The Council finds and declares that the public interest is served when employees of the District government are free to report waste, fraud, abuse of authority, violations of law, or threats to public health or safety without fear of retaliation or reprisal. Accordingly, the Council declares as its policy to:
(1) Enhance the rights of District employees to challenge the actions or failures of their agencies and to express their views without fear of retaliation through appropriate channels within the agency, complete and frank responses to Council inquiries, free access to law enforcement officials, oversight agencies of both the executive and legislative branches of government, and appropriate communication with the public;
(2) Ensure that acts of the Council enacted to protect individual citizens are properly enforced;
(3) Provide new rights and remedies to guarantee and ensure that public offices are truly public trusts;
(4) Hold public employees personally accountable for failure to enforce the laws and for negligence in the performance of their public duties;
(5) Ensure that rights of employees to expose corruption, dishonesty, incompetence, or administrative failure are protected;
(6) Guarantee the rights of employees to contact and communicate with the Council and be protected in that exercise;
(7) Protect employees from reprisal or retaliation for the performance of their duties; and
(8) Motivate employees to do their duties justly and efficiently.
(Mar. 3, 1979, D.C. Law 2-139, § 1551, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.11.
Emergency Act Amendments
For temporary addition of subchapter, see § 102(c) of the Whistleblower Reinforcement Emergency Amendment Act of 1998 (D.C. Act 12-400, July 13, 1998, 45 DCR 5158) and § 102(c) of the Whistleblower Reinforcement Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-464, October 28, 1998, 45 DCR 7821).
Miscellaneous Notes
For whistleblower protection for employees of contracts and instrumentalities, see § 2-223.01 et seq.
(a) For purposes of this subchapter, the term:
(1) "Contract" means any contract for goods or services between the District government and another entity but excludes any collective bargaining agreement.
(2) "Contributing factor" means any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.
(3) "Employee" means any person who is a former or current District employee, or an applicant for employment by the District government, including but not limited to employees of subordinate agencies, independent agencies, the District of Columbia Board of Education, the Board of Trustees of the University of the District of Columbia, the District of Columbia Housing Authority, and the Metropolitan Police Department, but excluding employees of the Council of the District of Columbia.
(4) "Illegal order" means a directive to violate or to assist in violating a federal, state or local law, rule, or regulation.
(5)(A) "Prohibited personnel action" includes but is not limited to: recommended, threatened, or actual termination, demotion, suspension, or reprimand; involuntary transfer, reassignment, or detail; referral for psychiatric or psychological counseling; failure to promote or hire or take other favorable personnel action; or retaliating in any other manner against an employee because that employee makes a protected disclosure or refuses to comply with an illegal order, as those terms are defined in this section.
(B) For purposes of this paragraph, the term :
(i) "Investigation" includes an examination of fitness for duty and excludes any ministerial or nondiscretionary factfinding activity necessary to perform the agency's mission.
(ii) "Retaliating" includes conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.
(6) "Protected disclosure" means any disclosure of information, not specifically prohibited by statute, without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties by an employee to a supervisor or a public body that the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health and safety.
(7) "Public body" means:
(A) The United States Congress, the Council, any state legislature, the District of Columbia Office of the Inspector General, the Office of the District of Columbia Auditor, the District of Columbia Financial Responsibility and Management Assistance Authority, or any member or employee of one of these bodies;
(B) The federal, District of Columbia, or any state or local judiciary, any member or employee of these judicial branches, or any grand or petit jury;
(C) Any federal, District of Columbia, state, or local regulatory, administrative, or public agency or authority or instrumentality of one of these agencies or authorities;
(D) Any federal, District of Columbia, state, or local law enforcement agency, prosecutorial office, or police or peace officer;
(E) Any federal, District of Columbia, state, or local department of an executive branch of government; or
(F) Any division, board, bureau, office, committee, commission or independent agency of any of the public bodies described in subparagraphs (A) through (E) of this paragraph.
