BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 496|
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THIRD READING
Bill No: SB 496
Author: Wright (D)
Amended: 4/15/13
Vote: 21
SENATE PUBLIC EMPLOYMENT & RETIREMENT COMM. : 5-0, 4/22/13
AYES: Beall, Walters, Block, Gaines, Yee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : California Whistleblower Protection Act:
administrative
procedure
SOURCE : Author
DIGEST : This bill codifies a California Supreme Court
decision governing the State Personnel Board's (SPB)
administrative procedures for appeals from state employee
whistleblowers alleging retaliation. This bill also clarifies
that a whistleblower's civil action does not preclude a parallel
administrative appeal by the alleged retaliating manager.
ANALYSIS : Existing law:
1.Protects the right of state employees to report improper
government activity, as defined, without fear of retribution
through the California Whistleblower Protection Act (Act).
2.Prohibits any state employee from using his/her official
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authority for the purposes of interfering with another's right
to report improper government activity, as defined.
3.Requires a whistleblower who alleges retaliation for reporting
improper governmental activity to file a written complaint, as
specified.
4.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).
5.Permits the Executive Officer to consolidate the retaliation
claim with other related claims by the whistleblower, in which
case, the 70-day time frame is not applicable.
6.Subjects any person found to have intentionally engaged in
retaliation prohibited by the Act to penalties, as defined.
7.Provides a whistleblower alleging retaliation a right to bring
a separate civil action independent of the SPB administrative
process, as defined.
8.Permits a state employee who is found by the SPB to have
illegally retaliated against a whistleblower, to request a
hearing before the SPB regarding the findings.
This bill:
1.Clarifies that there are two different administrative hearings
contemplated by the Act: an initial informal or preliminary
hearing, and an evidentiary hearing.
2.Removes ambiguity about when and whether the whistleblower has
a right to seek an independent civil action against alleged
retaliation.
3.Provides that a civil action filed by the whistleblower does
not preclude an accused manager from requesting an evidentiary
hearing, as specified.
4.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
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accused manager, or results from the SPB's referral of the
complaint to an evidentiary hearing.
5.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.
6.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.
Background
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.
Prior Legislation
SB 1505 (Yee), 2008, would have extended the protections of the
Act to former state employees and added reasonable attorney's
fees to the relief one may recover under the Act. This bill was
vetoed by Governor Schwarzenegger.
SB 1267 (Yee), 2008, would have extended the Act's provisions
to specified former employees, eliminated its "notice of
findings" process, limited the SPB's administrative hearing
process in these cases, and provided whistleblowers with an
immediate right-to-sue letter option. This bill died in the
Senate Appropriations Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/8/13)
Union of American Physicians and Dentists (UAPD)/AFSCME Local
206
ARGUMENTS IN SUPPORT : The author's office has indicated that
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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.
JL:nl 5/8/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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