Ordinance #93-26

AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, FLORIDA, REGARDING WHISTLE-BLOWERS; PROHIBITING ADVERSE ACTION AGAINST PERSONS FOR DISCLOSING INFORMATION OF SPECIFIED NATURE; PROVIDING REMEDY AND RELIEF; PROVIDING FOR ESTABLISHMENT OF PROCEDURE FOR WHISTLE-BLOWING BY AND PROTECTION FROM ADVERSE ACTION AGAINST MEMBERS OF PUBLIC; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE.

(Sponsored by Board of County Commissioners)

WHEREAS, it is the policy of the Board of County Commissioners that members of the public, employees, and applicants for employment should have open opportunities to bring to the attention of County government allegations of wrongdoing or malfeasance on the part of- Broward County, its officers, employees, and independent contractors, including but not limited to violations of law, gross waste of County funds or property, or abuse or gross neglect of duty; and

WHEREAS, it is the policy of the Board of County Commissioners that employees, applicants for employment, and members of the public free from adverse action resulting from bringing forward such allegations or participating in an investigation of such allegations; and

WHEREAS, the Board of County Commissioners wishes to implement the provisions of the Florida Whistle-Blowers' Act of 1986, as amended; NOW, THEREFORE,

BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, FLORIDA:

Section 1. The following new section is hereby adopted for inclusion in Chapter 26 of the Broward County Code of ordinances:

Sec. 26-___. Adverse action against persons for disclosing information of specified nature prohibited; remedy and relief.

(1) LEGISLATIVE INTENT.- It is the intent of the Board of County Commissioners to prevent agencies or 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 Broward 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 independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross mismanagement, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.

(2) DEFINITIONS - As used in this section, unless otherwise specified, the following words or terms shall have the meanings indicated:

(a) "Agency" it means Broward County, a political subdivision of the State of Florida; any official, officer, department, division, or office of Broward County government; as well as any boards or committees established by the Board of County Commissioners or the County Administrator.

(b) "Employee" it means a person who performs services for, and under the control and direction of, or contracts with, Broward 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 Broward 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 Broward County or its independent contractors.

(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.

(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.

(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.

(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.

(6) EMPLOYEES 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 Inspector General in the Executive Office of the Governor, to the employee designated as agency inspector general under . 112.3189 (l), or to the Office of the Public Counsel. No remedy or other protection under this section or sections 112.3187 through 112.31895, Florida Statutes, applies to any person who has committed or intentionally participated in committing the violation or suspected violation for which protection under this section is being sought.

(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. Upon hearing a complaint, the panel must make findings of fact and conclusions of law for a final decision by the County Administrator.

(c) Within 60 days after the 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:

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.

(8) DEFENSES - It shall be an affirmative defense to any action brought pursuant to this section that the. adverse of impartial persons to be designated by the County Administrator. Upon hearing a complaint, the panel must make findings of fact and conclusions of law for a final decision by the County Administrator. Within 60 days after the 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. The County Administrator is authorized to award the following remedies where appropriate to effectuate the intent of this section.

(9) EXISTING RIGHTS - 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; however, the election of remedies in s. 447.401 also applies to whistle-blower actions.

(10) The County Administrator is authorized to promulgate such rules and procedures necessary to effectuate the intent of this section.

Section 2. SEVERABILITY.

If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this Ordinance.

Section 3. INCLUSION IN CODE.

It is the intention of the Board of County Commissioners that the provisions of this Ordinance shall become and be made a part of the Broward County Code; and that the sections of this Ordinance may be renumbered or re-lettered and the word "ordinance" may be changed to "section, article, or such other appropriate word or phrase in order to accomplish such intentions.

Section 4. EFFECTIVE DATE.

This Ordinance shall become effective upon enactment.

ENACTED August 10, 1993

FILED WITH DEPARTMENT OF STATE August 20, 1993

EFFECTIVE August 27, 1993

PURPOSE: The purpose of this ordinance is to exercise the authority granted to the County Commission in Section 112.3187, Florida Statutes, which is part of the Whistle-blower's Act.