Int 0284-1998

Be it enacted by the Council as follows: Section 1. Section 12-113 of the administrative code of the city of New York is hereby amended by adding a new subdivision a to read as follows: a. Definitions. For purposes of this section: 1. "Adverse personnel action" means any action taken against an officer or employee, including but not limited to dismissal, demotion, suspension, disciplinary action, negative performance evaluation, harassment or any other discrimination or injury in the terms and conditions of employment. 2. "Agency" means a city, county, borough or other office, position, administration, department, division, bureau, board or commission, or a corporation, institution, authority, advisory committee or other agency of government, the expenses of which are paid in whole or in part from the city treasury. 3. "Remedial action" means an action to restore the officer or employee to his or her former status, including one or more of the following: (a) reinstatement of the officer or employee to a position the same as or comparable to the position the employee held or would have held if not for the adverse personnel action, or, as appropriate, to an equivalent position; (b) reinstatement of full seniority rights; (c) payment of lost compensation; and (d) other measures necessary to reverse the effects of the adverse personnel action. 4. "Commissioner" shall mean the commissioner of the department of investigation. �2. Subdivision a of section 12-113 of the administrative code of the city of New York as amended by Local Law 68 for the year 1993, is hereby relettered and amended to read as follows: [a.] b. 1. No officer or employee of an agency of the city [, the head or members of which are appointed by the mayor,] shall take an adverse personnel action with respect to another officer or employee in retaliation for his or her [making a report of information concerning conduct which he or she knows or reasonably believes to involve corruption, criminal activity or conflict of interest by another city officer or employee, which concerns his or her office or employment, or by persons dealing with the city, which concerns their dealings with the city, (i) to the commissioner of investigation, or (ii) to a council member, the public advocate or the comptroller, who shall refer such report to the commissioner of investigation] disclosing to a governmental official or body that is authorized to investigate, audit, monitor or review government performance or misconduct, information that the employee reasonably believes to be true and reasonably believes to involve corruption, criminal activity, conflict of interest, violation of law, or gross mismanagement or waste of public funds (i) by another city officer or employee in connection with that person's office or employment, or (ii) by persons in connection with their dealings with the city. 2. Upon request, the government official or body receiving the report of alleged misconduct shall make every effort to protect the anonymity and confidentiality of the officer or employee making such report. 3. In the event the alleged misconduct may constitute a violation of criminal law or a conflict of interest, the government official or body receiving the information shall promptly refer the matter, if criminal, to the commissioner or the appropriate law enforcement official, or, if a conflict of interest, to the conflicts of interest board within a reasonable time period following receipt of the information. Failure to refer or timely refer such information shall not be a bar to the relief set forth herein. 4. Where the department of investigation receives a report of government misconduct through a referral described in paragraph three herein, or directly from a city officer or employee, it shall acknowledge receipt of the report within fifteen days and notify the complainant or the referring official of the status of the investigation every ninety days thereafter until the investigation has been completed. 5. The investigation by the department of investigation of the report of government misconduct shall be confidential. To the extent possible, the anonymity and confidentiality of the complainant shall be retained during the course of the investigation and shall not be disclosed to other government officials or agencies. �3. Subdivision b of section 12-113 of the administrative code of the city of New York is hereby relettered and amended to read as follows: [b.] c. An officer or employee who believes that another officer or employee has taken an adverse personnel action in violation of subdivision [a] b of this section may report such action to the commissioner of investigation. �4. Subdivision c of section 12-113 of the administrative code of the city of New York is hereby relettered and amended to read as follows: [c.] d. 1. Upon receipt of a report made pursuant to subdivision [b] c of this section, the commissioner [of investigation] shall make a preliminary determination of whether there are reasonable grounds to believe that an adverse personnel action prohibited by subdivision b of this section may have occurred. If so, the commissioner shall conduct [an] a full inquiry to determine whether a retaliatory adverse personnel action has been taken. In making such inquiry, the commissioner shall determine whether a disclosure of improper conduct as defined in subdivision b of this section was a motivating factor leading to the adverse personnel action, and, if so, whether the agency can show by clear and convincing evidence that it would have taken the adverse personnel action notwithstanding the employee's disclosure. Such inquiry shall be completed within a reasonable time. 2. Within fifteen days after the date of receiving an allegation of a prohibited personnel action, the commissioner shall provide written notice to the person who made the allegation that the allegation has been received by the commissioner. Such notice shall include the name of the person in the department of investigation who shall serve as a contact with the person making the allegation. 