Revisions to Whistleblowing Policy

Policy, Program, Development & Intergovernmental Relations Committee Board Action Item III-A July 8, 2010 Revisions to Whistleblowing Policy Page 3 of 21

Washington Metropolitan Area Transit Authority Board Action/Information Summary Action Information MEAD Number: 100744 Resolution: Yes No TITLE: Revised Whistleblower Policy PURPOSE: To obtain Board approval of the revised Metro policy on Whistleblower Rights and Responsibilities. The revised policy supports Metro`s goals to create a safer organization, and maintain and enhance Metro`s image. DESCRIPTION: This action requests the Board to approve an updated Metro Whistleblower Rights and Responsibilities Policy. In 1999, the Board of Directors adopted a policy to ensure that good faith allegations of fraud, abuse, waste, gross mismanagement, and safety violations are reported and fully investigated and also to protect from retaliation employees who have made good faith allegations. By Resolution 2010-23, the Board directed a revision of the policy. This update publicizes recent federal laws providing protection to whistleblowers; delineates the key role of the Office of Inspector General (OIG) to receive and investigate, as appropriate, whistleblower retaliation complaints; and establishes a new high-level Whistleblower Hearing Panel to determine whether a prohibited personnel practice has been taken against a whistleblower and to impose an appropriate remedy, if warranted. FUNDING IMPACT: There is no impact on funding. Office of Inspector General Assistant Inspector General - Investigations: Ellen Bass RECOMMENDATION: Approval of the revised policy on Whistleblower Rights and Responsibilities. Page 4 of 21

Washington Metropolitan Area Transit Authority Revised Whistleblower Policy Policy, Program Development & Intergovernmental Relations Committee July 8, 2010 Page 5 of 21

Purpose To obtain Board approval of revised Metro policy on Whistleblower Rights and Responsibilities. The Revised policy supports Metro's goals to create a safer organization, and maintain i and enhance Metro's image. Page 6 of 21

Background Board Resolution 2010-23 23 directed General Manager to: Revise Whistleblower Policy Return revised policy to Board of Directors for action Page 7 of 21

New Features Include summary of major provisions of current federal whistleblower protection laws Establish role of OIG to receive and investigate, as appropriate, whistleblower retaliation complaints Establish high-level Whistleblower Hearing Panel Direct that Metro contracts contain provisions for whistleblower rights and responsibilities Page 8 of 21

Recommendation Approve revised policy on Whistleblower Rights and Responsibilities Page 9 of 21

