BILL NUMBER: SB 496 INTRODUCED
BILL TEXT
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. When
(b) If 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 this
subdivision (a) shall not apply. 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.
(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.
(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.
(b)
(e) 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
a an evidentiary hearing before the
State Personnel Board regarding the findings of the executive
officer. A c 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. 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.
(c)
(f) If, after the evidentiary hearing, the
State Personnel Board determines that a violation of Section 8547.3
occurred, or if no evidentiary hearing is requested and
the findings of the executive officer conclude that improper
activity has occurred the complainant was retaliated
against , the board may order any appropriate relief,
including, but not limited to, reinstatement, backpay, restoration of
lost service credit, if appropriate, 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.
(d)
(g) 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.
(e)
(h) 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.
(f)
(i) 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.