BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 220|
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THIRD READING
Bill No: SB 220
Author: Yee (D), et al
Amended: 4/13/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/21/09
AYES: Corbett, Florez, Leno
NOES: Harman, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : California Whistleblower Protection Act: State
Employees
SOURCE : Author
DIGEST : This bill (1) expands the application of the
California Whistleblower Protection Act (CWPA) to former
state employees who has been covered by the CWPA during
their employment; (2) revises some of the provisions
relating to the filing, investigation, hearing, and
processing of complaints filed by state employees under the
CWPA; (3) authorizes an administrative law judge hearing a
CWPA complaint to make any order as may appear just in
order to prevent any named party from being embarrassed,
delayed, or put to unnecessary expense; and (4) authorizes
the State Personnel Board (SPB), after a hearing and a
determination that improper activity has occurred under the
CWPA, to order any appropriate relief, including attorney's
fees, for successful prosecution of a retaliation complaint
CONTINUED
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before the SPB, in addition to other relief under existing
law.
This bill allows a state employee or applicant for state
employment to request a right-to-sue notice from the SPB,
prior to filing a complaint for damages in superior court,
and requires the SPB to issue a right-to-sue notice within
10 working days of submission of a written complaint of
reprisal or retaliation for engaging in protected activity.
This bill specifies which court has jurisdiction over
these complaints for damages, and this bill contains
findings and declarations relative to protections afforded
employees of the University of California under the CWPA.
ANALYSIS :
Existing law, the CWPA, protects state employees from
retaliation by their employer for reporting fraud, waste,
abuse of authority, violation of law, or activities that
create a threat to public health. (Government Code Section
8547 et seq.)
Existing law makes a person who intentionally engages in
acts of reprisal or retaliation in violation of the CWPA
subject to a fine of up to $10,000 and up to a year in
county jail, and if that person is a civil service
employee, subjects that person to discipline by adverse
action. A person injured by such acts may bring an action
for damages only after filing a complaint with the SPB and
the SPB issued, or failed to issue, findings of its
hearings or investigation. (Government Code Section
8547.12.)
Existing law provides a process by which a state employee
may file a written complaint alleging adverse employment
actions such as retaliation, reprisal threats, or coercion,
with a supervisor or manager and with the SPB. Existing
law requires the SPB to initiate an investigation or a
proceeding within 10 working days of submission of a
written complaint, and to complete findings of the
investigation or hearing within 60 working days thereafter.
(Government Code Section 19683.)
This bill requires the SPB instead:
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1.To initiate a hearing or investigation within 10 working
days of submission of a complaint, as in existing law.
2.To issue a right-to-sue notice, upon request of the
complainant, within 10 days of submission of the written
complaint and request for the right-to-sue notice. The
bill specifies contents of the notice, identify the
courts with jurisdiction over an action for damages to be
filed by the complainant, and specify a one year statute
of limitations, commencing with the filing of the written
complaint with the SPB.
This bill authorizes the SPB, after investigation and
hearing, to order, in addition to existing appropriate
relief to a successful complainant, the transfer to or
placement of the complainant into any vacant position for
which the employee is qualified and reasonable attorney's
fees and costs for successful prosecution of a retaliation
complaint before the SPB. This bill further authorizes the
administrative law judge presiding over the hearing to make
any order as may appear just in order to prevent any named
party from being embarrassed, delayed, or put to
unnecessary expense, and any other order as the interests
of justice may require.
As to complaints of reprisal or retaliation filed on or
after January 1, 2010, this bill:
1.Requires the administrative law judge, after the
complainant has presented his/her case in chief, to find
whether or not the complainant has demonstrated by a
preponderance of the evidence that an activity protected
by the CWPA was a contributing factor in the alleged
retaliation or reprisal, at which point the case could be
closed or the burden shifted to the respondent to prove
by clear and convincing evidence that the adverse action
would have occurred for legitimate independent reasons.
2.Provides that where an employee proves by preponderance
of the evidence that retaliation was a contributing
factor to an adverse action taken against that employee,
the employee shall have a complete affirmative defense
against the adverse action.
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This bill makes the CWPA applicable to former state
employees who would have been covered by the CWPA during
their employment.
