Whistleblower Policy

During the selectmen's meeting this past Monday, I suggested that the Board update the town's whistleblower policy. What follows is the text of 1) my follow-up memo, and 2) my proposal, as presented to the Board.

1) The memo

In 2003 the Board approved a whistleblower policy to "Encourage the reporting by its employees of improper governmental action taken by the town officers or employees..."

That policy was based on the Massachusetts Whistleblower Law, M.G.L. Ch. 149: Sec. 185.

However, the Whistleblower Law, while good, has loopholes. It only provides for the protection of employees who disclose a violation of state or federal law, rules or regulations, or a danger to public health, safety or the environment. Missing are protections for gross mismanagement, an abuse of authority (including violations of policy), a waste of public funds or resources, or ethical violations.

Absent protection for these situations, it is unlikely that employees would step forward to report them. Therefore, it would be in the best interest of the town for the Board to revise the Whistleblower policy.

Questions were raised on Monday evening about the need for such a revision. Because there are currently no protections in place, it is impossible to determine if there is a "need" for them. Although the Board does not know of any current scenarios, it does not mean that they do not exist; it could be that no one has reported them.

That said; the decision to revise the whistleblower policy should not be based on whether there is or is not an identified need. Rather, it should be based on the principles behind the policy which the Board voted in 2003, that the town encourages, "the reporting by its employees of improper governmental action taken by the town officers or employees..."

2) The policy

Policy:

This policy is adopted to protect Town employees and volunteers who report legal and ethical violations of Town and state laws, regulations and/or policies.

Application:

All Town employees and volunteers who report directly to the Board of Selectmen, or indirectly via the Town Manager or other appointees of the Board.

(A) Definitions:

(1) “Employee”, any individual who performs services for and under the control and direction of the Town for wages or other remuneration. This includes volunteers appointed by the Board of Selectmen or their appointees to serve on a committee or subcommittee.

(2) “Town”, the Town of Falmouth and any employee thereof.

(3) “Employer”, (a) the Commonwealth of Massachusetts, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof, or (b) any private, public, for-profit or non-profit organization which does work voluntarily or for renumeration for the Town or any of the other bodies described herein.

(4) “Public body”, (a) Any popularly elected local government body, or any member or employee thereof; (b) any federal, state or local judiciary, or any member or employee thereof, or any grand or petit jury; (c) any federal, state or local regulatory, administrative or public agency or authority, or instrumentality thereof; (d) any federal, state or local law enforcement agency, prosecutorial office, or police or peace officer; (e) or any division, board, bureau, office, committee or commission of any of the public bodies described herein.

(5) “Supervisor”, any individual to whom the Town has given the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of which the employee complains, including supervisor(s) of the employee's immediate supervisor.

(6) “Retaliatory action”, the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.

(B) It is the policy of the Town of Falmouth:

(1) The state Whistleblower Law, M.G.L. Ch. 149: Sec. 185. “Retaliation against employees reporting violations of law or risks to public health, safety or environment; remedies”, provides for the protection of employees who disclose a violation of state or federal law, rules or regulations, or a danger to public health, safety or the environment;

(2) A supervisor shall not take any retaliatory action against an employee because the employee does any of the following:

(a) Discloses or threatens to disclose to a supervisor or to a public body, an activity of the Town, or of another employer, that the employee reasonably believes constitutes gross mismanagement, an abuse of authority (including violations of policy), a waste of public funds or resources, or ethical violations; or

(b) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any gross mismanagement, abuse of authority (including violations of policy), waste of public funds or resources, or ethical violations on the part of the Town, or by another employer; or

(c) Objects to, or refuses to participate in any activity, policy or practice by the Town, or by another employer, which the employee reasonably believes to be an abuse of authority (including violations of policy), or ethical violations;

(3) Protection against retaliatory action shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity to the attention of a supervisor of the employee by written notice and has afforded the Town a reasonable opportunity to correct the activity, policy or practice;

(4) Any supervisor found to have taken retaliatory action against an employee, whether for disclosures under this policy or under M.G.L. Ch. 149: Sec. 185, will be subject to disciplinary action, up to and including dismissal.