BILL ANALYSIS                                                                                                                                                                                                    Ó






          SENATE PUBLIC EMPLOYMENT & RETIREMENT    BILL NO:  SB 496
          Jim Beall, Chair            HEARING DATE:  April 22, 2013
          SB 496 (Wright)    as amended   4/15/13      FISCAL:  YES

           WHISTLEBLOWER PROTECTION ACT:  ADMINISTRATIVE PROCEDURES
           
           HISTORY  :

            Sponsor:  Author

            Other legislation:AB 263 (Hernandez), 2013
                             Currently in Assembly Judiciary Committee
                         AB 921 (Jones-Sawyer), 2013
                             Currently in Assembly Judiciary Committee
                         AB 2700 (Comm. on Accountability and  
                    Administrative Review), 2012
                             Died at Assembly Desk
                         SB 1505 (Yee), 2008
                             Vetoed sustained 11/30/08
                           SB 1267 (Yee), 2008
                             Died in Senate Appropriations Committee
                       
          SUMMARY  :

          SB 496 codifies a California Supreme Court decision governing  
          the State Personnel Board's (SPB) administrative procedures  
          for appeals from state employee whistleblowers alleging  
          retaliation.  The bill also clarifies that a whistleblower's  
          civil action does not preclude a parallel administrative  
          appeal by the alleged retaliating manager.

           BACKGROUND AND ANALYSIS  :
          
          1)   Existing law  :

            a)  protects the right of state employees to report improper  
              government activity, as defined, without fear of  
              retribution through the California Whistleblower  
              Protection Act ("the Act").

            b)  prohibits any state employee from using his or her  
              official authority for the purposes of interfering with  
              another's right to report improper government activity, as  
              defined.
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          Date:  4/15/13                                          Page 1










            c)  requires a whistleblower who alleges retaliation for  
              reporting improper governmental activity to file a written  
              complaint with his or her  appointing power and authorizes  
              the whistleblower also to file a copy of the complaint  
              with the SPB.

            d)  requires SPB to initiate an investigation or hearing  
              within 10 days of receiving the complaint and requires  
              SPB's Executive Officer to complete findings of the  
              investigation or hearing within 60 working days thereafter  
              (i.e., 70 days total).

            e)  permits the Executive Officer to consolidate the  
              retaliation claim with other related claims by the  
              whistleblower such as an appeal of adverse action, in  
              which case, the 70-day time frame for initiating the  
              investigation or hearing and completing findings is not  
              applicable.

            f)  subjects any person found to have intentionally engaged  
              in retaliation prohibited by the Act to penalties,  
              including a fine not to exceed $10,000, imprisonment not  
              to exceed one year, and, if a civil service employee,  
              adverse action, as defined.

            g)  provides a whistleblower alleging retaliation a right to  
              bring a separate civil action for damages in superior  
              court independent of the SPB administrative process  
              provided that the whistleblower has filed a written  
              complaint with the SPB and the Executive Officer has  
              issued findings or time for issuing findings has expired.

            h)  permits a state employee who is found in an  
              investigation or informal hearing by the SPB to have  
              illegally retaliated against a whistleblower to request a  
              hearing before the SPB regarding the finding of the  
              Executive Officer.

          2)   This bill  :  
           
            a)  clarifies that there are two different administrative  
              hearings contemplated by the Act, an initial informal or  
              preliminary hearing and an evidentiary hearing.  The bill  
          Glenn A. Miles
          Date:  4/15/13                                          Page 2









              also clarifies that the Act intends for the procedural  
              guarantees and independent factfinding of a civil action  
              to inure to the whistleblower after the mandated 60 day  
              period for a preliminary hearing, whether or not there are  
              findings and whether SPB skips a preliminary hearing or  
              investigation and refers the matter directly to an  
              evidentiary hearing.

            b)  removes ambiguity about when and whether the  
              whistleblower has a right to seek an independent civil  
              action against alleged retaliation by clarifying that the  
              whistleblower may file the civil action 70 working days  
              after submitting his or her complaint to SPB irrespective  
              of SPB's progress in hearing, investigating the complaint,  
              or referring it directly to an evidentiary hearing.  The  
              whistleblower could file the civil action sooner than 70  
              days if SPB's Executive Officer issues findings before the  
              end of the 70 days or refers the matter directly to an  
              evidentiary hearing before the 70 days.