This bill clarifies that "protected disclosure," in the
context of the CWPA, includes communication based on, or
when carrying out, job duties, that discloses information
evidencing improper governmental activity or that threaten
the health or safety of employees or the public.
This bill contains the following findings and declarations:
(1) 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; (2) the
purpose of this act is to provide effective, efficient
remedies that will eliminate these retaliatory practices.
Background
In March 2004, the Senate Select Committee on Government
Oversight held a hearing entitled "State Employee
Discipline and the State Personnel Board: Is Justice
Served?" The hearing was occasioned by reports that
proposed disciplinary actions by correctional agencies (the
California Department of Corrections (CDC) and the
California Youth Authority (CYA)) were failing in the State
Personnel Board (SPB) because the departments failed to
meet their burden. Further, some employees complained of
retaliation or other adverse actions after they reported
misconduct by other employees. According to testimony
given at the Select Committee hearing, this resulted in low
morale for employees as well as a general dissatisfaction
with the disciplinary process. The Select Committee thus
became concerned about the effect of disarray in the
disciplinary process on the work environment in those
departments, as well as the chilling effect of disciplinary
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sanctions imposed upon department whistleblowers on future
disclosures by employees about misconduct at the agencies.
A demonstrative case was provided by Richard Krupp, who
filed a whistleblower retaliation complaint against the
Department of Corrections after he was transferred to a
do-nothing position when he refused to provide deceptive
and misleading information to the Bureau of State Audits.
According to Mr. Krupp, despite the fact that both the
State Personnel Board and the Office of the Inspector
General findings that he was in fact retaliated against,
the Department of Corrections continued to fight the
retaliation charge in legal proceedings. Mr. Krupp stated
he was forced to finance his more than $50,000 in legal
expenses, until he finally agreed to a settlement of
$500,000. When the department's extensive legal fees are
included, Mr. Krupp asserts that the cost to the department
was in excess of $1 million. It took more than four years
for this case to settle.
Subsequent to the hearings, SB 165 (Speier) of 2005 was
introduced to overhaul the structure by which whistleblower
complaints brought by state employees are processed, to
make it more efficient and responsive. SB 165 would have
created a new Office of Special Counsel that would receive
and investigate complaints of retaliation, report
determinations, and make recommendations to the employing
agency, to the SPB or to the Department of Personnel
Administration (DPA). SB 165 died on the Senate
Appropriations Committee's suspense file.
SB 1267 (Yee) of 2008 was a more modest attempt at
improving the efficiency and responsiveness of the current
SPB process for complaints of retaliatory and other adverse
actions taken against state employees who make or attempt
to make disclosures of improper or illegal activity at
state agencies. SB 1267 passed this Committee, but was
held in the Senate Appropriations Committee. The contents
of SB 1267 were later amended into SB 1505 (Yee) 2008.
That bill was vetoed by the Governor.
On February 26, 2009, the California Supreme Court decided
State Chiropractic Examiners, et al. v. Superior Court of
Sacramento County (Carole M. Arbuckle, Real Party in
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Interest) (2009) 45 Cal.4th 963. While the decision does
not adversely affect the substantive changes that this bill
makes to the CWPA, it does address some concerns relative
to an employee's right to sue for damages in Superior Court
for retaliation and other adverse actions based on the
employee's good faith disclosures of improper governmental
activity.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/4/09)
California Nurses Association
California Psychiatric Association
California State-Wide Law Enforcement Association
State Employee's Trades Council
ARGUMENTS IN SUPPORT : The author's office states, the
process established in law to address these violations is
failing. It is costing the whistleblowers excessive
attorney fees, personal time, and emotional duress. At the
same time, the taxpayer is footing the bill for the
administrative costs as well as for the attorneys that
defend the alleged retaliator during the hearings. The
hearings often do not resolve within the 60-day limit
established in law. All parties involved agree that the
current process is inefficient and that the loopholes in
existing law allow these hearings to drag out for far too
long and at far too great a cost. According to the
author's office and supporters, the right-to-sue notice
contained in this bill is crucial to the speedy resolution
of their case against their supervisors and/or agencies for
reprisal or retaliation based on protected disclosures
under the CWPA. It will not only reduce the time spent on
litigating the same issues, but will also give them the
opportunity to recover damages in full, and even punitive
damages where appropriate, as well as reasonable attorney's
fees and costs.
RJG:do 5/5/09 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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