[HISTORY: Adopted by the Town Board of the Town of Hempstead 7-2-2019 by L.L. No. 54-2019. Amendments noted where applicable.]
The Board finds that it is in the best interests of the Town of Hempstead to establish Chapter 36 of the Town Code entitled "Whistleblower Protection Act." It is the purpose of this chapter to encourage Town employees to report information that they reasonably and in good faith believe to be a violation of law, rule, Town policy or regulation by another Town employee; or which constitutes an improper governmental action. It is the further purpose of this chapter to protect employees who report such information from reprisals in the form of adverse personnel actions and to establish procedures in order to accomplish this goal.
When used in this chapter, and in accordance with New York Civil Service Law § 75-b, the following words shall have the meanings indicated unless the context specifically indicates otherwise:
IMPROPER GOVERNMENTAL ACTION
Any action taken by a Town official or employee, or an agent of such official or employee, which is undertaken in the performance of such official's, employee's or agent's official duties, whether or not such action is within such official's, employee's or agent's scope of employment, and which action is in violation of any federal, state or local law, or rule, Town policy or regulation.
PERSONNEL ACTION
Any action affecting compensation, appointment, promotion, transfer, assignment, reassignment, reinstatement or evaluation of performance.
SUPERVISORY AUTHORITY
Managerial authority or any other authority to direct and control the work performance of any other Town official or employee.
TOWN
The Town of Hempstead.
TOWN EMPLOYEE or EMPLOYEE
Any person holding a position by appointment or employment with the Town.
No official or employee having supervisory authority over another official or employee of the Town shall engage in, or threaten to engage in, retaliatory personnel action against any official or employee because he/she has disclosed to the Town or other governmental body having jurisdiction, pursuant to the procedures set forth herein, information:
A. 
Regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or
B. 
Which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.
A. 
Any official or employee of the Town who possesses information protected under § 36-3 of this chapter may disclose such information to the official's or employee's supervisor or department head, or to the Town Attorney, or the designees of any of the foregoing individuals, for appropriate action. Upon receipt of such information by the supervisor, department head or Town Attorney, or their designee, such disclosure shall be deemed to be a protected disclosure.
B. 
Notwithstanding the procedure enumerated in Subsection A above, any official or employee of the Town who possesses information protected under § 36-3 of this chapter and reasonably believes that disclosure to his/her respective supervisor or department head, or the Town Attorney, or designee, will not result in the taking of corrective action, may disclose such information directly to the Town Supervisor, or his/her designee, any member of the Town Board, or his/her designee, or if the allegations involve criminal conduct, to the District Attorney or the United States Attorney, or his/her designee, for further investigation and official action. Upon receipt of such information by the Town Supervisor, Town Board member, the District Attorney or the United States Attorney, or his/her designee, such disclosure shall be deemed to be a protected disclosure. If the disclosure is made to the Supervisor or a Town Board member, he/she shall notify the Town Attorney or the appropriate law enforcement agency having jurisdiction.
C. 
The Town Attorney, or the Town's outside investigator where the Town Attorney has a conflict of interest, is hereby designated by the Town Board of the Town of Hempstead to investigate all allegations of improper governmental action, and shall be authorized to recommend appropriate corrective action, or any other action required to be taken by law.
A. 
Where an official or employee of the Town of Hempstead is subject to dismissal, or other retaliatory personnel action, and the official or employee reasonably believes that such dismissal or other retaliatory personnel action would not have been taken but for the official's or employee's release of any information constituting a protected disclosure, the official or employee may file a complaint with the Town Attorney or the Town Supervisor within 15 days of the alleged prohibited retaliatory personnel action or dismissal.
B. 
The Town Attorney, or his/her designee, or the Town's outside investigator where the Town Attorney has a conflict of interest, shall immediately initiate and coordinate a thorough and impartial investigation of any complaint filed pursuant to Subsection A above. Upon receipt of a complaint made to the Town Supervisor, he/she shall notify the Town Attorney or the appropriate law enforcement agency having jurisdiction.
C. 
Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in the collective bargaining agreement, or under § 75 of the New York Civil Service Law or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the official's or employee's release of any information constituting a protected disclosure under § 36-3 of this chapter, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such section, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collective bargaining agreement.
D. 
Where an employee is subject to the collective bargaining agreement which contains provisions preventing the Town from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under § 36-3 of this chapter, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collective bargaining agreement.
E. 
Where an employee is not subject to any of the provisions of Subsection C or D of this section, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in Article 20C of the labor law.
If it is determined that a prohibited retaliatory personnel action has occurred, appropriate action shall be taken, which may include but shall not be limited to the discipline of the employee(s) and/or official(s) who caused the retaliatory personnel action to occur, and, to the extent feasible, affording appropriate relief to the employee or official who was the subject of the retaliatory personnel action, including, but not limited to, back pay with interest, attorneys' fees, and punitive damages.
Nothing in this chapter shall be deemed to diminish the rights, privileges, or remedies of any official, employee or candidate under any other law or regulation or under the collective bargaining agreement or any employment contract.
Allegations made in bad faith may result in disciplinary action.
If any clause, sentence, paragraph, subdivision, section or part of this chapter or the application thereof to any person, individual, corporation, firm, partnership, entity or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this chapter or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such judgment or order shall be rendered.