            c)  provides that a civil action filed by the whistleblower  
              does not preclude an accused manager from requesting an  
              evidentiary hearing through the administrative process,  
              nor does the request of an accused manager for an  
              evidentiary hearing under the administrative process  
              preclude a whistleblower from filing a civil action.

            d)  clarifies that SPB's findings from the preliminary  
              hearing or investigation are not binding on an evidentiary  
              hearing whether the hearing is requested by the  
              complainant, by the accused manager, or results from the  
              SPB's referral of the complaint to an evidentiary hearing.

            e)  specifies that the SPB may consolidate different  
              complaints or appeals by the same complainant arising from  
              the same set of facts and authorized by different  
              statutory rights or causes of action.  The bill also  
              clarifies that while the time limits for SPB to make  
              findings in a preliminary hearing or investigation are  
              waived if the SPB consolidates the complaints, the right  
              of the complainant to pursue an independent civil action  
              is not changed in such cases and the complainant may do so  
              70 days after initially submitting his or her  
              whistleblower complaint to SPB.
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          Date:  4/15/13                                          Page 3










            f)  provides that for the purposes of appealing a decision  
              in an administrative evidentiary hearing separate and  
              apart from a whistleblower's civil action, the SPB shall  
              issue a decision which any party, if aggrieved, can appeal  
              by filing a petition for writ of mandate with the Superior  
              Court.  The bill provides that this process does not apply  
              with respect to the complainant's independent civil action  
              and the bill does not intend to specifically authorize  
              that findings from the administrative evidentiary hearing  
              collaterally estop, preclude issues, or otherwise affect  
              the factfinding in a complainant's separate civil action.

           COMMENTS  :

          1)The  Arbuckle  case.

             This bill seeks to codify and clarify the California  
             Supreme Court's holding in  Arbuckle  45 Cal. 4th 963 and is  
             consistent with the Act's intent, as cited by the Court,  
             that the Act creates two parallel processes.  "The  
             Legislature expressly authorized a damages action in  
             superior court for whistleblower retaliation (citation),  
             and in doing so it expressly acknowledged the existence of  
             a parallel administrative remedy."  (see  Arbuckle  45 Cal.  
             4th 963 at 976)

             According to the Court, the Act "?authorizes not an action  
             to review the decision of the State Personnel Board, but a  
             completely separate damages action in the superior court in  
             which the employee will enjoy all the procedural guarantees  
             and factfinding that generally accompany such actions.   
             Exhaustion of every possible stage of an administrative  
             process is not particularly necessary where the civil  
             action that the Legislature has authorized is not one to  
             review the administrative decision, but rather a completely  
             independent remedy."  (  Arbuckle  at 973) Thus, the normal  
             administrative procedure requirement to exhaust all  
             administrative remedies and to challenge administrative  
             findings through the harder burden of the judicial writ of  
             review process rather than a de novo review by the court  
             does not apply to whistleblower claims.

             In  Arbuckle  , the Court rejected the State's argument that a  
          Glenn A. Miles
          Date:  4/15/13                                          Page 4









             whistleblower employee should be compelled to exhaust all  
             administrative and judicial remedies before being permitted  
             to bring a civil action for retaliation.

             The Court held that the Act's only requirements to file a  
             whistleblower civil action were for an employee to submit  
             his or her retaliation complaint to the SPB and for  
             findings to be issued within 70 days (i.e., 10 days to  
             commence an informal or preliminary hearing and 60 days to  
             issue findings) or for the deadline for issuing findings to  
             pass.



          2)   Arguments in Support  

             The author's office has indicated that this bill is  
            necessary to codify the California Supreme Court's holding  
            in  Arbuckle  and to eliminate confusion regarding a  
            whistleblower's right to have the procedural guarantees and  
            independent factfinding of the superior court.  Furthermore,  
            the author's office states that this bill is necessary to  
            strengthen the Act and ensure that whistleblowers do not  
            become "trapped in a bureaucratic limbo" of the  
            administrative process which would create disincentives for  
            public employees to report waste, fraud, and abuse by public  
            agencies.

          3)   SUPPORT  :
          
            Union of American Physicians and Dentists (UAPD)/AFSCME  
            Local 206

          4)   OPPOSITION  :

            None to date




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          Glenn A. Miles
          Date:  4/15/13                                          Page 5




















































          Glenn A. Miles
          Date:  4/15/13                                          Page 6