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Home My Public Portal About20-08 Emplyee Protection Whistle Blower Act1st Reading/Public Hearing: 06/04/2020 2'd Reading/Public Hearing: 06/18/2020 Adopted: 06/18/2020 Effective Date: 06/18/2020 Sponsored By: City Attorney ORDINANCE NO. 2020-08 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, AMENDING CHAPTER 23 OF THE CITY OF OPA-LOCKA'S CODE OF ORDINANCES ENTITLED "EMPLOYEE PROTECTION WHISTLE BLOWER ACT" TO ALLOW FOR AN IMPARTIAL ADMINISTRATIVE REVIEW PROCESS WITHIN THE CITY FOR WHISTLEBLOWER COMPLAINTS; PROVIDING FOR SEVERABILITY, CONFLICT AND REPEALER, INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Chapter 23 of the City of Opa-locka's Code of Ordinances provides for a program or policy that protects employees who report acts of criminal conduct, malfeasance, misfeasance or neglect committed by elected or appointed officials of the City; and WHEREAS, The City desires to amend Chapter 23 of the City of Opa-locka's Code of Ordinances to allow for an impartial administrative review process within the City for whistleblower complaints; and WHEREAS, The City Commission finds that amendment of Chapter 23 is in the best interest of the City and its residents. NOW THEREFORE, BE IT RESOLVED THAT THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA: Section 1. The recitals to the preamble herein are incorporated by reference. Section 2. Amending Chapter 23, Section 23-5 of the City of Opa-locka's City's Code of Ordinances entitled "To Whom the Information Must Be Disclosed to" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-5. To whom information must be disclosed to (a) As a part of the City's administrative process, Tthe information disclosed under this chapter must be disclosed to the city manager, the city mayor or in the case where the city manager is the person being complained of, to the city's risk manager. such official Ordinance No. 2020-08 or officials as the City Manageryor may designate to receive such information on his behalf or in the event where the City the Miami Dade County Commi cion on Ethics, and Public Trust or the Miami Dade County Commision on Human Rights under section 11(a) of the Miami Dadc County Code of Ordinances. (b) Within a reasonable time after receiving a complaint, not to exceed thirty (30) days, the city manager or the ,-the city's risk manager, in the case where the city manager is the subject of the complaint, shall acknowledge receipt of the complaint and thereafter, the city attorney may conduct an informal fact finding regarding any allegation(s) under this section, only to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel action under s. 112.3187, Florida Statutes has occurred, is occurring, or is to be taken. No finding by the city attorney shall be binding on the city manager or a subsequent impartial review board. The city attorney shall have the discretion to the release any informal findings. (b) To facilitate the disclosure of information under this chapter, information may be submitted to the inspector general: (1) Through a telephone hotline established by the office of the inspector general; (2) By email; (4) Through a website established by the inspector general; or (5) In person to the inspector general or the inspector general's staff. {c) The Miami Dade County Commision on Ethics and Public Trust or Miami Dade County Commision on Human Rights, shall at its discretion, make a determination whether an investigation is necesary with regards to any information that complies, with section 23 4, that is disclosed to the city manager, city manager's designee, the city mayor or such official or officials as the mayor may designate, or to the Miami Dade County Commision on Ethics and Public Trust, or to the Miami Dade County (c) Within forty-five days (45) days, unless extended by the city manager or the city's risk manager (where the city manager is the subject of the complaint), for good cause, a three (3) person impartial committee shall be assembled by the city manager or the city's risk manager (when the city manager is the subject of the complaint) consisting of: Page 2 Ordinance No. 2020-08 a) a resident of the City; b) a city department head that is not a part of the department that is the subject of the complaint; and c) a City employee that is not a part of the department that is the subject of the complaint. Neither the city manager, city attorney or city clerk may serve on the impartial panel that is authorized to handle whistleblower complaints only. The three (3) person impartial personnel panel shall be authorized to investigate allegations, to determine that an investigation is not necessary and/or to make a final determination regarding whether any violation has occurred. The impartial panel may also review rendered actions of management. The impartial panel shall advise the City Manager of all necessary resources, including professional expertise, necessary to perform its work. (d) The City will consider the administrative process that is set forth herein to be exhausted at such time that the recommendations of the impartial panel are reported to the city manager. However, nothing herein shall prevent matters from being reported to the Miami -Dade County Commission on Ethics and Public Trust or any other authorized agency when otherwise required by law. The City shall comply with any and all requests for information from the Miami -Dade County Commission on Ethics and Public Trust. Lel To facilitate the disclosure of information, , ' e the City shall establish a whistleblower process, including a form, for receiving confidential whistleblower complaints. Section 3. Amending Chapter 23, Section 23-6 of the City of Opa-locka's City's Code of Ordinances entitled "Employees and persons protected" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-6. Employees and persons protected (a) This chapter protects employees 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 the city, any state agency or federal government entity having the authority to investigate, police, manage, or otherwise remedy the violation or act; who refuse to participate in any adverse action prohibited by this chapter; who disclose information to the City or the Miami -Dade Commission on Ethics and Public Trust, as applicable, in accordance with the provisions of section 23-5; or who are otherwise protected by the State Whistle -blower's Act. The provisions of this chapter may not be used by employees while they are under the care, custody, or control of the state or county correctional system, or after their release from the care, Page 3 Ordinance No. 2020-08 custody or control of the state or county correctional system, with respect to circumstances that occurred during any period of incarceration. (b) No remedy or other protection under this chapter applies to any person who has committed or intentionally participated in committing a violation or suspected violation for which protection under this chapter is being sought. (c) An employee who provides false information pursuant to this section may be investigated and prosecuted pursuant to Florida Statutes, including but not limited to, F.S. §§ 837.06, False Official Statements; 838.022, Official Misconduct; 837.05, False Reports. (d) It shall be an affirmative defense to any complaint brought pursuant to this chapter that the adverse action was predicated upon grounds other than, and would have been taken absent, the employee's exercise of rights protected by this chapter. (e) The impartial panel set forth in 23-5 may consider any pattern of conduct by persons making the whistleblower complaint. (f) The impartial panel shall conduct a hearing only after notice to the complainant. (g) The three person panel may call witnesses, produce records, make findings of fact and conclusions of law and make recommendations for a final decision by the city manager or the city risk manager, in such case where the city manager is the subject of the complaint. Section 4. Amending Chapter 23, Section 23-7 of the City of Opa-locka's City's Code of Ordinances entitled "Remedies"as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-7. - Remedies. (a) If a complaint is made within sixty (60) days after an alleged prohibited action pursuant to s. 112.3187, Florida Statutes, a Complainant shall have not more than 60 days after receipt of a notice of termination of the investigation by the three (3) person impartial personnel panel set forth in Section 23-5, to file a complaint in an appropriate court with jurisdiction over the matter. (a)-Any-empleyee-pfeteeted-by-this-ellapter--whe-has-tlie-fight-te4ile-ati-appeal-ef-an appeinted-uftder—that-se , ctable7- Fervid,,•• }1,c of wi,cthcrth—acelvcr5e Page 4 Ordinance No. 2020-08 action was in violation of this chapter. The hearing examiner shall include in his findings of fact and conclusions a determination of whether the adverse action was in olatio of thi ..Lin rid shah ate remed (b) Any employee protected by this chapter who does not have the right to file an appeal under the city's human resources policy or a controlling collective bargaining agreement, may file a written complaint within sixty (60) days after the action Chall be comprised of all persons available to serve as a hearing examiner under the city's human resources policy or a controlling collective bargaining agreement. Such hearing examiners may be paid a fee for their services, but shall not be deemed city officials or employees within the purview of ch Ater- 2, articl„ r 5 .Lions 2 o t ough 2 13 or otherwise. The hearing examiner shall conduct a hearing after notice to the The hearing shall be conducted in accordance with the procedures, if applicable, to lling collective bargaining agreement, except as may be provided herein. Any interested party may procure the attendance of witnesses and the production of records at such hearing in the manner provided by chapter 2, article XI subdivision 3, sections 2 570.46 and 2 570.47. All hearings requested pursuant to this paragraph shall be commenced insofar as is practicable -within sixty (60) days of the manager's receipt of the complaint, except that the city m shall have the authority to extend el time for r ,bl„ Ll [L. <,1LV (c) The hearing examiner shall transmit his findings of facts, conclusions of law and any recommendations together with a transcript of all evidence taken before him and all exhibits received by him to the manager or manager's designee for a final decision. The manager or manager's designee may sustain, reverse or modify the adverse personnel action. In any case in which the hearing examiner finds that the employee filed a frivolous complaint in bad faith, the hearing examiner may recommend and the caring, including the employer's attorney's fees. (bd) Investigation by Miami Dade Commission on Ethics Commission. In addition to the remedies set forth above: (1) Any employee protected under this chapter who alleges retaliation may, only after exhausting available administrative remedies: (i) under the city's human resources policy or a controlling collective bargaining agreement, (ii) this chapter, or (iii) an Page 5 Ordinance No. 2020-08 action a later ,-ha f s .,ty (6m,t wr;ttcn i..ien . ardi ,. a allcgcd procedures referenced above. The ;,ole purpor,c of Such complaint is to determine whether, in addition to any findings or determination made in any of the above chapter and not to chap , Public st underthif chapterthe I' ;Ssic Ethic and Public Trust shall: