.

RECOMMENDATION(S):
By motion of Consent Calendar, adopt a Resolution Establishing a Whistleblower
Policy.
EXECUTIVE SUMMARY:
A goal set by the Council and City Administrator in October 2014 established that a
whistleblower policy would be brought forth in order to foster and maintain a workplace
with a high ethical standard of conduct in all activities.
ANALYSIS/DISCUSSION:
This whistleblower policy is based on California Government Code Section 1102.5
(attached hereto) which is California’s general whistleblower statute.
This policy expands on the California whistleblower statute, informing employees of
channels to go through to report any violation or suspected violation of conduct. It is
important that the City of Carmel-by-the-Sea do its best to conduct itself in a safe,
efficient, and ethical manner. Establishing this policy will allow the City to protect its
employees, assets, and resources from fraudulent, illegal, and dishonest activities.
All employees, City officers, contractors, Council members, and commissioners are
encouraged to submit a good faith report of any violation or suspected violation as soon
as possible. Any individual should report what they believe to be a whistleblower
complaint regardless of whether city employment or not. Included in this policy is the
recommended Whistleblower Complaint Form so that all incidents may be properly
documented and acted upon. The use of this form is recommended, not required. Any
supervisor, department manager, or City official will take action when presented with a
violation or suspected violation in any form.
The City of Carmel-by-the-Sea takes these violations or suspected violations seriously,
and will immediately investigate any allegation to determine if a violation has occurred.
FISCAL IMPACT:
None.
City Council Meeting of January 5, 2015
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Agenda Item: 7.J
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Budgeted (Yes/No)

Funding Source (General Fund, Grant,
State)

N/A

PREVIOUS COUNCIL ACTION/DECISION HISTORY:
• Douglas J. Schmitz, City Administrator gave an oral report to the City Council in
October 2014 which set a whistleblower policy as an end-of-year goal.
ATTACHMENTS:
1. Resolution
2. Whistleblower Policy
3. Government Code Section 1102.5
APPROVED:
f

Date:

31 ~. /'(

-- .

Agenda Item: 7.J
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City Council Meeting of January 5, 2015
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RESOLUTION 2015A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
ADOPTING A WHISTLEBLOWER POLICY AND GIVING THE CITY ADMINISTRATOR
DIRECTION TO IMPLEMENT.
WHEREAS, the City Council has earlier expressed an interest in creating a
Whistleblower Policy as to protect the high moral and ethical standard set for City
conduct; and
WHEREAS, the Whistleblower Policy is based on California Government Code
Section 1102.5; and
WHEREAS, this policy provides information on which channels to go through to
report any violation or suspected violation of conduct; and
WHEREAS, providing this system will allow the City to protect its employees,
assets, and resources from fraudulent, illegal, and dishonest activities; and
WHEREAS, all employees, City officers, contractors, Council members, and
commissioners are encouraged to submit a good faith report of any violation or
suspected violation as soon as possible; and
WHEREAS, these violations or suspected violations are taken seriously, and any
violation or suspected violation will immediately be investigated.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF
THE CITY OF CARMEL-BY-THE-SEA DOES:
Adopt the Whistleblower Policy Attached Hereto
PASSED AND ADOPTED BY THE CITY OF COUNCIL OF THE CITY OF CARMELBY-THE-SEA this 5th day of January, 2015, by the following roll call votes:

AYES:

COUNCIL MEMBERS:

NOES:

COUNCIL MEMBERS:

ABSENT:

COUNCIL MEMBERS:

SIGNED:

_______________________
Jason Burnett, Mayor

City Council Meeting of January 5, 2015
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ATTEST:

___________________________
Lori Frontella, MMC
Interim City Clerk
Agenda Item: 7.J
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Policy 2015-___

City of Carmel-by-the-Sea
Whistleblower Policy
I.

Purpose

It is important that the City of Carmel-by-the-Sea (“City”) foster and maintain a
workplace with a high ethical standard of conduct in all activities and conduct its
business in a fair, effective, efficient, legal and transparent manner. Further, the City
must protect its assets and resources from fraudulent, illegal, and dishonest activities by
maintaining effective internal controls and by identifying and investigating any possibility
of fraud or other improper activities. To this end, this Whistleblower Policy (“Policy”)
establishes procedures for City employees and the Carmel-by-the-Sea community to
report alleged illegal, fraudulent, or improper activity by City officials and to assure that
such reports will not result in retaliation by the City.
II.

