BILL ANALYSIS
SB 220
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 220 (Yee) - As Amended: April 13, 2009
As Proposed to be Amended
SENATE VOTE : 21-15
SUBJECT : California Whistleblower Protection Act: State
Employees
KEY ISSUE : SHOULD THE WHISTLEBLOWER PROTECTION ACT be amended
to clarify and improve administration of the act?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is designed to improve the administration of the
Whistleblower Protection Act (WPA), which protects state
employees who disclose an improper governmental activity or a
condition that may significantly threaten the health or safety
of employees or the public. The WPA provides a process by which
a state employee who has made a protected disclosure may file an
optional complaint with the State Personnel Board (SPB). This
bill would reduce the administrative and fiscal burden on the
SPB by allowing the complaining employee to request withdrawal
of the complaint after filing so that the SPB is relieved of the
obligation to conduct an investigation if, as frequently occurs
under existing law, the complaining party wishes to prosecute
the matter as a civil action instead of pursuing the
administrative process. A similar process has long been in
place for discrimination complaints under the Fair Employment
and Housing Act. The bill also makes other technical and
clarifying changes and revises the SPB's rules and procedures
regarding the receipt of complaints and grants relief. There is
no known organizational opposition to the measure.
SUMMARY : Reforms the Whistleblower Protection Act.
Specifically, t his bill:
1)Permits the SPB to issue a right-to-sue notice, upon request
of the complainant, if timely requested within 10 days of
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submission of the written complaint.
2)Specifies the contents of the notice, the courts with
jurisdiction, and the statute of limitations after an
administrative complaint is withdrawn.
3)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, and 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.
4)Clarifies that WPA covers former state employees who were
covered by the Act during their employment.
5)Clarifies that "protected disclosure" includes communications
based on, or when carrying out, job duties, that disclose
information evidencing improper governmental activity or that
threaten the health or safety of employees or the public.
6)Provides that the SPB may receive and investigate any improper
acts alleged in a complaint asserting a violation of existing
law.
EXISTING LAW :
1)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.
(Gov. Code Sec. 8547 et seq.)
2)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. (Gov. Code Sec. 8547.12.)
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3)Provides a process by which a state employee may file an
optional 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. (Gov. Code Sec. 19683.)
COMMENTS : In support of the bill the author states,
"Whistleblowers play a vital role in saving tax dollars and
preventing waste, fraud, and abuse. Whistleblowers expose
wrongdoing and inefficiency in our state government. It is our
duty as the government of California to encourage whistleblowing
and to protect whistleblowers from retaliation. When a
whistleblower alleges retaliation, it is essential that we
guarantee that their contentions receive prompt and impartial
investigations."
The author explains the reason for the bill as follows: "The
California Supreme Court ruled this year that state
whistleblowers who allege retaliation may take their case to
Superior Court 60 days after their complaint is filed with the
State Personnel Board (SPB). This is a great step forward for
our government, but poses a problem: with this new ability for
all whistleblowers to go to court, unnecessary expenses are
imposed on the state and on the whistleblower by forcing people
to go through the administrative hearing process as well. In
cases in which the whistleblower knows at the outset that they
want to go to Superior Court, requiring them to first go through
the 60-day administrative remedy wastes their time and money as
well as the state's time and money. SB 220 will make the
whistleblower retaliation hearing process more efficient and
effective by allowing whistleblowers to opt-out of the
administrative remedy. Rather than wasting the state's and the
whistleblower's money on an unwanted 60 day administrative
process, this bill allows the SPB to issue a right-to-sue notice
at the outset and allow the complainant to go straight to
court."
The author states that the Senate Select Committee on Government
Oversight held a hearing in March 2004, entitled "State Employee
Discipline and the State Personnel Board: Is Justice Served?"
The hearing was occasioned by proposed disciplinary actions by
correctional agencies (the California Department of Corrections
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(CDC) and the California Youth Authority (CYA)). 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, the author reports, 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
sanctions imposed upon department whistleblowers on future
disclosures by employees about misconduct at the agencies.
Subsequent to the hearings, SB 165 (Speier, 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, 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 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 Interest) (2009) 45
Cal.4th 963. While the decision does not adversely affect the
substantive changes that SB 220 would make to the WPA, 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.
Providing Complainants With Litigation Alternative: Right-To-Sue
Notice To Issue Upon Request. SB 220 would preserve the
existing administrative procedure for a written complaint filed
with the SPB for complainants who wish to make use of the SPB
process, but would also provide an alternative for the
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complainant to go to court for redress.