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POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES 1.00 PURPOSE 1.01 The public interest is served when WMATA employees are encouraged to report fraud, waste, abuse of authority, gross mismanagement, violations of law and threats to health, safety and security without fear of actual or threatened discrimination, retaliation or reprisal. 1.02 Federal law provides other methods to report and address discrimination against whistleblowers. Under current federal law, WMATA employees and employees of WMATA contractors or subcontractors have avenues for redress as described below: (a) Under the National Transit Systems Security Act (NTSSA), 6 U.S.C. 1142, employees may file a complaint of discrimination with the U.S. Department of Labor, for lawfully and in good faith: (1) reporting a hazardous safety or security condition; (2) refusing to work when a hazardous safety or security condition presents an imminent danger of death or serious injury; there is no reasonable alternative to refusal; there is not sufficient time to eliminate the danger in absence of refusal; and the individual, where possible, has notified WMATA of the condition and of the intent to not perform work; (3) refusing to authorize the use of any safety or security related equipment, track or structures, if the individual is responsible for their inspection or repair and reasonably believes they are in a hazardous safety or security condition; there is no reasonable alternative to refusal; there is not sufficient time to eliminate the danger in absence of refusal; and the individual, where possible, has notified WMATA of the condition and of the intent not to authorize use of hazardous equipment or infrastructure unless corrected; (4) providing information for or directly assisting in an investigation of conduct that the individual reasonably believes to be in violation of Federal law regarding safety, security or fraud, waste or abuse of funds intended for safety or security; (5) refusing to violate or assist in violation of Federal safety or security law; (6) cooperating with a safety or security investigation by the U.S. Secretary of Transportation, U.S. Secretary of Homeland Security or the National Transportation Safety Board; (7) furnishing information to law enforcement agencies relating to an accident or incident resulting in damage to property, injury or death; or (8) filing a complaint under the NTSSA or testifying regarding such complaint. DRAFT Page 1 Page 12 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES (b) Under the American Recovery and Reinvestment Act (ARRA), Public Law 111-5, 1553, employees may file a complaint of discrimination with the Inspector General of the appropriate federal agency for reporting to supervisors and other authorized individuals and agencies evidence that the individual reasonably believes demonstrates: (1) gross mismanagement of an ARRA project; (2) gross waste of ARRA funds; (3) a substantial and specific danger to public health and safety related to an ARRA project; (4) violation of law relating to ARRA funds or an ARRA project; or (5) abuse of authority related to the implementation of ARRA funds. (c) These summaries of federal whistleblower protection laws, current as of this revision, are not intended to be complete nor intended as legal advice. Details regarding the protections and complaint procedures under the NTSSA are available by contacting the U.S. Department of Labor, Occupational Safety and Health Administration, www.osha.gov (click on the link for Whistleblower Protection ), and under the ARRA are available by contacting the U.S. Department of Transportation OIG Hotline, www.oig.dot/recovery/whistleblower_protections.jsp, 800-424-9071, hotline@oig.dot.gov. 2.00 SCOPE 3.00 DEFINITIONS 2.01 This Policy governs all WMATA employees. WMATA contracts will extend similar rights and responsibilities to employees of WMATA contractors and subcontractors. 3.01 Employee means a current or former employee or applicant for employment at WMATA. 3.02 Personnel Action means: (a) (b) (c) recommending, threatening or ordering a termination, demotion, suspension, discipline, corrective action or reprimand, involuntary transfer or reassignment, investigation or examination, referral for psychiatric or psychological counseling, or any other action having a negative or adverse impact on an Employee; recommending, threatening or ordering a significant change in duties, responsibilities or working conditions inconsistent with the Employee s job description, qualifications or training, which has a negative or adverse impact on the Employee; or recommending against, threatening against or failing to make a hiring, appointment, promotion or other favorable personnel action for an Employee. DRAFT Page 2 Page 13 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES 4.00 RESPONSIBILITY 3.03 Prohibited Personnel Practice occurs when a Supervisor takes or threatens to take a Personnel Action against an Employee because of a Protected Disclosure; because the Employee refused to obey an order that would violate law; because the Employee participated in or cooperated with a Whistleblower Investigation or Proceeding; or because the Employee, following a Protected Disclosure, sought a remedy under this Policy or applicable law. The term because of in the above definition means that the enumerated action by an Employee was a contributing factor in the Prohibited Personnel Action. No Prohibited Personnel Practice occurs where a Supervisor can demonstrate that management would have taken the same Personnel Action in the absence of the Employee s enumerated action. 3.04 Protected Disclosure is any disclosure or perceived disclosure of information by an Employee, not specifically prohibited by law or WMATA regulation, that the Employee reasonably believes evidences gross mismanagement; gross misuse or waste of public resources or funds; fraud; violation of law; abuse of authority in connection with the conduct of WMATA operations or contracts; or a substantial and specific danger to health or safety. 3.05 Supervisor is an individual employed by WMATA as an Officer of the Authority (under Compact Section 9), Executive Management Employee or Senior Management Employee (under Personnel Policy No. 4.1), or who has the authority to take, direct others to take, recommend or approve a Personnel Action or direct an Employee to obey an order. 3.06 Whistleblower Investigations and Proceedings is an inquiry or review by an authorized official of WMATA, or by the federal government or any other governmental entity with jurisdiction over WMATA, regarding a matter which would constitute a Protected Disclosure or regarding a Prohibited Personnel Practice under this Policy, or an enforcement or judicial proceeding arising from such inquiry or review. 