BILL NUMBER: SB 496 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 11, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Wright
FEBRUARY 21, 2013
An act to amend Section Sections 905 and
19683 of the Government Code, relating to
whistleblower protection. , and to add Section 8547.15
to, the Government Code, and to amend Section 1102.5 of the Labor
Code, relating to employment.
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
an informal 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 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,
that the complainant is deemed to have exhausted his or
her administrative remedies and may file an action for civil damages
after 70 days after from
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
informal 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.
The act further authorizes the State Auditor to investigate and
report whether it finds that a state agency or employee may have
engaged or participated in an improper governmental activity. Under
the act, any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a state
employee or applicant for state employment for having made a
disclosure that may evidence an improper governmental activity or
dangerous condition is subject to, among other things, liability in
an action for damages brought against him or her by the injured
party. Existing law, the Government Claims Act, sets forth the
general procedure for the presentation of claims as a prerequisite to
commencement of actions for money or damages against the State of
California, counties, cities, cities and counties, districts, local
authorities, and other political subdivisions of the state, and
against the officers, employees, and servants of those entities.
This bill would establish an exception for an action for damages
pursuant to the California Whistleblower Protection Act from the
claims presentation requirements of the Government Claims Act.
Existing law prohibits an employer from making, adopting, or
enforcing any rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement agency, if
the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation of
or noncompliance with a state or federal rule or regulation. Existing
law prohibits any employer from retaliating against an employee for
disclosing information to a government or law enforcement agency
pursuant to these provisions or for refusing to participate in an
activity that would result in a violation of a state or federal
statute or noncompliance with a state or federal rule or regulation.
Under existing law, an employer who violates these provisions is
guilty of a crime.
This bill would expand these provisions to prohibit an employer
from making, adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a government or
law enforcement agency, if the employee has reasonable cause to
believe that the information discloses a violation of or
noncompliance with a local rule or regulation. The bill would
prohibit an employer from retaliating against an employee because the
employer perceives that the employee may disclose information to a
government or law enforcement agency, or to a person with authority
over the employee or another employee who has the authority to
investigate, discover, or correct the violation, if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation. The
bill would also prohibit an employer from retaliating against an
employee for disclosing, or refusing to participate in an activity
that would result in, a violation of or noncompliance with a local
rule or regulation.
Because this bill would change the definition of a crime, this
bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 905 of the
Government Code is amended to read:
905. There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section
910) all claims for money or damages against local public entities
except any of the following:
(a) Claims under the Revenue and Taxation Code or other statute
prescribing procedures for the refund, rebate, exemption,
cancellation, amendment, modification, or adjustment of any tax,
assessment, fee, or charge or any portion thereof, or of any
penalties, costs, or charges related thereto.
(b) Claims in connection with which the filing of a notice of
lien, statement of claim, or stop notice is required under any law
relating to liens of mechanics, laborers, or materialmen.
(c) Claims by public employees for fees, salaries, wages, mileage,
or other expenses and allowances.
(d) Claims for which the workers' compensation authorized by
Division 4 (commencing with Section 3200) of the Labor Code is the
exclusive remedy.
(e) Applications or claims for any form of public assistance under
the Welfare and Institutions Code or other provisions of law
relating to public assistance programs, and claims for goods,
services, provisions, or other assistance rendered for or on behalf
of any recipient of any form of public assistance.
(f) Applications or claims for money or benefits under any public
retirement or pension system.
(g) Claims for principal or interest upon any bonds, notes,
warrants, or other evidences of indebtedness.
(h) Claims that relate to a special assessment constituting a
specific lien against the property assessed and that are payable from
the proceeds of the assessment, by offset of a claim for damages
against it or by delivery of any warrant or bonds representing it.
(i) Claims by the state or by a state department or agency or by
another local public entity or by a judicial branch entity.
(j) Claims arising under any provision of the Unemployment
Insurance Code, including, but not limited to, claims for money or
benefits, or for refunds or credits of employer or worker
contributions, penalties, or interest, or for refunds to workers of
deductions from wages in excess of the amount prescribed.
(k) Claims for the recovery of penalties or forfeitures made
pursuant to Article 1 (commencing with Section 1720) of Chapter 1 of
Part 7 of Division 2 of the Labor Code.
( l ) Claims governed by the Pedestrian Mall Law of 1960
(Part 1 (commencing with Section 11000) of Division 13 of the
Streets and Highways Code).
(m) Claims made pursuant to Section 340.1 of the Code of Civil
Procedure for the recovery of damages suffered as a result of
childhood sexual abuse. This subdivision shall apply only to claims
arising out of conduct occurring on or after January 1, 2009.
(n) Claims made pursuant to Section 701.820 of the Code of Civil
Procedure for the recovery of money pursuant to Section 26680.
(o) Claims made pursuant to Section 49013 of the Education Code
for reimbursement of pupil fees for participation in educational
activities.
(p) Claims made for a violation of Article 3 (commencing with
Section 8547) of Chapter 6.5 of Division 1 of Title 2.
SEC. 2. Section 8547.15 is added to the
Government Code , to read:
8547.15. An action for damages pursuant to this article shall not
be subject to the claims presentation requirements of the Government
Claims Act (Division 3.6 (commencing with Section 810) of Title 1).
SECTION 1. SEC. 3. Section 19683 of
the Government Code is amended to read:
19683. (a) The State Personnel Board shall initiate a
preliminary an informal 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
informal 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) The complainant is deemed to have exhausted his or her
administrative remedies and may file an independent action for civil
damages, pursuant to Section 8547.8, after 70 working days
after from submitting the complaint to
the State Personnel Board, or sooner upon either of the following:
(1) The executive officer issues the findings of the
preliminary informal 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.
(c) If, after the preliminary informal
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
informal 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). A decision by the State Personnel Board shall
not be binding in any concurrent or subsequent independent civil
action pursuant to subdivision (b).
(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.
(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.
(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.
(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.
SEC. 4. Section 1102.5 of the Labor Code
is amended to read:
1102.5. (a) An employer may shall
not make, adopt, or enforce any rule, regulation, or policy
preventing an employee from disclosing information to a government or
law enforcement agency, where if the
employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation
of or noncompliance with a state
local, state, or federal rule or regulation.
(b) An employer may shall not
retaliate against an employee for disclosing information
information, or because the employer perceives that
the employee may disclose information, to a government or law
enforcement agency, where or to a person with
authority over the employee or another employee who
has the authority to investigate, discover, or correct the
violation, if the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute,
or a violation of or noncompliance with a state
local, state, or federal rule or regulation.
(c) An employer may shall not
retaliate against an employee for refusing to participate in an
activity that would result in a violation of state or federal
statute, or a violation of or noncompliance with a
state local, state, or federal rule or
regulation.
(d) An employer may shall not
retaliate against an employee for having exercised his or her rights
under subdivision (a), (b), or (c) in any former employment.
(e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.
(g) This section does not apply to rules, regulations, or policies
which that implement, or to actions by
employers against employees who violate, the confidentiality of the
lawyer-client privilege of Article 3 (commencing with Section 950),
the physician-patient privilege of Article 6 (commencing with Section
990) of Chapter 4 of Division 8 of the Evidence Code, or trade
secret information.
SEC. 5. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.