Current law requires an aggrieved individual to file a written
complaint with the SPB, and the SPB to initiate an investigation
or a hearing within 10 working days of the submission of the
complaint. The investigation and/or hearing must be completed
by the end of 70 days (60 days after the initial 10 days in
which to act). This bill would require the SPB to issue a
right-to-sue notice if requested by the complainant within the
specified time period.
The bill would specify the statute of limitations for the filing
of a complaint in superior court, which would start upon the
receipt of the SPB right-to-sue notice, consistently with
comparable law.
In February, 2009, the California Supreme Court affirmed the
right of a state employee to sue in superior court, as a
parallel action to the administrative proceeding at the SPB.
(State Chiropractic Examiners, et al. v. Superior Court of
Sacramento County (Carole M. Arbuckle, Real Party in Interest)
(2009) 45 Cal.4th 963.) While SB 220 is aimed at streamlining
the administrative process for a complaint of retaliation for
whistleblowing activity, Arbuckle leaves no doubt that an
aggrieved employee does not have to exhaust the administrative
process (i.e., complete the SPB hearing process and have an
adverse SPB ruling set aside) before going to superior court
with a complaint for damages. In other words, once a complaint
is filed with the SPB and accepted as being complete, the
employee is free to seek damages in superior court.
Expanded Administrative Remedies. Some complainants wish to
pursue the administrative process at the SPB rather than filing
a lawsuit. In order to make this option more viable, SB 220
would expand the available remedies that the SPB may order for
an employee found to have been wronged by a violation of the SPB
to include a transfer or placement in any vacant position for
which the employee is qualified (if requested and consented to
by the employee).
In addition, under existing law the SPB has no explicit
authority to award attorney's fees in an administrative action.
In a court action, however, an aggrieved employee could seek
punitive damages, and, where liability has been established, the
injured party may be entitled to reasonable attorney's fees. SB
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220 would authorize the SPB to award reasonable attorney's fees
and costs for the successful prosecution of the retaliation
complaint before the SPB. The author and proponents argue that
the ability to recover reasonable attorney's fees would ease the
burden on employees who are retaliated against because of their
reporting of protected activity, to prosecute retaliation
actions against their supervisors, and thereby promote the
purposes of the WPA. Further, without the ability to recover
reasonable attorney's fees and costs at the administrative
level, employees would be forced to seek redress in superior
court every time or to take an SPB decision on appeal to
superior court regardless of the outcome for purposes of
recovering reasonable attorney's fees.
WPA To Apply To Former Employee Who Would Have Been Covered
While Employed. SB 220 would expand coverage of the
Whistleblower Protection Act to protect former employees who
were covered by the WPA while they were employed by the state.
This is consistent with other whistleblower statutes, such as
Labor Code Section 1102.5, that apply to non-state agency
employers.
Administrative Law Judge May Issue Orders To Prevent
Embarrassment. According to the State Personnel Board, this
bill would codify a regulation adopted by the SPB regarding the
filing, investigation, and hearing of complaints of retaliation
resulting from a state employee's whistleblowing activities, as
defined. The regulation covers even multiple complaints and/or
respondents, and cases have been consolidated for ease and
efficiency or processing. This regulation applies to cases
where an appeal from an adverse action, rejection during a
probationary period, medical action, or non-punitive action is
consolidated with a whistleblower retaliation complaint, and the
whistleblower retaliation complaint identifies specifically
named individuals against whom damages or adverse action is
sought. Named respondents are given their due process right to
participate in the consolidated hearing "in such a manner as to
reasonably defend himself or herself against the allegations
contained in the whistleblower retaliation complaint." These
rights include the ability to present a defense separate and
apart from that of the employing agency, to conduct pre-hearing
discovery, to challenge the introduction of evidence, and to
examine and cross-examine witnesses.
The regulation currently authorizes the administrative law judge
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to "make such orders as may appear just in order to prevent any
named respondent from being embarrassed, delayed, or put to
undue expense, and may order separate hearings or make such
other order as the interests of justice may require." (Title 2,
Cal. Code Regs. Sec. 56.7(b).) SB 220 adopts most of this
language and makes such orders available to all cases rather
than available only to cases involving consolidated appeals and
hearings.
Prior Related Legislation : SB 1505 (Yee, 2008) passed this
Committee but received a form-letter veto by the Governor, who
asserted that last year's budget prevented him from paying
sufficient attention to the bill.
Author's Clarifying Amendments. In order to clarify and refine
provisions of the bill that may create confusion or
inconsistency, the author appropriately proposes to amend the
bill as indicated on the attached mock-up.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
California Association of Professional Scientists
California Nurses Association
California Psychiatric Association
California State Employees Association
California Statewide Law Enforcement Association
State Employee Trades Council
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334