BILL NUMBER: SB 496 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 6, 2013
AMENDED IN ASSEMBLY JUNE 25, 2013
AMENDED IN ASSEMBLY JUNE 11, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Wright
FEBRUARY 21, 2013
An act to amend Sections 905.2 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. Improper governmental activity:
disclosure: protection.
(1) The Government Claims Act sets forth the general procedure for
the presentation of a claim for money or damages against the state.
This bill would create an exception to the general procedure for a
claim alleging a violation of the California Whistleblower
Protection Act.
(2) The California Whistleblower Protection Act prohibits acts of
reprisal, retaliation, coercion, or similar acts against a state
employee or an applicant for state employment who made a protected
disclosure relating to an improper governmental activity, as defined.
The State Civil Service Act 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 and the executive officer of the board to
complete the findings of the hearing or investigation within 60
working days. The State Civil Service Act authorizes the executive
officer to consolidate 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.
This bill would modify these requirements to instead require the
board to initiate an informal hearing or investigation
within 10 working days of submission of a complaint, and the
executive officer to complete the findings of the informal hearing
within 60 working days, as specified. This bill would authorize the
executive officer to consolidate a complaint with a related appeal
and exempt the consolidated case from the proscribed time limits. The
bill would authorize an aggrieved party to file a petition for writ
of mandate for review of the decision, as specified. The bill would
deem the complainant to have exhausted his or her administrative
remedies and would authorize the complainant to file a civil action
for damages after either 70 working days from submitting the
complaint to the board or the issuance of findings by the executive
officer, whichever is sooner. The bill would provide that the
executive officer's findings of the informal hearing or investigation
are not binding or entitled to deference 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. render its decision on the
consolidated matter within 6 months of the date of the order of
consolidation, 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.
(3) 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 believes that the employee disclosed or 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.
(4) This bill would incorporate additional changes to Section
1102.5 of the Labor Code proposed by SB 666 and AB 263 that would
become operative if this bill and either SB 666 or AB 263, or both,
are enacted and this bill is enacted last.
(4)
(5) 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: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 905.2 of the Government Code is amended to
read:
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.
(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).
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 conduct 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. 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.
(b) Except for complaints that are consolidated with one or more
appeals pursuant to subdivision (a), the complainant is deemed to
have exhausted his or her administrative remedies and may file an
independent civil action for damages, pursuant to Section 8547.8,
after either 70 working days from submitting the complaint to the
State Personnel Board, or upon the issuance of findings by the
executive officer, whichever is sooner.
(c) If, after the informal hearing or investigation, 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 or
entitled to deference in either a subsequent State Personnel Board
evidentiary hearing or a subsequent or concurrent civil action for
damages.
(e) After an evidentiary hearing on a complaint pursuant to
subdivision (c) 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 preclude a claimant's right to pursue an independent civil
action for damages.
(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 a violation of Section 8547.3 occurred, 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) 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) 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) 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. 3. 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 conduct 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 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 shall not apply. The
board shall render its decision on the consolidated matter within a
reasonable time after the conclusion of the hearing or investigation,
except that the period shall not exceed six months from the date of
the order of consolidation unless extended by the board for a period
of not more than 45 additional days from the expiration of the six
-month period.
(b) 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 hearing before
the State Personnel Board regarding the findings of the executive
officer. 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) If, after the hearing, the State Personnel Board determines
that a violation of Section 8547.3 occurred, or if no hearing is
requested and the findings of the executive officer conclude that
improper activity has occurred, 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) 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) 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) 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, 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, 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, regardless of whether disclosing the information is
part of the employee's job duties.
(b) An employer shall not retaliate against an employee for
disclosing information, or because the employer believes that the
employee disclosed or 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 or noncompliance, 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,
regardless of whether disclosing the information is part of the
employee's job duties.
(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. 4.1 . Section 1102.5 of the
Labor Code is amended to read:
1102.5. (a) An employer may employer, or
any person acting on behalf of the 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, where to a person with
authority over the employee, or to another employee who has authority
to investigate, discover, or correct the violation or noncompliance,
or from providing information to, or testifying before,
any public body conducting an investigation, hearing, or inquiry, 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. regulation, regardless of whether
disclosing the information is part of the employee's job duties.
(b) An employer may employer, or any
person acting on behalf of the employer, shall not retaliate
against an employee for disclosing information
information, or because the employer believes that the employee
disclosed or may disclose information, to a government or law
enforcement agency, where to a person with
authority over the employee or another employee who has the authority
to investigate, discover, or correct the violation or noncompliance,
or for providing information to, or testifying before, any public
body conducting an investigation, hearing, or inquiry, 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.
regulation, regardless of whether disclosing the information is
part of the employee's job duties.
(c) An employer may employer, or any
person acting on behalf of the 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 state
local, state, or federal rule or regulation.
(d) An employer may employer, or any
person acting on behalf of the 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
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), 950) of, or the physician-patient
privilege of Article 6 (commencing with Section 990) of
of, Chapter 4 of Division 8 of the Evidence
Code, or trade secret information.
SEC. 5. Section 4.1 of this bill incorporates
amendments to Section 1102.5 of the Labor Code proposed by this bill,
Senate Bill 666, and Assembly Bill 263. It shall only become
operative if (1) both this bill and either Senate Bill 666 or
Assembly Bill 263 are enacted and become effective on or before
January 1, 2014, (2) this bill and either Senate Bill 666 or Assembly
Bill 263, or both, are enacted to amend Section 1102.5 of the Labor
Code, and (3) this bill is enacted after Senate Bill 666 or Assembly
Bill 263, or both, in which case Section 4 of this bill shall not
become operative.
SEC. 5. SEC. 6. 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.