Ethics staff outlines how whistleblower retaliation claims are evaluated and investigated

Thomas McLean, a senior investigative analyst for the San Francisco Ethics Commission, told commissioners staff evaluates retaliation complaints under three legal elements: a protected act, an adverse employment action, and a causal link showing the protected act substantially motivated the employer’s conduct. McLean said staff typically begins intake by determining whether the complaint alleges an enumerated type of improper government activity and whether it was filed with a designated city agency, such as the controller’s whistleblower program, the district attorney, the city attorney, the complainant’s department or the Ethics Commission itself.

McLean described the types of adverse employment actions that may qualify — termination, suspension, demotion and subtler changes such as transfers or reassignment of duties — and said staff analyzes whether an action would dissuade a reasonable worker from reporting misconduct or materially affect an employee’s job prospects.

On causation, McLean said the commission must show the protected activity was a substantial motivating factor, not necessarily the only reason for the employer’s action. To assess that, investigators review documentary evidence such as personnel files and performance reviews, correspondence between complainant and respondent, and conduct witness interviews. McLean described fact‑intensive probes that can include interviews with multiple coworkers and supervisors and said staff sometimes interviews eight city employees as part of a single retaliation investigation.

Deputy city attorneys and enforcement managers answered commissioners’ questions about coordination with other agencies. Staff said most retaliation intakes occur by phone and that, when the commission is not the right venue, staff tries to redirect complainants quickly to preserve any statutory deadlines. Officials said simultaneous jurisdiction with another agency is rare; when it occurs, the agencies would coordinate and may investigate concurrently.

On remedies, enforcement staff noted the ordinance allows the commission to assess monetary penalties of up to $5,000 and to recommend that a department restore an employee to their prior status. Staff emphasized the commission itself cannot directly reinstate an employee; it may only recommend corrective action to the relevant department and seek penalties under the code.

The presentation was followed by public commenters who urged greater transparency and an external audit of the commission’s handling of retaliation claims. Commissioners asked staff to follow up with detailed information on past cases and any instances where litigation reached court after an administrative dismissal. The commission accepted the presentation as an informational item and moved on to other agenda business.