Sect30WhistleblowerPolicy.docx

CITY OF NAPLES PERSONNEL POLICIES & PROCEDURES MANUAL Section No.: 30 SUBJECT: WHISTLEBLOWER POLICY Revision Date: Effective Date: 08/16/2022 POLICY: It is the policy of the City of Naples (the “City”) to empower employees to achieve their optimal potential in the workpla...

CITY OF NAPLES PERSONNEL POLICIES & PROCEDURES MANUAL Section No.: 30 SUBJECT: WHISTLEBLOWER POLICY Revision Date: Effective Date: 08/16/2022 POLICY: It is the policy of the City of Naples (the “City”) to empower employees to achieve their optimal potential in the workplace. City employees are in turn responsible for being good stewards of the public trust and resources that have been granted to the City's care. The City and its employees are required to abide by all applicable laws, regulations, rules, policies, procedures, protocols and related guidance while making every possible effort to ensure that their conduct and behaviors are to the highest ethical standards. The City takes any allegation of fraud, criminal conduct, mismanagement, misrepresentation, abuse, or other dishonest acts in a particularly solemn manner, and to that end will conduct an investigation directed by the office deemed most appropriate to review the issue(s) disclosed in the allegation(s). The City expects employees to report to their supervisor any suspected violation of law or policy, and additionally expects any issues of malfeasance, misfeasance, fraud, waste, or abuse to be reported to the chain of command as is appropriate. The City will protect an employee who engages in good faith reporting under this policy from reprisal by adverse employment action or other retaliation as a result of having disclosed wrongful conduct, and to provide employees who believe they have been subject to reprisal or false allegations a fair process to seek relief from such acts. Any communication that proves to have not been substantiated and made with malice or with knowledge of its falsity is not protected by this policy. PURPOSE: The purpose of this policy (Whistleblower Policy) is to establish a procedure to provide employees with the protection contemplated by the Florida Public Whistleblower's Act, § 112.3187 of the Florida Statutes. This Policy Applies to individuals that have complied with requirements of the Florida Public Whistleblower's Act. This policy is not a vehicle for protesting performance evaluation or otherwise protesting management decisions. DEFINITIONS: Employee - means any person hired by the City after completing the personnel procedures required by the City; or any person who performs services for the City of Naples under the direction and control of contracts with an Independent Contractor for wages or other renumeration. Independent Contractor - means any person other than the Mayor, City Council, or City employees, who provide goods and/or services to the City pursuant to a contractual agreement, including a provider agreement with the City. Adverse Personnel Action - means the discharge, suspension, transfer, demotion, reprimand, warning, withholding of bonuses, the reduction of salary or benefits, or any other adverse or negative action taken against an employee within the terms and conditions of employment as provided herein. Protected Disclosure - according to the Florida's Public Whistleblower's Act, is the good faith reporting of: Any violation or suspected violation of any federal, state, or local law, rule, or regulation, or City Policy or procedure, committed by an employee(s), agent(s) or an independent contractor(s) of the Board which creates and presents a substantial and specific danger to the public's health, safety, or welfare; or Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual fraud or abuse, or gross neglect of duty committed by an employee, agent or independent contractor of the City. 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. Whistleblower - means a person or entity making a protected disclosure. A whistleblower may be an employee, vendors, contractors, applicants for employment, or the general public who makes a good faith report. The whistleblower's role is as a reporting party. Whistleblowers are not investigators or finders of fact, nor do they determine the appropriate corrective or remedial action that may be warranted. Probable Cause Determination and Initial Findings Memorandum - means the memorandumwritten by the lead examiner or investigator following the preliminary investigation whichcontains the preliminary findings and conclusions of the lead examiner or investigator. Review Panel - means the group designated to oversee and decide matters at the Whistleblower hearing conducted pursuant to the procedures of this Whistleblower Policy. Appointee - means an individual appointed to the review panel for any regular member under sections 5.a.1&2 of this Whistleblower policy. Findings of Fact and Conclusions Memorandum - means the memorandum written bythe review panel that contains the factual findings and legal conclusions based upon the record and evidence presented in the hearing along with a recommended and appropriate course of action and any other appropriate remedial action to be taken. ACTIONS PROHIBITED: The City or independent contractor shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this Whistleblower Policy. The City or independent contractor shall not take adverse action that effects the rights or interest of a person for the person's disclosure of information under this whistleblower Policy. The provisions of this Whistleblower Policy are not applicable and when an employee or person provides information that is known by that employee or person to be false. Operating Procedures DISCLOSURE OF INFORMATION: Disclosure is made. To be considered a whistleblower under this policy, one must on their own initiative have submitted a written and signed complaint to any government agency or entity having the authority to investigate, police, manage, or otherwise remedy the reported act of violation as described in The Florida Statutes, Sections 112.3187 — 112.31895. For complaints involving the City or a City employee, agent, or independent contractor, the information disclosed under this Whistleblower Policy must be disclosed to the City Manager, or the Human Resources Director, or the independent Director of the City of Naples Commission on Ethics and Governmental Integrity. Nature of Information Disclosed. The information disclosed that constitutes a whistleblower complaint subject to the provisions of this Whistleblower Policy must include: Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of the City