BILL NUMBER: SB 650 AMENDED BILL TEXT AMENDED IN SENATE DECEMBER 15, 2009 AMENDED IN SENATE MAY 6, 2009 AMENDED IN SENATE MARCH 31, 2009 INTRODUCED BY Senator Yee (Coauthor: Assembly MemberHillPortantino ) FEBRUARY 27, 2009An act relating to real property, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately.An act to amend Sections 8547.10 and 8547.12 of the Government Code, relating to improper governmental activities. LEGISLATIVE COUNSEL'S DIGEST SB 650, as amended, Yee.Real property: City of Half Moon Bay.Disclosure of improper governmental activities: state colleges and universities: damages. Existing law, the California Whistleblower Protection Act, authorizes a California State University or University of California employee or applicant for employment to have an available action for damages caused by intentional acts of reprisal, retaliation, threats, or coercion only under specified conditions. This bill would also authorize an available action for damages, once a complaint is filed with a specified university officer, if the California State University or University of California either reached a decision, or failed, within time limits established by the trustees or regents, respectively, to reach a decision regarding the complaint. This bill would state that these provisions are not intended to prohibit an injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.The Bergeson-Peace Infrastructure and Economic Development Bank Act generally sets forth the duties and authority of the California Infrastructure and Economic Development Bank in administering various programs for economic development activities in the state. Bank activities may be funded through the California Infrastructure Bank Fund, which is continuously appropriated.This bill would require the bank to loan $10,000,000 to the City of Half Moon Bay to purchase certain property known as the Beachwood Property to assist the city relating to its settlement of a specified case, which would result in an appropriation.This bill would declare that it is to take effect immediately as an urgency statute.Vote:2/3majority . Appropriation:yesno . Fiscal committee:yesno . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 8547.10 of the Government Code is amended to read: 8547.10. (a) A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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. The complaint shall be filed within 12 months of the most recent act of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a University of California employee, including an officer or faculty member, or applicant for 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 up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university. (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 university employee, including an officer or faculty member, or applicant for 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 where 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, anyAn action for damages shallnotbe available to the injured partyunlessonly if the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university hasfailedeither reached a decision regarding the complaint, or failed, within the time limits established by the regents, to reach a decision regardingthat complaint within the time limits established for that purpose by the regents.the complaint. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months. (d) This section is not intended to prevent a 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 university employee, including an officer or faculty member, or applicant for employment if the 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. (e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the 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. 2. Section 8547.12 of the Government Code is amended to read: 8547.12. (a) A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the trustees, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, 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. The complaint shall be filed within 12 months of the most recent act of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a California State University employee, including an officer or faculty member, or applicant for 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 up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university. (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 university employee, including an officer or faculty member, or applicant for 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 where 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, anyAn action for damages shallnotbe available to the injured partyunlessonly if the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university hasfailedeither reached a decision regarding the complaint, or failed, within the time limits established by the trustees, to reach a decision regardingthatthe complaintwithin the time limits established for that purpose by the trustees. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months. (d) This section is not intended to prevent a 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 university employee, including an officer or faculty member, or applicant for employment if the 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. (e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the 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. (g) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action.SECTION 1.(a) Notwithstanding subdivision (d) of Section 63050 of the Government Code, the Infrastructure and Economic Development Bank shall loan ten million dollars ($10,000,000) to the City of Half Moon Bay pursuant to the procedures specified in Article 3 (commencing with Section 63040) of Chapter 2 of Division 1 of Title 6.7 of the Government Code to enable the city to purchase certain property known as the Beachwood Property. (b) This loan specified in subdivision (a) is made to assist the City of Half Moon Bay relating to its settlement agreement in the case of Yamagiwa v. City of Half Moon Bay (N.D. Cal. 2007) 523 F. Supp.2d 1036 involving certain property known as the Beachwood Property in the City of Half Moon Bay.(c) Prior to the disbursement of any funds, the City of Half Moon Bay shall obtain an independent appraisal of the Beachwood Property that conforms to the Uniform Standards of Professional Appraisal Practice.SEC. 2.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to timely provide essential relief to the City of Half Moon Bay as a result of the settlement agreement in the case of Yamagiwa v. City of Half Moon Bay (N.D. Cal. 2007) 523 F. Supp.2d 1036, it is necessary that this act take effect immediately.