150-23 Reporting Improper Governmental Activities and Protection Against Retaliation ("Whistleblowing")

I. Purpose

This policy governs both the reporting and investigation of allegations of suspected improper governmental activities and the protection of whistleblowers from retaliation. As such, it represents UCSF’s implementing policies for the UC Policy for Investigating Allegations of Suspected Improper Governmental Activities and UC Policy for Protection of Whistleblowers from Retaliation, and prescribes responsibilities and procedures for investigating known or suspected improper governmental activities and addressing complaints of retaliation for raising such issues (whistleblower protection).

II. Definitions

Illegal Order: Illegal order means any directive to violate or assist in violating an applicable federal, state, or local law, rule, or regulation or any order to work or cause others to work in conditions outside their line of duty that would unreasonably threaten the health or safety of employees or the public.

Improper Governmental Activities: According to California Government Code Section 8547.2, an improper governmental activity is any activity by a state agency or by an employee that is undertaken in the performance of the employee’s official duties, whether or not that action is within the scope of his or her employment, and that:

1.      is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty; or,

2.      is economically wasteful or involves gross misconduct, incompetence, or inefficiency.

Interference: Direct or indirect use of authority to obstruct an individual’s right to make a protected disclosure.

Protected Disclosure: According to California Government Code Section 8547.2, a protected disclosure is any good faith communication that discloses or demonstrates an intention to disclose information that may evidence an improper governmental activity or any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.

Retaliation Complaint: Any written complaint by an employee or an applicant for employment which alleges retaliation for having made a protected disclosure or for having refused an illegal order or interference with an attempt to make a protected disclosure, together with a sworn statement, made under penalty of perjury, that the contents of the complaint are true or are believed by the complainant to be true.

University Resources: For purposes of this policy, the term University resources is defined to include, but not be limited to the following, whether owned by or under the management of the University:

1.      Cash and other assets, whether tangible or intangible, real or personal property;

2.      Receivables and other rights or claims against third parties;

3.      Intellectual property rights;

4.      Effort of University personnel and of any non-University entity billing the University for its effort;

5.      Facilities and the rights to use University facilities;

6.      The University’s name; and

7.      University records, including student and patient records.

Whistleblower: A person or entity making a protected disclosure is commonly referred to as a whistleblower. Whistleblowers may be University employees (academic or staff), students, patients, and applicants for employment, vendors, contractors, or the general public. The role of a whistleblower is that of a reporting party. The whistleblower is not an investigator or finder of fact, nor the determiner of the appropriate corrective or remedial action that may be warranted.

III. Policy

A. Reporting Allegations of Suspected Improper Governmental Activities—Any person may report allegations of suspected improper governmental activities. Allegations of suspected improper governmental activities may also be reported anonymously. Further details on the role, rights, and responsibilities of the whistleblower may be found in Section IV A. of this policy.

• Filing reports—The University recommends that any reports by persons who are not University employees be directed to UCSF’s Whistleblower Coordinator (see Section IV A). Normally, a report by a University employee of allegations of a suspected improper governmental activity should be made to the reporting employee’s immediate supervisor or other appropriate administrator within the operating unit. However, in the interest of confidentiality when there is a potential conflict of interest or for other reasons, such report may be directed to the Whistleblower Coordinator or another University manager who may reasonably be expected to review the alleged improper governmental activity on behalf of the University. All University employees, and especially academic or staff employees in management roles, should be aware of and alert to any communications that may constitute reports of allegations of suspected improper governmental activity and be prepared to refer such reports to the Whistleblower Coordinator.
   

• Retaliation Protection—The rights and protections of University employees and applicants for employment when making a protected disclosure are covered by the Policy for Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints. Below is a summary of the local implementation:

B. Filing Complaints—UCSF is committed to protecting employees and applicants for employment from interference with making a protected disclosure, or retaliation for having made a protected disclosure, or for having refused an illegal order as defined in this policy. A retaliation complaint (grievance plus sworn statement) may be filed under an applicable grievance or complaint resolution procedure, or with the Whistleblower Coordinator, or with the employee’s supervisor. Employees who elect to file a grievance unaccompanied by a sworn statement made under penalty of perjury that its contents are true or are believed to be true are not covered by the retaliation provisions of the California Whistleblower Protection Act. The complainant must file the complaint within 12 months and must sufficiently detail facts to support the allegation.