4.01 Employees are responsible for abiding by this Policy and shall fully cooperate in all Whistleblower Investigations and Proceedings, including complying with all requests for information arising from and providing records necessary in the performance of Whistleblower Investigations and Proceedings. 4.02 The chief Human Resources official shall ensure that all applicants receive written notice of the rights and responsibilities in this Policy, that a notice of whistleblower rights and responsibilities under this policy and federal law is posted throughout WMATA facilities, and shall ensure that information regarding whistleblower rights and responsibilities are available electronically (such as by posting on WMATA s Intranet). DRAFT Page 3 Page 14 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES 4.03 Contracting Officers shall ensure that all WMATA contracts contain provisions (a) providing employees of WMATA contractors and subcontractors at any tier with whistleblower rights and responsibilities under applicable federal law, and (b) providing that they will not retaliate against any of their employees or independent contractors for cooperating with a Whistleblower Investigation or Proceeding. 5.00 POLICIES AND PROCEDURES 5.01 Reporting Protected Disclosures (a) An Employee who has information that the Employee reasonably believes constitutes a Protected Disclosure shall report the information at the earliest possible opportunity to any of the following (as appropriate to the circumstances): (1) To a Supervisor at a level above that of the individual(s) alleged to have engaged in the misconduct reported; (2) To the Office of Inspector General (OIG), in person, in writing through the internal Metro mail system or external United States mail, through the OIG Hotline (202-962-2400) or email hotline.oig@wmata.com) or by any other reasonable means (see P/I 13.4/0 for more detail about the OIG); (3) To the Metro Transit Police Department (MTPD), in person, by telephone (962-2121) or by any other reasonable means, or to the OIG (see (a)(2) above), if the information constitutes a potential violation of criminal law; (4) To the Department of System Safety (SAFE), in person, in writing through the internal Metro mail system or external United States mail, through the SAFE Hotline (202-249-7233) or by any other reasonable means; (5) To the Department of Human Resources, Director of Client Services, in person, in writing through the internal Metro mail system or external United States mail or in any other reasonable fashion; (6) To the Office of Civil Rights for issues relating to civil rights violations or workplace violence, in person, in writing through the internal Metro mail system or external United States mail, or to the Civil Rights Hotline (202-962-1082), or by any other reasonable means; and/or (7) To any other official, office or agency within WMATA or outside WMATA that the Employee reasonably believes has the authority to act on the matter. (b) When making a Protected Disclosure, Employees should provide as much information as possible about the alleged incident (e.g., who, what, where, when and how). DRAFT Page 4 Page 15 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES (c) (d) (e) (f) Investigations into Protected Disclosures are generally more effective when the identity of the reporting Employee is known, allowing investigators to obtain additional information from the reporting Employee. However, Protected Disclosures can be made anonymously. All reasonable efforts will be made to protect the reporting Employee s identity, and confidential information will be disclosed only to the extent required by law or to the degree necessary to conduct the investigation and make a determination. WMATA is not precluded from taking any action in response to Protected Disclosures provided anonymously. Employees shall act in good faith and must make reasonable effort to verify facts before making a Protected Disclosure in order to avoid making baseless allegations. Employees shall not report or state an intention to report information or an allegation knowing it to be false or with willful or reckless disregard for the truth or falsity of the information or allegation. An employee may make a Protected Disclosure under this Policy notwithstanding that the procedures of Policy Instruction (P/I) 10.4, Incident Investigation, have been triggered regarding the same matter. A recipient office may determine to stay its actions under this Policy pending completion of the process under P/I 10.4 and at the conclusion of that process may determine that no further investigation is necessary. Any Employee, including an OIG Employee, who has information that the Employee reasonably believes constitutes a Protected Disclosure about OIG management, including about the Inspector General, shall report the information at the earliest possible opportunity to the Chair of the WMATA Board of Directors Audits and Investigations Subcommittee or other committee or subcommittee charged with responsibility for the OIG. 5.02 Action by Recipients of Protected Disclosures (a) The recipient office shall make a retrievable record of the receipt of the Protected Disclosure and document what action it took with respect to the Protected Disclosure, which record will be made available to the Employee who made the Protected Disclosure in accordance with the Public Access to Records Policy (P/I 9.3/1). (b) A recipient office may, at its discretion and consistent with its mission, refer the matter to another office or outside entity that is more appropriate to address the matter. The recipient office shall inform the Employee who made the Protected Disclosure of the office to which the Protected Disclosure has been referred. (c) Upon request by the OIG, another recipient office shall report information regarding a Protected Disclosure to the OIG and/or shall refer the Protected Disclosure to the OIG for action. 5.03 Whistleblower Protections (a) A Supervisor shall not engage in any Prohibited Personnel Practice. This Policy does not prohibit a Personnel Action that would have been taken in the absence of a Protected Disclosure. DRAFT Page 5 Page 16 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES (b) (c) A Supervisor shall not interfere with or deny the right of an Employee to make any Protected Disclosure. Nothing in this Policy shall diminish the rights or remedies of Employees pursuant to any applicable federal law, provision of the U.S. Constitution or other WMATA policy instruction. 5.04 Whistleblower Rewards 6.00 ENFORCEMENT If a Protected Disclosure assists in recovering or prevents a significant loss in public funds, the General Manager may reward the reporting Employee an appropriate amount at the General Manager s discretion. This provision shall not create any right or benefit, substantive or procedural, enforceable by law or equity, by a party against WMATA, any Board Member or Employee of WMATA or any other person. 6.01 Any Employee who violates this Policy is subject to discipline up to and including termination. 