Policy

Community members, commissioners, City officers, City contractors, elected officials
and City employees are encouraged to report good faith suspicions of misconduct by
City employees and any misuse of City property or resources. Any City employee who
makes such a good faith report is protected against adverse employment actions by the
City or any person acting on behalf of the City for raising such allegations, and shall not
suffer any reprisals or retaliation by the City or any person acting on behalf of the City
for making the report, whether or not the allegations are sustained. Prohibited adverse
employment actions are explained more fully in Section IV below.
III.

Prohibited Activities

Persons should report information related to any of the following prohibited activities,
which include but are not limited to:
A. Violation of any law, regulation, or ordinance.
B. Conflict of interest.
C. Fraud, waste, or misuse of City property, resources, or time.
D. Creation of or contribution to a specific and substantial danger to public health or
safety by failing to perform duties required by the City.

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Agenda Item: 7.J
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E. Theft, misuse of, or misappropriation of City resources, property, information, assets
or funds, or an attempt to do any of the same.
F. Intentional falsification of records (including failure to disclose material facts or
making of false or misleading entries or statements with the intent to deceive on any
City document or other official document, report, or form, including but not limited to
City financial records and environmental regulatory reporting) or the willful and
unauthorized destruction or mutilation of any City document or other official
document, report, or form, including City financial records.
G. Intentionally submitting false claims for payment or reimbursement.
H. Knowingly submitting or signing a timesheet that contains false information.
I. Forgery or intentional unauthorized alteration of a City document or other official
document, application, report, or form including but not limited to City financial
documents.
J. Improprieties in the handling or reporting of financial transactions involving the City.
K. Authorizing or receiving payment by the City for goods not received or services not
performed.
L. Computer-related activity involving unauthorized alteration, destruction of data,
forgery, or manipulation of data or misappropriation of City-owned software.
M. Abuse of authority.
IV.

Protection from Retaliation

No City officer or employee, or any person acting on behalf of the City, shall influence,
restrain, or prevent any employee from disclosing information that the employee has
reasonable cause to believe relates to or is evidence of misconduct. Any employee
acting in good faith and upon a reasonable belief as a whistleblower that misconduct
has occurred, or who the City believes has disclosed or may disclose such information,
will be protected from threats or retaliation, including but not limited to, discharge,
demotion, suspension, harassment, reduced compensation, changes in the terms and
conditions of employment, or other forms of discrimination. In addition, no employee
may be adversely affected because the employee refused to carry out a directive that
would have resulted in a violation of state or federal statute or a violation of or
noncompliance with local, state, or federal rule or regulation.

City Council Meeting of January 5, 2015
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Agenda Item: 7.J
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However, this Policy does not prohibit the City from taking adverse action for legitimate,
non-discriminatory reasons that are unrelated to the disclosure. Such legitimate or nondiscriminatory actions may include discipline for a legal cause or refusing to
hire/promote/transfer or to take any other legitimate personnel action based on
inadequate qualifications or poor performance reviews.
V.

Procedures for Filing a Whistleblower Complaint with the City

A. When to report:
A complaint filed under this Policy should be filed within thirty (30) days of the date of
the act or event which is the subject of the complaint.
B. Whom to report to:
If a City employee is making the report, all reports should first be made to the
employee’s supervisor, unless the report involves alleged misconduct of the supervisor.
If the complaint is not against the supervisor, and action is within the supervisor’s
authority, the supervisor should take all actions necessary to curtail the behavior and
determine the appropriate consequences and then inform the department head. If the
action is not within the supervisor’s authority, the supervisor should immediately report
the matter to the department head.
If a City employee is making the report and the alleged misconduct involves her or his
supervisor, or if for any reason the City employee is uncomfortable reporting such
concerns to her or his supervisor, the employee should report the matter directly to the
department head, City Attorney, or the City Administrator.
If the report involves the misconduct of the department head, City Attorney, or City
Administrator, the employee may take the report directly to any Council Member or the
Mayor.
If someone other than a City employee is making the report, the report should be made
to the department head who has authority over the matter, the City Attorney, or the City
Administrator, any or all of whom will then follow up on the matter.
To the extent possible, the identity of the whistleblower will remain confidential.
However, the City reserves the right to disclose the identity of the whistleblower, if the
identity may have to be disclosed to conduct a thorough investigation, to comply with
applicable laws or to provide individuals their legal rights or defense.
C. How to Report:
Use of the “Whistleblower Complaint Form” is desirable. Submit the form to the
following:

