Amended in Assembly June 25, 2013

Amended in Assembly June 11, 2013

Amended in Senate April 15, 2013

Senate Bill No. 496

Introduced by Senator Wright

February 21, 2013

An act to amend Sections begin delete 905 end delete begin insert 905.2 end insert and 19683 of, 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. begin delete California Whistleblower Protection Act: administrative procedure. end delete begin insert Improper governmental activity: disclosure: protection. end insert

begin insert

(1) The Government Claims Act sets forth the general procedure for the presentation of a claim for money or damages against the state.

end insert begin insert

This bill would create an exception to the general procedure for a claim alleging a violation of the California Whistleblower Protection Act.

end insert begin delete

Existing law, the

end delete

begin insert (2) end insert begin insert   end insert begin insert The end insert California Whistleblower Protection Act begin delete , 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 end delete begin insert prohibits end insert acts of reprisal, retaliation, coercion, or similar acts against a state employee or an applicant for state employment begin delete for having end delete begin insert who end insert made a protected disclosure begin delete 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 end delete begin insert relating to an improper governmental activity, as defined. The State Civil Service Act end insert 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 begin delete . Existing law also requires end delete begin insert and end insert the executive officer of the board to complete begin insert the end insert findings of the hearing or investigation within 60 working days begin delete , but if the allegations contained in the complaint of reprisal or retaliation are the same or similar to those contained in another appeal, the end delete begin insert . The State Civil Service Act authorizes the end insert executive officer begin delete may end delete begin insert to end insert consolidate begin delete the appeals, in which case the time limits do not apply. end delete begin insert a case with the same or similar allegations to those contained in an appeal and exempts consolidated cases from the time limits for hearings, investigations, and findings. end insert

This bill would begin delete instead require end delete begin insert modify these requirements to instead require the board to initiate end insert an informal hearing or investigation begin delete to occur end delete within 10 begin insert working end insert days of submission of a complaint, begin delete followed by an evidentiary hearing, end delete begin insert and the executive officer to complete the findings of the informal hearing within 60 working days, end insert as specified. begin insert This bill wou end insert begin insert ld authorize the executive officer to consolidate a complaint with a related appeal and exempt the consolidated case from the proscribed time limits. end insert The bill would begin delete provide that after an evidentiary hearing, end delete begin insert authorize end insert an aggrieved party to begin delete the decision may end delete file a petition for writ of mandate for review of the decision, as specified. The bill would begin delete further provide that end delete begin insert deem end insert the complainant begin delete is deemed end delete to have exhausted his or her administrative remedies and begin delete may end delete begin insert would authorize the complainant to end insert file begin delete an end delete begin insert a civil end insert action for begin delete civil end delete damages after begin insert either end insert 70 begin insert working end insert days from submitting the complaint to the board or begin delete sooner if end delete the begin insert issuance of findings by the end insert executive officer begin delete issues findings or refers a consolidated appeal to an evidentiary hearing, as specified end delete begin insert , whichever is sooner end insert . The bill would provide that the executive officer’s findings of the informal hearing or investigation are not binding begin insert or entitled to deference end insert 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.

begin delete

Existing

end delete

begin insert (3) end insert begin insert   end insert begin insert Existing end insert 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 begin delete perceives end delete begin insert believes end insert that the employee begin insert disclosed or end insert 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.

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Because

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begin insert (4) end insert begin insert   end insert begin insert Because end insert 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: yes.

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

begin delete

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.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 905.2 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

905.2.  

(a) This section shall apply to claims against the state
filed with the California Victim Compensation and Government
Claims Board.

(b) 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 the state:

(1) For which no appropriation has been made or for which no
fund is available but the settlement of which has been provided
for by statute or constitutional provision.

(2) For which the appropriation made or fund designated is
exhausted.

(3) For money or damages on express contract, or for an injury
for which the state is liable.

(4) For which settlement is not otherwise provided for by statute
or constitutional provision.

(c) Claimants shall pay a filing fee of twenty-five dollars ($25)
for filing a claim described in subdivision (b). This fee shall be
deposited into the General Fund and may be appropriated in support
of the board as reimbursements to Item 1870-001-0001 of Section
2.00 of the annual Budget Act.

(1) The fee shall not apply to the following persons:

(A) Persons who are receiving benefits pursuant to the
Supplemental Security Income (SSI) and State Supplemental
Payments (SSP) programs (Section 12200 to 12205, inclusive, of
the Welfare and Institutions Code), the California Work
Opportunity and Responsibility to Kids Act (CalWORKs) program
(Chapter 2 (commencing with Section 11200) of Part 3 of Division
9 of the Welfare and Institutions Code), the Food Stamp program
(7 U.S.C. Sec. 2011 et seq.), or Section 17000 of the Welfare and
Institutions Code.

(B) Persons whose monthly income is 125 percent or less of the
current monthly poverty line annually established by the Secretary
of California Health and Human Services pursuant to the federal
Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35),
as amended.

(C) Persons who are sentenced to imprisonment in a state prison
or confined in a county jail, or who are residents in a state
institution and, within 90 days prior to the date the claim is filed,
have a balance of one hundred dollars ($100) or less credited to
the inmate’s or resident’s trust account. A certified copy of the
statement of the account shall be submitted.

(2) Any claimant who requests a fee waiver shall attach to the
application a signed affidavit requesting the waiver and verification
of benefits or income and any other required financial information
in support of the request for the waiver.