6.02 The protections afforded by this Policy may be raised as a defense to any adverse Personnel Action against an Employee. 6.03 Reporting and Investigating Whistleblower Retaliation Complaints (a) An Employee who believes that he or she has been subjected to a Prohibited Personnel Practice is encouraged but not required to attempt to resolve the matter within the Employee s management chain of command. If the matter is not resolved, the Employee may submit a whistleblower retaliation complaint to the OIG in person, in writing through the internal Metro mail system or external United States mail, through the OIG Hotline (by telephone 202-962-2400) or email hotline.oig@wmata.com) or in any other reasonable fashion (see P/I 13.4/0 for more detail about the OIG). (b) An employee of the OIG who believes that he or she has been subjected to a Prohibited Personal Practice, including by the Inspector General, may submit a whistleblower retaliation complaint to the Chair of the WMATA Board of Directors Audits and Investigations Subcommittee or other committee or subcommittee charged with responsibility for the OIG. (c) Complaints by Employees shall be submitted within 180 days of the occurrence of the Prohibited Personnel Practice. (d) A whistleblower retaliation complaint should contain as complete and specific information as possible, including facts and circumstances that demonstrate a Prohibited Personnel Practice, including: (1) that the complainant is an Employee; (2) what Protected Disclosure the Employee made, how it was made, when it was made, to whom it was made, any witnesses to it, and the result of any previous investigation into the Protected Disclosure; DRAFT Page 6 Page 17 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES (3) what the Prohibited Personnel Practice is, who took it, how it was made, when it was made, and any witnesses to it; and (4) that the Prohibited Personnel Practice was because of the Protected Disclosure. (e) (f) (g) Employees shall act in good faith and must make reasonable effort to verify facts before making a whistleblower retaliation complaint in order to avoid making baseless allegations. Employees shall not report or state an intention to report information or an allegation in a whistleblower retaliation complaint knowing it to be false or with willful or reckless disregard for the truth or falsity of the information or allegation. A Supervisor or other manager who receives a whistleblower retaliation complaint shall make reasonable efforts to resolve it to the satisfaction of the Employee. At any time, the Employee may file a complaint with the OIG or pursue other available remedies. OIG Investigation and Report (1) If the OIG determines that the complaint provides sufficient information to warrant an investigation, the OIG will conduct an investigation as part of its overall investigations responsibilities to determine whether the Employee making the complaint was subjected to a Prohibited Personnel Practice. The OIG may disclose the identity of the complainant to the degree necessary to investigate and resolve the complaint. (2) The OIG shall make reasonable efforts to complete its investigation of whistleblower retaliation complaints and forward a written report thereon to the Whistleblower Retaliation Hearing Panel within 150 working days of receipt of the complaint. 6.04 Whistleblower Retaliation Hearing Panel (a) (b) The Whistleblower Retaliation Hearing Panel ( Panel ) is comprised of the General Counsel, Chief of Staff, and Chief Human Resources Officer, or a designee of one or more. If a whistleblower retaliation complaint before the Panel concerns an Employee within the supervisory chain of authority of any Panel member, that member shall recuse and the Panel shall proceed with two members, or the remaining members may appoint another appropriate, noninterested member who is a deputy general manager, assistant general manager or equivalent. The Panel receives reports from the OIG and any other appropriate source concerning whistleblower retaliation complaints. The Panel determines whether a Prohibited Personnel Practice has occurred and directs remedial action. The Panel shall make reasonable efforts to complete its proceedings and render a written decision within 30 working days from the receipt of the OIG or other report on the whistleblower retaliation complaint. DRAFT Page 7 Page 18 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES (c) (d) The Panel may afford the complainant and a representative of management affected by the complaint the opportunity to make a presentation, either written or oral, to the Panel. The Panel may gather information from any source regarding the alleged violation of this Policy that may assist in its deliberations or regarding any remedy in response to the complaint. If the Panel finds that a Prohibited Personnel Practice occurred, it will determine the appropriate remedy to make the complainant whole for any losses he or she suffered because of the Prohibited Personnel Practice, including: (1) hiring, reinstatement or promotion; (2) awarding back pay or restoring lost benefits; (3) any other remedial action consistent with the purpose of this Policy. (e) (f) (g) (h) The Panel may also direct that disciplinary action be taken against any individual who committed a Prohibited Personnel Practice. The chief Human Resources official is responsible for assuring compliance with such direction. The chief Human Resources official will be responsible for assuring that a copy of the final decision of the Panel is sent to the Employee and affected management representative. Management will comply with the Panel s decision within 14 working days, unless it seeks reconsideration in accordance with these procedures. Unless the complainant or management exercises appeal rights as set forth below, the Panel s decision is final. Requests for Reconsideration of Panel Decisions (1) All requests for reconsideration should be sent to the chief Human Resources official. (2) By management: If management disagrees with the Panel s conclusion regarding the commission of a Prohibited Personnel Practice, the remedy or if management believes it cannot comply with the remedy without significant hardship causing a negative impact on operations, then management may submit a request for reconsideration to the Panel within 10 working days of receipt of the Panel s decision. The request for reconsideration must set forth specific reasons that demonstrate its position. Management will ensure that the complainant is provided with a copy of the request for reconsideration. (3) By the complainant: If the complainant disagrees with the Panel s conclusion regarding the commission of a Prohibited Personnel Practice and/or the remedy, then the complainant may submit a request for reconsideration to the Panel within 10 working days of receipt of the DRAFT Page 8 Page 19 of 21

