SB 496, as amended, 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.
Thisbegin insert bill would instead require a preliminary hearing or investigation to occur within 10 days of submission of a complaint, followed by an evidentiary hearing, as specified. Theend insert bill would provide thatbegin delete, if the State Personnel Board issues a decision on consolidated cases followingend deletebegin insert afterend insert 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,begin delete 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,end delete the complainant is deemed to have exhausted his or her administrative remedies and may file an action for civil damagesbegin insert 70 days after submitting the complaintend insertbegin insert to the board or sooner if the executive officer issues findings or refers a consolidated end insertbegin insertappeal to an evidentiary hearing, as
specifiedend insert. The bill would provide that the executive officer’s findings of thebegin insert preliminaryend insert
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 complainantbegin insert nor does the request for an evidentiary hearing preclude the complainant’s right to file an independent civil action, as specifiedend insert. 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 19683 of the Government Code is
2amended to read:
(a) The State Personnel Board shall initiate a
4begin insert preliminaryend insert hearing or investigation of a written complaint of
5reprisal or retaliation as prohibited by Section 8547.3 within 10
6working days of its submission. The executive officer shall
7complete findings of thebegin insert preliminary end insert hearing or investigation
8within 60 working days thereafter, and shall provide a copy of the
9findings to the complaining state employee or applicant for state
10employment and to the appropriate supervisor, manager, employee,
11or appointing authority.
P3 1(b) If the allegations contained in a complaint of reprisal or
2retaliation are the same as, or similar to, those contained in another
3appeal, the executive officer may consolidate the appeals into the
4most appropriate format. In these cases, the time limits described
5in subdivision (a) shall not apply. If the State Personnel Board
6issues a decision on the consolidated cases following an evidentiary
7hearing, any aggrieved party to the decision may file with the
8superior court a petition for writ of mandate for review of the
9decision pursuant to Section 1094.5 of the Code of Civil Procedure.
10(c) After the executive officer issues the findings of the hearing
11or investigation, as set forth in subdivision (a), the
12begin insert(b)end insertbegin insert end insertbegin insertTheend insert complainant is deemed to have exhausted his or her
13administrative remedies and may file anbegin insert independentend insert action for
14civil damages,begin delete consistent withend deletebegin insert pursuant toend insert Sectionbegin delete 8547.8. If the begin insert
8547.8, 70 working days after submitting the
15findings of the hearing or investigation are not completed within
1660 working days of the submission of the complaint, the
17complainant is deemed to have exhausted his or her administrative
18remedies and may file a civil action for damages, consistent with
19Section 8547.8.end delete
20complaint to the State Personnel Board, or sooner upon either of
21the following:end insert
22(d) The executive officer’s findings of the hearing or
23investigation, as set forth in subdivision (a), are neither binding in
24a
subsequent State Personnel Board evidentiary hearing, as
25described in subdivision (e), nor in a civil action for damages.
26(1) The executive officer issues the findings of the preliminary
27hearing or investigation, as set forth in subdivision (a).
28(2) The executive officer consolidates the complainant’s multiple
29appeals pursuant to subdivision (e) and refers the consolidated
30appeal directly to an evidentiary hearing.
31(e) If
end delete
32begin insert(c)end insertbegin insert end insertbegin insertIf, after the preliminary hearing,end insert the executive officer finds
33that the supervisor, manager, employee, or appointing power
34retaliated against the complainant for engaging in protected
35whistleblower activities, the supervisor, manager, employee, or
36appointing power may request an evidentiary hearing before the
37State Personnel Board regarding the findings of the executive
38officer. A complainant’s filing of a civil action does not preclude
39the request for an evidentiary hearing by the supervisor, manager,
40employee, or appointing power under this subdivisionbegin insert, nor does
P4 1the request for hearing preclude the complainant’s right to file an
2independent civil action pursuant to subdivision (b)end insert.
The request
3for hearing and any subsequent determination by the board shall
4be made in accordance with the board’s normal rules governing
5appeals, hearings, investigations, and disciplinary proceedings.
6(d) The executive officer’s findings of the preliminary hearing
7or investigation, as set forth in subdivision (a), are not binding in
8a subsequent State Personnel Board evidentiary hearing requested
9by the complainant or pursuant to subdivision (c) or (e), nor in a
10civil action for damages, pursuant to subdivision (b).
11(e) If the allegations contained in a
complaint of reprisal or
12retaliation are the same as, or similar to, those contained in
13another appeal to the State Personnel Board by the complainant
14as authorized by another law or under a separate cause of action,
15the executive officer may consolidate the appeals into the most
16appropriate format. In these cases, the time limits described in
17subdivision (a) shall not apply.
18(f) After an evidentiary hearing requested by the complainant
19or pursuant to subdivision (c) or (e) the State Personnel Board
20shall issue a decision. Any aggrieved party to the decision may
21file a petition for writ of mandate with the superior court for review
22of the decision pursuant to Section 1094.5 of the Code of Civil
23Procedure. This subdivision shall not
apply to a claimant’s right
24to pursue an independent action for civil damages pursuant to
25subdivision (b).
26(f)
end delete
27begin insert(g)end insert If, after the evidentiary hearing, the State Personnel Board
28determines that a violation of Section 8547.3 occurred, or if no
29evidentiary hearing is requested and the findings of the executive
30officer conclude that the complainant was retaliated against, the
31board may order any appropriate relief, including, but not limited
32to, reinstatement, backpay, restoration of lost service credit,
33compensatory damages, and the expungement of any adverse
34records of the
state employee or applicant for state employment
35who was the subject of the alleged acts of misconduct prohibited
36by Section 8547.3.
37(g)
end delete
38begin insert(h)end insert Whenever the board determines that a manager, supervisor,
39or employee, who is named a party to the retaliation complaint,
40has violated Section 8547.3 and that violation constitutes legal
P5 1cause for discipline under one or more subdivisions of Section
219572, it shall impose a just and proper penalty and cause an entry
3to that effect to be made in the manager’s, supervisor’s, or
4employee’s official personnel records.
5(h)
end delete
6begin insert(i)end insert Whenever the board determines that a manager, supervisor,
7or employee, who is not named a party to the retaliation complaint,
8may have engaged in or participated in any act prohibited by
9Section 8547.3, the board shall notify the manager’s, supervisor’s,
10or employee’s appointing power of that fact in writing. Within 60
11days after receiving the notification, the appointing power shall
12either serve a notice of adverse action on the manager, supervisor,
13or employee, or set forth in writing its reasons for not taking
14adverse action against the manager, supervisor, or employee. The
15appointing power shall file a copy of the notice of adverse action
16with the board in accordance with Section 19574. If the appointing
17power declines to take adverse action against
the manager,
18supervisor, or employee, it shall submit its written reasons for not
19doing so to the board, which may take adverse action against the
20manager, supervisor, or employee as provided in Section 19583.5.
21A manager, supervisor, or employee who is served with a notice
22of adverse action pursuant to this section may file an appeal with
23
the board in accordance with Section 19575.
24(i)
end delete
25begin insert(j)end insert In order for the Governor and the Legislature to determine
26the need to continue or modify state personnel procedures as they
27relate to the investigations of reprisals or retaliation for the
28disclosure of information by public employees, the State Personnel
29Board, by June 30 of each year, shall submit a report to the
30Governor and the Legislature regarding complaints filed, hearings
31held, and legal actions taken pursuant to this section.
O
98