(3) Notwithstanding any other provision of law, an applicant
shall not be entitled to a hearing regarding the denial of a request
for a fee waiver.

(d) The time for the board to determine the sufficiency,
timeliness, or any other aspect of the claim shall begin when any
of the following occur:

(1) The claim is submitted with the filing fee.

(2) The fee waiver is granted.

(3) The filing fee is paid to the board upon the board’s denial
of the fee waiver request, so long as payment is received within
10 calendar days of the mailing of the notice of the denial.

(e) Upon approval of the claim by the board, the fee shall be
reimbursed to the claimant, except that no fee shall be reimbursed
if the approved claim was for the payment of an expired warrant.
Reimbursement of the filing fee shall be paid by the state entity
against which the approved claim was filed. If the claimant was
granted a fee waiver pursuant to this section, the amount of the
fee shall be paid by the state entity to the board. The reimbursement
to the claimant or the payment to the board shall be made at the
time the claim is paid by the state entity, or shall be added to the
amount appropriated for the claim in an equity claims bill.

(f) The board may assess a surcharge to the state entity against
which the approved claim was filed in an amount not to exceed
15 percent of the total approved claim. The board shall not include
the refunded filing fee in the surcharge calculation. This surcharge
shall be deposited into the General Fund and may be appropriated
in support of the board as reimbursements to Item 1870-001-0001
of Section 2.00 of the annual Budget Act.

(1) The surcharge shall not apply to approved claims to reissue
expired warrants.

(2) Upon the request of the board in a form prescribed by the
Controller, the Controller shall transfer the surcharges and fees
from the state entity’s appropriation to the appropriation for the
support of the board. However, the board shall not request an
amount that shall be submitted for legislative approval pursuant
to Section 13928.

(g) The filing fee required by subdivision (c) shall apply to all
claims filed after June 30, 2004, or the effective date of this statute.
The surcharge authorized by subdivision (f) may be calculated and
included in claims paid after June 30, 2004, or the effective date
of the statute adding this subdivision.

begin insert

(h) This section shall not apply to claims made for a violation
of the California Whistleblower Protection Act (Article 3
(commencing with Section 8547) of Chapter 6.5 of Division 1 of
Title 2).

end insert

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).

SEC. 3.  

Section 19683 of the Government Code is amended
to read:

19683.  

(a) The State Personnel Board shall initiate an informal
hearing or investigation of a written complaint of begin delete reprisal or
retaliation as end delete begin insert conduct end insert prohibited by Section 8547.3 within 10
working days of its submission. The executive officer shall
complete findings of the 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. begin insert If the allegations contained in the
complaint are related to matters raised in one or more appeals by
the complainant to the State Personnel Board, the executive officer
may consolidate the complaint and the related appeal or appeals
for evidentiary hearing. The time limits described in this
subdivision shall not apply to cases that are consolidated by the
executive officer. end insert

(b)  begin delete The end delete begin insert Except for complaints that are consolidated with one
or more appeals pursuant to subdivision (a), the end insert begin insert end insert complainant is
deemed to have exhausted his or her administrative remedies and
may file an independent begin insert civil end insert action for begin delete civil end delete damages, pursuant
to Section 8547.8, after begin insert either end insert 70 working days from submitting
the complaint to the State Personnel Board, or begin delete sooner end delete upon begin delete either
of the following: end delete begin insert the issuance of findings by the executive officer,
whichever is sooner. end insert

begin delete

(1) The executive officer issues the findings of the 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.

end delete

(c) If, after the informal hearing begin insert or investigation end insert , 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 informal hearing or
investigation, as set forth in subdivision (a), are not binding begin insert or
entitled to deference end insert in begin insert either end insert a subsequent State Personnel Board
evidentiary hearing begin delete requested by the complainant or pursuant to
subdivision (c) or (e), nor in end delete begin insert or end insert a begin insert subsequent or concurrent end insert civil
action for damages begin delete , pursuant to subdivision (b) end delete .

begin delete

(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.

end delete begin delete

(f)

end delete

begin insert ( end insert begin insert e) end insert  After an evidentiary hearing begin delete requested by the complainant
or end delete begin insert on a complaint end insert pursuant to subdivision (c) begin delete or (e) end delete 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 begin delete apply to end delete
begin insert preclude end insert a claimant’s right to pursue an independent begin insert civil end insert action
for begin delete civil end delete damages begin delete 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) end delete .

begin delete

(g)

end delete

begin insert ( end insert begin insert f) end insert  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 begin delete the complainant was retaliated against, end delete begin insert a
violation of Section 8547.3 occurred, end insert 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.

begin delete

(h)

end delete

begin insert ( end insert 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

(i)

end delete

begin insert ( end insert 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

(j)

end delete

begin insert ( end insert 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.

SEC. 4.  

Section 1102.5 of the Labor Code is amended to read:

1102.5.  

(a) An employer shall not make, adopt, or enforce any
rule, regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, begin insert or to a
person with authority over the employee or to another employee
who has authority to investigate, discover, or correct the violation
or noncompliance, end insert 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 begin insert , regardless of whether disclosing the information
is part of the employee’s job duties end insert .

(b) An employer shall not retaliate against an employee for
disclosing information, or because the employer begin delete perceives end delete begin insert believes end insert
that the employee begin insert disclosed or end insert 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 begin insert or
noncompliance end insert , 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 begin insert , regardless of whether disclosing the information
is part of the employee’s job duties end insert .

(c) An employer 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 local, state, or federal rule or regulation.

(d) An employer 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
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.