or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare; or 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 the City or independent contractor. cj Persons Protected. This Whistleblower Policy 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 the City or other government entity; who refuse to participate in any adverseaction prohibited by this Whistle-blower Policy; or who is otherwise a protected class under Florida's Whistleblower Act, § 112.3187(7), Florida Statutes. The provisions of this Whistleblower Policy may not be used by a person while he or she is under the care, custody, or control of the state correctional system or, after his or her release from the care, custody, or control of the state correctional system, with respect to circumstances that occurred during any period ofincarceration. No remedy or other protection under this Whistleblower Policy or §§ 112.3187-112.31895, Florida Statutes, applies to any person who has committed or intentionally participated in committing the violation or suspected violation for which protection under thisWhistle-blower Policy is being sought. REMEDIES AND PROCEEDURES: Any employee or other person protected under this Whistle-blower Policy or Florida's Whistle-blower Act, shall have the right to file a complaint as detailed in this Whistleblower Policy section D paragraph b, within sixty (60) days after the action that is the subject of the complaint takes place. Provided such complaint is timely filed, such individual shall have the right to have their whistle-blower complaint to be heard by a three person review panel, comprised of the City Manager, Human Resources Director, and the Employee Relations Manager. In the event that the complaint is about or involving the Human Resources Director or Employee Relations Manager, the City Manager will appoint another Director, Deputy Director, or subject matter expert to the review panel. In the event that the complaint is about the City Manager, the Director of the City of Naples Commission on Ethics and Governmental Integrity and Human Resources Director will confer to determine the appropriate office or individual to oversee the Review Panel. To the extent practicable, if desired by the review panel, and also allowable by state and federal law, the complainant and the subject of the complaint, may be provided copies of any complaint filed under the provisions of this Whistle-blower Policy. The City Manager shall establish a procedure for receipt and investigation of whistleblower information, allegations, and complaints by employees or applicants for employment who are discharged, disciplined, or subjected to other adverse personnel action, or denied employment, because they engaged in an activity protected by this Whistleblower Policy or Florida's Whistleblower Act, as well as procedures pertaining to investigations into allegations of retaliatory adverse actions received from members of the public. The procedure shall provide for a preliminary investigation lasting no longer than ninety (90) days, unless extended by the City Manager or, to the extent such allegation or complaint involves the City Manager, by the office of individual identified in section E., paragraph a., subsection ii., for good cause to determine whether there is probable cause to believe that a prohibited personnel action under this Whistleblower Policy, has occurred. At the City Manager or section 5.a.i designee's direction, the Employee Relations Manager or section 5.a.ii designee will be responsible for conducting the preliminary investigation regarding complaints and allegations violative of this Whistleblower Policy. The output of this preliminary review and investigation will be a Probable Cause Determination and Initial Findings Memorandum, and such memorandum shall be presumed admissible in any hearing conducted under this Whistleblower Policy and will be presented to the entire review panel by the Employee & Labor Relations Manager and, to the extent practicable and permissible under state and federal law, to the complainant and the subject of the complaint. Whistleblower Hearings All hearings conducted shall be commenced insofar as is practicable within sixty (60) days following the conclusion of the preliminary investigation and Probable Cause Determination and Findings Memorandum, except that the City Manager or, to the extent such allegation or complaint involves the City Manager, the appointee, shall have the authority to extend such time for reasonable cause. The Review Panel will serve as neutral arbitrators provided such staff were not personally involved in the case and are direct supervisors in the chain of command for the parties involved. In the event that the review panel cannot unanimously agree to a panel member's ability to adjudicate a claim without bias, the Director of the Ethics Commission will set a meeting with the panel, hear the concerns, and provide a written determination to the panel within 7 business days. The City Manager or appointee will appoint replacements for any panel members determined unable to perform their duty as impaitial arbitrators under this Whistleblower Policy. A hearing under this Whistleblower Policy shall be conducted after notice to the complainant and, to the extent practicable and not otherwise prohibited by state or federal law, the individuals, and departments involved. Such notice shall state the time, place, and date of the hearing. iV) All interested parties to the action are entitled to present relevant evidence, records, and testimony of witnesses, and are entitled to obtain legal counsel, at such parties’ own cost, to represent such parties’ interests at the hearing. The rules of evidence need not be strictly enforced but any and all such evidence presented shall only be admissible and considered if such evidence is relevant to the matter giving rise to the action(s) prohibited under this Whistle-blower Policy or Florida's Whistle-blower Act. All evidentiary matters and maters of procedural posturing shall be decided by the review panel. I Upon hearing the complaint, the review panel shall make findings of fact and conclusions for a final decision by the City. Such Findings of Fact and Conclusions Memorandum shall include, to the extent applicable, a recommended and appropriate course of action and any other appropriate remedial action to be taken in accordance with this Whistleblower Policy or any other City policy or procedure. The Findings of Fact and Conclusions Memorandum shall be provided, to the extent practicable and as allowable by state and federal law, to the complainant, the subject of the complaint, and, as applicable, any other relevant individuals no later