• Whistleblower Coordinator—The Whistleblower Coordinator accepts and reviews all retaliation complaints and administers local processes related to investigation and resolution of retaliation complaints. When appropriate, the Whistleblower Coordinator refers matters to existing grievance procedures and reviews conclusions and remedies for cases heard through existing grievance procedures. The Whistleblower Coordinator may also refer a complaint to a designated Retaliation Complaint Officer for fact-finding when a grievance process is not appropriate. In such cases, the Whistleblower Coordinator receives and acts on fact-finding reports submitted by retaliation complaint investigations.
   

• Retaliation Complaint Officers—Under the direction of the Whistleblower Coordinator, designated Retaliation Complaint Officers (RCO’s) ensure that a competent investigation is conducted on the allegation of retaliation or interference. The RCO shall work with the Whistleblower Coordinator to ensure the following:

-existing grievance procedures, where applicable, allow for adequate investigation and report of RCO findings on the allegations; or,

-hearing officers or arbitrators, where applicable, adequately cover the allegations; or,

-a competent and timely fact-finding is conducted on allegations that are not appropriately handled by existing grievance processes. The RCO shall present findings of fact to the Whistleblower Coordinator within 120 days unless an extension is requested by the RCO and granted by the Coordinator.

The designated RCO’s for UCSF are:

-Campus Human Resources Director for staff employees on campus;

-Chief Administrative and Human Resources Director for staff employees in the Medical Center;

-Director of Academic Personnel for academic employees, including faculty;

-Director of Student Relations for students.

C. State Auditor—Reports of allegations of suspected improper governmental activities may be made to the State Auditor. Under the law, the State Auditor is prohibited from disclosing the identity of a whistleblower unless he or she obtains the whistleblower’s permission to do so, or when the disclosure is to a law enforcement agency that is conducting a criminal investigation.

IV. Responsibility

A. The following functional titles have responsibility as follows:

• Locally Designated Official—While the Chancellor is responsible for implementing this policy at the local level, oversight of the responsibility and acting as a liaison between UCSF and Office of the President is delegated to the UCSF Locally Designated Official.  UCSF’s Locally Designated Official is the Associate Vice Chancellor of Administration.
  

• Whistleblower Coordinator—While the Locally Designated Official is responsible for oversight of this policy at the local level, its overall coordination and implementation on the UCSF campus is delegated to the Campus Whistleblower Coordinator. The Whistleblower Coordinator manages all implementing procedures and ensures that UCSF effectively responds to these issues. UCSF’s Whistleblower Coordinator is the Director of Audit Services.
  
  
• Investigations Group—UCSF has established an Investigations Group (I Group) to ensure coordination and proper reporting of investigations. The Whistleblower Coordinator chairs the I Group and membership includes the Campus Auditor, Chief Campus Counsel, Campus Controller, Chief of Police, Clinical Compliance Officer and the Medical Center’s Chief Financial Officer. In addition, specialized expertise may be required on an ad hoc basis for investigation of certain matters.

The I Group’s responsibilities shall include assurance that:

 

1.      the proper investigative channels according to appropriate expertise and jurisdiction are used and that the plan to address the reported improper governmental activities is appropriate to the circumstances;

2.      all appropriate UCSF officials are apprised of the allegations;

3.      appropriate reporting occurs to the Office of the President, funding and regulatory agencies, whistleblowers, and others;

4.      appropriate resources and expertise are brought to bear to cause the timely and thorough review of reports of whistleblower complaints;

5.      there are no conflicts of interest on the part of any party involved in specific investigations;

6.      communications occur across investigative channels as necessary to ensure coordinated and comprehensive attention to all facets of the matter;

7.      steps are taken to monitor significant elements and progress of investigations to ensure that allegations are timely and thoroughly addressed; and

8.      coordinated, timely advice is provided on the corrective and remedial action that may be required to address investigative findings.

