BILL NUMBER: AB 1749	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 5, 2010
	PASSED THE ASSEMBLY  MAY 24, 2010
	AMENDED IN ASSEMBLY  APRIL 27, 2010
	AMENDED IN ASSEMBLY  APRIL 5, 2010

INTRODUCED BY   Assembly Members Bonnie Lowenthal and Audra
Strickland
   (Coauthors: Assembly Members Evans and Jones)

                        FEBRUARY 8, 2010

   An act to amend Section 8547.2 of, and to add Section 8547.13 to,
the Government Code, relating to whistleblower protection.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1749, Bonnie Lowenthal. California Whistleblower Protection
Act: Administrative Office of the Courts.
   The California Whistleblower Protection Act prohibits a state
employee from using his or her official authority or influence for
the purpose of intimidating, threatening, coercing, or commanding any
person for the purpose of interfering with his or her right to make
a protected disclosure, defined to include the communication of
information that may evidence an improper governmental activity. The
act requires the State Auditor to investigate and report on improper
governmental activities, as specified. The act authorizes an employee
or applicant for state employment who files a written complaint
alleging reprisal, retaliation, or similar prohibited acts to also
file a copy of the written complaint with the State Personnel Board,
together with a sworn statement that the complaint is true, under
penalty of perjury. The act provides that any person who
intentionally engages in acts of reprisal, retaliation, or similar
prohibited acts against a state employee or applicant for state
employment for having made a protected disclosure, is subject to
punishment for a misdemeanor, and shall be liable in an action for
civil damages brought by the injured party. The act defines "employee"
as a person appointed by the Governor or employed or holding office
in a state agency, as specified.
   This bill would include a person employed by the Supreme Court, a
court of appeal, a superior court, or the Administrative Office of
the Courts within the definition of "employee" for the purposes of
the California Whistleblower Protection Act, except as specified. The
bill would authorize an employee or applicant for employment with
those judiciary entities who files a written complaint alleging
actual or attempted acts of reprisal, retaliation, or similar
prohibited acts for having made a protected disclosure, to also file
a copy of the written complaint with the State Personnel Board,
together with a sworn statement that the written complaint is true,
under penalty of perjury. The bill would require the State Personnel
Board to investigate any claim filed and make a recommendation
regarding the alleged retaliation.
   The bill would provide that any person, except as specified, who
intentionally engages in acts of reprisal, retaliation, or similar
prohibited acts against an employee or applicant for employment with
those judiciary entities for having made a protected disclosure, is
subject to punishment for a misdemeanor, and shall be liable in an
action for civil damages brought by the injured party. The bill also
would prohibit an employee of those judiciary entities from using his
or her official authority or influence in violation of these
provisions, and would make that employee liable, except as specified,
in an action for civil damages brought by the injured party. By
expanding the scope of the crimes of perjury and the intentional
reprisal, retaliation, or similar prohibited acts against a state
employee, as described above, to include an employee of the
Administrative Office of the Courts, the bill would impose a
state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 8547.2 of the Government Code is amended to
read:
   8547.2.  For the purposes of this article, the following terms
have the following meanings:
   (a) "Employee" means an individual appointed by the Governor, or
employed or holding office in a state agency as defined by Section
11000, including, for purposes of Sections 8547.3 to 8547.7,
inclusive, an employee of the California State University, or an
individual appointed by the Legislature to a state board or
commission and who is not a Member or employee of the Legislature. In
addition, "employee" means a person employed by the Supreme Court, a
court of appeal, a superior court, or the Administrative Office of
the Courts for the purposes of Sections 8547.3 to 8547.7, inclusive,
and Section 8547.13, except for those provisions of Section 8547.4
concerning notice of adverse action and the State Personnel Board.
"Employee" includes a former employee who met the criteria of this
subdivision during his or her employment.
   (b) "Illegal order" means a directive to violate or assist in
violating a federal, state, or local law, rule, or regulation, or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
   (c) "Improper governmental activity" means an activity by a state
agency or by an employee that is undertaken in the performance of the
employee's duties, undertaken inside a state office, or, if
undertaken outside a state office by the employee, directly relates
to state government, whether or not that activity 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, incompetency, or inefficiency. For purposes of Sections
8547.4, 8547.5, 8547.10, and 8547.11, "improper governmental activity"
includes any activity by the University of California or by an
employee, including an officer or faculty member, who otherwise meets
the criteria of this subdivision. For purposes of Sections 8547.4,
8547.5, and 8547.13, "improper governmental activity" includes any
activity by the Supreme Court, a court of appeal, a superior court,
or the Administrative Office of the Courts, or by an employee
thereof, who otherwise meets the criteria of this subdivision.
   (d) "Person" means an individual, corporation, trust, association,
a state or local government, or an agency or instrumentality of any
of the foregoing.
   (e) "Protected disclosure" means a good faith communication,
including a communication based on, or when carrying out, job duties,
that discloses or demonstrates an intention to disclose information
that may evidence (1) an improper governmental activity, or (2) a
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. Protected
disclosure specifically includes a good faith communication to the
Bureau of State Audits alleging an improper governmental activity and
any evidence delivered to the Bureau of State Audits in support of
the allegation. "Protected disclosure" also includes, but is not
limited to, a complaint made to the Commission on Judicial
Performance.
   (f) "State agency" is defined by Section 11000. "State agency"
includes the University of California for purposes of Sections 8547.5
to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive. Sections 8547.3 to
8547.7, inclusive, shall apply to the Supreme Court, the courts of
appeal, the superior courts, and the Administrative Office of the
Courts in the same manner as they apply to a state agency.
  SEC. 2.  Section 8547.13 is added to the Government Code, to read:
   8547.13.  (a) As used in this section:
   (1) "Agency" means the Supreme Court, the courts of appeal, the
superior courts, or the Administrative Office of the Courts.
   (2) "Employee" means a person employed by the Supreme Court, a
court of appeal, a superior court, or the Administrative Office of
the Courts.
   (b) An employee or applicant for employment who files a written
complaint with his or her supervisor, manager, or any other agency
officer designated for that purpose by the agency, alleging actual or
attempted acts of reprisal, retaliation, threats, coercion, or
similar improper acts prohibited by Section 8547.3, may also file a
copy of the written complaint with the State Personnel Board,
together with a sworn statement that the contents of the written
complaint are true, or are believed by the affiant to be true, under
penalty of perjury. The complaint shall be filed within 12 months of
the most recent act complained about.
   (c) The State Personnel Board shall investigate any complaint
filed, in accordance with the procedures of this chapter, and make a
recommendation to the hiring entity of the agency of the employee or
applicant regarding whether retaliation resulted in an adverse action
regarding the employee and, if so, what steps should be taken to
remedy the situation.
   (d) Except to the extent that justices and judges subject to the
jurisdiction of the Commission on Judicial Performance are immune
from liability under the doctrine of judicial immunity, a person who
intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against an employee or applicant for
employment for having made a protected disclosure, is subject to a
fine not to exceed ten thousand dollars ($10,000) and imprisonment in
a county jail for up to one year. An employee who intentionally
engages in that conduct also shall be subject to discipline by the
agency. This subdivision does not limit any other sanction that may
be applicable by law.
   (e) In addition to all other penalties provided by law, except to
the extent that justices and judges subject to the jurisdiction of
the Commission on Judicial Performance are immune from liability
under the doctrine of judicial immunity, a person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or
similar acts against an employee or applicant for employment for
having made a protected disclosure shall be liable in an action for
damages brought against him or her by the injured party. Punitive
damages may be awarded by the court if the acts of the offending
party are proven to be malicious. If liability is established, the
injured party also shall be entitled to reasonable attorney's fees as
provided by law. It is not a prerequisite for an action for damages
for the injured party to first file a complaint pursuant to
subdivision (b).
   (f) This section is not intended to prevent a manager or
supervisor from taking, directing others to take, recommending, or
approving any personnel action, or from taking or failing to take a
personnel action with respect to an employee or applicant for
employment, if the manager or supervisor reasonably believes any
action or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected disclosure.

