BILL NUMBER: SB 220 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 2, 2009
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Yee
(Coauthor: Senator DeSaulnier)
FEBRUARY 23, 2009
An act to amend Sections 8547.2, 8547.8, 19683, and 19683.5 of the
Government Code, relating to whistleblower protections.
LEGISLATIVE COUNSEL'S DIGEST
SB 220, as amended, Yee. Whistleblower protection.
(1) The California Whistleblower Protection Act authorizes a state
employee or an applicant for state employment to file a complaint,
as specified, with the State Personnel Board alleging reprisal,
retaliation, threats, coercion, or similar improper conduct
prohibited under the act.
This bill would in addition provide that the act applies to former
employees, as specified, and prohibits retaliation in the form of
decreasing the job responsibilities of an employee's normal workload.
(2) Existing law provides that in addition to all other penalties
provided by law, 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
protected disclosure is liable in an action for damages brought
against him or her by the injured party. However, any action for
damages is not available to the injured party unless the injured
party has first filed a complaint with the State Personnel Board, as
specified, and the board has issued, or failed to issue, findings, as
specified. For purposes of theses provisions, protected
disclosure means any good faith communication that discloses or
demonstrates an intention to disclose information that may evidence
an improper governmental activity or any condition that may
significantly threaten the health or safety of employees or the
public if the disclosure or intention to disclose was for the purpose
of remedying that condition.
This bill would also require that when the injured party has
requested a right-to-sue notice from the board, as provided, that
request must be made before an action for damages is available.
"Protected disclosure" would be defined to mean any good
faith communication, including The existing definition
of protected disclosure would be revised to specifically include
any communication based on, or when carrying out, job duties,
that discloses or demonstrates an intention to disclose
information that may evidence an improper governmental activity or
any condition that may significantly threaten the health or safety of
employees or the public if the disclosure or intention to disclose
was for the purpose of remedying that condition
otherwise falls within the definition above .
(3) Existing law provides that in any civil action or
administrative proceeding, once it has been demonstrated by a
preponderance of evidence that an activity protected by this article
was a contributing factor in the alleged retaliation against a
former, current, or prospective employee, the burden of proof is on
the supervisor, manager, or appointing power to demonstrate by clear
and convincing evidence that the alleged action would have occurred
for legitimate, independent reasons even if the employee had not
engaged in protected disclosures or refused an illegal order. If the
supervisor, manager, or appointing power fails to meet this burden of
proof in an adverse action against the employee in any
administrative review, challenge, or adjudication in which
retaliation has been demonstrated to be a contributing factor, the
employee has a complete affirmative defense in the adverse action.
This bill would also provide that in an adverse action taken
against an employee in which the employee demonstrates, by a
preponderance of the evidence, that retaliation was a contributing
factor to the adverse action taken against him or her, the employee
shall have a complete affirmative defense to the adverse action.
This bill would also require the administrative law judge in an
administrative action filed on or after January 1, 2009, to make a
finding, after the plaintiff has completed presenting the evidence in
his or her case in chief, of whether the plaintiff demonstrated by a
preponderance of evidence that an activity protected by the
California Whistleblower Protection Act was a contributing factor in
the alleged retaliation against the complainant. The burden of proof
would then shift to the supervisor, manager, or appointing power to
demonstrate by clear and convincing evidence that the alleged action
would have occurred for legitimate independent reasons even if the
employee had not engaged in protected disclosures or refused an
illegal order.
(4)
(3) Existing law requires the State Personnel Board to
initiate a hearing or investigation of a written complaint of
reprisal or retaliation that is prohibited by the California
Whistleblower Protection Act within 10 working days of its
submission. The executive officer is required to complete findings of
the hearing or investigation within 60 working days thereafter and
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. Within 60 days after
receiving notification regarding a prohibited act, the appointing
power must either serve notice of adverse action, as specified, or
set forth in writing its reasons for not doing so. Existing law
permits the supervisor, manager, employee, or appointing power to
request a hearing before the State Personnel Board regarding the
findings of the executive officer if the executive officer finds that
the supervisor, manager, employee, or appointing power retaliated
against the complainant for engaging in protected whistleblower
activities. Existing law provides that every person who violates
these provisions is guilty of a misdemeanor.
This bill would also allow the board
instead require the board to either initiate a hearing or
investigation of a written complaint of any improper acts prohibited
by the act within 10 working days of its submission , or
, upon written request of the aggrieved
complaining person submitted to the board within 10
working days of the submission of a complaint , to
issue a right-to-sue notice containing specified
information to the person within 10 working days of
submission of a written complaint, as provided the
request , instead of initiating a hearing or investigation.