• Managers—Managers shall report any allegations of suspected improper governmental activity to the Whistleblower Coordinator—whether reported as protected disclosures, by their subordinates, or discovered in the course of performance of their duties. The manager shall document oral reports by a written transcription of the oral report; internal communications regarding allegations of improper governmental activities should also normally be in writing. If managers are not certain that an issue reported or discovered is appropriate for referral or reporting, they shall consult with the Whistleblower Coordinator to make that determination.
   

• Employees—All employees of the University have a duty to cooperate with investigations initiated under this policy and to refrain from retaliation against or interference with a whistleblower. Consistent with applicable personnel policies or Memoranda of Understanding, an employee may be placed on an administrative leave or an investigatory leave, as appropriate, when it is determined by the University that such a leave would serve the best interests of the employee, the University, or both. Such placement on leave is not to be interpreted as discipline, an accusation, or a conclusion of guilt or innocence of any individual including the person on leave. The appropriate Academic Personnel or Human Resources Office shall be consulted regarding any plan to place an employee on such a leave.

B. Investigative Responsibilities—Each unit with investigative authority shall carry out investigative activities in accordance with appropriate laws and established procedures within its discipline. The I Group’s purpose is to provide oversight and coordination for investigative activities and to facilitate communications among appropriate parties. While appropriate investigative processes will be determined and assigned based on the individual circumstances of a complaint, the following general responsibilities shall apply to investigations under this policy.

• Internal Audit is responsible for investigations involving allegations of known or suspected misuse of University resources, including fraud, financial irregularities, and the financial consequences of other matters under investigation. If criminal activity is detected, consultation with UC police shall determine whether the police should take the lead, participate, or initiate a separate investigation.
  

• Campus Police are responsible for investigations of known or suspected criminal acts within their jurisdiction. In cases involving principally criminal concerns, the campus police shall be the lead investigators and others with an investigative interest shall work in support of the police investigation.
  

• Clinical Compliance Officer is responsible for investigating all clinical billing issues and allegations regarding clinical billing practices.
  

• Other Investigations—Investigations of personnel matters, scientific misconduct, regulatory non-compliance, student misconduct, and other matters shall be assigned by the I Group, based upon the issues raised involved (e.g., Human Resources). In cases involving overlapping interests among investigative bodies, assistance and cooperation will be provided between the investigators based on the relative expertise of the investigative bodies. The I Group shall provide coordination and oversight of these investigations.

C. Reporting to the Office of the President and Others—University policy requires reporting of Whistleblower complaints to the Office of the President whenever any of the following conditions are met:

-The matter is the result of a significant internal control or policy deficiency that is likely to exist at other units within the institution or across the University system;

-The matter is likely to receive media or other public attention;

-The matter involves the misuse of University resources or creates exposure to a liability of at least $25,000;

-The matter involves a significant threat to the health and safety of employees and/or the public;

-The matter is judged to be significant or sensitive for other reasons; and/or

-The matter alleges an improper activity by the Chancellor, the Whistleblower Coordinator, or the Campus Auditor.

D. Roles, Rights, and Responsibilities of Whistleblowers, Investigation Participants, Subjects, and Investigators

• Whistleblowers—Whistleblowers frequently make their reports in confidence. To the extent possible, confidentiality of whistleblowers will be maintained. Whistleblowers should be cautioned that their identity might become known for reasons beyond the control of the investigators or University administrators. Whistleblowers are expected to provide initial information related to a reasonable belief that an improper governmental activity has occurred. While the motivation of a whistleblower is irrelevant to the consideration of the allegations, the intentional filing of a false report, is itself an improper governmental activity upon which the University has the right to act. Whistleblowers shall refrain from obtaining evidence for which they do not have a right of access. Such improper access may itself also be an improper activity. Whistleblowers have a responsibility to be candid and set forth to investigators all known information regarding reported allegations. Persons making a report of alleged improper governmental activities should be prepared to be interviewed by University investigators.
  