   (g) In a civil action or administrative proceeding, once it has
been demonstrated by a preponderance of the evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective employee, the
burden of proof shall be on the supervisor, manager, or appointing
power to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in protected disclosures
or refused an illegal order. If the supervisor, manager, or
appointing power fails to meet this burden of proof against the
employee in an administrative review, challenge, or adjudication in
which retaliation has been demonstrated to be a contributing factor,
the employee shall have a complete affirmative defense on the issue
of retaliation.
   (h) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of an employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
   (i) An employee shall not directly or indirectly use or attempt to
use the official authority or influence of the employee for the
purpose of intimidating, threatening, coercing, commanding, or
attempting to intimidate, threaten, coerce, or command a person for
the purpose of interfering with the right of that person to disclose
to an agency official, designated for that purpose by the agency, or
the State Auditor matters within the scope of this article. For the
purpose of this subdivision, "use of official authority or influence"
includes all of the following:
   (1) Promising to confer, or conferring, any benefit.
   (2) Effecting, or threatening to effect, any reprisal.
   (3) Taking or directing others to take, or recommending,
processing, or approving, any personnel action, including, but not
limited to, appointment, promotion, transfer, assignment, performance
evaluation, suspension, or other disciplinary action.
   (j) Except to the extent that justices and judges subject to the
jurisdiction of the Commission on Judicial Performance are immune
from liability under the doctrine of judicial immunity, an employee
who violates subdivision (i) is subject to an action for civil
damages brought against the employee by the injured party.
   (k) Nothing in this section shall be construed to authorize an
individual to disclose any information, the disclosure of which is
otherwise prohibited by law.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.