(8) "Supervisor" means an individual employed by the District government who meets the definition of a "supervisor" in § 1-617.01(d) or who has the authority to effectively recommend or take remedial or corrective action for the violation of a law, rule, regulation or contract term, or the misuse of government resources that an employee may allege or report pursuant to this section, including without limitation an agency head, department director, or manager.
(9) "Whistleblower" means an employee who makes or is perceived to have made a protected disclosure as that term is defined in this section.
(Mar. 3, 1979, D.C. Law 2-139, § 1552, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Mar. 11, 2010, D.C. Law 18-117, § 2(a), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.12.
Effect of Amendments
D.C. Law 18-117, in par. (5), designated the existing text as subpar. (A) and added subpar. (B); and, in par. (6), substituted "by statute, without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties," for "by statute".
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
Law 18-117, the "Whistleblower Protection Amendment Act of 2009", was introduced in Council and assigned Bill No. 18-233, which was referred to the Committee on Government Operations and the Environment. The bill was adopted on first and second readings on December 1, 2009, and December 15, 2009, respectively. Signed by the Mayor on January 11, 2010, it was assigned Act No. 18-265 and transmitted to both Houses of Congress for its review. D.C. Law 18- 117 became effective on March 11, 2010.
Editor's Notes
This section was enacted with a subsection (a) but no subsection (b).
(a) A supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order.
(b) Except in cases where the communication would be unlawful, a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the Council, a Council committee, or a Councilmember.
(Mar. 3, 1979, D.C. Law 2-139, § 1553, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Mar. 11, 2010, D.C. Law 18-117, § 2(b), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.13.
Effect of Amendments
D.C. Law 18-117 rewrote the section, which had read as follows:
"A supervisor shall not threaten to take or take a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order."
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 18-117, see notes following § 1-615.52.
(a)(1) An employee aggrieved by a violation of § 1-615.53 may bring a civil action against the District, and, in his or her personal capacity, any District employee, supervisor, or official having personal involvement in the prohibited personnel action, before a court or a jury in the Superior Court of the District of Columbia seeking relief and damages, including:
(A) An injunction;
(B) Reinstatement to the same position held before the prohibited personnel action or to an equivalent position;
(C) Reinstatement of the employee's seniority rights;
(D) Restoration of lost benefits;
(E) Back pay and interest on back pay;
(F) Compensatory damages; and
(G) Reasonable costs and attorney fees.
(2) A civil action shall be filed within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first.
(3) Section 12-309 shall not apply to any civil action brought under this section.
(b) In a civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by § 1-615.53 was a contributing factor in the alleged prohibited personnel action against an employee, the burden of proof shall be on the defendant to prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by this section.
(c) Notwithstanding any other provision of law, a violation of § 1-615.53 constitutes a complete affirmative defense for a whistleblower to a prohibited personnel action in an administrative review, challenge, or adjudication of that action.
(d) An employee who prevails in a civil action at the trial level, shall be granted the equitable relief provided in the decision effective upon the date of the decision, absent a stay.
(e)(1) If a protected disclosure assists in securing the right to recover, the actual recovery of, or the prevention of loss of more than $100,000 in public funds, the Mayor may pay a reward in any amount between $5,000 and $50,000 to the person who made the protected disclosure; provided, that any reward shall be recommended by the Inspector General, the District of Columbia Auditor, or other similar law enforcement authority.
(2) This subsection shall not create any right or benefit, substantive or procedural, enforceable at law or equity, by a party against any District government agency, instrumentality, officer, employee, or other person.
(Mar. 3, 1979, D.C. Law 2-139, § 1554, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Mar. 11, 2010, D.C. Law 18-117, § 2(c), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.14.
Effect of Amendments
D.C. Law 18-117 rewrote subsec. (a); in subsec. (b), substituted "defendant" for "employing District agency"; and added subsec. (e). Prior to amendment, subsec. (a) read as follows:
"(a) An employee aggrieved by a violation of § 1-615.53 may bring a civil action before a court or a jury in the Superior Court of the District of Columbia seeking relief and damages, including but not limited to injunction, reinstatement to the same position held before the prohibited personnel action or to an equivalent position, and reinstatement of the employee's seniority rights, restoration of lost benefits, back pay and interest on back pay, compensatory damages, and reasonable costs and attorney fees. A civil action shall be filed within one year after a violation occurs or within one year after the employee first becomes aware of the violation. A civil action brought pursuant to this section shall comply with the notice requirements of § 12- 309."