Because a violation of these provisions would be a crime, the bill
would impose a state-mandated local program.
(5)
(4) Existing law provides that if, after the hearing
described in (4) above, the State Personnel Board determines that a
violation of the California Whistleblower Protection Act 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.
This bill would specify that appropriate relief may include
reasonable attorney's fees and costs for successful
prosecution of a retaliation complaint before the board, and
, but would not be limited to, at the employee's
request and with the employee's consent, transfer to or placement in
any vacant position for which the employee is qualified.
(6)
(5) Existing law requires a public entity that provides
for the defense of a state employee charged with a violation of the
California Whistleblower Protection Act to reserve all rights to be
reimbursed for any costs incurred in that defense. If a state
employee is found to have violated the act, he or she is liable for
all defense costs and is required to reimburse the public entity for
those costs.
This bill would provide that if a state employee is successful in
an action brought before the board pursuant to those provisions, the
complaining employee shall be reimbursed for all costs incurred,
including reasonable attorney's fees.
This bill would also require the administrative law judge to make
any orders that may appear just in order to prevent any named party
from being embarrassed, delayed, or put to unnecessary expense, and
may make other orders as the interests of justice may require during
the administrative hearing, in all cases.
The bill would also make technical, conforming changes to those
provisions.
(7)
(6) 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. The Legislature finds and declares the following:
(a) It is the public policy of this state to protect and safeguard
the right and freedom of all former, current, and prospective public
employees, as well as members of the public interacting with state
government, the California State University, and the University of
California to report waste, fraud, abuse of authority, violation of
law, or threat to public health and safety without restraint or fear
of retribution or actual retribution due to having engaged in a
protected disclosure reporting those government improprieties.
(b) Public servants best serve the citizenry when they can be
candid and honest without reservation in conducting the people's
business.
(c) The practice of restraining and retaliating against public
servants by denying employment or contractual opportunity, decreasing
the job responsibilities of an employee's normal workload, creating
hostile work environments, and discriminating in the terms or
conditions of employment or contract for these reasons foments unrest
and dissatisfaction, deprives the state of the fullest use of its
capacities for development and advancement, and substantially and
adversely affects the interest of public employees, employers, and
the public in general.
(d) The practice of restraining and retaliating against others
because of their protected disclosure of improper governmental
activities is declared to be against public policy.
(e) The purpose of this act is to provide effective, efficient
remedies that will eliminate these retaliatory practices.
(f) This act shall be deemed an exercise of the police power of
the state for the protection of the welfare, health, and peace of the
people of this state.
SEC. 2. Section 8547.2 of the Government Code is amended to read:
8547.2. For the purposes of this article:
(a) "Employee" means any individual appointed by the Governor or
employed or holding office in a state agency as defined by Section
11000, including, for purposes of Sections 8547.3 to 8547.7,
inclusive, any employee of the California State University. "Employee"
includes any former employee who met the criteria of this
subdivision during his or her employment.
(b) "Improper governmental activity" means any activity by a state
agency or by an employee that is undertaken in the performance of
the employee's official duties, whether or not that action is within
the scope of his or her employment, and that (1) is in violation of
any state or federal law or regulation, including, but not limited
to, corruption, malfeasance, bribery, theft of government property,
fraudulent claims, fraud, coercion, conversion, malicious
prosecution, misuse of government property, or willful omission to
perform duty, or (2) is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency. For purposes of Sections
8547.4, 8547.5, 8547.10, and 8547.11, "improper governmental activity"
includes any activity by the University of California or by an
employee, including an officer or faculty member, who otherwise meets
the criteria of this subdivision.
(c) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
(d) "Protected disclosure" means any good faith communication,
including any communication based on, or when carrying out, job
duties, that discloses or demonstrates an intention to disclose
information that may evidence (1) an improper governmental activity
or (2) any condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to
disclose was for the purpose of remedying that condition.
(e) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or any
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
(f) "State agency" is defined by Section 11000. "State agency"
includes the University of California for purposes of Sections 8547.5
to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive.
SEC. 3. Section 8547.8 of the Government Code is amended to read:
8547.8. (a) A state employee or applicant for state employment
who files a written complaint with his or her supervisor, manager, or
the appointing power alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 8547.3, may also file a copy of the written complaint with
the State Personnel Board, in accordance with the provisions of
Section 19683, together with a sworn statement that the contents of
the written complaint are true, or are believed by the affiant to be
true, under penalty of perjury. The complaint shall be filed
with the board within 12 months of the most recent act of reprisal
set forth in the complaint. If a complaint is filed
with the board, it shall be filed within 12 months of the most recent
act of reprisal covered by the complaint.