3. Pending completion of the investigation, the commissioner shall: (a) within ninety days after notice is provided under paragraph two, herein, and at least every sixty days thereafter, notify the person who made the allegation of the status of the investigation and any action taken by the department of investigation since the commissioner received the complaint; and (b) notify such person of the status of the investigation and any action taken by the department of investigation at such time as determined appropriate by the commissioner. 4. If the commissioner finds, upon receipt of a report of conduct prohibited by subdivision b of this section, substantial evidence to support the allegations, the commissioner shall recommend immediate remedial action on behalf of the affected employee pending completion of the full inquiry. The commissioner shall forward the recommendation forthwith to the head of the agency that employs the affected employee, and said officer shall implement the recommendation within two business days following its receipt. 5. Upon the completion of an investigation initiated under this section, the commissioner shall prepare and transmit a written statement of the final determination to the person who complained of the retaliatory adverse personnel action. The statement shall include the recommendations, if any, for remedial action or, if the commissioner has decided to dismiss the complaint and terminate the investigation, a full statement of the reasons for such termination. �5. Subdivision d of section 12-113 of the administrative code of the city of New York is hereby relettered and amended to read as follows: [d.] e. Upon a determination that a retaliatory adverse personnel action has been taken, the commissioner of investigation shall [without undue delay] within ten business days, report his or her findings and, if appropriate, recommendations, to the head of the appropriate agency, who (i) shall take remedial action [,] as defined in subdivision a of this section within seven business days, [including but not limited to the reinstatement of the officer or employee to a position the same or comparable to the position held prior to the adverse personnel action, when such reinstatement is appropriate,] and (ii) shall report such action to the commissioner of investigation in writing. Upon a determination that the agency head has failed to take appropriate remedial action [,] within seven business days of receipt of the report and recommendations, the commissioner of investigation shall consult with the agency head and afford the agency head reasonable [opportunity] additional time within which to take such action. If such action is not taken, the commissioner of investigation shall report his or her findings and the response of the agency head to the mayor [,] or, if the complainant was employed by a non-mayoral agency, to the executive officer of the relevant agency, board or commission that was the subject of the complaint, who shall [take such action as is deemed appropriate.] direct that remedial action be taken forthwith. �6. Subdivision e of Section 12-113 of the administrative code of the city of New York is hereby relettered as subdivision g. �7. Subdivision f of section 12-113 of the administrative code of the city of New York is hereby amended to read as follows: f. [For the purpose of this section the term "adverse personnel action" shall include dismissal, demotion, suspension, disciplinary action, negative performance evaluation, any action resulting in loss of staff, office space or equipment or other benefit, failure to appoint, failure to promote, or any transfer or assignment or failure to transfer or assign against the wishes of the affected officer or employee.] Upon a determination that a retaliatory adverse personnel action has been taken, the commissioner of investigation shall, within ten business days, submit to the appropriate agency head its recommendation for penalties against the officer or employee who took such retaliatory adverse personnel action. In the event that the officer or employee who took the retaliatory adverse personnel action is the agency head, such recommendation shall be submitted to the mayor or such other officer or official to whom the agency reports. The agency head or the mayor, as the case may be, shall impose penalties against the officer or employee who took the retaliatory adverse personnel action and report such action to the conflicts of interest board, and to the government official or body that received the original complaint, and shall do so in writing within thirty days. �8. Section 12-113 of the administrative code of the city of New York is hereby amended by adding a new subdivision h to read as follows: h. Each agency head shall provide for the distribution of a copy of this local law to every officer and employee employed within said agency. New employees shall receive a copy of this section upon entering city service. Officers and employees shall sign a statement upon receipt that they have received a copy of this local law. �9. Section 12-113 of the administrative code of the city of New York is hereby amended by adding a new subdivision i to read as follows: i. Not later than October thirty-first of each year, the commissioner shall prepare and forward to the council a report on the complaints governed by section 12-113 of the administrative code during the preceding fiscal year. The report shall include: (1) a statistical summary of the complaints of government misconduct received pursuant to paragraph four of subdivision b of this section, categorized by agency, type of complaint, and mode of resolution; (2) a statistical summary of the complaints of retaliation received pursuant to subdivision c of this section, categorized by agency, type of alleged retaliation, status of the investigation, action or determination by the commissioner, and remedial action, if any, taken by the offending entity; (3) an analysis of the effectiveness of this section in encouraging whistleblowers to come forward with information concerning government or contractor misconduct and in protecting whistleblowers from retaliation; and (4) recommendations for administrative, legislative or budgetary actions to prevent further misconduct or retaliatory action. � 10. Subdivision g of section 12-113 of the administrative code of the city of New York is hereby relettered as subdivision j. � 11. This local law shall take effect immediately. 1