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 18-117, see notes following § 1-615.52.
(a) As part of the relief ordered in an administrative, arbitration or judicial proceeding, any person who is found to have violated § 1-615.53 or § 2- 223.02 shall be subject to appropriate disciplinary action including dismissal.
(b) As part of the relief ordered in a judicial proceeding, any person who is found to have violated § 1-615.53 or § 2-223.02 shall be subject to a civil fine not to exceed $10,000.
(Mar. 3, 1979, D.C. Law 2-139, § 1555, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Mar. 11, 2010, D.C. Law 18-117, § 2(d), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.15.
Effect of Amendments
D.C. Law 18-117 rewrote the section, which had read as follows:
"(a) As part of the relief ordered in an administrative, arbitration or judicial proceeding, any supervisor, including any manager, department director, or other District official, who is found to have violated § 1-615.53 shall be subject to appropriate disciplinary action including dismissal.
"(b) As part of the relief ordered in a judicial proceeding, any supervisor who is found to have violated § 1-615.53 shall be subject to a civil fine not to exceed $1000."
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-616.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 18-117, see notes following § 1-615.52.
(a) The institution of a civil action pursuant to § 1-615.54 shall preclude an employee from pursuing any administrative remedy for the same cause of action from the Office of Employee Appeals or from an arbitrator pursuant to a negotiated grievance and arbitration procedure or an employment contract.
(b) An employee may bring a civil action pursuant to § 1-615.54 if the aggrieved employee has had a final determination on the same cause of action from the Office of Employee Appeals or from an arbitrator pursuant to a negotiated grievance and arbitration procedure or an employment contract.
(c) Except as provided in subsections (a) and (b) of this section, nothing in this subchapter shall diminish the rights and remedies of an employee pursuant to any other federal or District law.
(Mar. 3, 1979, D.C. Law 2-139, § 1556, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Apr. 12, 2000, D.C. Law 13-91, § 109(b), 47 DCR 520; Mar. 11, 2010, D.C. Law 18-117, § 2(e), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.16.
Effect of Amendments
D.C. Law 13-91 validated a previously made technical amendment in subsec. (c).
D.C. Law 18-117, in subsec. (b), substituted "An employee may bring a civil action" for "No civil action shall be brought".
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 13-91, see notes following § 1-602.03.
For Law 18-117, see notes following § 1-615.52.
The District shall conspicuously display notices of employee protections and obligations under this subchapter in each personnel office and in other public places, and shall use all other appropriate means to keep all employees informed, including but not limited to the inclusion of annual notices of employee protections and obligations under this subchapter with employee tax reporting documents and in a letter provided to employees upon commencement of employment.
(Mar. 3, 1979, D.C. Law 2-139, § 1557, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Apr. 12, 2000, D.C. Law 13-91, § 109(c), 47 DCR 520; Mar. 11, 2010, D.C. Law 18-117, § 2(f), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.17.
Effect of Amendments
D.C. Law 13-91 validated a previously made technical amendment.
D.C. Law 18-117 substituted "reporting documents and in a letter provided to employees upon commencement of employment" for "reporting documents".
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 13-91, see notes following § 1-602.03.
For Law 18-117, see notes following § 1-615.52.