POLICY ON WHISTLEBLOWER RIGHTS AND RESPONSIBILITIES Panel s decision. The request for reconsideration must set forth specific reasons why the Panel s conclusion is incorrect or the remedy specified is not sufficient to address the matters complained of. The Panel will ensure that the management representative is provided with a copy of the request for reconsideration. (4) The Panel shall convene and consider any timely submitted request for reconsideration and render a written decision. The Panel shall make reasonable efforts to render such a written decision within 30 working days of the filing of a request for reconsideration. The Panel s decision on a request for reconsideration is final. 6.05 Election of Remedies and Externally Filed Whistleblower Retaliation Complaints 7.00 EXCEPTIONS (a) The procedures set forth herein for whistleblower retaliation complaints are intended to supplement and not limit Employees access to other applicable processes for redress of whistleblower rights, including but not limited to applicable federal law, another WMATA Policy/Instruction or grievance procedures under an applicable collective bargaining agreements. However, if an Employee invokes another process for redress of a violation of this Policy, WMATA may stay proceedings under this Policy until the other process is complete. (b) Any whistleblower retaliation or discrimination complaint filed with an outside agency shall be referred to the Office of the General Counsel for response. The Office of the General Counsel may direct any appropriate office to prepare a written response to the allegations contained in the complaint. No exceptions, except where superseded by a grievance procedure in an applicable collective bargaining agreement or by federal law. DRAFT Page 9 Page 20 of 21