b---Within-ftinety{ )- s-rafter rccciying thcicomplamt m ceFnpiianee wit- subse ctivoni be takes ; ,,,.a.,nee wit1, seetio., 23 4 Page 6 Ordinance No. 2020-08 /n\ Tl. , a:...e1:a.:t.....,.....I:..,. th,.....a:....., a.. 1... a..L......l...11 1.,..i..t.......:.....J 1... al... M:.....:_ chapter 2, article I.5, sections 2 9 through 2 13 of the Code and disciplinary action up to Section 5. Amending Chapter 23, Section 23-8 of the City of Opa-locka's City's Code of Ordinances entitled "Relief" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-8. - Relief. In any case brought under this chapter in which the three (3) person impartial panel set forth in Section 23-5 city . tiger =_ city g_r'sd_s:gn__ finds that the employee has been discharged, disciplined, or subjected to other adverse personnel action in violation of this chapter, the city manager or city manager's designee may: (1) Reinstate the employee to the same position held before the adverse action was commenced or to an equivalent position, or award reasonable front pay as alternative relief. (2) Reinstate the employee's fringe benefits and seniority rights, as appropriate. (3) Compensate the employee, if appropriate, for lost wages, benefits or other lost remuneration caused by the adverse action. Section 6. Amending Chapter 23, Section 23-9 of the City of Opa-locka's City's Code of Ordinances entitled "Existing rights" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-9. - Existing rights. This chapter shall not be construed to diminish the rights, privileges or remedies of any employee under any other law or rule or under any collective bargaining agreement that may exist. , Page 7 Ordinance No. 2020-08 Section 7. Amending Chapter 23, Section 23-10 of the City of Opa-locka's City's Code of Ordinances entitled "Retroactive Application" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-10. - Retroactive application. Notwithstanding the requirements of section 23 7, employees who have filed complaints of whistle blowing in state or federal court as of the date this chapter is the tcrms of this chapter. Any complaints pending with the City at the time of enactment of this legislation shall have retroactive application as to the process to be followed herein. Section 8. Amending Chapter 23, Section 23-11 of the City of Opa-locka's City's Code of Ordinances entitled "Confidentiality of Individuals Disclosing Information" as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-11. - Confidentiality of individuals disclosing information. The city commission intends for the protections of state law to be afforded to any individual who discloses information in compliance with this chapter to the local officials set forth in this chapter. The identity of such individuals shall be confidential and exempt from the provisions of the public records laws to the fullest extent permitted by, and in accordance with the law including, but not limited to, the confidentiality requirements and exemptions set forth in sections F.S. §§ 119.0713 and 112.3188. This section is not intended to prevent the dissemination of information, if requested, by the Miami -Dade Commission on Ethics and Public Trust. Section 9. Amending Chapter 23, Section 23-12 of the City of Opa-locka's City's Code of Ordinances entitled "Outreach to employees and mandatory training." as follows, with all remaining language set forth in said Section remaining the same: Sec. 23-12. - Outreach to employees and mandatory training. (a) The manager or designee, shall and the Miami -Dade Commission on Ethics and Public Trust or their designees may, shall provide training regarding this chapter to all new city employees hired after the effective date of the ordinance from which this chapter is derived as part of the initial city orientation. The manager or designee and , shall also provide training regarding this chapter to all city employees from time to time. (b) The inspector general or his or her designee shall periodically provide Page 8 Ordinance No. 2020-08 all A p1oyees of the count. and public effi„ialn (c) The Miami Dade County Commission on Ethics and Public Trust shall periodically publish to all city cmployccs instructions regarding the methods of Trust as provided by :,cction 23 5. Trust shall periodically notify all city cmployccs of the existence of the Miami Dade Commission on Ethics and Public Trust's hotline and its purpose, and provide an ad rcnn to which writte A electronic i formation F , be for war€1eE to the Miarn, (c) Notwith,tanding subsections (a) through (d) herein, other means of d Public Trust. Section 10. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. Section 11. Conflict & Repealer. All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed. Section 12. Inclusion in Code. It is the intention of the City Commission of the City of Opa-locka that the amendments contained of this Ordinance shall, at some time in the future, become and be made a part of City of Opa-locka's Code of Ordinances and that the sections of this Ordinance may be renumbered or re -lettered and the word "Ordinance" may be Page 9 Ordinance No. 2020-08 changed to "Chapter," "Section," "Article" or such other appropriate word or phrase, the use of which shall accomplish the intentions herein expressed. Section 13. Effective Date. This Ordinance shall take effect immediately upon its adoption on second reading. PASSED AND ADOPTED this 18th day of June, 2020. Matthew A. Pigatt, Mayor ST: Flores, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Burnadette Norris - City Attorney eeks, P.A. Moved by: Vice Mayor Davis Seconded by: Commissioner Burke Page 10 Ordinance No. 2020-08 VOTE: 5-0 Commissioner Bass YES Commissioner Burke YES Commissioner Kelley YES Vice -Mayor Davis YES Mayor Pigatt YES Page 11