BILL NUMBER: SB 496	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 15, 2013

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 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.
   This  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. The  bill
would provide that  , if the State Personnel Board issues a
decision on consolidated cases following   after 
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  70 days after submitting the complaint   to the
board or sooner if the executive officer issues findings or refers a
consolidated   appeal to an evidentiary hearing, as 
 specified  . The bill would provide that the executive
officer's findings of the  preliminary  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  nor does the
request for an evidentiary hearing preclude the complainant's right
to file an independent civil action, as specified  . 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 
preliminary  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  preliminary  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. 
   (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 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 
    (b)     The  complainant is deemed to
have exhausted his or her administrative remedies and may file an
 independent  action for civil damages,  consistent
with   pursuant to  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.
  8547.8, 70 working days after submitting the complaint
to the State Personnel Board, or sooner upon either of the
following:  
   (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.
 
   (1) The executive officer issues the findings of the preliminary
hearing or investigation, as set forth in subdivision (a).  

   (2) The executive officer consolidates the complainant's multiple
appeals pursuant to subdivision (e) and refers the consolidated
appeal directly to an evidentiary hearing.  
   (e) If
    (c)     If, after the preliminary hearing,
 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 an evidentiary
hearing before the State Personnel Board regarding the findings of
the executive officer. A complainant'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  , nor does the request for hearing preclude the
complainant's right to file an independent civil action pursuant to
subdivision (b)  . 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. 
   (d) The executive officer's findings of the preliminary hearing or
investigation, as set forth in subdivision (a), are not binding in a
subsequent State Personnel Board evidentiary hearing requested by
the complainant or pursuant to subdivision (c) or (e), nor in a civil
action for damages, pursuant to subdivision (b).  
   (e) If the allegations contained in a complaint of reprisal or
retaliation are the same as, or similar to, those contained in
another appeal to the State Personnel Board by the complainant as
authorized by another law or under a separate cause of action, the
executive officer may consolidate the appeals into the most
appropriate format. In these cases, the time limits described in
subdivision (a) shall not apply.  
   (f) After an evidentiary hearing requested by the complainant or
pursuant to subdivision (c) or (e) the State Personnel Board shall
issue a decision. Any aggrieved party to the decision may file a
petition for writ of mandate with the superior court for review of
the decision pursuant to Section 1094.5 of the Code of Civil
Procedure. This subdivision shall not apply to a claimant's right to
pursue an independent action for civil damages pursuant to
subdivision (b).  
   (f) 
    (g)  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 the complainant was retaliated
against, the board may order any appropriate relief, including, but
not limited to, reinstatement, backpay, restoration of lost service
credit, 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. 
   (g) 
    (h)  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. 
   (h) 
    (i)  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. 
   (i) 
    (j)  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.