Senate Bill No. 496

Introduced by Senator Wright

February 21, 2013

An act to amend Section 19683 of the Government Code, relating to whistleblower protection.

LEGISLATIVE COUNSEL’S DIGEST

SB 496, as introduced, Wright. California Whistleblower Protection Act: administrative procedure.

Existing law, the California Whistleblower Protection Act, provides that a person making a protected disclosure, as defined, about an improper governmental activity is to be free of intimidation or threat and that a person who intentionally engages in acts of reprisal, retaliation, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure is subject to civil liability and criminal penalties. Existing law also provides that civil damages are available to an injured party only if the State Personnel Board has issued, or failed to issue, findings pursuant to specified procedures. Existing law requires the State Personnel Board to initiate a hearing or investigation of a complaint of reprisal or retaliation in violation of the California Whistleblower Protection Act within 10 working days. Existing law also requires the executive officer of the board to complete findings of the hearing or investigation within 60 working days, but if the allegations contained in the complaint of reprisal or retaliation are the same or similar to those contained in another appeal, the executive officer may consolidate the appeals, in which case the time limits do not apply.

This bill would provide that, if the State Personnel Board issues a decision on consolidated cases following an evidentiary hearing, an aggrieved party to the decision may file a petition for writ of mandate for review of the decision, as specified. The bill would further provide that, after the executive officer of the board issues the findings of the hearing or investigation, or if the findings of the hearing or investigation are not completed within 60 working days of the submission of the complaint, the complainant is deemed to have exhausted his or her administrative remedies and may file an action for civil damages. The bill would provide that the executive officer’s findings of the hearing or investigation are not binding in a subsequent State Personnel Board evidentiary hearing or in a civil action for damages. The bill would specify that the filing of a civil action by a complainant does not preclude the request for an evidentiary hearing by a supervisor, manager, employee, or appointing power whom the executive office has found to have retaliated against the complainant. The bill would also make other technical changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 19683 of the Government Code is
amended to read:

19683.  

(a) The State Personnel Board shall initiate a hearing
or investigation of a written complaint of reprisal or retaliation as
prohibited by Section 8547.3 within 10 working days of its
submission. The executive officer shall complete findings of the
hearing or investigation within 60 working days thereafter, and
shall provide a copy of the findings to the complaining state
employee or applicant for state employment and to the appropriate
supervisor, manager, employee, or appointing authority. begin delete When end delete

begin insert (b) end insert begin insert   end insert begin insert If end insert the allegations contained in a complaint of reprisal or
retaliation are the same as, or similar to, those contained in another
appeal, the executive officer may consolidate the appeals into the
most appropriate format. In these cases, the time limits described
in begin delete this end delete subdivision begin insert (a) end insert shall not apply. begin insert If the State Personnel Board
issues a decision on the consolidated cases following an evidentiary
hearing, any aggrieved party to the decision may file with the
superior court a petition for writ of mandate for review of the
decision pursuant to Section 1094.5 of the Code of Civil Procedure. end insert

begin insert

(c) After the executive officer issues the findings of the hearing
or investigation, as set forth in subdivision (a), the complainant
is deemed to have exhausted his or her administrative remedies
and may file an action for civil damages, consistent with Section
8547.8. If the findings of the hearing or investigation are not
completed within 60 working days of the submission of the
complaint, the complainant is deemed to have exhausted his or
her administrative remedies and may file a civil action for
damages, consistent with Section 8547.8.

end insert begin insert

(d) The executive officer’s findings of the hearing or
investigation, as set forth in subdivision (a), are neither binding
in a subsequent State Personnel Board evidentiary hearing, as
described in subdivision (e), nor in a civil action for damages.

end insert begin delete

(b)

end delete

begin insert (e) end insert  If the executive officer finds that the supervisor, manager,
employee, or appointing power retaliated against the complainant
for engaging in protected whistleblower activities, the supervisor,
manager, employee, or appointing power may request begin delete a end delete begin insert an
evidentiary end insert hearing before the State Personnel Board regarding
the findings of the executive officer. begin insert A c end insert begin insert omplainant’s filing of a
civil action does not preclude the request for an evidentiary hearing
by the supervisor, manager, employee, or appointing power under
this subdivision. end insert The request for hearing and any subsequent
determination by the board shall be made in accordance with the
board’s normal rules governing appeals, hearings, investigations,
and disciplinary proceedings.

begin delete

(c)

end delete

begin insert (f) end insert  If, after the begin insert evidentiary end insert hearing, the State Personnel Board
determines that a violation of Section 8547.3 occurred, or if no
begin insert evidentiary end insert hearing is requested and the findings of the executive
officer conclude that begin delete improper activity has occurred end delete begin insert the
complainant was retaliated against end insert , the board may order any
appropriate relief, including, but not limited to, reinstatement,
backpay, restoration of lost service credit, begin delete if appropriate, end delete
compensatory damages, and the expungement of any adverse
records of the state employee or applicant for state employment
who was the subject of the alleged acts of misconduct prohibited
by Section 8547.3.

begin delete

(d)

end delete

begin insert (g) end insert  Whenever the board determines that a manager, supervisor,
or employee, who is named a party to the retaliation complaint,
has violated Section 8547.3 and that violation constitutes legal
cause for discipline under one or more subdivisions of Section
19572, it shall impose a just and proper penalty and cause an entry
to that effect to be made in the manager’s, supervisor’s, or
employee’s official personnel records.

begin delete

(e)

end delete

begin insert (h) end insert  Whenever the board determines that a manager, supervisor,
or employee, who is not named a party to the retaliation complaint,
may have engaged in or participated in any act prohibited by
Section 8547.3, the board shall notify the manager’s, supervisor’s,
or employee’s appointing power of that fact in writing. Within 60
days after receiving the notification, the appointing power shall
either serve a notice of adverse action on the manager, supervisor,
or employee, or set forth in writing its reasons for not taking
adverse action against the manager, supervisor, or employee. The
appointing power shall file a copy of the notice of adverse action
with the board in accordance with Section 19574. If the appointing
power declines to take adverse action against the manager,
supervisor, or employee, it shall submit its written reasons for not
doing so to the board, which may take adverse action against the
manager, supervisor, or employee as provided in Section 19583.5.
A manager, supervisor, or employee who is served with a notice
of adverse action pursuant to this section may file an appeal with
the board in accordance with Section 19575.

begin delete

(f)

end delete

begin insert (i) end insert  In order for the Governor and the Legislature to determine
the need to continue or modify state personnel procedures as they
relate to the investigations of reprisals or retaliation for the
disclosure of information by public employees, the State Personnel
Board, by June 30 of each year, shall submit a report to the
Governor and the Legislature regarding complaints filed, hearings
held, and legal actions taken pursuant to this section.