BILL NUMBER: SB 220	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 16, 2009
	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   to an
individual appointed by the Legislature to a state board or
commission and who is not a Member or employee of the Legislature.
The bill would also prohibit  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. The
existing definition of protected disclosure would be revised to
specifically include any communication based on, or when carrying
out, job duties, that otherwise falls within the definition above.
 The bill would modify the definition of improper governmental
activity to include any activity by an employee that is undertaken
inside a state office, or, if undertaken outside a state office,
directly relates to the functioning of state government. The bill
would also expand the definition of protected disclosure to
specifically include any good faith communication to the Bureau of
State Audits alleging an improper governmental activity and any
evidence delivered to the Bureau of State   Audits in
support of the allegation. 
   (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 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 complaining person submitted to the board
within 10 working days of the submission of a complaint, issue a
right-to-sue notice containing specified information to the person
within 10 working days of 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.
   (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, 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.
   (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.
   (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  
article, the following terms have the following meanings  :
   (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  or an
individual appointed by the Legislature to a state board or
commission and who is not a Member or employee of the Legislature
 . "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,  undertaken inside a state
office, or, if undertaken outside a state office by the employee,
directly relates to state government,  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  made  for the purpose of remedying that
condition.  Protected disclosure specifically includes any good
faith communication to the Bureau of State Audits alleging an
improper governmental activity and any evidence delivered to the
Bureau of State Audits in support of the allegation. 
   (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. 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) 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.
   (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
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 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 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 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, 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.