BILL ANALYSIS
SB 220
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Date of Hearing: July 15, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
SB 220 (Yee) - As Amended: July 2, 2009
Policy Committee: JudiciaryVote:7-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill, as proposed to be amended , expands the protections
under the California Whistleblower Protection Act (WPA) and
makes several procedural and clarifying changes to the Act.
Specifically, this bill:
1)Permits the State Personnel Board (SPB), as an alternative to
undertaking an investigation in response to a written
complaint under the WPA, to issue a notice of a complainant's
right to bring a civil action if requested by the complainant
within 10 days following submission of a written complaint to
the board.
2)Authorizes the SPB to also order, for a successful
complainant, the transfer or placement of the complainant into
any vacant position for which the employee is qualified, and
reasonable attorney's fees and costs.
3)Clarifies that former state employees who would have been
covered by the WPA during their employment remain covered by
the Act as long as a complaint, consistent with current
provisions of the Act, is filed with the SPB within 12 months
of the most recent act of reprisal set forth in the complaint.
FISCAL EFFECT
1)Minor administrative cost savings to the SPB from avoided
investigatory workload as a result of WPA complainants instead
requesting right-to-sue notices.
2)The net impact of authorizing the SPB to award attorney's fees
should be potentially moderate savings in state litigation
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costs. This is because, according to SPB staff, if the SPB
finds that a plaintiff was a victim of retaliatory action
under the Act, that person typically will proceed to file an
action in court, where upon receiving a successful outcome (as
is typical following the board's finding), the plaintiff is
awarded attorney's fees and may receive punitive damages. With
the board specifically authorized to award attorney's fees
under this bill, it is less likely that a successful plaintiff
will proceed to file an action with the court.
COMMENTS
1)Background . The California Whistleblower Protection Act
prohibits state employees from using their official authority
to interfere with the rights of an employee 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. Under the Act,
whistleblowing by a state civil service employee or community
college employee is defined as either disclosing information
that an employee reasonably believes is evidence of an
improper governmental activity or refusing to obey an illegal
order or directive. The SPB accepts complaints from state
civil service or community college employees who believe they
have been subjected to retaliation based on the disclosure of
improper governmental activity.
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).
2)Purpose . This bill requires the SPB to issue a right-to-sue
notice if requested by the complainant within the specified
time period. 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.) According to the author,
"SB 220 will make the whistleblower retaliation hearing
process more efficient and effective by allowing
whistleblowers to opt-out of the administrative remedy.
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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."
3)Expanded Administrative Remedies . To make the administrative
option, rather than a civil action, more viable, SB 220 also
authorizes the SPB to order an employee found to have been
wronged by a violation of the WPA to include a transfer or
placement in a vacant position at the employees request and
consent. In addition, the SPB currently has no authority to
award attorney's fee in an administrative action. Conversely,
in a court action, an aggrieved employee can seek punitive
damages and the award of attorney's fees. Without the ability
to recover reasonable attorney's fees and costs at the
administrative level, employees are often forced to seek
redress in superior court or to take an SPB decision on appeal
to superior court, regardless of the outcome, for purposes of
recovering attorney's fees. SB 220 therefore authorizes the
SPB to award reasonable attorney's fees and costs.
SB 220 also expands coverage of the WPA 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.
4)Prior Legislation . In 2008, SB 1505 (Yee), which included
some similar provisions, was one of numerous bills summarily
vetoed by the governor without a stated reason.
5)Amendments . The author's proposed amendments simply address
chaptering issues with AB 567 (Villines).
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081