Employees shall have the following rights and responsibilities:
(1) The right to freely express their opinions on all public issues, including those related to the duties they are assigned to perform; provided, however, that any agency may promulgate reasonable rules and regulations requiring that any such opinions be clearly disassociated from that agency's policy;
(2) The right to disclose information unlawfully suppressed, information concerning illegal or unethical conduct which threatens or which is likely to threaten public health or safety or which involves the unlawful appropriation or use of public funds, and information which would tend to impeach the testimony of employees of the District government before committees of the Council or the responses of employees to inquiries from members of the Council concerning the implementation of programs, information which would involve expenditure of public funds, and the protection of the constitutional rights of citizens and the rights of government employees under this chapter and under any other laws, rules, or regulations for the protection of the rights of employees; provided, however, that nothing in this section shall be construed to permit the disclosure of the contents of personnel files, personal medical reports, or any other information in a manner to invade the individual privacy of an employee or citizen of the United States except as otherwise provided in this chapter;
(3) The right to communicate freely and openly with members of the Council and to respond fully and with candor to inquiries from committees of the Council, and from members of the Council; provided, however, that nothing in this section shall be construed to permit the invasion of the individual privacy of other employees or of citizens of the United States;
(4) The right to assemble in public places for the free discussion of matters of interest to themselves and to the public and the right to notify, on their own time, fellow employees and the public of these meetings;
(5) The right to humane, dignified, and reasonable conditions of employment, which allow for personal growth and self-fulfillment, and for the unhindered discharge of job responsibilities;
(6) The right to individual privacy; provided, however, that nothing in this section shall limit in any manner an employee's access to his or her own personnel file, medical report file, or any other file or document concerning his or her status or performance within his or her agency, except as otherwise provided in subchapter XXXI;
(7) Each employee of the District government shall make all protected disclosures concerning any violation of law, rule, or regulation, contract, misuse of government resources or other disclosure enumerated in § 1- 615.52(a)(6), as soon as the employee becomes aware of the violation or misuse of resources;
(8) Each supervisor employed by the District government shall make all protected disclosures involving any violation of law, rule, regulation or contract pursuant to § 1-615.52(a)(6)(D) as soon as the supervisor becomes aware of the violation;
(9) The failure of a supervisor to make protected disclosures pursuant to § 1-615.52(a)(6)(D) shall be a basis for disciplinary action including dismissal;
(10) Upon receipt of an adjudicative finding that a protected activity was a contributing factor in an alleged prohibited personnel action, the appropriate agency head shall immediately institute disciplinary action against the offending supervisor; and
(11) Disciplinary action taken pursuant to this section shall follow the procedures of subchapter XVI-A, where applicable.
(Mar. 3, 1979, D.C. Law 2-139, § 1558, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147; Apr. 12, 2000, D.C. Law 13-91, § 109(d), 47 DCR 520.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.18.
Effect of Amendments
D.C. Law 13-91, in subd. (11), substituted "subchapter XVII-A" for "§ 617.1".
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
For Law 13-91, see notes following § 1-602.03.
District funds shall not be available for the payment of the salary of any officer or employee of the District who:
(1) Prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the District from having any direct oral or written communication or contact with any member, committee, or subcommittee of the Council in connection with any matter pertaining to the employment of the other officer or employee or pertaining to the department or agency of the other officer or employee in any way, irrespective of whether the communication or contact is at the initiative of the other officer or employee or in response to the request or inquiry of the member, committee, or subcommittee, of the Council except where the communication or contact would be unlawful; or
(2) Removes; suspends from duty without pay; demotes; reduces in rank, seniority, status, pay, or performance rating; denies promotion to; relocates; reassigns; transfers; disciplines; or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment, of any other officer or employee of the District, or attempts or threatens to commit any of the foregoing actions with respect to the other officer or employee, by reason of any communication or contact of the other officer or employee with any member, committee, or subcommittee of the Council as described in paragraph (1) of this section.
(Mar. 3, 1979, D.C. Law 2-139, § 1558a, as added Mar. 11, 2010, D.C. Law 18-117, § 2(g), 57 DCR 896.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For Law 18-117, see notes following § 1-615.52.
This subchapter shall apply to actions taken after July 13, 1998.
(Mar. 3, 1979, D.C. Law 2-139, § 1559, as added Oct. 7, 1998, D.C. Law 12-160, § 102(c), 45 DCR 5147.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 1-616.19.
Emergency Act Amendments
For temporary addition of subchapter, see note to § 1-615.51.
Legislative History of Laws
For legislative history of D.C. Law 12-160, see Historical and Statutory Notes following § 1-602.01.
