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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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
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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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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
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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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