BILL ANALYSIS
SB 220
Page 1
SENATE THIRD READING
SB 220 (Yee)
As Amended July 16, 2009
Majority vote
SENATE VOTE :21-15
JUDICIARY 7-2 APPROPRIATIONS 11-5
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|Ayes:|Feuer, Brownley, Evans, |Ayes:|De Leon, Ammiano, Charles |
| |Jones, Krekorian, Lieu, | |Calderon, Coto, Davis, |
| |Monning | |Fuentes, Hall, |
| | | |John A. Perez, Skinner, |
| | | |Solorio, Torlakson |
| | | | |
|-----+--------------------------+-----+----------------------------|
|Nays:|Knight, Silva |Nays:|Nielsen, Duvall, Harkey, |
| | | |Miller, |
| | | |Audra Strickland |
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SUMMARY : Reforms the Whistleblower Protection Act (WPA).
Specifically, this bill :
1)Permits the SPB to issue a right-to-sue notice, upon request of
the complainant, if timely requested within 10 days of 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administrative complaint is withdrawn.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
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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.
FISCAL EFFECT : According to the Assembly Appropriations analysis:
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 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 : 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
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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"
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. 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).
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334 FN:
0001948