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Agenda Item: 7.J
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City of Carmel-by-the-Sea
Attn: Whistleblower Program
PO Box CC
Carmel-by-the-Sea, CA 93921
Employees are encouraged to provide as much specific information as possible,
including names, dates, places, the events that took place, and the employee’s
perception of why the incident(s) may constitute a violation or misconduct.
D. Compliance with State and Federal Laws
The City’s Whistleblower Policy is intended to describe the City’s policies and
procedures for reporting Prohibited Activities and protecting whistleblowers. This Policy
is in addition to and does not supplant whistleblower protections and procedures
provided under state and federal laws.
E. Investigation of Complaints
Depending upon the nature of the complaint, the City Administrator or her or his
designee will investigate the complaint to determine if misconduct or violation of this
Policy has occurred. To the extent permitted by personnel privacy laws, the City
Administrator or her or his designee will meet with the complainant to discuss the
findings of the investigation and will use best efforts to ensure timely resolution of the
matter.
F. Penalties
Any City officer or employee who violates this Policy shall be subject to discipline, up to
and including termination. Under Section 53298.5 of the Government Code, any officer,
manager, or supervisor who violates this Policy with malicious intent may be subject to
a fine not to exceed $10,000 and imprisonment in county jail for up to a period of one
(1) year. In addition to all penalties provided by law, any local officer, manager, or
supervisor who has been found by a court to have violated this Policy and the State law
under which it is promulgated may be individually liable for damages in an action
brought against him or her by the injured employee.

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Agenda Item: 7.J
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Whistleblower Complaint Form
City of Carmel-by-the-Sea
PO Box CC, Carmel-by-the-Sea, CA 93921
Instructions: Complete this form and return it to either: a supervisor, department head, City
Attorney, or the City Administrator. This is a confidential form for reporting any wrong doing.
However, confidentiality may not be maintained if your report results in criminal prosecution and
you are called upon to testify. Disclosure may also be required to conduct a thorough
investigation, to comply with applicable laws, or to otherwise provide individuals with their legal
rights of defense.
(Optional) Name: _______________________________________________
(Optional) Address: _____________________________________________
(Optional) Work Phone: __________________________________________
(Optional) Home/Cell Phone: ______________________________________
Are you a City of Carmel-by-the-Sea employee? Yes

No

If yes, what is your position or relationship to the City? _________________________________

1. Identify the person or persons against whom your allegations are made.

2. Describe the nature of your complaint, the incident(s) or event(s), date(s), time(s), and place(s).
Attach additional pages to this complaint if necessary.

3. Identify others who may have observed or witnessed the above incident(s) or event(s).

4. Do you have any documents that support your allegation? (Please list and attach copies).

Submit the completed form to the following address:
City of Carmel-by-the-Sea, Attn: Whistleblower Program, PO Box CC, Carmel-by-the-Sea, CA
93921

California Government Code
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1102.5. (a) An employer, or any person acting on behalf of the employer, shall not
make, adopt, or enforce any rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement agency, to a person with
authority over the employee, or to another employee who has authority to investigate,
discover, or correct the violation or noncompliance, or from providing information to, or
testifying before, any public body conducting an investigation, hearing, or inquiry, if the
employee has reasonable cause to believe that the information discloses a violation of
state or federal statute, or a violation of or noncompliance with a local, state, or federal
rule or regulation, regardless of whether disclosing the information is part of the
employee's job duties.
(b) An employer, or any person acting on behalf of the employer, shall not retaliate
against an employee for disclosing information, or because the employer believes that
the employee disclosed or may disclose information, to a government or law
enforcement agency, to a person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the violation or noncompliance,
or for providing information to, or testifying before, any public body conducting an
investigation, hearing, or inquiry, if the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee's job duties.
(c) An employer, or any person acting on behalf of the employer, shall not retaliate
against an employee for refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation of or noncompliance with a local, state,
or federal rule or regulation.
(d) An employer, or any person acting on behalf of the employer, shall not retaliate
against an employee for having exercised his or her rights under subdivision (a), (b), or
(c) in any former employment.
(e) A report made by an employee of a government agency to his or her employer is a
disclosure of information to a government or law enforcement agency pursuant to
subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a corporation or limited liability
company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for
each violation of this section.
(g) This section does not apply to rules, regulations, or policies that implement, or to
actions by employers against employees who violate, the confidentiality of the lawyerclient privilege of Article 3 (commencing with Section 950) of, or the physician-patient
privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the
Evidence Code, or trade secret information.

City Council Meeting of January 5, 2015
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Agenda Item: 7.J
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