than thirty (30) days following the conclusion of the hearing. A complainant's right to a hearing under this Whistleblower Policy shall be forfeited if the complainant fails, without good cause, to appear at such hearing. Any employee of the District found to have retaliated against another District employeein violation of this Whistle-blower Policy, shall be considered to have committed a violation of the City's Code of Conduct and shall be subject to disciplinary action up to and including termination of employment or contractual relationship with the City. f} Appeals The complainant and any interested parties may appeal the decision of the review panel within thirty (30) days of the issuance of the findings of fact and conclusions memorandum by the review panel. Such appeal must be in writing, and must be delivered to the City Manager's Office with a copy also delivered to the to the Human Resources Office. To the extent an appeal is not timely filed, such appeal shall be deemed waived unless otherwise extended by the City Manager or appointee. To the extent an appeal is timely filed in accordance with the requirements above, an appeal hearing shall be held by the review panel as soon as reasonably practicable, unless and extension is granted by the City Manager or appointee. The proceedings by the appellate review body shall be in the nature of an appellate review based upon the record of the hearing before the review panel, the review paneI'sfindings of facts and conclusions memorandum, and all subsequent results and actions thereof. The review panel also shall consider any written statements submitted. All written statements shall be submitted no later than fifteen (15) days prior to the scheduled appellate hearing unless otherwise waived by the appellate review panel for good cause. All written statements shall also be served on all opposing parties. Written statements by the appellant shall describe the findings of fact, conclusions and procedural matters with which the appellant disagrees, and the reasons for such disagreement. New matters not raised or presented at the original hearing may not be presented at the appellate review unless otherwise waived by the review panel. iV) The appellate review panel may, at its discretion, allow the aggrieved parties or their representatives to appear and make oral statements and answer any questions posed to them by the appellate review body. To the extent the appellant fails to appear after an appearance by the review panel is requested, such appeal shall be dismissed with prejudice and the original decision of the review panel shall be final, unless otherwise waived by the appellate review panel for good cause. The appellate review panel may affirm, modify, or reverse the adverse result or action or, in its discretion, may refer the matter to a particular office or department for further review and recommendation to be returned to it within a specified period of time. The appellate review panel cannot change findings of fact, and must rule only on conclusions of law and policy. Within sixty (60) days after the date of the appellate review or scheduled date of oral statements (as applicable), whichever date is later, the appellate review body shall render its final decision in the matter in writing and shall send notice thereof to the complainant and, as practicable and allowable under state and federal law, the subject of the œmplaint as well as any other relevant individuals. Final decisions involving charter employees and officers who report directly to the Mayor and City Council shall be referred to the Mayor and City Council along with the findings of fact and conclusions memorandum and final appellate decision regarding any measures and actions that need to be taken. Final decisions regarding non-charter city employees will be directed to the Human Resources Department along with the findings of fact and conclusions memorandum and final appellate decision regarding any measures and actions to be taken. The issuance of the appellate review body's final ruling or, to the extent such appeal is waived, the review panel's findings of fact and conclusions memorandum shall be the final decision regarding the matter(s) under review, shall be immediately effective, and such matter(s) shall not be subject to any further review. The foregoing procedure shall be a condition precedent to any civil action pursuant to § 112.3187(8)(c). RELIEF: In any case brought under this Whistleblower Policy in which it is found that prohibited conduct occurred in violation of this Whistleblower Policy, the City Manager or, to the extent applicable, the City Council May: Reinstate an employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief; Reinstate an employee's full fringe benefits and seniority rights, as appropriate; Compensate, if appropriate, for lost wages, benefits, or other lost remuneration caused bythe adverse action; Any other relief permitted under the Whistle-blower Act or under state or federal law; Any other relief deemed to be appropriate under the circumstances. DEFENSES: It shall be an affirmative defense to any action brought pursuant to this Whistleblower Policy that the adverse action was predicated upon grounds other than, and would have been taken absent, the employee's or person's exercise of rights protected by this Whistleblower Policy. EXISTING RIGTHS: This Whistleblower Policy does not diminish the rights, privileges, or remedies of an employee under any other law or rule or under any collective bargaining agreement or employment contract; however, the election of remedies in § 447.401, Florida Statutes, also applies to whistle-blower actions. FALSE COMPLAINTS: In addition to disciplinary action up to and including termination from employment, any individual who provides false information pursuant to this WhistleblowerPolicy may be investigated and prosecuted for violations under Florida law, including but not limited to, § 837.06 (False Official Statements); § 838.022 (Official Misconduct); and § 837.05 (False Reports), of the Florida Statutes. CONFIDENTIALITY OF INDIVIDUALS: The identity of such individuals reporting violations under thisWhistleblower Policy shall be confidential and exempt from the provisions of Florida's publicrecords 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 §§ 119.0713 and 112.3188 of the Florida Statutes. Reviewed for Legal Sufficiency Date: August 8, 2022 Signature: Marc A. Sugerman - digital s/gnafore on file Marc A. Sugerman, Esq. City Labor & Employment Attorney Approved by the City Manager Date: ( Signature: Jay Boodheshwar, City of Naples City Manager Effective Date: August 16, 2022