(b) 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
protected disclosure is subject to a fine not to exceed ten thousand
dollars ($10,000) and imprisonment in the county jail for a period
not to exceed one year. Pursuant to Section 19683, any state civil
service employee who intentionally engages in that conduct shall be
disciplined by adverse action as provided by Section 19572.
(c) In addition to all other penalties provided by law, 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 protected disclosure shall be
liable in an action for damages brought against him or her by the
injured party. Punitive damages may be awarded by the court if the
acts of the offending party are proven to be malicious. Where
liability has been established, the injured party shall also be
entitled to reasonable attorney's fees as provided by law. However,
any action for damages shall not be available to the injured party
unless the injured party has first filed a complaint with the State
Personnel Board pursuant to subdivision (a), and either (1) the board
has issued, or failed to issue, findings pursuant to Section 19683;
or (2) the injured party requested a right-to-sue notice from the
board pursuant to Section 19683.
(d) This section is not intended to prevent an appointing power,
manager, or supervisor from taking, directing others to take,
recommending, or approving any personnel action or from taking or
failing to take a personnel action with respect to any state employee
or applicant for state employment if the appointing power, manager,
or supervisor reasonably believes any action or inaction is justified
on the basis of evidence separate and apart from the fact that the
person has made a protected disclosure as defined in subdivision (d)
of Section 8547.2.
(e) (1) Once
In any civil action or administrative proceeding, once
it has been demonstrated by a preponderance of evidence that
an activity protected by this article was a contributing factor in
the alleged retaliation against a former, current, or prospective
employee, the burden of proof shall be on the supervisor, manager, or
appointing power to demonstrate by clear and convincing evidence
that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in protected
disclosures or refused an illegal order. If the supervisor, manager,
or appointing power fails to meet this burden of proof in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
(2) In an administrative action filed on or after January 1, 2010,
the administrative law judge shall make a finding, after the
plaintiff has completed presenting the evidence in his or her case in
chief, of whether the plaintiff demonstrated by a preponderance of
evidence that an activity protected by this article was a
contributing factor in the alleged retaliation against the
complainant. The burden of proof shall then shift to the supervisor,
manager, or appointing power to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate
independent reasons even if the employee had not engaged in protected
disclosures or refused an illegal order.
(3) In an adverse action taken against an employee in which the
employee demonstrates, by a preponderance of the evidence, that
retaliation was a contributing factor to the adverse action taken
against him or her, the employee shall have a complete affirmative
defense to the adverse action.
(f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
SEC. 4. Section 19683 of the Government Code is amended to read:
19683. (a) The State Personnel Board shall either:
(1) Initiate a hearing or investigation of a written complaint of
reprisal or retaliation as any improper acts
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.
(2) Upon the written request of the aggrieved person
complaining person, submitted to the board within 10
working days of the submission of a complaint pursuant to Section
8547.8 , issue a right-to-sue notice to the complaining person
within 10 working days of submission of a written complaint
of reprisal or retaliation as prohibited by Section 8547.3
days of the request . The right-to-sue notice shall notify
the complaining person of his or her right to file a civil action
against any person who is subject to the provisions of Section
8547.3 within one year after the filing of the complaint
with the State Personnel Board 8547.3 within two years
after receipt of the right-to-sue notice . The superior courts
of the State of California shall have jurisdiction of those actions,
and the complaining person may file in these courts. An action may
be brought in any county in the state in which the unlawful practice
is alleged to have been committed, in the county in which the records
relevant to the practice are maintained and administered, or in the
county in which the complaining person would have worked but for the
alleged unlawful practice. If the defendant is not found within any
of these counties, an action may be brought within the county of the
defendant's residence or principal office.
(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 described in subdivision (a), 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, at the employee's request and with the employee's
consent, transfer to or placement in any vacant position for which
the employee is qualified, reasonable attorney's fees and
costs for successful prosecution of a retaliation complaint before
the State Personnel Board, 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.
(g) In all cases, including those in which individually named
respondents have joined in a consolidated hearing, the administrative
law judge shall make any orders that may appear just in order to
prevent any named party from being embarrassed, delayed, or put to
unnecessary expense, and may make other orders as the interests of
justice may require during the administrative hearing.
SEC. 5. Section 19683.5 of the Government Code is amended to read:
19683.5. If a state employee is successful in an action brought
pursuant to Section 19683, the complaining employee shall be
reimbursed for all costs and reasonable attorney's fees incurred
pursuant to Section 995.3.
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.