BILL NUMBER: SB 650	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 7, 2010
	AMENDED IN SENATE  JANUARY 20, 2010
	AMENDED IN SENATE  DECEMBER 15, 2009
	AMENDED IN SENATE  MAY 6, 2009
	AMENDED IN SENATE  MARCH 31, 2009

INTRODUCED BY   Senator Yee
   (Coauthor: Assembly Member Portantino)

                        FEBRUARY 27, 2009

   An act to amend  Sections 8547.10 and 8547.12 
 Section 8547.10  of the Government Code, relating to
improper governmental activities.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 650, as amended, Yee. Disclosure of improper governmental
activities:  state colleges and  universities:
damages.
   Existing law, the California Whistleblower Protection Act,
authorizes a California State University  or University of
California  employee or applicant for employment to have an
available action for damages caused by intentional acts of reprisal,
retaliation, threats, or coercion  only  under 
a  specified  conditions   procedure 
.
   This bill would  also  authorize an available
action for damages or other legal remedies arising on or after
January 1, 2011,  once a complaint is filed with a specified
university officer, if the California State University or University
of California either reached a decision, or failed, within time
limits established by the trustees or regents, respectively, to reach
a decision regarding the complaint. This bill would state that these
provisions are not intended to prohibit an injured party from
seeking a remedy if the university has not satisfactorily addressed
the complaint within 18 months   for a University of
California employee or applicant for employment under the same
procedure  .
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

  SECTION 1.  Section 8547.10 of the Government Code is amended to
read:
   8547.10.  (a) A University of California employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her supervisor or manager, or with any
other university officer designated for that purpose by the regents,
alleging actual or attempted acts of reprisal, retaliation, threats,
coercion, or similar improper acts for having made a protected
disclosure, 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 of reprisal complained about.
   (b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a University
of California employee, including an officer or faculty member, 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 the county jail for up to a period of one year. Any
university employee, including an officer or faculty member, who
intentionally engages in that conduct shall also be subject to
discipline by the university.
   (c) In addition to all other penalties provided by law, any person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a university employee, including
an officer or faculty member, 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 where the acts of the offending party are
proven to be malicious. Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law.  An action for damages shall be available
to the injured party only if the injured party has first filed a
complaint with the university officer identified pursuant to
subdivision (a), and the university has either reached a decision
regarding the complaint, or failed, within the time limits
established by the regents, to reach a decision regarding the
complaint   However, any action for damages shall not be
available to the injured party unless the injured party has first
filed a complaint with the university officer identified pursuant to
subdivision (a), and the university has failed to reach a decision
regarding that complaint within the time   limits
established for that purpose by the regents  . Nothing in this
section is intended to prohibit the injured party from seeking a
remedy if the university has not satisfactorily addressed the
complaint within 18 months.
   (d) 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 any university employee, including
an officer or faculty member, 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.
   (e) In any 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 in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement. 
  SEC. 2.    Section 8547.12 of the Government Code
is amended to read:
   8547.12.  (a) A California State University employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her supervisor or manager, or with any
other university officer designated for that purpose by the trustees,
alleging actual or attempted acts of reprisal, retaliation, threats,
coercion, or similar improper acts for having made a protected
disclosure, 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 of reprisal complained about.
   (b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a California
State University employee, including an officer or faculty member, 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 the county jail for up to a period of one year. Any
university employee, including an officer or faculty member, who
intentionally engages in that conduct shall also be subject to
discipline by the university.
   (c) In addition to all other penalties provided by law, any person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a university employee, including
an officer or faculty member, 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 where the acts of the offending party are
proven to be malicious. Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law. An action for damages shall be available to the
injured party only if the injured party has first filed a complaint
with the university officer identified pursuant to subdivision (a),
and the university has either reached a decision regarding the
complaint, or failed, within the time limits established by the
trustees, to reach a decision regarding the complaint. Nothing in
this section is intended to prohibit the injured party from seeking a
remedy if the university has not satisfactorily addressed the
complaint within 18 months.
   (d) 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 any university employee, including
an officer or faculty member, 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.
   (e) In any 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 in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
   (g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,
the memorandum of understanding shall be controlling without further
legislative action. 
   SEC. 3.   SEC. 2.   This act shall only
affect an action for damages or other legal remedies arising on or
after January 1, 2011.