  Anonymous whistleblowers must provide sufficient corroborating evidence to justify the commencement of an investigation. Reports of unspecified wrongdoing or broad allegations without evidentiary support may result in an investigation not being undertaken. Because of the inability of investigators to interview anonymous whistleblowers, it may be more difficult to evaluate the credibility of the allegations and, therefore, less likely to result in an investigation being initiated. Whistleblowers are “reporting parties,” only. They may not act on their own in conducting any investigative activities, nor do they have a right to participate in any investigative activities other than as requested by investigators. Confidentiality of the identity of whistleblowers will be maintained to the extent possible within the legitimate requirements of law and the investigation. Should the whistleblower self-disclose his/her identity, the University will no longer be obligated to maintain such confidence. A whistleblower’s right to protection from retaliation does not extend immunity for any complicity in the matters that are the subject of the allegations or of an ensuing investigation.
  
  Whistleblowers have the right to be informed of the outcome of their complaint unless there exists overriding legal or public interest reasons not to do so.
  

• Investigation Participants—It is the duty of University employees who are interviewed, asked to provide information, or otherwise participate in an investigation to fully cooperate with UC authorized investigators. Participants shall refrain from discussing or disclosing the investigation or their testimony with those not connected to the investigation. If the participant knows the subject of the investigation, the participant shall not discuss with the subject the nature of evidence requested or provided or testimony given to investigators unless agreed to by the investigator. Requests by participants for confidentiality will be honored to the extent possible. Participants shall receive protection from retaliation for having participated in an investigation.
  

• Investigation Subjects—A subject is an individual who is the focus of investigative fact-finding. The decision to conduct an investigation does not constitute an accusation and shall be treated as a neutral fact-finding process. The outcome of the investigation may or may not support a conclusion that an improper governmental act was committed and, if so, by whom. The identity of a subject shall be maintained in confidence to the extent possible. Under normal conditions, subjects should be informed at the outset of a formal investigation and be given the opportunity to provide input during the investigation. Subjects have a duty to cooperate with investigators which shall not infringe upon their self-incrimination protections in criminal cases. Subjects have a right to consult with a person or persons of their choice, which may involve representation, including legal representation.
  
  Subjects have a responsibility not to interfere with the investigation. This responsibility includes both evidence, which shall not be withheld, tampered with, or destroyed; and witnesses, who shall not be influenced, coached, or intimidated. Unless there are compelling reasons to the contrary, subjects shall have the opportunity to respond to material points of evidence to be included in an investigation report.
  
  No allegation of wrongdoing against a subject shall be considered sustained, unless at a minimum, a preponderance of the evidence supports the allegation. Subjects have the right to be informed of the outcome of the investigation. If allegations are not sustained, the subject shall be consulted regarding whether public disclosure of the investigation results would be in the best interest of the University and the subject. Any disciplinary or corrective action initiated against the subject as a result of an investigation shall be in accordance with applicable faculty or staff conduct and disciplinary procedures.
  

• Investigators—Investigators are those authorized by the University to conduct fact-finding and analysis related to cases of alleged improper governmental activities. Investigators' authority and access rights are derived from University policy or Regental authority when acting within the course and scope of their responsibilities. Appropriate authority and access rights to conduct an investigation may require combining investigation resources. Investigators are expected to have competency in the area under investigation and technical resources may be drawn upon to augment the skills of the investigators as necessary. All investigators shall be independent and unbiased both in fact and appearance. Investigators responsibilities shall include fairness, objectivity, thoroughness, ethical behavior, and observance of legal and professional standards.
  
  Investigations should be launched only after preliminary consideration establishes that the allegation, if true, would constitute an improper governmental activity and either:

-The allegation is accompanied by information sufficiently specific to be investigated; or,

-The allegation contains or directly points to corroborating evidence that is pursuable. Such evidence may be testamentary or documentary.

V. Related Policies

• Scientific Misconduct (Policy 100-29)

• Defalcations and Fraud (Policy 350-13)

VI. References

• UCSF Whistleblower Policies and Procedures

• UCOP Whistleblower Policies and Procedures

• EthicsPoint Whistleblowing Hotline (systemwide hotline):  universityofcalifornia.edu/hotline

• UCSF Campus Code of Conduct